A Case for De-Criminalization of Cannabis Use in India
A Case for De-Criminalization of Cannabis Use in India
This report is an independent, non- commissioned piece of work by the Vidhi Centre for Legal Policy, an independent think-tank doing legal research to help make better laws.
About the Authors
Neha Singhal is a Senior Resident Fellow and Team Lead, Criminal Justice at Vidhi Centre for Legal Policy.
Naveed Mehmood Ahmad is a Research Fellow at Vidhi Centre for Legal Policy.
Table of Contents
I. INTRODUCTION 1
II. CANNABIS REGULATION IN INDIA 1
A. Extent of Regulation 1
B. Criminalized Prohibition of Cannabis 2
III. ISSUES WITH INDIA’S LAW ON CANNABIS 2
A. Premise of India’s Cannabis Regulation 3
i. India’s Shift Towards Criminalizing Cannabis Use 3
B. Economic Impact 4
C. The Effects of Criminalization of Cannabis Use 5
i. Strain on the Criminal Justice System 6
ii. Perils of a Criminal Record 6
iii. Effect on the Marginalized 7
iv. Promotion of Unsafe Practices 7
IV. DECRIMINALIZATION OF CANNABIS USE: TRENDS ACROSS THE WORLD 8
V. CONCLUDING REMARKS ON HOW INDIA SHOULD RESPOND 9
I. Introduction criminalization in Mumbai to make this argument, which finds that amongst those This paper looks at the extent of cannabis arrested, prosecuted and convicted for illicit regulation in India and situates the prohibition drug use, cannabis users form an overwhelming in its historical and regulatory context. The majority. paper argues that cannabis consumption was II. Cannabis Regulation in historically permitted in India and the international pressure led by America’s war on India drugs pushed Indian legislators to criminalize cannabis consumption and cultivation. International obligations arising out of the UN This paper then examines the extent of cannabis Convention on Narcotic Drugs, 1961 and the consumption in India and analyzes the effect of Convention on Psychotropic Substances, 1971 its criminalization. It argues that India influenced the enactment of the Narcotic Drugs consumes vast quantities of cannabis and the and Psychotropic Substances Act, 1985 (“NDPS State loses precious revenue by strictly Act”), which governs the cultivation, regulating cultivation, production and production, sale, transport, possession and use prohibiting cannabis use. It then contends that of narcotic drugs, psychotropic substances and criminalizing cannabis use puts an undue other manufactured drugs. One of the many pressure on an already crumbling criminal narcotic substances regulated by the NDPS Act justice system and hinders access to healthcare. is cannabis. Under section 2(iii) of the Act, Being put through the system creates further Cannabis is classified in two forms – charas & misery and hardship on an individual, who then ganja. Charas is defined as the resin from the has to grapple with the pitfalls of a criminal cannabis plant, which includes hashish oil or record. The paper also argues that the liquid hashish. Ganja is the flowering or fruiting implementation of such criminalization tends top of the plant. Any mixture of these forms or to target the already vulnerable and leads to any drink so prepared also falls within the further marginalization. meaning of cannabis. Section 2(iv) further The paper then assesses the trends of defines the cannabis plant as any plant of genus decriminalization of cannabis use across the cannabis. world and concludes by arguing that India must A. Extent of Regulation recognize the racist origins of cannabis The NDPS Act regulates cannabis as a plant prohibition and must also acknowledge how and as a narcotic and a manufactured drug. criminalization of cannabis is costing its own Although the definition of cannabis under the marginalized population. We rely heavily on our forthcoming research on drug use and 1
NDPS Act does not include Bhang,1 its the duration of which depends upon the production is still regulated. quantity of cannabis in possession. For The cultivation of cannabis plant is prohibited possession of a small quantity of cannabis, the except for medical and scientific purposes. The NDPS Act provides for imprisonment of up to manner and extent of cultivation is further six months,5 this goes up to ten years for an subject to control, through licenses and offence involving intermediate quantity and a permits. Governments are also authorized to minimum of ten years for a commercial permit cultivation of cannabis plant for quantity offence.6 Further, Section 27 of the industrial or horticulture purposes.2 Act criminalizes consumption of cannabis and Production, manufacture, possession, sale, provides for a sentence which may extend to 6 transport, import, export, use etc. of cannabis months or with fine of Rs. 10,000 or both.7 is prohibited. As in the case of cultivation, an exception is carved out for medical and III. Issues with India’s Law on scientific purposes.3 Cannabis Further, subject to the general prohibition on cultivation, production, use etc. of cannabis, The criminalization of use, cultivation and state governments have been authorized to strict controls over medical and industrial use make rules for permitting and regulating of