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.
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: firstname.lastname@example.org, email@example.com)
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