Abolish Death Penalty India: Say NO to death for drugs-The Hindu -Op-ED

Saturday, February 25, 2012

Say NO to death for drugs-The Hindu -Op-ED

February 23, 2012
Handing down capital punishment for an offence that does not take life is draconian and violates all international human rights standards.

When Paramjit Singh was sentenced to death for drug trafficking last month, he joined two other accused narcotics offenders on India's death row (despite reports that it was “a first” and “a landmark judgment”).

The jubilatory tone in some media was disappointing and, in some respects, it was surprising that the case didn't generate more controversy. The death penalty for drugs has been a subject matter of intense debate — centring on the question of whether the state can take life for an offence that does not involve the taking of life. The opinion of most international experts (as well as the overwhelming majority of states) is clear that drug offences do not warrant death sentences.

India has a long history of opium and cannabis use, especially in medicinal, spiritual and social contexts. Serving opium is an age-old tradition in many parts of the country that marks respect for guests. Yet, this social propriety turned into legal impropriety with the enactment of the Narcotic Drugs and Psychotropic Substances Act (NDPS) in 1985, in order to comply with international agreements. The NDPS Act prohibits cultivation, production, manufacture, possession, sale, purchase, transport, import, export, use and consumption of narcotic drugs and psychotropic substances, except for medical and scientific reasons, under license.

In 1989, barely four years after its introduction, the NDPS Act underwent amendments to incorporate harsher provisions, including mandatory death penalty upon subsequent conviction, if the quantity of contraband exceeds the threshold under Section 31A of the Act. The offender's circumstances — whether young or old, sick or mentally infirm, socially and economically disadvantaged or acting under duress or pressure — were irrelevant in sentencing. The death sentence is applied uniformly, irrespective of whether the convicted person is a carrier, an intermediary, organiser or lead player in the drug trade.

That this was contrary to the Supreme Court's ruling in 1983 in Mithu where mandatory death penalty was held to be unconstitutional, did not cut ice with lawmakers. The moral panic surrounding drugs forestalled any criticism of this draconian provision.

A constitutional challenge in 1998 was disallowed, as no one had been sentenced to death for a drug crime at the time. Ten years later, two men were sentenced to death in separate cases for possession of charas or cannabis resin. Subsequently, the Bombay High Court read in judicial discretion and empowered the sentencing Court to award a sentence other than death.

While the death penalty is not prohibited in international law, international human rights authorities have clarified certain conditions associated with its application. For example, it should not be imposed on juveniles or pregnant women. These standards also stipulate that only certain offences — or ‘most serious crimes' — should be eligible for capital punishment, an expression that has been understood to mean crimes that involve the intentional taking of life.

Drug offences do not involve killing or taking of life. Though serious, drug dependence can be addressed with counselling, treatment and aftercare. The twelve drugs that attract capital punishment under the NDPS Act are not similar in their addictive potential, deleterious effects or therapeutic value. Two of these drugs — Morphine and Codeine — are included in the National List of Essential Medicines, 2011 for their analgesic properties. Cannabis, which is also part of the list, neither causes death nor results in serious physical or psychological impairment.

Internationally denounced

The United Nations Human Rights Committee (UNHRC) has held that drug trafficking is not the “most serious crime” under international law. In 1997, the UNHRC asked India to “limit the number of offences carrying the death penalty to the most serious crimes, with a view to its ultimate abolition”. Significantly, the United Nations Office on Drugs and Crime, the agency that oversees drug control measures globally has denounced capital punishment as a means to contain illicit trafficking and called upon Member States to abolish the death penalty for drug-related offences.

India has consistently ignored these opinions.

In the seminal case of Bachan Singh in 1980, the Supreme Court upheld the death penalty under Section 302 of the Indian Penal Code, 1860 for murder — an act that puts an end to life. It is on the principle of retributive justice that the court regarded death penalty to be constitutional, with a further qualifier that it can only be imposed in the “rarest of rare” case. The badge of constitutional validity does not mean that the legislature can prescribe this extreme punishment indiscriminately and ignore international legal and human rights standards.

Anti-narcotics campaigns have often tended to label drug offences as being worse than homicide. Such observations are mere rhetoric and not backed by scientific evidence. They stem from the much hyped “war on drugs”, whose failure has been documented in many studies, including the findings of the Global Commission on Drug Policy last year. Exterminating drug offenders does not address the problem of illicit drugs. Iran executes hundreds of drug traffickers every year and yet the country has one of the most severe opiate addiction problems in the world.

In any event, it is notoriously challenging to measure deterrence with something as varied and pervasive as drugs. Countries with some of the strictest drug laws in the world — that is, the United States, Russia and Iran — also have some of the highest rates of problematic use and drug related harms. This is not to say that some strict countries do not also have low rates of drug use. It is only to say that the death penalty is not automatically a deterrent. In fact, when one compares jurisdictions all over the world, it appears the death penalty and drug use do not have much to do with each other.

In the meantime, the fate of the three men sentenced to death for NDPS offences hangs in balance. In each of their cases, capital punishment was triggered by the quantity of drugs found, the calculation of which is subject to error and controversy vis-à-vis the actual content, extent of impurities and presence of neutral materials in the narcotic drug or psychotropic substance.

Parliament is presently reviewing amendments to the NDPS Act. Will the rhetoric of ‘tough on drugs' prevail once again? Or will India be able to act as a mature and responsible society which limits the offences for which the State can execute men? It is an acid test for drug policy reformers as well as anti-death penalty advocates, both of whom would like to see India move in the latter direction.

