Constitutional challenge to the death penalty for drug offences

In December 2010, the Bombay High Court completed hearing arguments in a case challenging the constitutional validity of Section 31A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) that imposes a mandatory death sentence for drug offences upon subsequent conviction. One of the most stringent laws in the country, the NDPS Act incorporated this provision in 1989 amidst heightened paranoia around drugs. Currently, two men are facing death for a repeat crime of trafficking in charas [cannabis resin], after being sentenced by Special Drug Courts in Mumbai and Ahmedabad, respectively.

Conceived and drafted by the Lawyers Collective HIV/AIDS Unit, the petition was filed in June 2010 by the Indian Harm Reduction Network, a consortium of NGOs working for humane drug policies. The petition assails the law for infringing fundamental rights under Articles 21 (protection of life and liberty) and 14 (equal protection of law) of the Constitution of India, read with Articles 6 (protection from arbitrary deprivation of life) and 7 (prohibition against cruel, inhuman and degrading punishment) of the International Covenant of Civil and Political Rights.

The petition contends that a mandatory death sentence is unlawful as it precludes judicial discretion, prevents individualized sentencing and denies the accused the opportunity to be heard on the question of sentence. These procedural requirements cannot be eliminated as they are important safeguards against arbitrariness in the criminal justice system.

The petition also questions the appropriateness of a death sentence for drug trafficking, which does not constitute the “most serious crime” in international human rights law. In India, life imprisonment is the norm and death the exception for the offence of murder. But for drug crimes, which do not involve the taking of life, death is the norm, without any exception.

The Respondent – Government of India was represented by the Department of Revenue and the Narcotics Control Bureau, agencies that design and execute the country’s drug control measures.

Pleadings in the case as well as a record of the Court’s proceedings are available here.

The matter is now reserved for judgment.


Indian Harm Reduction Network v Union of India

Government's Affidavit

Indian Harm Reduction Network's Rejoinder

Record of Proceedings for Indian Harm Reduction Network v. Union of India

Written Submissions