Contemporary international drug policy seeks to control both the demand and supply of drugs through the criminalisation of production, trafficking and use. Furthermore, adherence to the United Nations drug control conventions of 1961, 1977 and 1978 ensures that most nation states adopt a similar prohibition-oriented approach when formulating national drug control legislation. In Asian countries wherein drug use has been a long-standing cultural aspect of history, this prohibitionist approach is proving to be more and more detrimental to actually being able to control drug menace. With its focus on India, this paper examines the impact of the punitive approach towards drugs in those societies and communities that have traditionally exerted socio-cultural controls over the use of mind-altering substances. The defining feature of harm reduction programmes is their focus on the prevention of harm rather than the prevention of drug use itself. Yet this flexibility is clearly limited by an overarching structure based on prohibition and criminalization. 

In India, it has led to a shift to harder forms of drug consumption and riskier modes of drug intake making the issue of drug demand control difficult to address, especially with a punitive approach to drug control. A large number of surveys conducted by NGO’s and the UN have proven that most of the youth in urban and upmarket areas get hooked on to drugs as drugs are usually easily available and are not very risky to arrange, thereby establishing that the prevailing internationally acclaimed drug policy approaches of prohibition have somewhere failed to make a mark. 

Socio Cultural Controls and Patterns of use

Earlier Patterns and Extent of Use

The use of the cannabis plant for a variety of purposes has long existed in, a fact also noted for many other countries of Asia. Its use for medicinal reasons, as well as its mind altering capacity, is significant. Additionally, the cannabis plant provides food grain, oil seed and fibre for manufacture of fibrous products in select parts of India. For example, the drug has a strong religious association as a gift from Lord Shiva to his followers. Opium has also been used for socio-cultural reasons in different parts of the country, with medicinal use being more prevalent than cultural use, like that seen among the Rajputs in Rajasthan and Gujarat. It is also imperative to note that prior to the introduction of contemporary drug control legislation,  a system for procuring opium and cannabis through legal outlets existed.

In modern times, addiction has affected the modern society to a huge extent. The spectrum of drugs abuse today is very wide covering the drugs of plant origin and a number of synthetic drugs of varying potency. Until the 1980s cannabis consumption does not appear to have been regarded as an issue of major social concern in India, with little or no official mention of excessive use. Prevalent socio-cultural regulations with regard to the form of use, mode of consumption, context of use and profile of users, ensured a system of use management that limited drug use within the country. 

Changes in Patterns of Use

Opium was used as a natural medicine and became an important item of trade in the sixteenth century. It was around this time when many individuals acquired an opium habit. However, by the time the first official study of opium was conducted in 1893, it was determined that opium smoking in rural areas was rare (Royal Commission report 1893) while in 1975, the total number of registered opium addicts in India was 80,809 (National Committee repot, 1977) .This reiterates the fact that drugs as a cultural iota of the society forms ritualistic patterns for its use and these patterns are thereby restricted to social amalgamation and merry. Cocaine use has not been a problem in India, but some estimate that the early half of the twentieth century, there were 5,00,000 cocaine users. The UNODC (2003)  reports that India has one of the highest prevalence rates of opium abuse. Approximately 0.7 percent of men over the age of ten have abused opiates. Current trends indicate that injecting heroin, buprenorphine and dextropropoxyphene is more prevalent. 

The World Drug Report 2011 has also clearly affirmed that India is the largest consumer of Heroin in South Asia. 

The convergence of a number of important structural changes, at both national and international levels, around the time of the NDPS Act (1985), impacted on longstanding patterns of drug use within India. Research suggests that tourism has contributed to a diversification of drug use patterns. Furthermore, the relatively easy availability of a “foreign” drug like heroin, in comparison to opium, within the urban setting contributed to a shift in the drug of choice. 

Far from reaching its goal of eradicating drug use, enforcement of the NDPS Act (1985) appears to have inadvertently facilitated a shift to harder forms of drugs and riskier modes of consumption. The impact of the legislative changes was initially felt in urban areas in the 1990s, especially the major cities. As a result of the factors discussed above, hard drugs seem to have found a niche in many cities. Drug addiction from traditional usage in the form of bhang, charas, ganja, opium etc has shifted to heroin and other psychotropic substances such as metro drugs/ designer drugs or pharma drugs that have become extremely popular among the people, especially the urban youth due to their easy availability over the counter in pharmacies. A 2008 UNODC Rapid Situation and Response Assessment (RSRA) among 9,465 people between age 21 and 30 in five South Asian countries captures the change. Of the 5,800 respondents from India, 43 per cent were found to use “drug cocktails” -with over 64 per cent injecting painkiller propoxyphene and 76 per cent buprenorphine. 

The World Drug Report (WDR) 2010 of the United Nations Office on Drugs and Crime (UNODC) indicates a shift towards new drugs and new markets, increased drug use in developing countries and the growing abuse of amphetamine-type stimulants (ATS) along with prescription drugs. 

The Amendments of 2001 of NDPS Act (1985) And unaddressed Concerns.

