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This article is written by Jisha Garg, a student currently pursuing B.A.L.L.B. (Hons.) from Rajiv Gandhi National University of Law, Punjab. This is an exhaustive article dealing with the constitutionality of the Death Penalty concerning repeating offenders under the NDPS Act. the article is an attempt to challenge the constitutional validity of capital punishment with special emphasis on the Bachan Singh judgment, citing that the death penalty is violative of Article 14 and 21 of the Indian Constitution. 


“The court has noted that it is difficult to distinguish cases where the death penalty has been imposed from those where the alternative of life imprisonment has been applied”, said a report on death penalty by the Law Commission in 2015.  

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Indian is one of the many countries in the world who still provide the death penalty for certain heinous crimes by applying the ‘rarest of the rare’ principle. One of the provisions for the death penalty is provided in Section 302 of the Indian Penal Code (IPC). Recently, the government expanded the capital punishment to child rape. A similar proposal was proposed by the Punjab Government to impose the death penalty on the first time offenders of drug-related crimes under the NDPS (Narcotic Drugs and Psychotropic Substance) Act. However, this proposal was rejected by the Indian government by saying that the “death penalty is not supported by the international drug control conventions”, and that the UN Office on Drugs and Crime opposes the imposition of the death penalty for drug offences. India is one of the 32 countries which impose capital punishment for drug offences. Although the Government rejected the proposal of the death sentence for first-time offenders, the optional provision of the death penalty for repeating offenders is still in existence.

History of death sentences relating to drug offences

Official figures on executions, death sentences and death row population are not available. The last two confirmed death sentences for drug offences date back to 2017 and were reported by Project 39A at the National Law University, Delhi. It now appears that these sentences were commuted and no death sentences for drug offences were reported in 2018. In 2016, Project 39A found that “none of the prisoners sentenced to death for drug offences by trial courts over the past 15 years had their sentences confirmed in the first appeal”. All these sentences were either commuted or the alleged perpetrator was acquitted on appeal. As a result, it is unclear whether anyone is currently on death row for a violation of the domestic Narcotics Act.

Irrespective of the pronouncement of the death penalty in any recent case of offences related to the trafficking of narcotic drugs and other such substances, the mere presence of a provision for the death penalty is enough to assume the respect for human rights and right to live in the country. 

The article attempts to analyze the constitutional validity of the provision of the death penalty concerning repeating offenders under the NDPS Act. It contends that the provision of the death penalty in drug-related offences under Section 31A of the NDPS Act is arbitrary and disproportionate to the crime committed. The article also attempts to argue that the provision is violative of Articles 14 and 21 of the Indian Constitution with special respect to the Bachan Singh judgment.

Recent developments in the NDPS Act

The NDPS Act came into existence in 1945 and since then the Act has been amended several times to incorporate stringent penal provisions for activities relating to narcotic drugs and psychotropic substances. One of the most controversial provisions of the Act which mandated the death penalty in case of repeated offences was Section 31A which was added through an amendment act in 1989. Another major amendment was moved in the year 1998 in which the minimum sentence for repeat offences was made 15 years imprisonment and the maximum was made up to 30 years. Another amendment was passed by the parliament in 2001 which prescribed the punishment according to the quantity of the drug seized and categorised them into “small” or “commercial”.

Indian Harm Reduction Network v. Union of India

In Indian Harm Reduction Network v. Union of India, 2011 case, a Kashmiri man named Ghulam Mohammad Malik was sentenced to death by the Special NDPS Court in Mumbai in February, 2008 for a repeat offence of smuggling charas. The IHRN challenged the mandatory death penalty in the NDPS Act by referring it to an arbitrary, excessive and disproportionate to the crime of dealing in drugs. It was while hearing this case when the Mumbai High Court’s division bench declared Section 31A of the NDPS Act which imposed the mandatory death sentence for a repeat offence of drug trafficking “unconstitutional”. The President of IHRN lauded the step as a positive development which indicated the court’s recognition of the principles of human rights and harm reduction in relation to drugs.

NDPS Amendment, 2014

After the judgement in the Indian Harm Reduction Network case, the NDPS Amendment in 2014 was introduced to make amendments in Section 31A of the Act. Through this Amendment Act, the words ‘”shall be punishable by death” mentioned in Section 31A of sub-section (1) were substituted to “shall be punished with punishment specified in Section 31 or with death”. This meant a shift from the mandatory death penalty for repeat offenders to an optional death penalty. The subsequent article is an attempt to challenge the claim of constitutionality of Death Penalty through the analysis of the Bachan Singh case with special emphasis on Article 14 and 21 of the Indian Constitution.

The Bachan Singh judgment

In Bachan Singh v. State of Punjab, 1980, Bachan Singh was convicted and sentenced to death in 1979 under Section 302 of the Indian Penal Code for committing three murders. It is a comprehensive judgement analysing various arguments both against and in favour of the retention of capital punishment in India. The judgment examines whether Section 302 of the IPC is violative of Article 19 and 21 and further investigates the morality behind the retention of death penalty. The Bench in the judgment held that Section 302 of IPC is legal and does not violate any Fundamental Rights. It also agrees that Capital punishment serves a retributive purpose and hence should be retained, although the judiciary must exercise its discretion pronouncing death penalty in only ‘rarest of the rare cases’.

