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Why mandatory death penalty be not abolished? Supreme Court asks govt -Dhananjay Mahapatra
-The Times of India

Days after a two-judge bench of the Supreme Court said it was time to revisit jurisprudence behind imposition of death penalty, the apex court asked the Union government why provisions in some laws mandating compulsory death penalty as punishment be not struck down as unconstitutional.

The question from a bench of Justices Aftab Alam and Ranajana Desai put additional solicitor general Siddharth Luthra in a piquant position for he had sought to argue the Centre's appeal against a Bombay high court judgment diluting the mandatory death penalty prescribed under section 31A of Narcotics and Psychotropic Substances (NDPS) Act for repeat offenders trading in huge quantities of contraband.

Though the Union government's appeal challenged the Bombay HC's decision to read down Section 31A to provide the concerned Judge with the discretion of imposing life sentence, the bench decided to take suo motu of other similar provisions in some laws warranting mandatory imposition of death penalty. The read down principle limits a provision of law.

Expressing its view on statutory provisions mandating compulsory capital punishment, the bench said prima facie it appeared to be violative of Article 21 (right to life) and Article 14 (non-discrimination/equality).

On a PIL by a Delhi-based NGO Indian Harm Reduction Network challenging the constitutional validity of Section 31A of NDPS Act, a Bombay HC bench of Justices AM Khanwilkar and AP Bhangale on June 16, 2011, had held that the provision is violative of Article 21 as it provides for a mandatory death penalty.

"Instead of declaring Section 31A as unconstitutional, we accede to the alternative argument of the Union government that the said provision be construed as directory by reading down the expression 'shall be punishable with death' as 'may be punishable with death' in relation to the offences covered under Section 31A of the Act," the HC had said.

The HC had further clarified — "Thus, the court will have discretion to impose punishment specified in Section 31A of the Act for offences covered by Section 31A of the Act. But, in appropriate cases, the court can award death penalty for the offences covered by Section 31A upon recording reasons therefore."

The Union government challenged this reading down of the provision and in its appeal before the apex court said sentencing was, essentially, a legislative policy and that it was also the legislature's prerogative whether to grant courts any discretion while imposing sentence under a provision of a penal statute.

It said: "the mandatory death penalty provided in Section 31A is in the nature of minimum sentence in respect of repeat offenders of specified activities and for offences involving huge quantities of specified categories of narcotic drugs."

"Would it still be open for the court to reduce the minimum sentence provided for by the Legislature?" the Union government asked and said offences falling under NDPS Act had been held by the apex court to be of such nature which had deleterious effect and deadly impact on the society as a whole. "The Supreme Court had time and again held that narcotic crimes are more heinous than murder," it said.

Section 31A is attracted only in cases where a person who has been convicted of either embezzlement of opium by a licensed cultivator (Section 19), unauthorized trade and external dealing in narcotic drugs and psychotropic substances (Section 24), financing illicit trafficking and harbouring offenders (Section 27A) and for offences involving commercial quantity of any narcotic drug or psychotropic substance."

dhananjay.mahapatra@timesgroup.com