By Aarushi Singh
Introduction
The most ethical use of drugs are medicinal use which most of the countries do including India. Drug is defined to mean a chemical which is given to a person in order to treat or prevent an illness or disease. Although today, a major portion of the consumers of drugs use it for the pleasant effect it provides the user. Drug abuse is not only limited to using drugs for pleasant effects but also buying drugs without prescription, by defrauding medicinal plants etc. The issue of drug abuse has tremendously increased in the recent years proving it to be danger to the society. There have been instances of eminent personalities who were captured using/ doing drugs or found in possession of them. Recently many people are demanding to legalize drugs. Likewise, legalizing drugs may also help curb the unethical or illegal production and selling of drugs at exorbitant prices in the black-market. Thus, legalizing certain useful drugs with restrictions of usage and trade of the same would be productive. There have been studies that have revealed the advantages and disadvantages of using drugs. It is a well-known fact that drugs like marijuana and ketamine are very useful for medicinal purposes and age old and finds its place in the Vedas as well. There are always ifs and buts, marijuana and Ketamine are very useful but where we have laws to regulate them for such medicinal purposes then there is no need to specifically legalizing drugs. What is beyond the legislation is the unethical and illegal production and selling of drugs at exorbitant prices in the black-market. Although the other side of the coin does have enough drawbacks of the usage of drugs to quote, such as overburdening the society which is already dealing with the problems of alcoholism and tobacco addicts. But these can be kept under control by a sound and well-placed legislation to that effect. Thus, we have regulations which decriminalizes the usage, purchasing and selling of drugs for any purpose except for medicinal, in case of medicinal purpose as well the person most possess prescriptions and if the purpose is not medicinal, the person has to be under authority to sell, purchase or have possession of any drug.
India’s response to drugs flows along an extraordinary spectrum – of tradition and modernity; of widespread availability and stringent enforcement; of tolerance and prohibition; of production for medical use to lack of medical access to opiates. India’s long history of cannabis and opium use is referenced extensively in policy analysis.1 Being a country with significant volumes of licit and illicit drug cultivation, a transit route as well as a consumer market, India’s drug policy dilemmas span ‘demand’ and ‘supply’ control. Its large chemical and pharmaceutical industry draws the country into deliberations on the illicit manufacture of drugs and precursor control as well as the nonmedical use of prescription drugs. Some parts of the country report alarmingly high rates of drug dependence, HIV and viral hepatitis amongst people who inject drugs, making health and harm reduction important policy considerations. While India’s harsh drug control laws (in particular the criminalization of drug use and the imposition of the death penalty for certain drug offences) conform strictly to prohibition, its regulated opium cultivation industry provides insights for countries that are experimenting with alternatives to prohibition.
To be precise, decriminalizing the use of medicinal drugs and the restricted use of it for the treatment should be done along with restricted and controlled production, distribution and use of these medicinal drugs. The rest shall be kept illegal and criminalized. Such a legislation if comes into effect would prove to be useful to the public at large.
In February 2019, the government of India came out with a major report on the extent, pattern and trend of drug abuse in the country. The report was published by the National Drug Dependence Treatment Centre (NDDTC) and the name of the report was “Magnitude of Substance Abuse in India”[1] and the findings of the report were:
Opioids (heroin, morphine, etc)[2]:
- Approximately 2.6 crore people in India have used or use opioids.
- More than 60 lakh people in India suffer from Opioid use disorders.
- The most common drug used is Heroin followed by Pharmaceutical opioids and Opium.
- Uttar Pradesh, Punjab, Haryana, Delhi, Maharashtra, Rajasthan, Andhra Pradesh, and Gujarat contribute to more than half of the people suffering from Opioid abuse.
Sedatives and Inhalant[3]:
- Approximately 1.18 crore people use sedatives and inhalants.
- 4.6 lakh children and 18 lakh adults need help as a result of inhalant use.
- The prevalence of use is higher in children and adolescents as compared to adults.
- Uttar Pradesh, Madhya Pradesh, Maharashtra, Delhi, and Haryana have a very high child population in need for help as a result of an overdose.
Injected Drugs (Through syringes and other mediums)[4]:
- Over 8.5 lakh people inject drugs into themselves and are addicted.
- Uttar Pradesh (100,000), Punjab (88,000), Delhi (86,000) top the numbers.