(Anand Grover is a senior advocate and director of the Lawyers Collective, based in New Delhi; Rick Lines is the executive director of Harm Reduction International, based in London. E-mails: anandgrover@gmail.com, rick.lines@ihra.net)

1 comment:

khushbooMarch 25, 2012 at 2:48 AM
can governor award pardon to an retired IPS officer who started consuming drug coz of his personal reasons? if yes then what r d circumstances?
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The Death Penalty Scenario in India

India is one of the 193 countries that retains death penalty. There has always been a few imminent judges who have pronounced compelling verdicts upholding the rights of prisoners on death row. There has been increasing debate in various platforms advocating abolition of death penalty or at least to rethink sentencing policies in India. The Indian government has however always been committed to the retention of the death penalty, irrespective of their political ideology. India has voted against a United Nations General Assembly (UNGA) draft resolution on the use of death penalty, saying it goes against the statutory law of the country where an execution is carried out in the "rarest of rare" cases. India retains the death penalty as punishment for a number of crimes including murder, kidnapping, terrorism, desertion, inducement to suicide of a minor or a mentally-retarded person and has more recently in 2013 come to include the offence of rape in certain circumstances. Most recently, there is an outrage over child rape and murder.

After observing an unofficial moratorium of 8 years in India, the Indian Government in November 2012 carried out the execution of Ajmal Kasab, convicted in the Mumbai attacks case, without public knowledge. This was followed by the secret execution of Afzal Guru, convicted in the Parliament attack case of 2001, in February 2013, under similar circumstances, without intimating his immediate family or affording a chance of judicial review. In both cases, the executions were carried out under covert operations conducted by the Government immediately upon rejection of their mercy petitions. Before these executions, the last execution to be carried out in India was that of Dhananjoy Chatterjee in 2004 who was convicted of rape and murder and which sentence was carried out after he had spent 13 years in solitary confinement. Following this, several mercy petitions of death row convicts have come to be rejected. The fear of execution of such convicts is imminent. Bolstered by the Government's unapologetic conduct and public outcry, especially in recent cases of rape and murder reported in the country, the courts are continuing to hand down death sentences at an alarming rate.

In the recent past, there have been a few empirical studies (mainly four) conducted with prisoners on death row. This has highlighted the situation of prisoners on death row.

(1) Most recently the India Exclusion Report 2017-18 found that fair trial rights and guarantees are reduced to a nullity and seeks to breach the citadel of the collective silence. It further said that Convicts on death row in India belong to groups marginalised along the axes of caste, religion, economic vulnerability and educational deprivation, and their fair trial rights, though a part of the Right to Life guaranteed by the Constitution, are invariably non-existent, a survey of 371 out of the 385 persons living under the death sentence and their families has revealed.

(2) Another study was The Death Penalty Research Project (2015) which was conceived with an aim to document the socio-economic profile of prisoners sentenced to death in India and map their experience within the criminal justice system.

There were two other academic studies that were done conducted by Dr. Reena Mary George –

(3)“Voices of prisoners surviving the death row in India” (2014) done through the University of Vienna under the guidance of Prof. Dr. Christoph Reinprecht (Sociology) and Prof. Dr. Manfred Nowak (Law and Ex-United Nations Rapporteur on Torture). George’s research highlights three salient features, namely: poverty, social exclusion and marginalisation are antecedent to death penalty; death penalty is a constructed account by the state machinery; and prisoners on death row situate dignity higher in the juxtaposition of death and dignity.

(4) Another one “Death Penalty – A Human Rights Perspective” (2009) done through the University of Mumbai under the guidance of Retired Justice Hosbet Suresh. This was a study in Maharashtra with the objectives to firstly study the impact of death penalty on the social, mental, and physical being of the inmate and secondly, to study the perception of opinion leaders on death penalty with reference to human rights. All the above reports are public documents.

According to the National Crime Records Bureau, Prison Statistics 2015, there are 101 prisoners sentenced to death. The actual figure of sentences originally awarded is much higher considering the death sentences of 49 convicts came to be commuted to life imprisonment in the said period. As of today, almost in 2019, the figures are unknown through government statistics, however, research centres claim this figure to be around 371 convicts. During the 1980s the Supreme Court sought to restrict the use of the death penalty by characterizing it as a punishment reserved only for the “rarest of the rare” cases. The doctrine has not had the desired effect. According to a former chief justice of the Delhi High Court, Rajindar Sachar: “after the rarest of rare doctrine was introduced in 1980, the Supreme Court confirmed death penalty in 40 per cent of cases in the period 1980-90 while it was 37.7 per cent between 1970 and 1980. For the high courts it rose from 59 per cent in 1970-80 to 65 per cent during 1980-90”. Over the past two decades the death penalty has been extended to include more crimes and been handed down with increasing frequency.

Most recently while commuting a sentence in Supreme Court (2018), Justice Joseph did not seek the reconsideration of the Bachan Singh judgment, but only sought to re-examine the purpose and practice of the death penalty, and whether as a punishment, it serves any goal at all. In other words, the death penalty can continue to remain constitutionally valid because of the Bachan Singh judgment, but its application in substantive cases coming before the court must be restricted to only those cases which meet the criteria laid down in that case.

While updating the blog and conducting my own empirical studies, I observed the heinous nature of the crimes that were committed and thought about the families, about their loss, about the victims who for no fault of their own died. If I lost my relative or a dear friend, would I still oppose death penalty and would I still advocate to abolish the death sentence? Having worked in the criminal justice system and also having the seen the other side, where often it is the marginalized, vulnerable and oppressed who are on death row makes me want to advocate for abolition of this punishment. Victims should definitely get justice for their loss, for their pain. No one should escape the rule of law. As long as humanity exists; crime will exist. Should we not re-consider our sentencing policies?

Reena Mary George