February 2012: A Chandigarh district court sentences Paramjit Singh, caught with 10kg of heroin in 2007, to death. In 1998 he had been nabbed with 1.02kg of heroin.
February 2008: An Ahmedabad sessions court sentences Omkarnath Kak, caught with 28kg of charas in 2003, to death. In 1988, Kak had been arrested for possessing 40kg of charas.
December 2007: A special court in Mumbai awards death to Ghulam Malik, caught with 142kg of hashish in 2004. Around 1.8kg of hashish had been recovered from Malik on an earlier occasion.
In India, three men have been sentenced to death for drug trafficking. However, these judgments have raised a debate among narcotics officials and human rights lawyers on the seriousness of drug trafficking as a crime. Is it grave enough for capital punishment? No, say the activists. Yes, argue the officials.
Drug trafficking is worse than murder because drug abuse leads to long term harmful physical and psychological effects, the pro-death advocates hold. But the activists point out that drugs do not kill and that the death penalty should only be upheld in the “rarest of rare” cases.
“Drug trafficking does not involve the actual or intentional taking of life. So drug crimes cannot be made punishable with death,” says advocate Tripti Tandon of the Lawyers Collective, a group that provides legal aid on human rights issues.
In 1997, the United Nations Human Rights Committee asked India to “limit the number of offences carrying the death penalty to the most serious crimes, with a view to its ultimate abolition”. 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.
But narcotics officials disagree. “Drug addiction is slow poisoning. A large number of youth across India is subjected to drug abuse. It is almost killing off generations,” says a senior official in Delhi’s Narcotics Control Bureau (NCB) — the country’s chief law enforcement and intelligence agency fighting drug trafficking.
“Over a period of 10 years, more than three lakh cases have been registered under the Narcotic Drugs and Psychotropic Substances (NDPS) Act but there have been just three death sentences,” the official says. “The law doesn’t seem to be as harsh as is being made out to be.”
According to Section 31A of the NDPS Act, death sentence is awarded to a drug trafficker who has been convicted once under the NDPS Act for “engaging in the production, manufacture, possession, transportation, import into India, export from India or trans-shipment, of narcotic drugs or psychotropic substances.”
The NCB official says: “In addition, death penalty is given only when certain quantities of specified narcotic drugs and psychotropic substances are seized from the offender.”
Paramjit Singh, the prosecution stresses, was not a first time offender. “He was first caught in 1998 and was out on parole in 2005 for a month. But after his parole was over, he started trafficking drugs again,” says NCB counsel Kailash Chander.
According to the National Crime Records Bureau (NCRB), drugs and narcotics worth Rs 19.51 crore and Rs 17.05 crore were seized in 2010 and 2009 respectively. The figures indicate how grave the problem of drug abuse is in India, especially in states such as Punjab and Manipur. According to a 2008 UNAIDS estimate, there are over 18,000 intravenous drug users (IDUs) in Punjab alone. An independent survey by NGOs in Manipur states that it has around 25,000 IDUs. The number of oral drug users would be equally high. The ministry of social justice and empowerment says 70 per cent of IDUs in Manipur are likely to be infected with HIV-AIDS.
Experts say that there is a nexus between drug traffickers of India and that of other countries such as Afghanistan, Malaysia and Burma. Hence tough laws are needed to deal with drug dealers. “When the NDPS Act was enacted in 1985, it did not stipulate death penalty. It was only in 1989 that the act was amended and the provision of death penalty (mandatory for a repeated offence) inserted because of the increasing number of cases,” says an NCB official in Chandigarh.
However, activists feel that capital punishment will simply not eradicate the crime. The Mumbai High Court has stated that the mandatory death sentence for a repeat offence violates Article 21 on the Right to Life.
“Instead of declaring Section 31A as unconstitutional and void, ab initio, we accede to the alternative argument of the respondents that the said provision be construed as a directory by reading down the expression ‘shall be’ punishable with death as ‘may be’ punishable with death,” the court said, responding to a petition filed by the Indian Harm Reduction Network that works for the welfare of drug users.
The central government had countered the argument stating that the law against drug dealers in India were far less stringent than those in Bangladesh, Malaysia, Singapore and Thailand where the possession of a much lesser quantity of a banned drug can attract the death sentence.
Across the world, 32 countries impose capital punishment for offences involving narcotic drugs. Of these, 13 countries, including India, prescribe “mandatory” death sentence for repeated drug crimes.
Some experts hold that there should be other alternatives for battling the crime. “We need to strengthen the provision under Section 71 of the NDPS Act, which empowers the government to establish centres for identification and treatment of addicts and for the supply of narcotic drugs and psychotropic substances. Demand reduction should be the focus of the law. If there is reduction in demand, there is reduction in supply as well,” says Dr Phyodem Ngully, in charge of the regional resource and training centre for dealing with drug abuse in Nagaland — a state which has 40,000 drug users.
Tandon argues that the ill effects of alcohol and tobacco on the health are far more severe than those of drugs. In that case, shouldn’t there be similar punishments for tobacco and alcohol manufacturers?
Human rights lawyers also believe that the other provisions in the law are tough enough to deal with trafficking. The law “provides enhanced punishment for subsequent offences, up to a maximum of 30 years’ rigorous imprisonment — which is harsh enough to deal with offenders,” argues senior advocate Anand Grover.
A Parliamentary Committee on Finance is taking these arguments into consideration while redrafting the NDPS Act. “We are consulting various legal and human rights experts to see how the act could be redrafted,” says committee member and Congress member of Parliament Rashid Alvi.
Until then, the fates of drug dealers like Paramjit Singh will hang in balance.