Government must reconsider its flawed approach towards drugs

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Imagine the very worst that can happen from a drug addiction. The person overdoses and dies. Now assume that the person did not overdose, but was caught in possession of a small quantity of any drug. The punishment prescribed under the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), for mere possession, where the quantity is of a small quantity, but lesser than commercial quantity (both defined, depending on the drug) is rigorous imprisonment of up to 10 years, and with fine.

Now imagine the same person has never had an ounce of narcotics in their life, but is a daredevil on the roads, endangering lives of others: The punishment for dangerous driving under the newly amended Motor Vehicles Act is six months to one year, or fine.

This assumes significance in light of the ongoing investigation into the death of Bollywood actor Sushant Singh Rajput, and the related allegations of the abuse of narcotic substances. Apart from the many legal absurdities in invoking the NDPS Act against Bollywood actor Rhea Chakraborty, one must also ask whether many of the offences under the NDPS Act ought to be offences in the first place, as well as reasonableness of the quantum of punishment for these offences.

Let’s look at the facts though.

Ganja, or marijuana, which is what Chakraborty is accused of procuring for Rajput, finds its place in the ‘notification specifying small quantity and commercial quantity’ under the Act at item 55. One kilogram of ganja will be considered as ‘small quantity’ and 20 kgs of the substance will be treated as ‘commercial quantity’ (punishments vary accordingly, with possession of even a quantity less than small quantity illegal, though punishable with rigorous imprisonment of only up to one year). News reports suggest that the quantity of ganja in question is about 50 gms, about 5 percent of what counts as even ‘small quantity’.

A 2019 report from the Ministry of Social, Justice and Empowerment of the Government of India titled Magnitude of Substance Use in India found that India had 31 million users of cannabis (which includes ganja, hashish, charas, etc. More potent drugs such as Heroin are classified separately). 7.2 million of these were problem users, and 2.5 million were dependant users. In comparison, the same report found 57 million problem users of alcohol, and 29 million of them dependant. Apart from the fact that this automatically put 31 million people foul of the law, this must also raise questions about India’s approach to policing the widespread use of drugs.

An analysis of the enforcement in Mumbai by think-tank Vidhi Legal found that even though cannabis constituted only a small portion of the drugs seized by the police, the arrests made were disproportionately (almost 90 percent) for offences relating to use of cannabis. The report further found that the police almost exclusively arrested daily-wage earners, with 99.7 percent of those brought before court pleading guilty and 90 percent of the cases were disposed on the very same day they were brought before the court. Users were convicted and sentenced to imprisonment ranging from a day to eight days, indicating that perhaps the police were forcing them into making confessions without affording them legal advice, just to improve their conviction rates.

There is ample scientific research suggesting that that while marijuana is by no means a benign drug, its adverse effects resemble those of many approved medications. However, there is little evidence to suggest that its use is associated with mortality. Similarly, crime statistics from the United States show that legalisation of marijuana has not led to increased levels of crime.

If this is the case, then it is important to ask whether the Indian State must be making substances such as marijuana illegal in the first place. Shouldn’t the State instead, dissuade usage, such as through higher taxes, as they do in the case of alcohol or cigarette consumption? Even if illegal, shouldn’t punishments be more rational (for instance, the punishment for causing grievous hurt, including emasculation or dismembering, is only imprisonment of up to seven years)?

One could point out that like in the Vidhi Legal report, punishments are, in practice, minor. However, the fact that harsh punishments exist in the law can be a source for exploitation of accused, both by police, as well as other constituents of the criminal justice system, in the form of bribes, or exorbitant lawyer fees.

The Punjab government claims that 129,000 patients approached drug de-addiction centres, after the lockdown this year made drugs unavailable or too expensive. If anything, this shows that the State should view narcotic addiction as a disease, and adopting a compassionate approach, look to wean citizens away. By locking them up, perhaps more harm is being done than would have been caused by their use of narcotics.

Abraham C Mathews is an advocate based in Delhi. Twitter: @ebbruz. Views are personal.