Why India needs to re-look at messy drug laws, and not go for ‘Bollywood clean-up’

New Delhi: The Narcotics Control Bureau (NCB) summons to actors Deepika Padukone, Sara Ali Khan and Rakul Preet Singh, along with Rhea Chakraborty’s continued incarceration, have put the spotlight on India’s drug laws. In episode 576 of Cut The Clutter, ThePrint Editor-in-Chief Shekhar Gupta declutters India’s messy drug laws to explain why these actors are facing the narcotics body.

Targets of NDPS Act

Gupta noted a study by the Vidhi Centre for Legal Policy, which said most arrests in drugs cases in India are for personal consumption. The study showed 81,778 people in India were charged under the Narcotics Drugs and Psychotropic Substances (NDPS) Act in 2018. Of these, 59 per cent were arrested for possession for personal use.

The same study also looked at the magistrates courts in Mumbai, where it found 10,669 cases. Of these cases, 99.9 per cent were for personal consumption, and 87 per cent of the total involved cannabis and not hard drugs like cocaine, heroin or smack.

Gupta highlighted that there’s an ongoing global debate on legalising cannabis. While some states in the US, and even several European countries, have legalised cannabis, there’s still a debate on the fact that criminalising cannabis has driven more people into jails. Studies in the US have found that the cost of rehabilitating people on cannabis is six times less than keeping them in jails.

According to a 2019 study, National Survey on Extent and Pattern of Substance Abuse in India, by the Ministry of Social Justice and Empowerment, around three crore people are cannabis users in India.

“Jailing these three crore people will completely break the legal system,” said Gupta. The debate surrounding decriminalising cannabis needs to start strongly in India due to the large number of users as well as its easy availability, he added.

Government data also suggests that eight lakh people are injecting drugs. “Focusing attention on these people who are injecting drugs will yield more value for your judicial and policing time,” said Gupta.

Data also suggests that more than hard drugs, softer drugs are the problem in India. These include cough syrups or eraser fluid, which are easily available in the market. “So legalising and ‘illegalising’ needs to be looked at differently in the context of India,” he said.

History of the NDPS Act

The NDPS Act stems from the Opium Act in 1857, passed by the British Indian government, noted Gupta. At the time, due to the Opium Wars with the French, the British wanted India to grow more opium. The law was meant to regulate who grows opium in India, and how much.

In 1878, the British revised the law, which was revised again 52 years later to the Dangerous Drugs Act. In 1961, the Single Convention on Narcotic Drugs was held as the hippie culture drugs and psychedelics became increasingly popular across the world. All signatory nations at the convention, including India, said they will pass laws in their respective countries within 25 years to ensure that the drug menace goes away.

The Rajiv Gandhi government passed the NDPS Act in 1985. “Conspiracy theories suggest that this was done under American pressure,” said Gupta. Starting with US President Richard Nixon, the US was facing a lot of Western backlash over its permissive drug culture. Successive Republican Presidents made the war on drugs their mission, he said.

The NDPS Act provided for death sentence to anyone found with a substantial amount of a banned drug. This law was reformed for the first time in 1988 to distinguish between substance abuse and possession. Punishment for personal consumption was reduced to one to two years jail time and possession was given a more stringent punishment in 1989 under “American pressure”, to include forfeiture of property. Death penalty was confirmed and strong punishments were allowed for production and financing, said Gupta.

In 1994, a committee was set up to establish how the exploitation of this law could be stopped. The NDPS Act was then amended to say it was the quantity of drugs that would determine the extent of punishment. So, if self-use is proven then the punishment is much lesser.

In 2001, this was amended again to distinguish between personal consumption and commercial use. Six years ago, the death sentence was also done away with.

The case against Rhea Chakrabotry

Bollywood actor Rhea Chakraborty has been arrested for buying drugs and its likely consumption on the basis of WhatsApp chats. While no substance has been recovered from her, she continues to be in jail.

“The problem with this law unlike other laws is that while in other laws the rule is innocent until proven guilty, here it is guilty until proven innocent,” said Gupta.

Bail conditions have also been made more stringent after a 2020 Supreme Court judgment.

Gupta said 59 g of marijuana was found from one of the dealers in the Chakraborty case, small amount of psychotropics was also found. The law says that possession of ganja (cannabis) up to 1 kg is allowed.

On the question of the NCB heat on other actors, Section 67 of the NDPS gives the power to any officer to summon anybody under any offence if the officer thinks that the person’s input will be important in cracking the cases, said Gupta.

So actors like Deepika Padukone, Sara Ali Khan, Shraddha Kapoor have been summoned in this regard and not as accused in the case, he added.

Law needs re-look

Gupta cited legal luminary Nani Palkhivala to say that in India, the “moment there is a problem we come up with a law”, thinking that it will make the problem go away.

“Just like labour reform and agricultural reform, there are several other laws which are floating around, which do not serve any legal purpose and are easily misused,” said Gupta.

The answer is not to pass a new law, or “Bollywood clean-up” as some are dubbing this, but to reexamine this NDPS law carefully, he said.

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