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)
Keywords: drug trafficking, capital punishment, United Nations Human Rights Committee, Narcotic Drugs and Psychotropic Substances Act, NDPS Act
Myself being an anti-death penalty advocate, the justification against
any death penalty case would be that: 'An eye for an eye makes the whole
world blind'. Forgiveness should be the spirit. Even the most dangerous
criminal can be reformed. Moreover, India should accept and ratify the
International Understanding on anti-death penalty, even for the most
grievous crimes. Death Penalty too is killing someone and this amounts
to barbarism.
Countries such as the US make a distinction between different grades of drugs , as some drugs are much more addictive and dangerous than others. Heroin is one example, and some of those manufactured drugs.I'm surprised that these Indians are sentenced to death for marijuana offences. It's a real shame that countries where natural substances such as opium, marijuana, or coca have been used fairly harmlessly and as part of the culture for centuries are now taking the western 'hard on drugs' stand. It doesn't work anyway. I'm also sorry that western travellers in India have abused the availability and use of ganja or hashish, making it disreputable. But please, India, don't become one of those oppressive and repressive, jail filled societies. Spend the money on education instead. The death penalty is always a disgrace.
Killing someone or helping someone to kill himself is equal to a crime. This is what common sense and human sense says. The ones who are trafficking and helping such drugs reach each and every corner of the country are commiting a big crime. I am not a lawyer or an expert in law who can quote some court references or sections from the IPC. Instead I'm someone who is working on the issue of drug abuse for few years now and in a state which is one of the leading producers of charas/bhang.
The extent to which this problem has reached is heart rendering. Today kids in the age group of 10-12 have started taking drugs. In my own town more than 50% students (survey report) take drugs.
Neighbouring Punjab is in a bad shape. Youth there are head to toe in drugs. If we need to stop this menace from spreading we need harsh steps and stringent punishments. The new drug policy by the government is a welcome step but such supportive words the mafia will weaken the fight against drug abuse.
Drug peddling does not involve loss of life? Is this a joke?
500 mg of a narcotic drug bought or sold anywhere in the world causes more violence and loss of life in the part of the world where it is sourced than what could be caused by a mugging on the roadside!
It is the West led by the USA that has given "drugs" (though they
imbibe in alcohol and tobacco with no limit) a bad name, through
the influx into India, drug tourists from the USA, Europe and
Israel. They organise exclusive parties and "happenings" blaring
western music being "cool" but insensitive, abusive and
disrespectful to local norms. Prior to that, ganja, opium,
datura, psilocybins, etc., were seen as gifts from the almighty
for medicinal, ritual, spiritual purposes in India. In the
Colonial past the Westerners made fortunes out of "drugs" at the
expense of the easterners, using the proceeds to invest in the
development of their own countries. They forced drugs on the
Easterners then. Now, not only they force their convoluted
attitudes but also "encourage" their legal pharmaceuticals,
alcohol and tobacco on us. People know their
limitations and will use these wondrous herbs in the manner meant.
Capital punishment is awarded in the 'rarest of rare' cases. Here we
are talking about taking someone's life all together. Agree the loss
to the exchequer, the parent with a drug addicted child and clearing
the liabilities but there could be alternatives. A more successful and
an effective rehab center development, making the easy access
difficult, choking the point of entry and trafficking of drugs or
prohibitive measures like a significant term in jail and huge sum of
money as penalty and likewise. But awarding death is, in my opinion
and in accordance with the writer, even worse than an eye-for-eye
treatment.
Death penalty for Drug Pedaling? Total banning of substance will provoke the human mind to look out for counterfeit substances in whatever form they are available.This is happening with the liqour too as many lose their life every year by consuming illicit liquour.
Rather than providing capital punishment to the drug peddalers,Govertment should consider controlling the quality of the drugs,with that many more lives can be saved than given up.
Drug trafficking is one of the major crime. Author had analyzed this sensitive issue with candor. In some extent drugs taking lead to death. But capital punishment can not be the solution for a crime like drug trafficking. There are other methods to tackle this situation by social awareness.
Government should take seriously steps against marijuana supply from kullu and Kasol area in himachal pradesh.....this area is hub for the production of marijuana in North India.....many of our young youth taking these narcotics by saying that God Shiva prasad..this is wrong...how can that thing become prashad which make the human unconscious
I agree with Alpna Saini (comment above) that the authors have treated
such a sensitive subject with such deft. However, the question for me is
not so much the draconian aspect of the law itself, but the liberal
moral philosophy that we Indians were once proud of and how we want to
be as a modern society. Tradition, does not mean that we as a society
uphold every form of it, like Amir (comment above) pointed out about
Sati and child marriage. What is important is to uphold basic human
rights, foremost being the right to live and decide what we want.
@Rizwman - US has the death penalty for drugs (albeit a very high threshold), stringent mandatory minimum sentences in many states and some of the highest incarceration rates for drugs in the world. Look it up -- the US is notoriously strict despite some states use of medical marijuana. It also has the worst drug related murder rate in the developed world as well as ridiculously high problematic drug use.