- The most common drugs injected are Heroin (48%) and Buprenorphine (46%).
- 27% of people who inject drugs admit sharing their needled with other people, risking diseases like HIV.
Alcohol[5]:
- About 14.6% of the total population of India (~ 16 crore people) are users of alcohol
- Country liquor (desi) and IMFL (Indian made foreign liquor) are predominantly consumed beverages.
- Nearly 6 crore people suffer or need help because of harmful/dependent alcohol use i.e. one in every three alcohol users.
- Uttar Pradesh, Chhattisgarh, Tripura, Punjab, Goa and Andhra Pradesh have the most prevalent alcohol use.
Current Legal Framework:
India had ratified three United Nations drug Conventions, namely, the 1961 Single Convention on Narcotics Drug (1961 Convention), the 1971 Convention on Psychotropic Substance (1971 Convention) and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988 Convention).
The Domestic legislation which is followed by Indian Citizens were made in compliance with all these three conventions which was introduced only in 1980s when the period for abolishing the non- medical use of cannabis and opium was about to expire.[6] India had no legislation before so Indian Parliament passed the Narcotic Drugs and Psychotropic Substance Act, 1985 (NDPS Act) came into force without any debate and replaced the Opium Acts and Dangerous Drugs Act. The Drugs and Cosmetics Act 1940 continued to be in force.[7]
NDPS Act came into force in order to provide adequate penalties and punishments for illegal drug trafficking implement international conventions to which India was a party, and enforce controls over psychotropic substances. The Act was amended in 1989, 2001 and more recently in 2014.
Silent Features of NDPS Act, 1985
- The NDPS Act prohibits cultivation, production, possession, sale, purchase, trade, import, export, use and consumption of narcotic drugs and psychotropic substances except for medical and scientific purposes in accordance with the law.[8]
- Preparation to commit certain offences is punishable as is attempt. Accessory crimes of aiding and abetting and criminal conspiracy attract the same punishment as the principal offence.[9]
This Act basically covers three board categories of substances, namely,
- Narcotic Drugs (From 1961 Convention), includes Cannabis (also known as charas), hashish (more concentrated variant of charas), ganja (dried and fruiting top of the plant and Bhang), Coca, includes coca plant leaf and any preparation contains 0.1% of cocaine and Opium, includes poppy plant, poppy straw, concentrated poppy straw, juice of opium.
Narcotic drugs also falls under the category of ‘manufactured drugs’.[10]
- Psychotropic Substances (From 1971 Convention) includes psychotropic substances which are mentioned in 1971 convention and also contains psychotropic substance which are classified under the convention. Psychotropic drugs are nowhere defined but includes all the drugs which the government notifies as drugs. LSD and MDMA are examples.[11]
- Controlled Substances[12] are the substances which are used to manufacture narcotic drugs like chemicals and herbs like marijuana etc.
NDPS Act have provisions which lays down the procedures for search, seizure and arrest of a person who is found in possession of any of the abovementioned substances in the public as well as private places.[13] There are provisions related to safeguards such as prior recording, limiting powers of arrest to authorized officers, informing the person being searched of his rights etc.[14] At the same time, norms for investigation and evidence are permissive and have been interpreted in a manner that prejudices the accused.[15] NDPS Act has provisions regarding regulation of the controlled substance as well as narcotic drugs. Central Government as well as State Governments are allowed to frame rules and such regulations and allow drug related activities only to a specific purview, only for medical and scientific research grounds, whereas it is not explained in the Act anywhere.[16] Government also provides licenses for commencement of such activities to private entities as well.[17]
In 1988, the NDPS Act was supplemented by the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act to provide for preventive detention of people suspected or accused of involvement in drug trafficking.32
Amendment of 1989:
- Mandatory minimum sentence of ten years imprisonment, restriction on bail, bar on suspension and commutation of sentences, forfeiture of property, trail by special courts and mandatory death sentences for repeat offenders were introduced.
- These changes were influenced by the international, regional and domestic developments with 1988 Convention SAARC on growing menace for drug trafficking.
- As per these amendments people even if caught with smallest amounts of drugs under their possession were spending ten years in jail unless they proof that they are not guilty or the drug was intended for no personal use.