cannabis, raises multiple questions. Was cultivation of cannabis plant and production, there a need for the State to intervene with manufacture, possession, transport or use of cannabis use and cultivation? Is the cannabis (excluding charas).4 intervention well envisaged and proportionate to the need, if any? And, what are the B. Criminalized Prohibition of consequences of this State intervention? In an Cannabis attempt to answer these questions, we evaluate Cultivation of the cannabis plant attracts a jail the consequences of criminalization, delve into term which may extend to ten years along with the historical use of cannabis in India and a fine of up to one lakh rupees. Similarly, analyze the reasoning behind the current unlawful possession, production, sale, use etc. regulation. of cannabis is punishable with imprisonment,
1 Leaves of the Cannabis Plant. Charas/Hashish: Small quantity (100 grams), 2NDPS Act 1985, s 14. Commercial quantity (1kg) 3 NDPS Act 1985, s 8. Ganja: Small quantity (1 kg), commercial quantity (20 4NDPS Act 1985, s 10(a)(iii). kg). 5 The Government has notified the quantities against all 6 NDPS Act 1985, s 20. narcotic drugs and psychotropic substances. These 7 NDPS Act 1985, s 27. quantities lay the basis for sentencing under the NDPS Act. Following quantities are specified for cannabis: 2
A. Premise of India’s Cannabis affirmed that moderate use of cannabis did not Regulation have any serious detrimental effect on physical, mental or moral health.14 Over the In India, the cultivation of cannabis started as years, cannabis was regulated through multiple early as 5000-4000 BC8. Under the Ayurvedic excise legislations, such as the Bengal Excise form of medicine, cannabis was used as an Act of 1909, the Dangerous Drugs Act, 1930 analgesic, antispasmodic, anodyne, sedative and the Drugs and Cosmetics Act, 1940.15 etc.9 It was used to treat the nervous system, However, cannabis use was not criminalized. respiratory disturbances, gastrointestinal 10 issues and for various infectious diseases. i. India’s Shift Towards Criminalizing 11 Cannabis was also used for making cloth and Cannabis Use 12 as construction material in the Ellora caves. A major force that drove the world towards a The use of cannabis was entrenched in Indian prohibitionist approach to drug use was the cultural practices given its association with United States of America (‘US’). The US had religious beliefs. Reference to it as a ‘joy been ‘fighting’ opium use since the 1800s and giver’, a ‘liberator’ and its inclusion in the list its policy came to increasingly influence the of five sacred plants in the Atharveda,13 world’s perception of drug use. In 1905, the ensured its integration in mainstream culture. US drug policy was implemented in the In 1893, the British appointed the Indian Hemp Philippines where the US colonial government Drugs Commission to look into the cultivation was allowed to restrict the use of opium.16 To of the hemp plant in Bengal, the preparation of develop consensus on the need to restrict drugs from it, the effect of their consumption opium trade, the US helped set up a on people, and the desirability of prohibiting Commission on Opium in Shanghai in 1909. the growth of the plant and the sale of ganja This led to stopping of opium sales from and allied drugs. In its report the Commission Britain to China and elimination of China’s did not make any adverse observation and
8 M. Singh , MM Sardesai, ‘Cannabis Sativa 14 W. Mackworth Young et al, ‘Report of the Indian (Canabaceae) in Ancient Clay Plaster of Ellora Caves Hemp Drugs Commission’ (1894) < India’ (2016) 110(5) Current Science 884. https://digital.nls.uk/indiapapers/browse/archive/744648 9 Mohammed Kuddus, Ibrahim AM Ginawi & Awdah 68> accessed 04 August 2020. Al-Hazimi, ‘Cannabis Sativa: An Ancient Wild Edible 15 Tripti Tandon, ‘Drug Policy in India’ (International Plant of India’ (2013) 25(10) Emir J. Food Agric 736. Drug Policy Consortium, 2015) < 10 Mia Touw, ‘The Religious and Medicinal Uses of http://fileserver.idpc.net/library/IDPC-briefing- Cannabis in China, India and Tibet’ (1981) 13(1) Journal paper_Drug-policy-in-India.pdf> accessed 07 August of Psychoactive Drugs. 2020. 11 Lallanji Gopal, ‘Textiles in Ancient India’ (1961) 4(1) 16 Arnold H. Taylor, ‘American Confrontation with Journal of the Economic and Social History of the Orient Opium Traffic in the Philippines’ (1967) 36(3) Pacific 53. Historical Review 307; Dale Gieringer, ‘America’s 12 Singh & Sardesai (n 8). Hundred Years War on Drugs’< 13 GK Sharma, ‘Cannabis Folklore in the Himalayas’ http://www.drugsense.org/dpfca/DrugWarCentennial1.h (1977) 25(7) Botanical Museum Leaflets, Harvard tm> accessed 05 August 2020. University 203. 