India strikes down mandatory death sentence for drugs

As of this month in India, it is a matter of judicial discretion as to whether a person facing a successive drug conviction will be put to death.

On Thursday 16th June, whilst I was finishing my A-levels, the Bombay High Court struck down the mandatory element of India's death penalty for repeated drug offences.

Across the world, 32 countries impose capital punishment for offences involving narcotic drugs and psychotropic substances. Of these, 13 countries (India having been one) prescribe mandatory sentences for such crimes.

Section 31 A of India's Narcotic Drugs and Psychotropic Substances Act (1985) enforced the death sentence upon those facing a second conviction for, 'engaging in the production, manufacture, possession, transportation, import into India, export from India, or transhipment, of the narcotic drugs or psychotropic substances' specified in the section.

As of this month, it is now a matter of judicial discretion as to whether a person facing a subsequent conviction will be put to death.

A division bench of justices A.M Khanwilkar and A.P Bhangale announced their judgement in a video conference, having been moved by a petition filed by the Indian Harm Reduction Network (IHRN) and second-time offender Ghulam Malik. Malik was found guilty of possessing a commercial quantity of hashish and awarded the death sentence on December 9th 2007, having been convicted for conspiring to smuggle 142 kg of the drug in 2004.

The IHRN argued that the mandating legislation opposed Article 21 of the Constitution of India (the Right to Life), claiming that a drug offence was not sufficiently heinous to incur death. Anand Grover, who led the case for the organisation, and Malik's advocate H.E Mooman declared that the provision was 'arbitrary, disproportionate and excessive'.

Grover condemned the mandated death sentence for preventing individualized sentencing, removing any scope for the consideration of mitigating circumstances, and emphasised that it took away the right of the convict to review the quantum of his sentence.

India's central government had defended the provisions in the Indian law by arguing that they were far less stringent than those in countries such as Bangladesh, Malaysia, Pakistan, Singapore and Thailand, where possession of a much lesser quantity of a banned drug was met with capital punishment.

The High Court nevertheless accepted that the notion of mandatory capital punishment was 'unconstitutional' with regard to drug offences, but also acknowledged that the scheme of the NDPS Act which was sanctioned cannot be ignored. Their conclusion was expressed in the following, 'We accede to the alternative argument of the respondents that the said provision be construed as a directory by reading down the expression "shall be punishable with death" as "may be punishable with death".

With this original motion, India's justice system has hopefully set a positive precedent for judicial authorities in the region. The IHRN however remain persistent, and Grover declares on their behalf that 'We will examine the decision fully to assess whether striking down the death penalty, as was done by the Supreme Court for Section 303 of the Indian Penal Code would have been more appropriate.'