Legal Matters | A sunset clause will keep our laws relevant, weed out outdated ones

Representational Image (Picryl)

A year after Bollywood actor Sushant Singh Rajput passed away, narcotics were back in the public eye with celebrity Aryan Khan being taken into custody for consumption. While the news cycle has moved on, pertinent questions around India’s drug laws remain unanswered: Are our drug laws anachronistic? If our drugs laws are outdated, what other laws require a rethink, and how can we create a robust system to keep our laws updated?

The primary regulation surrounding the production, possession, sale, purchase, transport, and consumption of any narcotic drug in India is the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. According to popular narrative, the Act is a direct consequence of the United Nation’s Single Convention on Narcotic Drugs in 1961.

If the makers of the hit Netflix show Narcos are to be believed (and several commentators seem to agree with this view), the US government was concerned about the growth of hippie culture, and the increased foreign currency outflows — a geopolitical consideration that could tilt the scales in favour of its Cold War adversary.

The Cold War has ended, one of the warring countries has splintered, and in light of new evidence, the US has softened its hawkish stance. The National Institute of Mental Health in the US now refers to addiction as a ‘substance use disorder’. Further, the American Cancer Society now recognises the therapeutic properties of medical marijuana in curbing symptoms from chemotherapy such as nausea and pain management for cancer patients. Of the 50 states that form the US, the use of cannabis is now illegal in only three states.

Even the Government of India has recognised that drug abuse is a mental health issue in the Mental Healthcare Act passed by Parliament in 2017, which terms it as a mental illness. Yet, at the same time, under the NDPS Act its consumption can lead to punitive action. The problem that persists is the lack of parity in the law, which would deter people with an addiction from seeking help because of the corresponding criminal liability.

Unfortunately, such divergence and archaic laws are not an aberration, but the norm. The NDPS Act is one example of systemic rot, which leaves our laws woefully outdated. Others that come to mind include the Sarais Act (1867), the Dramatic Performance Act (1876) and Section 377 of the Indian Penal Code (before its scrapping by the Supreme Court) — all of which have been misused by the State from time to time.

We live in an age of information, and our understanding of the world is constantly evolving. As such, our laws, too, need to evolve with the times. The conversation on the antiquity of our drug laws has been sparked by happenstance, but the same isn’t likely to happen for more mundane topics. To ensure that we keep up to date in all spheres, Parliament needs to institute processes that guarantee that no bygones slip through the cracks.

One measure that can be easily taken is instituting mandatory sunset clauses, i.e. clauses that make a law invalid after a certain period unless actively re-enacted or reauthorised. A sunset policy would force a rethink of our laws on a timely basis, and allow civil society and experts to weigh in on the matter at hand. Such thinking would also find support from Article 51A(h) of the Constitution of India, which makes the development of scientific temper a fundamental duty of each citizen. Given that knowledge in each domain may not progress simultaneously, such a policy should only indicate the necessity to introduce such a clause in laws, with differing timelines for the Act or clauses therein.

To keep our laws relevant and up to date, continuous study and integration of new findings are necessary. The negative impact of disproved and antiquated thinking can have lasting ramifications on society if checks and balances to rethink matters are not introduced. Process-driven rethinking is the only way to ensure that we don’t drop the ball in certain areas out of public view.

Sharang Shah is public policy consultant with Chase India. Views are personal, and do not represent the stand of this publication.