We all know the ill effects of alcohol prohibition in Gujarat. The Gujaratis have become more enterprising in procuring liquour, thereby robbing the state exchequer of much needed revenue through taxes.Yet their alcoholism levels are on par with the rest of the country. Time to legalize some drugs and control the quality.
There should be no leniency when talking about peddlersand pushers . They destroy the victim and his kith and kin and put the victim into irredeemable habit which will make the individual take to all crimes including murder and rape. It is better to nip this crime in bud so that our country doesn't follow the horrible western malady.
For god-sake, don't bring Hinduism and culture into this discussion.( I am not a Hindu but a good Indian Muslim) We are not living in caves and we cannot take shelter in the age-old traditions. Hinduism does have a history of SATHI and child marriages. Are we going to go back to those days? Hinduism has countless wonderful aspects of life to teach and this is NOT an issue at all. Wake up and see the reality. Drug like corruption and racism, in any form is evil and this should be tackled like the South=east Asian Nation. Just put an end to an end to it. A drug pusher is NOT an asset to any country. He will be a liability. Clear the liabilities.
It is really a bit flippant to suggest that drugs do not pose a big problem to
society. The author is also incorrect in suggesting that cannabis does not pose any health risks as regular use is known to damage the brain. Nevertheless, the author is correct in opposing capital punishment for all drug-related offences. The judicial system is meant to hand out punishments commensurate with the offence and keeping in mind any mitigating circumstances. The majority of those actually apprehended in drug-related offences are the "mules" - the poor couriers resorting to these means to keep body and soul together. Tackling drugs would require us to make considerable efforts at various levels - social, educational and legal.
Luckily, India is not a lucrative market for drug peddlers yet as the purchasing power of the people is relatively low and there is some amount of stigma associated with drug use. As conditions change, we'll need to adapt to ensure that the drug problem remains marginal.
Will-full negligence causing harm/damage to other peoples lives deserves
capital punishment not when there is a consensual self destructive act. A
drug peddler does not claim his drugs to be life saving or harmless and at
the same time the drug user is usually well aware of the health hazards of
its use. I see no deceit or fraud committed here, just a facilitation
towards an pre-decided self abuse or provision of choice to commit to a
bad decision. This can be witnessed in every case of substance abuse - eg
Cigarette, Alcohol etc. I would equate death penalty for a drug peddler to
killing the messenger - Both unethical and ineffective.
I also view drug abuse as either a lapse of judgement or act of suicide.
In both cases the person never deserves capital punishment rather he needs
help. Now the existing situation can be visulaised as - you try to commit
suicide and the law kills you because committing suicide is illegal.
First of all individuals who talk about use of drugs in the name of spirituality have very little understanding of the word 'Spiritual'. Also, how can we forget Opium war of China that devastated the youth of the country? Last but not least use of drugs as an addiction has its adverse impact not only on the addict but also on the society too. How a brain which is in control of a narcotic substance can take right decisions. Although, all this is true the solution is not capital punishment. Instead, education boards of India should ensure that children from sixth grade onwards should be introduced with a mandatory subject that should focus on societal responsibilities of an individual apart from earning money. Also parents should be more vigilant and ensure that the family atmosphere is conducive enough for children to share these issues. A well informed and disciplined youth can only make this planet a better place to live.
I am agree with Cosmo. Defnitely the drug traffickers need harsh punishment but Fake drug manufacuteres (Medicine Manufacturer) deserve much harsh punishment.
Govt. should amend law for this also.
What exactly are the lawmakers trying to prove by having such harsh punishments
for drug peddling? In a country like ours where cannabis and opium have been
openly used for so long, does it make sense to declare trading these things
punishable by death. This looks like a cultural thing to me and people should be
able to decide these things for themselves.
to prohibit any type of behavior (in this case consuming drugs) that
does not infringe upon rights of other people is imply contrary not only
to common sense but also contrary to any kind of rightful use of
lawmaking. The purpose of giving laws is basically safeguarding people
of infringements of their rights. Where there is no infringement nothing
has to be prohibited.
The article is very good. But i would like to add that Drug
addiction is a failure on part of our society. The social control
has weakened over a period of time and the youth is heavily getting
attracted towards lethal drugs. It has been linked with status. Even
here also it is the poor who suffer the most as Rich can afford the
medical cost while poor has no option but to die slowly. The
government has been very lazy in ensuring drug trafficking, mere legislations won't ensure results.Punishment along with recreation
and counselling can together bring a change in outlook and perspective, "love life and hate drugs" must be taught from
childhood. Only love and affection can help the youth from falling
into clutches of drugs. societal control is a necessary along with
legal skeleton.
When I was pursuing my undergraduate degree, I used to hear several
incidents of people buying and smoking marijuana (well, let's admit
it, they were all students). If the new rulings make any sense, then
every peddler of these drugs should be executed. Why don't you
persecute those citizens who partake drugs, illegaly? 'The so-called (ahem...) leaders and the so-called juries,
please "wake up".' This is a deeper malaise that is affecting our
country and culture. Introduce stricter rules for illegal supply and
purchase of narcotics, whilst considering genuine cases where drug
usage is necessary for medicinal purposes.