Amendment of 2001:
- Punishment was reduced on the basis of quantity of the drug under possession, that is, ‘small’,[18] ‘commercial’[19] or ‘intermediate’ as specified by the Central Government.[20]
Amendment of 2014:
- In 2014, NDPS Act was amended for the third time and came with certain new provisions and main features are:
- A new category of ‘essential narcotic drugs’[21] was includes that shall be regulated by the central government uniformly throughout the country.
- The principle of control and balance was taken into consideration while regulating the drugs for abuse and scientific and medical research of narcotics and psychotropic drugs.[22]
- Including the term ‘management’ of drug dependence and ‘recognition and approval’ of treatment centers.
- Making death penalty a discretion for only certain level of offences involving certain quantity of drugs.
- Punishment from 6 months to 1 year for small quantity offences.
- Allowed private sector involvement in processing opium and poppy straws.[23]
- Better provisions for forfeiture of property of persons arraigned on charges of drug trafficking.[24]
- The amendments of 2014 are the latest amendments to the law.
Reasons to legalize /decriminalize Drugs:
- Reduction in Drug Trade: Despite having such harsh laws in India for Drug marketing and abuse, the fact is India has a huge circuit of trade of drugs illegally. There is a large number of people which are indulged in the sell, purchase, production and possession of drugs which is illegal in India. The drug market like any other market works on demand and supply policy and the crime organizations takes advantage of such demand to shoot up the prices of such drugs. Legalizing these drugs will reduce inflated prices and reduce the criminal supply and mere supply of these will be there. It will eliminate illegal trade and production, more people will be able to indulge in this industry openly which will also increase the employment rates at some point. Marijuana legalization or decriminalization will replace the black-market production and distribution with an ‘overboard industry’[25].
- Effect on the Public at Large: it is well established by various studies that the major population which is indulge in usage of these drugs are the youth of the nation, majorly in between the age of 14-30 years, usually these people starts at the age of 14 and continues further. When such population have hold over a banned substance then it means either the system is failing or the illegal circuit is more powerful. Among young people the use of drug is considered cool and children under peer pressure resort to the use of such drugs which are easily available to them despite being highly priced[26].
- Help its Study: legalization of drugs would help the availability of samples for detailed study of the same. Due to its non-availability, the illegal drug markets have spread numerous disinformation regarding the drugs and drug use by the dealers and media who peddle wrong information for their prejudice[27]. Ultimately it would provide access to true information and better education of the same.
- Drugs and Discrimination: It is often seen in countries like USA and UK that black people are most likely to be convicted of the offences which shows high discrimination. The legalization of drugs will help these black people who are innocent victims of racial discrimination to escape from a lot of trouble as it will set aside a huge number of laws against drug possession and its use. It will ultimately reduce the over-representation of black drug offenders in the persons.
- Medical Usage of Drugs: various drugs have numerous positive medicinal usages of its.
Marijuana and other such drugs are used for medical purposes and are well known to cure diseases. Furthermore, Magic Mushrooms are professed to treat Alcoholism and reduces anxiety, Ketamine is used to treat Bipolar Disorder, Heroin is said to reduce Opiate addiction, and also MDMA is at times prescribed to patients to combat Post-Traumatic Stress Disorders. These are scientifically proven facts[28].
- Lesser Abuse: legalization can improve the quality of drug supply which will be authorized by the government and regulated by the government itself. So, the adulteration of these drugs would reduce and drug dealers would have proper jobs[29]. It is like legalizing this circuit would be more beneficial for the government as well as the consumers. Government can incur tax on the supply of these drugs.
Suggestions:
- Review the harsh and disproportionate sentencing structure under the NDPS Act, and remove the criminalization of drug use and imposition of the death penalty for drugs offences.
- Ensure that the legal provisions on drug treatment are adequately applied in a way that enables people who use drugs to access evidence-based treatment services without the threat of punitive sanctions such as criminal prosecution and imprisonment.
- Adopt and enforce minimum quality standards to ensure that the treatment programs are scientifically proven and respect the human rights of people dependent on drugs.
- Expand access to narcotic and psychotropic medicines necessary for treating a range of medical conditions, with practical safeguards against illicit diversion.
- Improve co-ordination between government departments with a clear remit for each state agency on developing and implementing policies and practices relating to drugs.