3 own poppy cultivation.17 The US continued to a marked failure in utilizing the exemption enforce strict prohibitionist measures at home provided for industrial use of the cannabis. by enacting the Opium Exclusion Act, 1909 A Cannabis plant with higher Cannabidiol and the Harrison Narcotics Act in 1914. (‘CBD’) content than Tetrahydrocannabinol In the following decades, the US (‘THC’) content, has a less psychoactive internationalized its form of prohibition on character and substantial industrial utility.20 In drugs and worked through the United Nations common parlance, this distinction lays the to forge a prohibitionist drug regime across the basis for categorizing such cannabis plants as globe.18 It has often been contended that the ‘industrial hemp’. Hemp products have a UN Convention on Narcotic Drugs, 1961 was global market of around $ 4.7 billion, spread a result of a US sponsored resolution and an across various sectors such as construction, American policy serving American interests.19 paper making, personal care etc. However, The 1961 Convention created international India’s contribution to the market is a mere obligations to curb traffic, cultivation, use etc. 0.001%.21 Although hemp cultivation for of narcotic drugs, including cannabis. The industrial purposes may be permitted under the NDPS Act was enacted to fulfil India’s NDPS Act, only Uttarakhand and Uttar obligations under this Convention and the Pradesh seem to have explored the possibility, 1971 Convention on Psychotropic Substances. reflecting constraints of operating within a Thus, the use of cannabis, which was legally prohibitionist environment. Hemp’s use as a and socially sanctioned for thousands of years, fibre and in construction over thousands of was criminalized in one fell swoop in 1985. years has largely been eliminated in less than four decades of cannabis prohibition. As the B. Economic Impact world cannabis market is estimated to go up to As a result of criminalization and strict $15.8 billion by 2027,22 restrictive policies in regulations over cannabis cultivation, there is
17 Shanghai Opium Commission < psychoactive ingredient and affects locomotor activity, https://www.unodc.org/unodc/en/data-and- while CBD does not and is stated to have a counter effect; analysis/bulletin/bulletin_1959-01- Zerin Atakan, ‘Cannabis, a Complex Plant: Different 01_1_page006.html> accessed 03 August 2020. Compounds and Different Effects on Individuals’ (2012) 18Alfred McCoy, ‘America’s Drug War is Ruining the 2(6) Therapeutic Advances in Psychopharmacology 241. World’(The Nation, 09 April 2019) 21 Neha Devan, ‘Boheco: This Cannabis Startup is
India continue to act as barriers to economic C. The Effects of gains. Criminalization of Cannabis Additionally, the government loses out on Use revenue from a widely consumed substance. Thousands of people are arrested every year As per the National Survey on Extent and for illicit consumption of narcotic drugs and Pattern of Substance Use in India by the psychotropic substances. In 2018, 81,778 Ministry of Social Justice, 2.8% of Indians persons were arrested under the NDPS Act. between the age of 10-75 are current users of 59% of the those were found in possession of cannabis. This accounts to 3.1 crore substances for personal use.26 Our forthcoming individuals. Amongst psychoactive findings on Mumbai give an insight into how substances, cannabis is the second most many people are arrested for illicit cannabis consumed in India after alcohol.23 In 2018, consumption, in comparison to other New Delhi and Mumbai were amongst the prohibited substances. highest consumers of cannabis in the world, During the course of our research, we analysed consuming 38.26 metric tonnes and 32.38 10,669 cases from Magistrate Courts in metric tonnes of cannabis respectively.24 If Mumbai, 99.9% of these cases involved cannabis was to be taxed like tobacco and consumption of a narcotic substance. alcohol, the government could raise a Wherever information on the kind of substance substantial revenue. A study estimated that involved was available, 87% of the cases around 725 crore could be raised in Delhi alone involved cannabis. We find therefore, that if cannabis is taxed. This number was pegged Mumbai’s NDPS arrests, which are the highest at 641 crore for Mumbai.25 in the country,27 are primarily arrests of cannabis consumers. This suggests that criminalization of cannabis consumption is
Application (Animal Care, Textiles, Food & Beverages, worlds-biggest-consumers-of-weed/> accessed 03 Personal Care), and Segment Forecasts, 2020 – 2027’ August 2020 and Meera Navlakha, ‘Study Finds Delhi (Grand View Research 2020) and Mumbai are Among the Top 10 cities in Cannabis 28 Common Cause & Lokniti – CSDS, ‘Status of Policing 30 2.4 Crore criminal cases are pending before courts in in India Report’ (2019) < India. National Judicial Data Grid < https://www.csds.in/uploads/custom_files/1566973059_ https://njdg.ecourts.gov.in/njdgnew/?p=main/pend_dash Status_of_Policing_in_India_Report_2019_by_Commo board> accessed 19 August 2020. n_Cause_and_CSDS.pdf> accessed 04 August 2020. 31 Ministry of Social Justice and Empowerment (n 23). 