The recent proposal to legalise the cultivation, sale and use of cannabis, coca, and opium plants may come across as a surprising one. However, it is worthwhile to remember that cannabis and opium were widely in use in India for medicinal and recreational purposes since ancient times and a part of the country’s socio-cultural-religious milieu. Although the British government enacted the Dangerous Drugs Act in 1930 to control and regulate, amidst other things, the cultivation, possession and sale of drugs derived from cannabis, coca, and opium plants, the use of drugs was not illegal.
They were only outlawed, except for medical or scientific purposes, as recently as 1985. While, Marijuana, also known as weed, ganja, or charas, is derived from the cannabis plant which grows in the wild, opium poppies are cultivated. Both contain psychoactive or psychotropic substances i.e., substances that, when taken in or administered into one's system, affect mental processes, e.g. cognition or emotion.
The Narcotic Drugs and Psychotropic Substances Act, 1985, (‘Act’) which bans opium, cannabis, and coca, was enacted in order to control and regulate the use of narcotic drugs and psychotropic substances. This was partly due to international pressure to clamp down on drugs owing to soaring rates of drug and substance abuse, especially in the West. The Act draws on the UN International Drug Control Conventions and has been amended three times. It prohibits the cultivation of coca, cannabis, and opium poppy plants, and the production, manufacturing, possession, trading, transportation, storage and use of narcotic drugs and psychotropic substances, with the exception of medical or scientific purposes under a license or permit. Under the Act, there is a clear distinction between drug traffickers and drug addicts, with severe penalties for the former (up to 20 years of rigorous imprisonment plus a fine of up to Rs. Two Lakh, and even death in certain cases) and the option of immunity from prosecution for the latter if they volunteer for de-addiction treatment.
The latest proposed amendment to the Act is by way of a private member’s Bill by Patiala M.P, Dr. Dharamvir Gandhi. The Bill has reportedly been cleared by the legislative branch of the Parliament but is yet to be tabled before the Lok Sabha. Ironically, the amendment has been proposed at a time when the Punjab government is working hard to eliminate illicit drug trade and political parties are exploiting the issue for the upcoming elections in the state. Tellingly, 76 % youth in Punjab are drug users and Dr. Gandhi has been suspended from his political party, the Aam Aadmi Party.
The proposed Bill seeks to amend the Act in order to legalise the cultivation, possession and use of marijuana. The Act currently defines a Narcotic drug as ‘coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs.’ It defines a ‘Psychotropic substance’ as ‘any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule.’ The Schedule to the Act lists the psychotropic substances covered under the Act. The current definitions, thus, include all drug plants, as well as their natural or their synthetic derivatives.
Pertinently, not all narcotic plants are equally potent. For example, the two strains of cannabis found in India contain different levels of psychoactive components. Cannabis Sativa contains a very small percentage of Tetrahydrocannabinol (THC), the principal psychoactive constituent of cannabis, around 0.3 % to 0.5 % and a high fibre content from which hemp is derived. Cannabis Indica, in comparison, contains a high level of THC between 2 % to 20 % and is used for medicinal and recreational purposes.
The proposed amendment will replace the terms ‘narcotic drugs’ and ‘psychoactive substances’ with ‘soft’ drugs i.e. those which grow naturally or are cultivated and ‘hard’ drugs i.e. synthetically manufactured derivatives. More specifically, under the proposed amendment, ‘Hard drugs’ are defined as ‘drugs …… that lead to significant physical and psychological addiction and degradation’, and ‘soft drugs’ are defined as ‘drugs that do not produce significant physical or psychological dependence or degradation.’
The Bill will legalise the cultivation, production, possession, manufacture, sale, purchase, transport, interstate import and export, use and consumption of soft drugs. Sale of soft drugs, however, will be stringently monitored by the government and conducted only at licensed shops. Soft drugs will be sold with labels which specify their weight, quality, and potency. Additionally, cultivation and consumption of soft must also not be in public view. Hard drugs will continue to remain banned. The proposed Bill also suggests creation of drug abuse control and prevention centres to fight addiction of hard drugs and to treat drug addicts as patients instead of criminals.
The rationale behind the Bill is that the ‘War on Drugs’ has ostensibly failed, thereby resulting in the creation of a drug mafia and driving drug trade underground. The Bill argues that this has encouraged the use of hazardous synthetically manufactured hard drugs in place of recreational drugs which were earlier openly available and are not as harmful. It also states that an overwhelming majority of arrests - close to 88% - made under the Act constitute end users of the drugs and only 2% constitute traffickers and distributors. As a result, the Bill concludes, drug mafia continue to operate relatively unhindered, and the money generated goes towards a further funding of criminal activities.
Several incidents have in fact been reported where police have abused the law by cracking down on perfectly legal uses such as medical prescription of permissible drugs to treat drug addicts. Empirical research of trials in Punjab courts also reveals a complete lack of court-ordered rehabilitation of drug addicts.
The Bill also appears to have been influenced by the international movement towards drug liberalisation i.e. decriminalisation or legalisation of drug use. There is evidence that drug use and addiction do not increase with decriminalisation of drugs. Portugal, for instance, has been successful with decriminalisation of drugs, and several other countries such as Germany, Denmark, Spain and Italy have also taken similar steps. Some states in the USA also have legalised the use of cannabis.
A recent report of the Global Commission on Drug Policy highlights the fact that even though ‘drug use is both widespread and non-violent’ most governments ‘criminalize those who use and/or possess drugs’. It goes on to state that severe human rights abuses are committed ‘in the name of drug control’ and public health has also been harmed. The Commission recommends that ‘there must be no penalty whatsoever imposed for low level possession and/or consumption offenses.’ Another leading global public health commission, Johns Hopkins University – Lancet Commission on Public Health and International Drug Policy, has called for a similar approach to deal with the issue.
As radical as decriminalisation of drugs may seem, the abject failure of the current drug policy in India necessitates the need for new and transformational methods. Whether the Bill, when introduced in Parliament, will gain sufficient traction to turn into law remains to be seen.