India’s leading legal publication writes…
The consumption of Cannabis (Ganja) and its resin (Charas) has been a punishable offence in India since 1985 after the enactment of the Narcotic Drugs and Psychotropic Substances (NDPS) Act that was brought into force after the United Nations Single Convention on Narcotic Drugs, 1961, which came into effect in 1975.
In the context of increasing media scrutiny and widespread public attention on celebrities for their arrest and detention resulting from the purported use of cannabis, the question as to whether cannabis consumption should be decriminalised has once again assumed significance.
Laws criminalising cannabis use
Section 8 of the NDPS Act prohibits the cultivation of any cannabis plant for reasons other than medical and scientific purposes. However, Sections 10 and 14 of the Act do grant state governments certain discretion in regulating cultivation, manufacture and possession.
— Bar & Bench (@barandbench) October 23, 2021
Essentially, it is Section 20 (b) of the NDPS Act that prescribes the punishment for use of cannabis. The Section prescribes punishments for three levels of offences.
1. When the offence involves a small quantity (100 grams), it extends rigorous imprisonment (RI) up to one year and a fine up to ₹10,000.
2. When the offence involves quantity lesser than commercial quantity (1 kg) but greater than small quantity, the Act prescribes imprisonment for up to ten years, and a fine up to ₹1 lakh.
3. Finally, for commercial quantity, the punishment extends to a jail term of not less than ten years and up to twenty years, and fine of not less than ₹1 lakh but upto ₹2 lakh.
These provisions are pertinent to the recent arrest of Bollywood actor Shahrukh Khan’s son Aryan Khan, who was taken into custody by the Narcotics Control Bureau (NCB) on October 2 and is yet to be granted bail.
The NCB invoked Section 20(b), amongst other provisions of the NDPS Act against Khan, whose detention has reignited the debate regarding decriminalisation and regulation of small quantities of cannabis in India.
With changing cultural norms and in light of the disproportionately stringent punishments for use of small quantities, multiple petitions have been filed before the courts in the recent past, seeking decriminalisation of cannabis.
What the courts have said
A plea filed by the Great Legalisation Movement India Trust before the Delhi High Court remains pending since 2019. A Bench of Chief Justice DN Patel and Justice C Hari Shankar had issued notice in the plea challenging the prohibition and criminalization of the use of cannabis in India.
The petitioners claimed that the treatment of cannabis at par with other harmful and lethal chemicals was arbitrary, unscientific and unreasonable. Further, while enacting the NDPS Act, Parliament did not take into consideration the positive effects of cannabis on human health and the history of use of cannabis in India, the petition stated. On these grounds and others, the petitioners challenged various Sections of the NDPS Act as being violative of Articles 14, 19, 21, 25 and 29 of the Constitution. The matter is listed next for March 23, 2022.
A similar plea was dismissed by the Bombay High Court in 2015. The PIL mentioned various studies pointing out the palliative effects of cannabis, particularly for terminally ill patients. The Court insisted that without being experts in the field, it could not examine the technical data regarding useful effects of Ganja etc. Therefore, it advised the petitioner to raise the issue in Parliament.
In fact, a petition praying for removal of restrictions on cultivation, processing and use of industrial and medical hemp in the State of Himachal Pradesh is pending before the State’s High Court. This petition cites extensive scientific data as well as relevance of cannabis in local culture to highlight the significance of the plant and its regulated cultivation.
Appeals to Parliament
The movement to better regulate cannabis was also put to Parliament. Dharamvir Gandhi, a former Member of Parliament who was suspended from the Aam Aadmi Party, had raised a Bill to effectively ‘legalize’ the recreational use of cannabis.
The Bill found its basis on the claim that a good 80% of the people languishing in jail for offences under the Act are petty drug users, and not criminals. They are patients, and they belong not inside the jail but in hospitals.
It sought to distinguish between ‘soft drugs’ and ‘hard drugs’, instead of clubbing them all under the umbrella of ‘psychotropic substances,’ as well as the authorized and monitored sale of soft drugs.
India comes full circle at the UN
It is also interesting to note that at the United Nations Commission on Narcotic Drugs in 2020, India voted to remove cannabis from the Schedule IV of the 1961 Single Convention that initially prompted its criminalisation in India by placing cannabis in the category of the most dangerous drugs.
The majority vote in favour of reclassifying cannabis opened the door globally to recognizing the medicinal and therapeutic potential of the drug. However, the vote does not impact domestic laws until an amendment to the NDPS Act is brought into force.
The NDPS Act was enacted to fulfil the State’s obligation as a party to the 1961 Convention. Before the legislation, cannabis use or consumption was not illegal or considered aberrant. After the 1961 convention, the United States began a “war on drugs” and campaigned for stringent drug laws to be implemented globally. India strongly opposed stringent measures in light of cultural significance of cannabis use in India. With an exclusion of bhang from the definition of cannabis, India eventually brought forth a legislation in line with the Convention.
And now, 35 years after the passing of the NDPS Act, it appears that India has come full circle at the UN.
A case for decriminalisation
To assert a case for decriminalisation and possible regulation of cannabis in India, attention can be brought toa study by the Vidhi Centre for Legal Policywhich reported that nearly every person arrested and convicted for cannabis consumption from Mumbai was a daily wage worker and a slum/street dweller. This buttresses the premise made in litigation before the courts, as well as Gandhi’s Bill, that the law disproportionately impacts marginalised groups.
Several countries in the West have decriminalised recreational as well as medicinal consumption of cannabis. The Portuguese model of decriminalisation, although not a culturally perfect fit, can act as a guide for India. In 2001, Portugal became the first country to decriminalise the possession and consumption of all illicit substances. A mechanism was developed to avoid the arrest of anyone that was caught with a quantity indicating personal use; instead support services were provided to such persons.
As per studies, decriminalisation in Portugal led to a fall in drug use for all other drugs apart from marijuana and new psychoactive substances. New cases of HIV among people who use drugs reduced significantly. Overdose deaths decreased by over 80% after decriminalisation.
“Portugal’s decriminalization model has not led to increases in overall drug use, while it has decisively lowered problematic drug use and improved health outcomes,” a report by Drug Policy Alliance stated.
The World Health Organisation alsosaysthat therapeutic effects of Cannabidiol (a compound of cannabis) include relief from nausea and vomiting in the advanced stages of illnesses such as cancer and AIDS. Further, other therapeutic uses of cannabinoids are being demonstrated by controlled studies, including treatment of asthma and glaucoma, as an antidepressant, appetite stimulant, anticonvulsant and anti-spasmodic. However, it was emphasised that more research is needed on the basic neuropharmacology of THC and other cannabinoids so that better therapeutic agents can be found.
Keeping in mind that after alcohol, cannabis and opioids are the next commonly used substances in India, it becomes increasingly important to view such use through a regulatory lens rather than a punitive one.
A reportby the Union Ministry of Social Justice and Empowerment released in 2019 shows that about 2.8% of the population (3.1 crore individuals) reported using cannabis products in the year 2018. Use of these cannabis products was observed to be about 2% (approximately 2.2 crore persons) forbhangand about 1.2% (approximately 1.3 crore persons) for illegal cannabis products.
Therefore, the prevalent and widespread use of both legal and illegal cannabis products in itself makes a case for decriminalisation at the least.
This, coupled with examples of other countries progressing after regulation and increasing instances of criminal cases arising from use of small quantities of cannabis, makes a compelling argument for legislative intervention.
Narcotic Drugs and Psychotropic Substances Act, 1985