BRIEFINGBriefing PAPER paper February 2015 Drug policy in India By Tripti Tandon, Deputy Director, Lawyers Collective Introduction references to cannabis use dating back to 2000 B.C. Post-colonization, the British attempted India’s response to drugs flows along an to regulate it through excise laws that licensed extraordinary spectrum – of tradition and cultivation and imposed taxes on the sale of modernity; of widespread availability and hemp.2 The cultivation and use of opium is stringent enforcement; of tolerance and believed to date as far back as the 10th century. prohibition; of production for medical use to During the colonial period, the British organized lack of medical access to opiates. India’s long opium into a large-scale commercial enterprise, history of cannabis and opium use is referenced consolidating and bringing cultivation of poppy extensively in policy analysis.1 Being a country and manufacture of opium (but not consumption) with significant volumes of licit and illicit drug under greater control through the Opium Acts of cultivation, a transit route as well as a consumer 1857 and 1878.3 market, India’s drug policy dilemmas span ‘demand’ and ‘supply’ control. Its large chemical By the 1920s, the growing nationalist movement and pharmaceutical industry draws the country became critical of the colonial government’s into deliberations on the illicit manufacture of commercially driven drug policy. Indian leaders drugs and precursor control as well as the non- distanced themselves from traditional use and medical use of prescription drugs. Some parts of the eradication of drugs became an avowed the country report alarmingly high rates of drug policy goal.4 Many provincial governments passed dependence, HIV and viral hepatitis amongst laws to restrict the consumption of opium.5 people who inject drugs, making health and harm Cannabis was classified as an intoxicating drug reduction important policy considerations. While and continued to be regulated through provincial India’s harsh drug control laws (in particular the excise Acts.6 criminalization of drug use and the imposition of the death penalty for certain drug offences) In 1930, the Dangerous Drugs Act was enacted conform strictly with prohibition, its regulated opium cultivation industry provides insights for and sought to extend and strengthen control countries that are experimenting with alternatives over drugs derived from coca, hemp (cannabis) to prohibition. and poppy plants by regulating the cultivation, possession, manufacture, sale, domestic trade and external transactions through licenses and Context penalizing unlicensed activities.7 There were Cannabis has been consumed for spiritual, no offences attached to cannabis or to drug medicinal and recreational purposes in India consumption. The framework of the Dangerous since the classical era, with earliest documented Drugs Act continues to prevail in the current 1 legislation, especially the statutory definitions Current legal framework for coca, opium, hemp and their derivatives, the category of “manufactured drugs” and the Narcotic Drugs and Psychotropic division of rule-making powers between the Substances Act, 1985 central and state governments. India is a party to the three United Nations drug conventions – the 1961 Single Convention on The Drugs and Cosmetics Act, 19408 was adopted Narcotic Drugs (1961 Convention), the 1971 for the regulation of medicinal drugs including Convention on Psychotropic Substances (1971 cannabis and opium. The Dangerous Drugs Act, Convention) and the 1988 Convention against however, continued to apply. Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988 Convention). Domestic At the time of independence, gained in 1947, legislation to give effect to these treaties was narcotics were a heavily regulated commodity as introduced only in the 1980s when the ‘grace ‘dangerous’ substances, medicinal products, as period’ for abolishing non-medical use of cannabis well as goods subject to excise tax. and opium under the 1961 Convention expired.15 Exercising its powers to make law for the country This position continued post-independence. With for implementing “any treaty, agreement or the adoption of the Indian Constitution in 1950, convention or decision made at international all laws became subordinate to constitutional conference”,16 the Indian Parliament passed the provisions, in particular, fundamental rights.9 There Narcotic Drugs and Psychotropic Substances Act, were some challenges to drug laws on the grounds 1985 (NDPS Act) hastily, without much debate. that they were discriminatory and contravened The NDPS Act came into force on 14 November farmers’ freedom of trade and occupation. The 1985, replacing the Opium Acts and the Dangerous