- Consult with civil society groups, including representatives of people who use drugs, medical professionals, academics and patient groups specializing in drugs issues in drug policy formulation.
- Establish regular data collection on drug use, dependence and related health implications such as HIV and viral hepatitis prevalence amongst people who inject drugs.
Suggestions on Decriminalization of Drugs:
- The removal of criminal sanctions over minor drug offences.
- The retention of drug offences as a crime but with discretionary enforcement based on practical considerations and community needs.
- Government control of illegal drugs in order to experiment with a range of options including, in some cases, a commercial market for substances such as marijuana, or tightly controlled availability for drugs that pose greater risk of harm.
Conclusion:
The NDPS Act after going through various amendments is now the most reliable Act on drug abuse and drug trafficking. It is flexible and can be mold and amended which is true because the Act had gone through three amendments already. The Act has most modified principles as per the need of today. The Act controls, regulates, punishes and impose fines on the offenders as per the requirement of each case. It provides leverage to people who uses drugs due to medical dependency and who uses prescribed drugs. It allows usage of drugs under government controlled medical usage and scientific researches, other than that government has power to provide licenses to private entities to produce and export such drugs as regulated by the government itself.
Legalization of drugs is very controversial and a very diverse issue because there is a large population who wants the substance criminalized and there is equally large population who wants to subject to free flow in the market. It is a general saying that “human developed BEER before BREAD” this may be so because of the fact that human body and mind reacts in a specific manner when it comes in contact with come chemical composition found in natural plants. Legalization of the use of such drugs which were widely used in the olden times and are professed to be very useful by our ancestors is put on debate.
In my opinion, after looking into the possible advantages and disadvantages of the drug legalization plan, it can be said that a total release on the ban on illegal drugs will only worsen the situation. Instead, if the Government of India can come up with a plan of partially lifting the ban on drugs might prove to be useful. To be precise, decriminalizing the use of medicinal drugs and the restricted use of it for the treatment should be done along with restricted and controlled production, distribution and use of these medicinal drugs. The rest that is nonmedicinal drugs which is to the detriment to the human body and mind shall be kept illegal and criminalized. We all tend to look down on drugs at one time or another, today it is easy to access drugs in the legal world and that needs to be stopped.
[1] Magnitude of Substance Abuse in India, By National Drug Dependence Treatment Centre, available at http://socialjustice.nic.in/writereaddata/UploadFile/Magnitude_Substance_Use_India_REPORT.pdf (Last visited on 16 August 2020).
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Charles, M., Bewley-Taylor, D. & Neidpath, A.,Drug policy in India: Compounding harm?, The
Beckley Foundation Drug Policy Programme, Briefing Paper Ten, available at http://reformdrugpolicy.com/wp-content/ uploads/2011/10/Drug-Policy-in-India-CompoundingHarm.pdf (Last visited on 16 August 2020).
[7] Section 80, NDPS Act.
[8] Section 8, NDPS Act.
[9] Section 28, 29 and 30, NDPS Act.
[10] Section 2 (xi) NDPS Act.
[11] Section 2 (xxiii) and 3, NDPS Act.
[12] Section 2 (vii) NDPS Act.
[13] Section 41, 42, 43 and 50, NDPS Act.
[14] State of Punjab v. Baldev Singh (1999) 6 SCC 172.
[15] Raj Kumar Karwal v. Union of India (1990) 2 SCC 409.
[16] Central government powers under section 9 and 76 while state government powers under section 10 and 78, NDPS Act.
[17] Section 5, 31, 32, 36 NDPS Rules, 1985.
[18] Section 2 (xxiiia) NDPS Act.
[19] Section 2 (viia) NDPS Act.
[20] Notification S.O 1055(E), dated 19th October 2001 published in the Gazette of India, Extra.,Pt II, Sec 3(ii), dated 19 October 2001
[21] Section 2 (viiia) NDPS Act.
[22] Section 4(1) and 4(2)(da) NDPS Act.
[23] Section 2 (iva) NDPS Act.
[24] Section 68b, 68D, 68H and 68O, NDPS Act.
[25] Legalization of Narcotic Drugs, available at jlmh.com/wp-content/uploads/2019/04/Legalization-of-drugs-in-India.pdf (Last Visited on 17 August 2020).
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] Ibid.
