Death Penalty under Section 31A of NDPS Act, 1985.

No individual has the right to take the life of another unless done in accordance with the due process of law and in the best interest of the general public. The Narcotic Drugs and Psychotropic Substances, Act, 1985 (NDPS Act) has been criticised heavily for its stringent punishments, including that of an award of the death penalty to repeat offenders under Section 31A of the Act. Framed with the intent to combat drug trafficking, it forbids and criminalises the cultivation, production, sale, purchase, possession, use, consumption, import and export of narcotic drugs and psychotropic substances. Across the world, 32 countries impose capital punishment for offences involving narcotic drugs and psychotropic substances. However, the choice of the death penalty by these countries has been resented by various national and international agencies like Amnesty International which holds a firm opinion opposing the act of taking away someone’s life. However, India being a country located between the world’s biggest drug trafficking countries along with a considerable section of the population living in poverty has faced numerous challenges in combatting the issue.

India’s Stance on the Award of Death Penalty

Death penalty paved its way into the NDPS Act for the first time in 1898 wherein a mandatory death award was introduced for an individual convicted for involvement in narcotic crime for more than one time. It is also important to bear in mind that nothing in the Indian Constitution holds death penalty as unconstitutional. Under Article 47 of the Indian Constitution, the state shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. Therefore, the country witnessed the inclusion of a mandatory death sentence for repeat drug offenders. The courts have also observed that an order of death sentence can only be given in the rarest of rare cases which could be determined after paying consideration to the circumstances of the case and the character of the individual as stipulated in Bachan Singh V. State of Punjab by the Supreme Court. However, the Court also stated that the death penalty for murderers who do not fall into the narrow category is constitutionally impermissible. ‘Most serious crimes’ does not include narcotics offences for an award of the death penalty as per international recognition. Through the Amendment of 2014, death penalty under Section 31A of NDPS Act was incorporated with an alternative of imprisonment for 30 years under Section 31 of NDPS Act.

According to Article 6(2) of International Convention on Human Rights in countries which have not abolished death penalty, a sentence to death should only be awarded for the most serious crimes after paying due regard to the laws in force at the time of the commission of the crime, which are not contrary to the provisions of Covenant and Convention on the Prevention and Punishment of the Crime of Genocide. Therefore, awarding such punishments should only be pursuant to a final judgement rendered by a competent court. Agreeing with the view, a Division Bench of the Hon’ble Bombay High Court comprising Justice A M Khanwilkar and Justice A P Bhangale in 2011, declared Section 31A of the NDPS Act to be unconstitutional and made the award of death at the discretion of the judge. Judicial discretion for a sentence in the matter of life and death is a hallmark of a just and fair procedure within the meaning of Article 21 of the Constitution. However, it has the potential to involve subjectivity and influential political motives considering the pressure posed by the stand of international organisations like Amnesty International and United Nations Human Rights Office of High Commissioner against the death penalty and the profit received through illicit trafficking of drugs, which can pose a great peril to the survival of the society.

Addressing the age-old debate between the Abolitionist and the Retentionists, the Bombay High Court recognised that when questioning the procedural aspects of the said problem, Indian statutes and Constitution have imbibed various safeguards to ensure the elimination of chances of an innocent person being convicted for capital offences. The court further clarified that collection of statistics that would prove the deterrent impact of capital punishment is difficult if not impossible, as they may remain hidden in the innermost recesses of their mind. Therefore, making it sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the argument that retention of the death penalty in the impugned provision, is totally devoid of reason and purpose.

The Need for Death Penalty for Repeat Offenders

India is a culturally diverse country. Geographically, it is located between Pakistan and Bangladesh which are closely connected to the world’s two largest illicit drug dealing countries i.e. Afghanistan and Burma making India a southern trade route for the transport of drugs.  The Ministry of Social Justice and Empowerment has conducted nation-wide drug surveys, published in 2019, the results of which suggest that drug use in India continues to grow unabated. Opioid use has increased from 0.7 per cent in the previous report to a little >2 per cent in the present one – in terms of magnitude from two million to more than 22 million.