29For 2018, the police per lakh population ratio against 32European Harm Reduction Association, sanctioned total police was 198.65. With an overall ‘Criminalization Costs’ vacancy of 5,28,165 police personnel against the total 34 Human Rights Watch, ‘Every 25 Seconds: The Human Crime and Delinquency 123; German Lopez, ‘These Toll of Criminalizing Drug Use in the United States’ Maps Show the War on Drugs is Mostly Fought in Poor (2016) substances. In these illegal markets the quality the first step, which was followed by of substances remains unchecked, leading to legalization of cannabis for medicinal adulteration and sale of toxic substances. purposes and then by legalization of personal Studies across the world have identified consumption in some jurisdictions.44 The adulteration in various substances,40 mainly changing legislative framework reflected the intended to increase quantity or enhance failure of the much-touted war on drugs. potency.41 This aggravates the risk of an Twenty-six states in the US have now overdose or addiction to substances decriminalized possession and consumption of unknowingly consumed. In India, cannabis is cannabis. Eleven states and the District of adulterated with shoe polish and battery acid.42 Columbia have legalized small amounts of Cannabis is also often adulterated with cannabis for adult use.45 benzodiazepine, a prescription sedative, which It can be concluded that there are two models can lead to addiction to sedatives without the in the US that are different from traditional person’s knowledge or consent.43 criminalized cannabis prohibition. One that considers cannabis consumption a civil IV. Decriminalization of violation or a low-level offence attracting no Cannabis Use: Trends jail term and the other that has legalized Across the World possession of cannabis for personal consumption. In the past hundred years, the approach Similarly, various other countries have towards cannabis use has evolved decriminalized or legalized cannabis substantially. After internationalizing its consumption. Belgium decriminalized model of a criminalized form of drug possession of cannabis for personal 46 prohibition, the US initiated crucial reform in consumption in 2003. Under Portuguese law the law. Decriminalization of cannabis use was consumption of cannabis is categorized as an 40 R.N Kling, Yuko Baljak et al, ‘Perceptions of 43 Information received during our interactions with Adulteration and Quality Assurance Practices Reported doctors at the JJ Hospital in Mumbai in September 2019. by People Who Use Drugs: A Review of the Literature’ 44 R. Pacula & R. Smart, ‘Medical Marijuana and (BC Centre for Disease Control, 2015) Marijuana Legalization’ (2017) 13 Annual Review of administrative offence.47 Canada on the other Further, cannabis criminalization also hand allows adults to possess up to 30 grams disregards the racist origins of the US war on of cannabis.48 drugs. Association of opium use with Chinese The changing nature of laws, even in culture, largescale immigration of Chinese into prohibitive legislative frameworks, which are the US and increasing opium addiction led to now exploring a decriminalized model the enactment of a patently racist Chinese suggests an international shift towards an Exclusion Act in 1882.49 Similarly, narcotics approach that recognizes the futility of use was associated with the non-white criminalization of cannabis use. population and was considered outside of Euro-American cultural values.50 V. Concluding Remarks on The prohibition on cannabis use was a How India Should Respond consequence of a racist propaganda against Mexican immigrants.51 The Commissioner of Three and a half decades after cannabis Narcotics Harry Anslinger, a major force prohibition was implemented in India, behind this propaganda, while linking cannabis cannabis use has continued unabated. Crores consumption to African Americans and of people still consume cannabis and Hispanics, argued that cannabis leads to thousands of vulnerable persons are arrested, insanity, criminality and death. He added that prosecuted and convicted every year for such it is the most violence causing drug in the use. history of mankind.52 Anslinger, called the Far from deterring users, criminalization of architect of the modern war on drugs, cannabis consumption has only led to represented the US in the Commission of stigmatization and overburdening of an Narcotic Drugs at the UN and played a major already crumbling criminal justice system. It role in internationalization of the US model of has also created a strictly prohibitionist drug prohibition.53 environment that has prevented effective As the countries across the world begin to now utilization of cannabis for commercial relax norms for personal consumption of purposes. cannabis, it is time India also shuns an archaic 47 Law No. 30/2000, Article 2(1). and Selective Arrests’ (2012) 19(3-4) Race, Gender & 48 Cannabis Act, 2018, s 8. Class 75. 49Patrick Mccaffrey, ‘Drug War Origins: How American 52 Dave Bewley, Tom Blikman, Martin Jelsma, ‘The Rise Opium Politics Led to the Establishment of International and Decline of Cannabis Prohibition’ (Transnational Narcotics Prohibition’ (2019) Institute - Global Drug Policy Observatory 2014) < 54 Sikkim Anti-Drugs Act 2006 decriminalizes personal evaluation to determine the need for rehabilitation and consumption of all drugs and mandates a psychiatric de-addiction. 10 www.vidhilegalpolicy.in Vidhi Centre for Legal Policy A-232, Defence Colony New Delhi – 110024 011-43102767/43831699 11