Why introducing death penalty for first-time offenders under the NDPS Act would do little to deter Punjab’s opioid epidemic

Punjab’s opioid dependence average is more than the global average, though the latter is a broader category. Despite this, successive governments in Punjab have failed to tackle the problem effectively. NARINDER NANU/AFP/GettyImages
04 August, 2018

In December 2015, at an election rally in Bathinda, Punjab chief minister Amarinder Singh swore by the “Gutka”—the Sikh holy book—that he would wipe out the drug menacein the state within four weeks if elected. After nearly 17 months in power, it is clear that he underestimated this challenge. In June, news of over 20 drug-related deathsprovoked fear and outrage in Punjab. Videos of parents grieving over their dead children went viral on social media, and spurred, to a large extent, protests in various districts in the state. In an interview to the Hindustan Times in July, Singh seemed unfazed by this mobilisation. He suggested that it was the duty of the public to tackle the menace: “It has started becoming a movement, and that’s the only way it can be sorted out. Police can only bring pressure.” He also suggested that it was a good thing that people in certain villages were taking the law into their own hands to thrash drug peddlers and “those taking drugs.” The next step, perhaps, will be to speak of good lynchings and bad lynchings.

Opioid dependence in Punjab is now an epidemic and referring to it is as a “menace” barely does justice to the situation. In 2016, the Society for Promotion of Youth and Masses, an NGO working on issues of health and drug addiction, released its Punjab Opioid Dependence Survey. Conducted in 2015, the study found that about 2.3 lakh adults—nearly one percent—of Punjab’s population were “opioid dependent.” In comparison, the United Nation’s 2017 World Drug Report showed that approximately 0.4 percent of the global adult population suffers from opioid use disorders—a broader category that also includes dependence. That Punjab’s dependence average is more than the global average despite the latter being a broader category must begin to give us a sense of the scale of the epidemic.

Despite this, successive governments in Punjab have failed to tackle the problem effectively. Because of mounting public pressure following the June deaths, Singh has recommended a series of measures, some of which have been widely criticised as a knee-jerk response. The measures include mandatory drug tests for government employees, banning the sale of syringes without prescriptions, and the most controversial one: introducing a death-penalty amendment into the Narcotics Drugs and Psychotropic Substances Act. Singh believes that such harsh measures will put “the fear of god” in drug traffickers. Given that a growing body of research indicates that the death penalty does not deter or reduce crime, and that state executions can be passed only in the “rarest of rare cases,” these amendments to the NDPS, if passed, would do more harm than good.

Existing provisions of the NDPS already allow for death penalty in the case of repeat offenders, but the Punjab government wants the centre to extend that to first-time offenders as well. Singh is not the first politician in the history of drug regulation to harbour the belief that drug addiction can be addressed by killing drug traffickers. Philippine’s populist leader Rodrigo Duterte has whipped up considerable popular support for extrajudicial executions of drug traffickers. Inspired by him, Sri Lankan president Maithripala Sirisena is moving ahead with plans to end the moratorium on executions in Sri Lanka that has now been in place for 42 years.

With this demand to amend the NDPS, Singh has ended up sending confusing signals on his position on the death penalty. In March 2012, amid high tension on the orders to execute Balwant Singh Rajoana—a member of the Khalistani organisation Babbar Khalsa, who was convicted for the assassination of Punjab’s former chief minister Beant Singh—Amarinder Singh strongly opposed the death penalty and praised the UPA government for staying the execution. Later, in September 2017, when the Law Commission of India recommended the abolition of capital punishment, he said the death penalty is against basic human rights.” Indian politicians rarely take an abolitionist position and it was refreshing to see the Congress chief minister publicly take a progressive stand on a divisive issue. Clearly, a lot has changed in the past ten months. In his July Hindustan Times interview, Amarinder Singh cited, with approval, the examples of the regimes in Saudi Arabia and Thailand chopping off the heads of drug traffickers as effective measures. (Thailand has actually used the lethal injection since 2003, has never used beheading as the mode of execution and has executed three people in the last decade.)

The Rajiv Gandhi government enacted the NDPS in 1985, following a push from United States president Ronald Reagan’s administration. Originally the brainchild of Richard Nixon, the US had escalated what it called its “war on drugs,” during that decade. Before 1985, India had no laws regulating narcotics, although it was signatory to two different UN conventions. Its reluctance had to do with the fact that the country had a longstanding cultural acceptance and recreational use of cannabis.

The NDPS is certainly among the harshest criminal statute that exists in India today. It has stringent bail provisions—these have been replicated in draconian anti-terrorism laws—which require a judge to have reasonable grounds to believe that the accused is not guilty before granting bail. The act provides for a rigorous 10-year imprisonment as the mandatory minimum punishment for drug trafficking. (The extreme nature of that can be compared to the fact that a rape conviction until recently attracted a minimum sentence of seven years. Following the rape and murder of an eight-year-old girl in Jammu’s Kathua district earlier this year, it has now been enhanced by an ordinance to ten years.)

