“Can any policy, however high-minded, be moral if it leads to widespread corruption, imprisons so many, has so racist an effect, destroys our inner cities, wreaks havoc on misguided and vulnerable individuals and brings death and destruction to foreign countries?”2
-Milton Friedman
The war on drugs, goes far beyond arrests and incarceration. When looking at its history, we can find its roots deeply embedded in a lot of our daily life, from education all the way to housing and employment. To really understand the history and the current state of the war on drugs globally and with respect to India specifically, it must be seen in the context off culture of criminalization. The war on drugs come on as we know it today, started specifically in the month of June of 1971, the historic event that took place that would shape drug laws all over the world for the foreseeable future, was when then U.S. President Richard Nixon announced drug abuse to be ‘public’s big enemy’3 Following which federal funds for the drug control and administration agencies were increased as well as accelerating the already in place drug treatment efforts.
The “war on drugs”, historically has meant when the government leads an initiative that aims to stop illegal drug use, distribution and trade. In this article I will be going into the legal aspects of how this war on drugs, initiated by the United States and then followed by the rest of the world, particularly India being my main focus in this article, specifically affect certain communities and certain classes of people more than others, as well as failing to live up to its objective of rehabilitative justice.
A BRIEF HISTORY & TIMELINE OF THE NDPS act 1985
The history and the origins of the NDPS act 1985 can be traced back to the opium act often 1857, which was passed by the British Indian government. The context of the time for this law were the opium wars, the British were involved in the opium wars with the French, the objective for them was to ramp up opium production in India. This law mandated government authorisation for production of opium which basically means, the power to regulate and control who grew opium inside of India as well as the quantity.
This particular law was revised multiple times, beginning with in the year of 1878, again in the year of 1930. The convention on our coating drugs was held in the era of 1961, what raised the concern about the usage of narcotic drugs around the world was a supposedly growing hippie culture was leading to and increased usage of psychedelics. India was one of the signatories to this convention.
Although the connections might not to be exact however connections have been drawn do the implementation of anti-drug laws in India to the Nixon administration in the USA, as the Republican party’s war on drugs agenda grew only stronger in the United states. NDPS act of 1985 had provisions which provided for death sentence to anyone who was found with a substantial amount of a particular banned drug. The first time this law was reformed was in the year of 1988, In this amendment a categorization was made to distinguish between drug abuse and drug possession. The punishment for personal consumption was reduced to one to two years, drug possession on the other hand was dealt with Anne given a much more stringent punishment which included forfeiture of property.For financing and production, the death penalty was reserved. In the year of 1994, the goal was established a policy to stop the exploitation of this law, a committee was set up for the same.
The result of this committee was an amendment which said and resulted in the extent of punishment being determined by the quantity of drugs. The discourse and narratives amongst the general populace as well as the leaders, started to soften when it came to these same drug laws as early as the 2000s. The amendment was brought about in the year of 2001, which classified and distinguished small and commercial quantities of drugs, as well as and traducing varying punishments for the said classifications.
THE PRESENT DAY FAILURE OF THE LAW
The act which was adopted, strayed considerably from the liberal values of a supposedly democratic society, however politics at the time, international as well as domestic meant that these values went out of the window when the topic of drugs came into the picture.The NDPS act, ended up adopting a highly punitive approach towards crime relating to drugs. The concept of high mandatory minimum sentence was promoted even for possession. Probation for first time offenders was taken out of the picture as well as the possibility of getting a bail was made an extremely arduous task, What was most tragic was the explicit reversal of the burden of proof which meant that now the convict was “ Guilty until proven innocent” , a blow to civil liberties if there was one. Now these stringent and regressive laws reflect the public opinion and politics of its time, the law, should not have a place in the current Indian jurisprudence.
The objective, initially of the NDPS act 1985 was to crack down on illicit drug trade and illicit drug use of “hard” drugs in particular, however what we find, from a few notable studies, including the one done by the Vidhi Center for legal policy[1], this particular study shows that 81778 People in India were charged under the narcotic drugs and psychotropic substances, NDPS act in the year of 2018, the finding from this study was that 59% of the arrested were for possession for personal use. Another finding of this study[2] when it looked at particular magistrate courts in Mumbai, it examined 10,669 Cases, off which 99.9% war for personal consumption, 87% of the total cases were related to cannabis and not hard drugs such as cocaine or heroin.