cases, however, were unsuccessful.10 Courts relied, Drugs Act. The 1940 Drugs and Cosmetics Act, among other things, on India’s international drug 1940, however, continues to apply.17 control commitments to justify the restrictions on cultivation, use and trade. The official record states that the NDPS Act was enacted in order to provide adequate penalties The prohibitionist sentiment became further for drug trafficking, strengthen enforcement entrenched by way of Article 47 of the Constitution powers, implement international conventions to which states: “The State shall endeavor to bring which India was a party, and enforce controls over about prohibition of the consumption except for psychotropic substances. The Act was amended medicinal purposes of intoxicating drinks and of in 1989, 2001 and more recently in 2014. drugs which are injurious to health”. Although these Directive Principles of State Policy are non- The NDPS Act prohibits cultivation, production, enforceable,11 this provision is frequently invoked possession, sale, purchase, trade, import, to justify punitive drug policies. export, use and consumption of narcotic drugs and psychotropic substances except for medical The Constitution also earmarked subjects on and scientific purposes in accordance with the which Parliament or state Legislatures could law.18 Preparation to commit certain offences make law either exclusively or concurrently. is punishable as is attempt. Accessory crimes “Drugs and poisons” was placed in the of aiding and abetting and criminal conspiracy concurrent list,12 allowing both center and attract the same punishment as the principal states to legislate. “Public health” and “prisons offence.19 and other institutions of like nature and persons detained therein” are only on the state list.13 The Act covers three broad classes of substances: The division of legislative powers is significant 1) narcotic drugs, that is, those covered under because it determines state governments’ the 1961 Convention; 2) psychotropic substances ability to ‘break’ from national drug policies and or those covered under the 1971 Convention employ alternatives14 in areas where they are as well as other psychoactive substances such empowered to frame policy. as ketamine which are not yet classified under 2 international conventions; and 3) “controlled empowers the central and state governments to substances”20 that are used to manufacture frame rules26 and authorize drug-related activities narcotic drugs or psychotropic substances, for within the rubric of “medical and scientific example precursor chemicals such as acetic purpose”, a term which is neither defined nor anhydride, ephedrine and pseudoephedrine. described in the Act. While some activities are reserved exclusively for the government,27 others Narcotic drugs include: can be carried out by private entities under 28 • Cannabis: plant; resin or charas and its license. The regulatory system also includes concentrated variant called hashish; dried supply of opium to registered users, who are flowering or fruiting tops of the plant, that dependent on opium, for consumption on medical is, ganja and any mixture of charas or ganja. advice – a measure comparable to contemporary 29 Importantly, bhang or the cannabis leaf harm reduction strategies. Though provided in 30 is excluded (in accordance with the 1961 the law, the practice has fallen into disuse and Convention) and regulated through state as of last year, there were less than 1,000 opium 31 excise laws users registered in the entire country. • Coca: plant: leaf; derivatives include cocaine In 1988, the NDPS Act was supplemented by and any preparation containing 0.1% of the Prevention of Illicit Traffic in Narcotic Drugs cocaine and Psychotropic Substances Act to provide for • Opium: poppy plant; poppy straw; preventive detention of people suspected or concentrated poppy straw; juice of accused of involvement in drug trafficking.32 opium poppy; mixture of opium poppy juice; preparations with 0.2% morphine; NDPS Amendments, 1989 derivatives include heroin, morphine, In 1989, the NDPS Act underwent the first codeine, thebaine, etc. set of amendments, after a Cabinet Sub- Committee for combating drug trafficking and Narcotic drugs also fall under the overlapping abuse recommended that the law be made category of “manufactured drugs”.21 Psycho- more stringent. The ‘tough on drugs’ rhetoric tropic drugs are not defined but include all led to the introduction of very harsh provisions drugs notified by the government as such. such as mandatory minimum sentences of 10 Amphetamines, methamphetamines, LSD, MDMA years’ imprisonment, restrictions on bail, bar and buprenorphine amongst others are on on suspension and commutation of sentences, this list, which