The death penalty made its first appearance in the NDPS in 1989. An amendment introduced a mandatory death penalty for any individual convicted of drug trafficking more than once. In essence, this meant that a judge had no choice but to recommend state execution once she found the accused guilty. Further, the new amendments barred any remission, suspension or commutation of the sentence, once passed. The timing of it was interesting. Five years before this amendment, the Supreme Court, through its decision in Mithu vs State of Punjab, had declared the mandatory death penalty provision in the Indian Penal Code to be unconstitutional. Despite such a precedent, the NDPS introduced this harsh measure. It would take 22 years for this provision to be diluted in the act, following a Bombay High Court judgment that deemed it unlawful. Through further amendments introduced in 2014, awarding the death penalty for the repeat offence of trafficking was made discretionary and life imprisonment was provided as an option. While all of these measures were related to those convicted of trafficking more than once, it seems counterintuitive that the Punjab government is now seeking the death penalty as an option for first-time offenders as well.

Currently, 33 countries in the world have the death penalty for drug offences and there is an ongoing trend to reduce the harshness of these laws. In 2017, Malaysia and Thailand passed legislations to do away with mandatory death penalty for drugs. Sidney Harring, a professor at the City University of New York school of law, in his 1991 study of Malaysian laws on drug offenses found that despite the imposition of death penalty, the rate of drug addiction had continued to increase since 1975. In 2016, officials in Iran’s judiciary also acknowledged that the death penalty had failed to reduce drug trafficking and subsequently increased the quantity of drugs required to enact it.

As the use of the death penalty reduces across the world, India has seen the expansion of its ambit. Despite the recommendations of the Justice Verma Committee report—constituted in the aftermath of the brutal gangrape of a woman in a Delhi bus in December 2012—which argued that the “introduction of death penalty for rape may not have a deterrent effect,” the UPA government introduced the death penalty for rape in the “rarest of rare cases” in 2013. Similarly, Bihar chief minister Nitish Kumar’s draconian liquor-prohibition law came with death penalty provisions, and on 30 July, the Lok Sabha passed the Criminal Law (Amendment) Bill, 2018, which introduces capital punishment for rape of girls below 12 years old. Amarinder Singh’s demand for amending the NDPS is only the latest in the continuing trend of political support for the death penalty. All these cases point to the tendency to resort to ineffective populist measures in response to complex social problems.

On the more general point about death penalty and its ability to deter crime, a studyconducted by the public health and law experts Franklin E Zimring, Jeffrey Fagan and David T Johnson, looking at the relationship between homicide rates and execution rates in Singapore and Hong Kong between 1973 and 2008 is instructive. Singapore had an execution rate of one in a million before 1994 but this increased nearly 20-fold over the next two years, making it a country with one of the highest execution rates in the world. In the next 11 years, execution rates dropped by 95 percent. Hong Kong, on the other hand, had no executions during this period and had abolished the death penalty in 1993. The study had two main findings. Firstly, homicide levels and trends remained at par in Hong Kong and Singapore, suggesting that the death penalty did little to deter crime. Secondly, Singapore’s surge in executions between 1994-95 did not produce any significant reduction in homicide rate, or indicate any difference with Hong Kong.

More particular to drug trafficking, the deterrent impact is rather limited because a vast proportion of those convicted for drug trafficking are smugglers on the lower rungs of the trade, while the rich and powerful individuals at the top remain immune from the law. Further, as punishments are made harsher for a specific class of drugs, it has been observed that trafficking increases in harder drugsbecause the rewards are much higher for the same amount of risk. In dealing with drug trafficking, there have been louder calls to invest more in preventive measures with a greater focus on health education, raising awareness on the risks of consumption, meaningful and significant investment in treatment measures, and building support structures. There is a large body of work on these strategies that needs greater policy engagement.

On 2 July, during the cabinet meeting in which it was decided to recommend death penalty for first time drug offenders, Navjot Singh Sidhu, Punjab’s minister for local government, reportedly asked, “If there can be death penalty for raping girls under 12 years, why not against those wiping out an entire generation of Punjab?” Sidhu’s appeal to the public’s retributive instinct rather than the painstaking work of rehabilitating an “entire generation of Punjab” falls in line with the political opportunism that drives policies. The death penalty is a political quick fix, a show of bravado to assuage our collective helplessness. It lulls us into a false sense of complacency, and when we find ourselves facing the same fundamental social problems, we need our fix, over and over again.

Research assistance was provided by Karishma Maria (Amity Law School), Zoe Brown and Hannah Gordon (Melbourne Law School).