Example 7: Challenging the mandatory death penalty for drugs in India 

Project Type: Litigation — Mithu v. State of Punjab, (1983) 2 S.C.C. 277 (India).


Lawyers Collective
New Dehli & Mumbai, India
E-mail New Dehli: aidslaw1@lawyerscollective.org
E-mail Mumbai: aidslaw@lawyerscollective.org
Website:  www.lawyerscollective.org

This is an example of an individual challenging a government policy by bringing a human rights claim.

The Problem

An Indian man who was found guilty of a repeated offense of transporting charas (cannabis resin) received a mandatory death sentence under section 31-A of the Narcotic Drugs and Psychotropic Substances Act.


On appeal from the Special Narcotic Drugs and Psychotropic Substances (NDPS) Court in Mumbai to the High Court of Judicature at Bombay.

Arguments and Holdings 

Procedural Due Process
Although the Indian Constitution does not contain an explicit reference to “due process,” numerous decisions by Indian courts over the years recognize the right as living in article 21 of the Indian Constitution (“No person shall be deprived of his life or personal liberty except according to procedure established by law.”). Moreover, Article 6 of the International Convention on Civil and Political Rights demands that “No one shall be arbitrarily deprived of his life” and that the “sentence of death may be imposed only for the most serious crimes.” Harm Reduction International argued that the mandatory death penalty of section 31-A breaks with the principle of procedural due process which holds that judges should determine sentences based on the individual criminal offense. The High Court of Judicature at Bombay agreed, reasoning that a mandatory death penalty “fails to fulfill the cardinal procedure safeguards of legitimate exercise of judicial discretion for sentencing.”

Substantive Due Process
The petitioner argued that the mandatory death penalty was unconstitutional because it violated the defendant’s substantive due process rights. Citing article 7 of the ICCPR as interpretative support, the petitioner argued that the mandatory death penalty violated his substantive due process rights against torture. The court disagreed, arguing that (a) Indian municipal law that is in accordance with the Indian Constitution trumps the requirements of International agreements and that (b) Indian courts have consistently held that the death penalty is not cruel.

Separation of Powers
The petitioner argued that allowing section 31-A to stand would be to allow the legislature to circumscribe the power of Indian courts to determine penalties for offenses prescribed by section 31-A, leaving the courts with the ability to determine guilt or innocence, only. This argument clearly concerned the court, as it reasoned that section 31-A “completely takes away the judicial discretion, nay, abridges the entire procedure for administration of criminal justice of weighing the aggravating and mitigating circumstances in which the offense was committed as well as that of the offender.”

Equal Protection
The petitioner made a strong but ultimately unsuccessful equal protection attack on the NDPS. Article 14 of the Indian Constitution provides that “[t]he State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Yet, the NDPS does not distinguish between pure drugs and mixtures. For example, a defendant found guilty of possessing 10 kg of pure opium receives the automatic death penalty just the same as a defendant found guilty of possessing 10 kg of an opium mixture. Arguing that the purpose of the ADPS was to punish in accordance with drug quantity, the Petitioner argued that ADPS violated Article 14. The Court disagreed, simply stating that the classification of drugs was “based on intelligible differentia.”

The petitioner argued that, since providing or consuming narcotics listed under section 31-A do not directly or indirectly cause loss of life, violations of section 37-A do not constitute the “most serious crimes.” Therefore, since article 6 of the ICCPR provides that the “sentence of death may be imposed only for the most serious crimes[,]” the petitioner argued that the mandatory death penalty for violations of section 31-A were disproportionate to the crime and unconstitutional.

The Court disagreed. According to the Court, the death penalty was based on intelligible differentia and the differentia had a rational nexus to the law’s purpose (i.e. reducing the illicit drug trade and lowering illicit drug consumption). Moreover, the Court found that Indian precedent clearly established that offenses relating to narcotics were more heinous than homicide. Finally, the Court held that the ICCPR did not control when municipal law enacted within the context of the Indian Constitution existed.

Violations of India’s Constitution                                            
Article 21: No person shall be deprived of his life or personal liberty except according to procedure established by law.

Violations of the ICCPR
Article 7: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Commentary and Analysis

In the end, the Court found that the mandatory death penalty for narcotic-related offenses violated article 21 (protection of life and personal liberty) but not article 14 (equal protection of the laws). The death penalty is still possible in courts within the jurisdiction of the High Court at Bombay for those who violate section 31-A, but it is no longer mandatory. It is the trial court judge’s discretion to impose the death penalty after s/he has fairly evaluated each individual defendant and offense.

The constitutions of many countries provide for due process of law, separation of powers or equal protection. In Mithu, any one of these constitutional provisions was independently sufficient to read down the mandatory nature of section 31-A from “shall” to “may.” Challenges to similar laws based on similar constitutional measures may very well succeed in other legal venues.