The first argument in the judgement was related to the applicability of Article 19 to the provision of death penalty. The court contended that it is misleading to assume that the rights mentioned under Article 19 are absolute and inviolable. The court held that the rights mentioned under Article 19 are subject to reasonable restrictions imposed by the State in certain circumstances to prohibit the exercise of these rights. The court finally held that death penalty is a retributive measure and hence, can be labelled as a reasonable restriction to Article 19.

Another argument made by the court was about Article 21. The landmark Maneka Gandhi case made changes to Article 21 which now read as “A person may be deprived of his life or personal liberty in accordance with fair, just, and reasonable procedure established by law”. It was therefore established that Article 21 included the stripping of life or personal liberty for punitive purposes.

Violation of Article 14

The first contention against the judgement lies with the arbitrariness of the rarest of the rare doctrine. It was held in the Maneka Gandhi case that Article 14 also served as a protection against the arbitrariness of the legislature or the executive. With special focus on this, the doctrine of rarest of the rare case is violative of Article 14 since it does not function under any established guidelines or framework. Similarly, the provision for death penalty provided in Section 31A of the NDPS Act does not provide any framework or guidelines for labelling the repeated cases of narcotic drugs as “rarest of the rare case” which is why the provision is violative of Article 14.

Also, the application of the aforementioned doctrine vests the power of unguided and uncontrolled discretion in the judge. The exercise of judicial power through capital punishment is discretionary and arbitrary and therefore antithetical to Article 14 as laid down in Maneka Gandhi v. Union of India, 1978. In giving the discretionary powers to the judges, the doctrine is also giving the authority to discriminate which is the case with Section 31A of NDPS Act. By giving the powers of the discretionary power to the judges to decide whether the repeating offenders be pronounced a death penalty, the legislature is violating Article 14. This is because, without an established framework, a judge will impose the death penalty according to her belief system.

The court’s labelling of certain acts as “too barbaric” and “rocking the foundations of the society” is again a violation of Article 14 since there is no established scale for calculating what may be “too barbaric”. Similarly, it is difficult to determine under Section 31A as to which acts are more barbaric as to be awarded a death penalty as compared to other acts.

Violation of Article 21

The claim made in the Bachan Singh judgement that the law has the legitimacy to deprive someone of their life and liberty is overly simplified. As held in the Maneka Gandhi case, the procedure of depriving someone of their life and liberty must be reasonable, fair and just. However, it has already been contended multiple times that the Supreme Court did not prescribe any procedure for depriving someone of their life and liberty. The decision to take someone’s life or liberty is based on personal discretion – subject to biases and flaws in human nature.

Lack of procedure for determining the circumstances essential to differentiate between capital punishment and life imprisonment is another reason why the death penalty mentioned under Section 302 is violative of Article 21 of the Indian Constitution. The NDPS Act fails to establish a procedure in the case, if the death penalty is announced for repeating offenders. It is for this reason that the provision for death penalty under Section 31A fails the test of constitutional validity because it violates Article 21 of the Indian Constitution.

Another major argument made by the Bachan Singh case is that death penalty is an effective deterrent against future crime. This is an argument that is based entirely in theory and has no statistical or empirical data evidence backing it. Even in the countries in which death penalty is operational have not shown any significant decrease in the number of cases relating to drug trafficking. The countries permitting the death penalty for drug trafficking include China, Sudan and Iraq which have shown little respect for democratic principles and human rights law in the past.


It is critical to take into account the fact that the constitution cannot merely be read as a didactic, scholastic text. It is also a manifestation of various values and principles cherished by the society, and at its core, its project is to sustain and support the dignity of the individual. The Constitution has therefore enacted Fundamental Rights that ensure a certain social and judicial security to the individual, limiting the power of the state and its institutions. Capital punishment in drug-related crimes takes away this security provided to the individual.

The provisions provided in the NDPS Act relating to the death penalty to repeating offenders has proven to be violative of Article 14 and 21 of the Indian Constitution. The sentence of the death penalty for drug-related crimes is also disproportionate and excessive in relation to the nature of the crime. Although the formulation of the “rarest of the rare” principle was considered effective a few years back, it has proven to be arbitrary and unconstitutional and it is high time that such principles are scrapped and new guidelines are formulated.

India is also a party to United Nations Covenant on Civil and Political Rights, as well as the Universal Declaration of Human Rights both of which profess a commitment to the protection of individual life and liberty, leading to the creation of a world where barbaric punishments like the death penalty do not exist. The article has proven that capital punishment for the crimes relating to the sales of narcotic drugs does not lend itself to the principles enshrined in the Indian Constitution and must be reconsidered.

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