By Anand Grover and Tripti Tandon
There is no appetite in India for a serious conversation on drugs. The prime minister’s recent radio talk on the subject confirms that. Yet, drugs and laws to deal with them engage civil liberties, health and justice in a fundamental way that cannot be ignored.
The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is one of the harshest laws in the country. The minimum sentence for drug dealing is rigorous imprisonment for 10 years and a fine of Rs 1 lakh. Contrast this with punishment for rape and human trafficking that, even after the recent enhancement, stands at seven years imprisonment. Bail is rejected at the mere mention that the case involves narcotic or psychotropic substances. The law bars suspension, remission or commutation of any sentence passed, foreclosing all relief. In prison, drug convicts are labelled a “dangerous breed” and treated more harshly than rapists and murderers.
The NDPS Act prescribes capital punishment for a repeat offence of drug trafficking, even though it does not involve violence or killing and, consequently, cannot be categorised as a “most serious crime”, for which the death penalty may be used. There is no persuasive evidence that the death penalty is a greater deterrent than other punishments in reducing drug crimes. When a second conviction for murder does not automatically qualify as a “rarest of rare” case deserving capital punishment, how could a subsequent drug crime justify a death sentence?
The government has defended capital punishment by saying that the International Narcotics Control Board (INCB) is aware of India’s anti-narcotics programme and has never objected to penalties under the NDPS Act. Yet, in response to a clarification sought by us earlier this year, the INCB president wrote: “The board encourages state parties that still provide for the death penalty for drug offences… to consider the abolition of the death penalty for drug-related offences.” It is hoped that the Law Commission of India, which is currently reviewing criminal justice and sentencing, will take note of the harsh and disproportionate penalties under the NDPS Act and recommend the abolition of capital punishment.
The call to “shun drugs, not addicts” makes little sense as the narcotics law criminalises drug use, even though there is no such requirement under international conventions, along which our law is modelled. People who are addicted to drugs need medical care, not jail. In a “clean-up” drive launched after the infamous Shakti Mills incident, the Mumbai police began rounding up drug users and reportedly arrested 12,275 persons under the NDPS Act in nine months alone, as compared to 3,941 total arrests last year. While the statistics are troubling, the real worry is that this treatment of people who are poor and sick is lauded as “success”.
Worse still, the NDPS Act has cast a wide net. Punjab began a crackdown on drugs through large-scale interdiction, arrests and enforcement. Its prisons are swelling and more than one-third of undertrial prisoners reportedly face NDPS charges. Drug users are desperately seeking help, but government facilities are limited. One of the most effective treatments for opiate dependence is buprenorphine, a psychotropic substance that, if administered daily, reduces the craving for illicit drugs and enables the person to lead a life of dignity. Many doctors were prescribing buprenorphine, until the police raided a clinic and accused the psychiatrist of committing an offence under the NDPS Act, even though the law permits medical use of narcotic and psychotropic substances. The incident had a chilling effect on physicians throughout the state. Treatment has stopped and patients are turning back to illegal and riskier drug use.
The NDPS Act was recently amended to facilitate access to essential narcotic drugs, such as morphine. Ironically, those who manufacture and supply these substances legally are also not spared. A licensed supplier narrated how the truck transporting psychotropic medicines from his factory broke down. Alternate transport was arranged but the “consignment note”, mandatory for the dispatch of licit drugs, bore the registration number of the former vehicle. The driver was arrested and booked under the NDPS Act. The transporter and supplier were also summoned. If prosecuted, each could face up to 20 years imprisonment, even though there was no diversion. The law deals with licensed activities and trafficking with the same brush, imposing the same procedure and penalty, irrespective of whether the breach involves an inadvertent mistake on the part of the licence-holder or an intentional act of diversion and trafficking. This too has had a chilling effect on the pharmaceutical industry, as several companies are stopping trade in narcotic medicines. In these circumstances, medical access to opiates may not improve despite the favourable changes to the law.
No country can “arrest” its way out of the drug problem. Many countries, particularly in Europe and Latin America, have decriminalised personal use and possession of drugs in varying degrees and seen no adverse consequences. On the contrary, non-punitive measures have improved health and wellbeing of people involved with drugs, as has been seen in Portugal, where overdose and drug-related HIV infections got reduced after drug use and possession were decriminalised.
Reform is also underway in the US, which led the world to wage a “war on drugs”, but is now rethinking its approach. Over the last two decades, the US witnessed aggressive drug law enforcement, but arrests and incarceration had no impact on the availability and use of cannabis, or marijuana. In 2012, voters in the states of Colorado and Washington introduced regulated markets for cannabis for adult consumers. Two more states — Oregon and Alaska, along with the District of Columbia — followed suit last month. Doomsday predictions of increased use, addiction, crime and accidents on account of the legal availability of cannabis have not come true. Another 23 states have legalised medical marijuana. Today, more than half the US supports legitimate access to cannabis.
The country that imposed drug prohibition on the rest of the world is now turning back. Yet India, with a long history of cannabis and opium use, seems to blindly follow the “war on drugs”. Interestingly, cannabis regulation models being adopted in the US are not very different from our state excise laws that permitted the sale and taxation of cannabis, before prohibition was introduced under the NDPS Act.
Unfortunately, none of these issues were examined by the prime minister. As always, our politicians’ talk on substance use lacks substance.
Grover is senior advocate and director, Lawyers Collective. Tandon is an advocate and deputy director, Lawyers Collective.