In December 2010, the Bombay High Court concluded arguments in a case challenging the constitutional validity of Section 31A of the Narcotic Drugs and Psychotropic Substances Act, 1985 that imposes a mandatory death sentence for drug offences upon subsequent conviction. 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.

Filed in June 2010 by the Indian Harm Reduction Network (IHRN), a consortium of NGOs working for humane drug policies, the petition assailed 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. Subsequently, counsil for the convict in Mumbai also filed a constitutional brief and the cases were tagged. 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.      

IHRN’s lawyer Anand Grover argued that – (i) a death sentence cannot be mandatory and, (ii) death penalty for drug crimes is arbitrary and disproportionate.  While the former argument finds precedence in Indian and International Courts, till date, no Court has accepted the second contention. On the contrary, Courts in Indonesia and Singapore have upheld capital punishment for drug trafficking.

Defending the impugned section, Additional Solicitor General D.S Khambatta maintained that trafficking in narcotics is more heinous than murder and that in prescribing the highest penalty for recidivism; the legislature expresses the collective will of people. He urged the Court to respect Parliament’s wisdom, which leans towards protecting society from drugs while side stepping rights of those dealing in drugs.

The matter is now reserved for judgment. A record of the Court’s proceedings, as well as pleadings in the case, are available on the Lawyers Collective website.