India’s stringent Narcotic Drugs and Psychotropic Substances Act of 1985 was amended in October 2001, bringing significant flexibility to the Indian sentencing structure for narcotics offences. After increasing for several years, arrests and prosecutions under the NDPSA declined in 2007. However, the overall conviction rate continues to increase, reaching 50 percent. In 2006 there were 9921 convictions, in 2007, 15390 persons were convicted and as of September 2008, 9328 convictions were obtained. The criminalisation of drug use and the increasing rates of arrest for possessing small quantities of drugs led to officials, social  scientists, members of the judiciary and others to question the suitability of such harsh legislation. The Act has failed because of delay in trials, a weak bail law that left the poor languishing in prisons, the failure of investigating agencies to follow the procedural requirements of NDPS Act and a poor understanding of the addiction problem. This ensured that, where traditional drugs are concerned, only individuals with “large quantities” of cannabis can be arrested for drug trafficking and face imprisonment. Further changes in the law in 2002 created two categories that are based on quantity seized. These are defined as “small quantities” and “commercial quantities”. For trafficking in commercial quantities, the sentence is imprisonment for more than twenty years and a fine varying between 100,000 and 200,000 Rupees. The categorisation of quantity varies according to the substance seized; for hashish, a small quantity is classified as below 100 grams and commercial quantity as 1 Kilogram and above; for heroin, a small quantity is below 5 grams and commercial quantity above 250 grams. This is arguably a more realistic figure than the former law that classified those possessing more than a quarter gram as drug traffickers. However, the addition of the word “preparation” has made it all the more confusing and vague. The proposed amendments seek to insert the word “preparation” in the definitions of commercial and small quantity, as well as provide for determination of quantity on the basis of the “pure drug content or otherwise”. It is unclear what the addition of the expression “preparation” to the definitions of commercial and small quantities would achieve. Further, the quantity of drug is to be determined on the basis of the entire amount of the mixture or solution and not the pure drug content. This is bound to cause miscarriage of justice in case of convictions. This is to be applied to the cases of death penalty specifically as laid down in section 31A of the act wherein death penalty is mandatory in case of repeated offence. A. For e.g., “if X was convicted for 1 kg substance (including 500 grams heroin and 500 grams powdered sugar) while Y was convicted for 900 grams substance (constituting 800 grams heroin and 100 grams powdered sugar) Still, X would get death for 1 kg heroin under s.31A while Y would be imprisoned under s.31 for 900 grams, even though the actual amount of heroin is higher in Y s case.” The legislature must avoid such unjust consequences, especially in matters of life and death. Similarly, the prevalence of giving death penalty is against constitutional validity as justified by several decisions of the courts across the country. In addition, in  Mithu v. State of Punjab(1983) 2 SCC 277 , the Supreme Court had declared mandatory capital punishment as unconstitutional. In a recent decision , the Bombay High Court applied the same principle and held Section 31A of the NDPS Act to be violative of Article 21 of the Constitution. The High Court observed that “the use of wise and beneficent discretion by the Court in a matter of life and death after reckoning the circumstances in which the offence was committed and that of the offender is indispensable; and divesting the Court of the use of such discretion and scrutiny before pronouncing the preordained death sentence cannot but be regarded as harsh, unjust and unfair”.

The said decision has not been appealed against by the Government till date. The Government has neither repealed nor amended Section 31A in the NDPS (Amendment) Bill, despite the findings of the Bombay High Court on its constitutional validity.

Nonetheless, despite the efforts made to revise the Act, one contradiction persists. This is that any form of use remains a criminal offence, which can result in imprisonment for a period of six months (Section 27(5) of the Narcotics and psychotropic Substances Act: The Bill seeks to standardise the punishment for consumption of narcotic drugs and psychotropic substances to a maximum of 6 months imprisonment and/or fine which may extend to Rs 10,000. Under the existing Act, punishment for consumption of certain drugs like cocaine, morphine and heroin is up to 1 year imprisonment and/or fine of Rs 20,000). Such an offence appears to be unrealistic in a country where the use of cannabis and opium retains widespread cultural acceptance in many states across the country. Also, the particular mandatory punishment is unnecessary and must be deleted altogether. Persons who use drugs, need support and assistance.  Punishment is not an appropriate sanction to drug dependence. 

Apart from this, Amending clause 15, Section 71 (1) “Power of Government to establish centres for identification, treatment, etc. of addicts” is a welcoming change, however, The words “The Government may, in its discretion, establish” should be replaced by “The Government shall, establish, recognize or approve as many centres as it thinks fit”.

The above change is required because there is an urgent need to increase the number of government institutions providing drug dependence treatment as well as to regulate private facilities purporting to provide such services. 

Conclusions and Suggestions 

As described here, the authorities have clearly made efforts to alter provisions of the NDPS to take more account of the indigenous drug use culture within the country. That said, it is no hidden fact that Indian drug policy could be made far more effective and appropriate to national realities. This is crucial at a time when overall, “the drug situation is still in a benign stage in India, though moving in dangerous directions”.

By concentrating predominantly on the punitive aspects of UN legislation, the India authorities are currently failing to address adequately the issue of drug use within their own borders. Without an urgent change in approach, involving not only the refocusing of resources but also the recognition of traditional attitudes to the use and management of mind-altering substances, the nation may in the future face similar drug-related problems to those recently experienced in other countries in the region.

By LawZ Bureau,