Himachal Pradesh
Himachal Pradesh has been known, for quite some time now, as a please where one can get a large variety of drugs and psychedelics. The real extent of this can be understood by the NCRB data for the year of 20186, where a total of 1342 cases registered under the NDPS act in one year, which makes Himachal Pradesh one of the highest in the countries when it comes two drug related crimes. The state adopted a mixture of narcotics regulation policy which meant coming down hard on traffickers while adopting a rehabilitative approach for drug users. This can be a way forward for many states in India. The use of drugs in can be traced back to the colonial era and before. First it came with the religious contexts in which cannabis was used, as well as the rise of poppy cultivation from the colonial era. Drug tourism as a phenomenon emerged in the state along with organized crime. The crackdown, initially, was a response to these phenomenon. In recent years the state has focused on the rehabilitation of drug users. Under the Rashtriya Kishore Swastha Karyakaram, The state health department has set up rehabilitation centers across regional hospitals all over the state. Even though the state has a long way to go, it is at least attempting to go in the right direction and an adoption of this rehabilitation model by India at large would only be beneficial.
THE EXPLOITATION OF THE POOR
The NDPS act in its current form, sees the consumption of drugs as a criminal offense call mom the idea of criminalization comes from the assumption that it will lead to less consumption of drugs. However over the years the criminalization has led to a greater degree of harm then good. When we see any typical crimes which causes harm to society in general come up criminalizing these activities usually the church these criminals and discourages them from victimizing others. When it comes to the criminalization of frog use, the state comes down as some sort of legal guardian deceive the individual from themselves. Here, it is quite evident that when the consumption of drugs is penalized come on it is resulting in the harm of the very people the act is intending to protect The problems with the law are multi fold, Firstly there has been a blanket ban on all kinds of Drugs come on which would mean that even carrying drugs for medicinal purposes without carrying the prescription could lead to a person’s rest. Secondly, consumption has not been defined within the law, neither exists a proper framework for which the law enforcement agencies might determine what may constitute consumption. Thirdly the law criminalizes casual drug users as well as serious drug addicts, there needs to be more nuance while dealing with these two distinct groups of people. The first category does not need any help from this state neither are they of any reasonable danger to themselves or people around them however the second category of people very much needs help from the state. In a thorough study done by VIDHI CENTRE FOR LEGAL POLICY[3], It was found that out of all of the drugs that was seized in Maharashtra, Most were expensive psychotropic substances which had been trafficked into India from across the world. However it turns out that these aren’t typically the cases where the individual gets punished, the police it seems goes after cannabis consumption for nearly all of the instances, even though most of the drugs seized are not cannabis based. This occurs due to the police having an incentive to boost their arrest rates. The cannabis users are an easy target for the police to reach their quotas; these are people that are some of the most marginalized in sections of our society. It is highly unlikely that these people would have any access to legal aid and hence are an easy target to scare and apprehend and arrest. Further what’s even more disheartening is in a majority of these cases the rule of law is not followed or might even seem afforded concept but it comes to the police dealing with these people from marginalized sections of society, these people are often arrested and immediately brought before the magistrate and forced to plead guilty Anna convicted and in sentence two minor imprisonment in fines on the same exact day.
CONCLUSION
The drug problem in India as well as the problem with the law in place to tackle the problem, both need to be looked at seriously and holistically. Currently the law exists as a well intentioned but Ill thought out method which sees punishment as a vehicle for reform come on but it’s this power of punishment in the hands of a disproportionately powerful police force which is then in turn under pressure to increase arrest rates, what happens inevitably as a result of these phenomenon is the deprivation of justice for the individuals and specifically the marginalized in India. Punishment needs to be replaced with rehabilitation when dealing with drug addicts in India, research has shown the efficacy of policies based on such a method. The intersectionality that poverty, sexually exploitive conditions and so on has with addiction needs to be looked at more fairly before drafting more new laws punishing victims.
Drug policy needs to be holistic in its approach, also we need to draw from successful experiments all across the world, Portugal in particular, it completely decriminalised the possession and consumption of illicit substances, and over the course of 20 years it has successfully[4] reduced overdoses, HIV infections and other drug related crimes come on this has been unprecedented worldwide. More such instances need to be studied and examined while making any new drug laws.
[1] Criminalisation Leads To Exploitation: The Mumbai Story No One Knows About, vidhilegalpolicy.in/research/criminalisation-leads-to-exploitation-the-mumbai-story-no-one-knows-about/.
[2] Criminalisation Leads To Exploitation: The Mumbai Story No One Knows About, vidhilegalpolicy.in/research/criminalisation-leads-to-exploitation-the-mumbai-story-no-one-knows-about/. 6 Pawar, R. P, 2018, CRIME IN INDIA 2018, Crime in India 2018 – Volume 1.pdf (ncrb.gov.in)
[3] Criminalisation Leads To Exploitation: The Mumbai Story No One Knows About, vidhilegalpolicy.in/research/criminalisation-leads-to-exploitation-the-mumbai-story-no-one-knows-about/.
[4] Christopher Ingraham, Why hardly anyone dies from a drug overdose in Portugal, The Washington Post (June 5, 2015), http://www.washingtonpost.com/news/wonk/wp/2015/06/05/why-hardly-anyone-dies-from-a-drugoverdose-in-portugal/.
Auhtor: Siddhartha Das
Juris Centre 