While the death penalty in itself is legal in India, the legality of 'mandatory death sentence' is still being debated. As per Indian law, there are two crimes which carry a mandatory death sentence.
1. Murder by a convict undergoing life imprisonment (IPC S.303).
2. Second conviction on drug offenses (Sec-31A NDPS Act).
In 1983, The Supreme Court of India overturned IPC S.303, deeming it to be unconstitutional [1]. Interestingly the NDPS Act was amended to provide for mandatory death only in 1989. However, due to the fact that no harm had been caused (i.e. no one was sentenced to die under the enhanced provisions), there was no cause of action for a legal challenge.
All that changed when in 2008, 2 people were sentenced to execution by courts in Mumbai and Ahmedabad respectively. Now an NGO has challenged the death penalty provisions of the NDPS Act in the Bombay High Court [2].
There are two issues that the court must consider.
1) Does mandatory death penalty violate the Constitution? - The Bombay High Court cannot overlook the 1983 Supreme Court judgment which struck down a similar law. The precedent is strong and fairly straightforward. No legislation can deprive a judge the power to impose a punishment lesser than death. In addition to the 1983 ruling, this law also runs counter to the 1980 ruling that death penalty be imposed only in "rarest of the rare" cases with proper discretion exercised by the judges. Clearly, not every second conviction for drug offenses can be termed "rarest of the rare".
As far as I remember the case of the individual convicted by the Mumbai court, he is a Kashmiri man, who was charged under this section twice for basically the same offense. After being arrested, he cooperated with the police and helped them find another huge consignment of drugs, who then slapped a second case against him. So going by that retard logic (of the police and the judge who convicted him), being caught with a single consignment of (say) 400 kg of heroin gets you a life sentence, but being caught with 2 consignments of 200 kg each can get you executed! This is clearly double jeopardy!!
I am absolutely convinced that the mandatory death penalty provision of this law will be struck down, and the 2 individuals on death row under this law will obtain relief at least to the effect of being heard again on the quantum of their punishment.
2) Does death penalty for a non violent crime violate the Constitution? - It is possible that the High Court judges might not be inclined to rule on this question. Otherwise, as per my opinion, it would be very difficult for them to defend the retention of capital punishment for drug related offenses.
The Union has argued that capital punishment for drug trafficking by law itself is a rare phenomenon. Citing the examples of neighboring countries, where death penalty can be imposed for possession of mere 2gm-25gm of heroin, in India death sentence can be invoked only if a person is caught with more than 1000gms of heroin in a repeat offense [3].
If the court is bold enough to rule against the constitutionality of this practice, then it would have ramifications for other laws as well, which allow for death penalty for crimes not involving murder (such as abetting the suicide of a child or an insane person). A positive ruling from the court could further limit the scope for capital offenses in India, and move the country one step closer to complete abolition!
That would be great!!
1. Murder by a convict undergoing life imprisonment (IPC S.303).
2. Second conviction on drug offenses (Sec-31A NDPS Act).
In 1983, The Supreme Court of India overturned IPC S.303, deeming it to be unconstitutional [1]. Interestingly the NDPS Act was amended to provide for mandatory death only in 1989. However, due to the fact that no harm had been caused (i.e. no one was sentenced to die under the enhanced provisions), there was no cause of action for a legal challenge.
All that changed when in 2008, 2 people were sentenced to execution by courts in Mumbai and Ahmedabad respectively. Now an NGO has challenged the death penalty provisions of the NDPS Act in the Bombay High Court [2].
There are two issues that the court must consider.
1) Does mandatory death penalty violate the Constitution? - The Bombay High Court cannot overlook the 1983 Supreme Court judgment which struck down a similar law. The precedent is strong and fairly straightforward. No legislation can deprive a judge the power to impose a punishment lesser than death. In addition to the 1983 ruling, this law also runs counter to the 1980 ruling that death penalty be imposed only in "rarest of the rare" cases with proper discretion exercised by the judges. Clearly, not every second conviction for drug offenses can be termed "rarest of the rare".
As far as I remember the case of the individual convicted by the Mumbai court, he is a Kashmiri man, who was charged under this section twice for basically the same offense. After being arrested, he cooperated with the police and helped them find another huge consignment of drugs, who then slapped a second case against him. So going by that retard logic (of the police and the judge who convicted him), being caught with a single consignment of (say) 400 kg of heroin gets you a life sentence, but being caught with 2 consignments of 200 kg each can get you executed! This is clearly double jeopardy!!
I am absolutely convinced that the mandatory death penalty provision of this law will be struck down, and the 2 individuals on death row under this law will obtain relief at least to the effect of being heard again on the quantum of their punishment.
2) Does death penalty for a non violent crime violate the Constitution? - It is possible that the High Court judges might not be inclined to rule on this question. Otherwise, as per my opinion, it would be very difficult for them to defend the retention of capital punishment for drug related offenses.
The Union has argued that capital punishment for drug trafficking by law itself is a rare phenomenon. Citing the examples of neighboring countries, where death penalty can be imposed for possession of mere 2gm-25gm of heroin, in India death sentence can be invoked only if a person is caught with more than 1000gms of heroin in a repeat offense [3].
If the court is bold enough to rule against the constitutionality of this practice, then it would have ramifications for other laws as well, which allow for death penalty for crimes not involving murder (such as abetting the suicide of a child or an insane person). A positive ruling from the court could further limit the scope for capital offenses in India, and move the country one step closer to complete abolition!
That would be great!!
Thanks for the tremendous insight, Abhay.
ReplyDeleteYou must be delighted, as am I, that the Bombay High Court has very recently overturned the death penalty for drug related offenses.
Speaking of drug trafficking, the issue is a hot potato in North America at the moment.
While the USA is struggling with overcrowded prisons and is seriously considering more lenient sentences for drug related crimes, here in Canada the majority-Conservative Government would invest on the war on drugs and toughen laws.
http://www.cbc.ca/news/politics/story/2011/06/17/pol-mandatory-minimums.html?ref=rss
Given that drug trafficking is not about to disappear, the cost of incarceration does in fact consume an astounding amount of our tax- dollars while social and educational programs are neglected for lack of funds.
Perhaps the war on drugs will take a similar turn in India now that a draconian measure like the death penalty has been overturned.
The fact remains that this is a momentous moment for India's judicial system, and your prognosis was both well developed and correct.