Opinion Why we must focus on curing, not criminalising drug users

Criminalisation means long pre-trial incarceration and stigmatisation of users. Very often, they lack access to de-addiction centres. The 2001 amendment to the law does have a mitigating provision — it differentiates between those who possess a “small quantity” of the drug and those found storing it in “commercial quantities”. This is a welcome step in distinguishing between “drug users” and “drug traffickers”. However, possession of the drug (for personal consumption) or consuming it for recreational purposes remains an offence under the Act. Such cases constitute 60 per cent of the total NDPS cases reported in India – in Maharashtra, the figure is as high as 85 per cent.

People who end up in jail often belong to the socially and economically vulnerable class – they constitute the majority of the undertrial prisoners under the NDPS Act.

Putting drug users behind bars makes their rehabilitation difficult and exposes them to the risk of becoming peddlers. Law enforcement agencies view drug users as offenders, whereas the public health systems focus on their well-being. In India, the former approach usually trumps and the rehabilitation of drug users is systematically replaced by the denial of bail and enforcement of jail terms and penalties. The strictly worded bail provision of the NDPS Act makes jail a rule, and bail an exception. The moral panic in society relating to drug use and abuse also has a bearing on the pre-trial procedure — in the much-hyped case of Aryan Khan, for instance.

The state’s militaristic approach has resulted in it turning a blind eye to addressing drug use as a public health issue. In 2021, the Ministry of Social Justice and Empowerment recommended the decriminalisation of the possession of small quantities of drugs for personal consumption to treat drug consumers as victims rather than culprits. The Ministry also suggested mandatory de-addiction and rehab facility for 30 days followed by mandatory community service for one year for drug addicts. The ministry’s position was along the lines of the approach advocated by UN human rights experts. However, in Parliament last year, the government did a volte-face on decriminalising personal consumption of drugs.

The over-criminalisation of drug users undermines their social well-being, and results in the wastage of precious time of the criminal justice machinery by clogging already burdened courts and adding to the workload of the overworked investigating agencies. Public resources that could have been deployed to set up a robust rehabilitation network are squandered away in the process. Countries such as Portugal and Canada have demonstrated the efficacy of the public health approach. In India, Sikkim has tried to tackle the drug problem by differentiating between peddlers and consumers. It has tried to advance healthcare services to the most vulnerable drug users. The state’s model of decriminalisation can be replicated at the national level.

Gautam is Associate Professor of Law, Guru Gobind Singh Indraprastha University, Tewari is Associate Professor, Department of Geography, Dyal Singh College and Das is PhD candidate Guru Gobind Singh Indraprastha University