Manufacturing and selling fake medicine carries a much less punishment than drug peddling. Both are acts are bad, but surprisingly the law makers have made the hard law carrying a big punishment(death sentence)only for drug dealers, not for those who manufacture fake drugs. I think it might be because of the nexus between these fraudsters and the other fraudsters(read politicians) or the fact that the politicians are apathetic to the plight of the masses.
I appreciate the unbiased and non-judgemental treatment of a sensitive issue such as drug use and abuse by the authors. Ultimately everything boils down to social stigma attached with drugs. For instance, no one disparages the free marketing policy of alcohol and tobacco as they form important signifiers of social hierarchy. Social drinking and smoking is pretty common in middle and high social stratas. In Rajasthan, the use and sale of Cannabis is legal and even state-government controlled, while in other states its an illegal offence. This does not change the fact that consumers all over India are able to procure their poisons without legal obstructions. Moreover, like alcohol and tobacco, other non-lethal drugs could be a source of income for the governments if legalised and would also stop consumers from resorting to illegal means for procuring them. Death penalty for possession or marketing of non-lethal drugs is highly incongruous in a country which professes non-violence.
The article reeks of FUD. It tries to juxtapose 2 different things as a singluar thing. The death penalty is not for possessing drugs for personal use. The death penalty is for "trafficking" which means to sell drugs illegally in large quatities. The tradition of consuming drugs as illustrated by the author is debatable, the traditional consumers never carried 5 Kg of Cannabis and sell it to underground markets. This is a classic case of mixing up facts delibrately to gain sympathy by showcasing examples from "instance A" to argue against a law that is designed to tackle "instance B".
If anything has to be banned then it is tobacco first. Some of these drugs do much less harm then tobacco and if used moderately help a human being. But Govts across the globe made tobacco legal and these drugs illegal as the people in govts are paid out by the big tobacco companies to make these drugs illegal.
Drugs and drug dealing is a scourge that can bring down a mature and
intelligent society to intolerable levels of depravity. Let the author
put himself in the shoes of a parent whose child has fallen victim to
the drug habit; or of a man whose formerly sober friend is now a nervous
wreck and drug addict. Then let the author speak for the rights of those
who would deal in drugs.
Singapore and Malaysia are one of the very few countries in the world
where a draconian anti-drug policy has resulted in the eradication of
drug dealing and the associated merciless killing sprees of the drug
cartels. The United States has a lenient law, and thereby spends
billions in a futile attempt to control the drug trade. Mexico has paid
an enormous cost in lives lost, corrupted society and police on this
account. Do we want the same in India? The answer of all right thinking
Indians should be a resounding NO.
India cannot afford to play with fire as our very existence as a nation
is at stake.
"Countries with some of the strictest drug laws in the world — that is, the United States". This must be a joke. In many states in US, marijuana has been legalized because smuggling couldn't be checked and the local governments wanted to make money out of it. Even high school kids now know how to "buy" dope from legalized stores. And these stores have "Doctors" who can "check" if you have chronic pain and can recommend you a "card" using which you can buy marijuana.
Drugs are dangerous than any other crime - murder, theft or you name it. It has the potential to destroy generations. Because of legalized marijuana in USA, the number of babies born with addiction to these drugs has risen because their mothers were addicted. Now, who is to be punished for this crime to a new born? The mother or the one who got the drugs to the mother? I cannot post the reference link (because of comment rules) to prove the above,but it is a reality. Say NO to drugs dealers.Society doesn't need them.
Death penalty for the use or sale of drug is more cruel than the crime. Humanitarian considerations are needed for drug users and sellers. Even while using or selling drugs result in death of a person, death penalty is not justifiable. If more than one person is killed by drug use or drug pedling or the drug was intentionally used to kill a person, death penalty is justified similar to any other type of murder. Yet the severety of the punishment should not exceed the cruelty of crime. If a doctor prescribes a medicne or drug wrongfully resulting in inadvertant death of one person, the doctor should not have capital punishment. If the doctor intentionally killed a patient, then the doctor deserve death penaly just like any other murder. The intension to kill and inadvertant death should have different criteria for punishment. In Iran, Saudi Arabia, Singapore and other countries, the minimum and maximum punishment for drug use or drug pedling is death penalty which is inhumane.
As much as I would love to agree with what you wrote, how could you
ignore the disastrous (even fatal sometimes) consequences of drug on the
younger generation. Sometimes, you got to take the intangible impact of
certain crimes instead of going just by the face-value. According to me
and a hell lot of other people, death sentence for drug trafficking is
ideal justice.
Marijuana ought to be legalized. Even Hindu mythology portrays partaking
of 'SOMA' as a way to experience spiritual bliss. Its a travesty that we
let our culture be overtaken by imposed values of what is right and what
is illegal.
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