The breakdown of traditional social capital, backed by the influence of modernisation, has resulted in a large-scale movement from rural to urban facilities. This has resulted in large scale trafficking of drugs and an increase in the consumption of narcotics for non-medical purposes. The impact of the same can be seen in light of the relationship between drug consumption and the commission of a crime by juveniles. A medical review conducted by Institute of Human Behaviour and Allied Sciences (IHBAS), the Department of Psychiatry at Dr Ram Manohar Lohiya Hospital, and Pushpawati Singhania Research Institute concluded that out of the total juvenile under-enquiry booked under crimes, over 87 percent had a history of substance abuse. The consumption of cannabis and tobacco was higher than other drugs and were found among convicts for more serious crimes.  Only when symptoms of unruly behaviour, vomiting and instances of self-harm are reported do the prison authorities conduct narcotics tests for such prisoners. Major reasons given by the youth for the consumption of drugs were stated as experiment, curiosity and being in the company of those who consume drugs and easy access to such substances within the prison.

Apart from having medical, economic and social implications, drug abuse also poses a threat to the governance of the State. The deterrent impact of punishments awarded for drug offences is rather limited because a portion of the convicts are smugglers at the lower level of trade while the affluent and politically powerful individuals at the top remain immune from the law. Through corruption and abuse of political contacts, narcotic drugs are also supplied to the prisoners via. smugglers under the nose and approval of the prison authorities. Despite the Punjab state prison department’s claims refuting the presence of drugs in jail, all kinds of drugs, including heroin, smack, opium, injections and tablets are being openly smuggled into jails. The magnitude of the trade can be gauged from the fact that one of the drug retailers inside the jail, Kamal Fantu, stabbed another undertrial at the court lock-up two years back. The victim was a robber and he had engaged in a tiff with Fantu’s associates asking for his share in the sale of drugs. Therefore, proving that an alternate award of life imprisonment in substitution of the death penalty does not lead to deterrence but in turn, creates more opportunities for consumption and trade of psychotropic substances. In Union of India Vs. Ram Samujh and   Ors., the Supreme Court opined that,

“even if drug offenders are released temporarily, in all probability, they would continue their nefarious activities of drug trafficking and/or dealing with intoxicants clandestinely. Reasons may be large stake and profit involved.”

The Court explained that,

“it should be born in mind that in murder, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or a death blow to a number of innocent victims who are vulnerable.”

Thus, the court stressed on the need for the retention of a mandatory death sentence.

In the case of Indian Harm Reduction v. Union of India, it was observed that in a certain class of cases, the death penalty is validated on the grounds of social justice. A man holds out a continuing threat to the survival of the society if, by his actions, he not only murders but also causes great peril to the survival of the society. So, a test to determine the award of the death penalty is to find out if a murderer offers a traumatic threat to society.  A drug dealer who is intentionally involved in the illicit manufacture and trade of narcotics and psychotropic substances indirectly indulges in the act of causing loss of life with a monetary motive and is a violator of societal security making his extinction empirical for society’s survival.  Thus, the tendency of the commission of a crime and the deleterious impact of offences under the NDPS Act calls for a stringent punishment in order to break the cycle of drug trafficking without a license.

Conclusion

Created with an aim to free the country from the endless loop of drug abuse, the NDPS Act is often referred to as an Act which is an outcome of a hasty piece of enforcement resulting from political pressure and which imposes harsh punishment for offences. Insufficiency of rehabilitation facilities and increasing rate of substance abuse amongst teenagers has posed a challenge to the Act. The National Mental Health Survey (2015-2016) showed a treatment gap of >70 per cent for drug use disorder. Punjab is often referred to as the land of drugs and has witnessed generations being wiped out due to illicit trafficking of drugs by smugglers and its heavy consumption by those who have been ignorant to the existence of such substances.  Under such circumstances, leniency towards offenders, especially those who have had past involvement in illegal narcotic abuse poses a threat to not only the citizens of India but also the governance of the state. The Hon’ble Bombay High Court by making the award of death penalty subject to the opinion of the judges has made the hold of the Act weaker. This opened the doors for new entrants to join the sale and manufacture of non-medically approved psychopathic substances.

With corruption prevailing at all levels of operations, it is easy for offenders to find ways to be immune from an award of punishment. Although Amnesty International does not recognise drug offences as being a ground for capital punishment, India has to view the award based on the interconnection that narcotics supply has with the commission of other crimes. In addition to witnessing economic, legal, social and health consequences of drug abuse, Injection Drug Users (IDUs) have also suffered from abscesses in superficial veins, HIV infection and Hepatitis B among many health repercussions acting as a warning bell for the country.