Decriminalization of drug use in India

A news item which appeared in certain media outlets in 2021 caught the attention of many people who are concerned about drug addiction in India. These media reports hinted that the Government of India was mulling reforms in the Narcotic Drugs and Psychotropic Substances (NDPS) Act (1985) to decriminalize personal consumption of illicit drugs.[1] Indeed, three decades after enacting the NDPS Act – termed as “draconian” by many experts – it is certainly time to ask whether the provisions in the law which make consumption of certain psychoactive substances a criminal offense are justified? Has this law been effective in reducing drug use? Punishment as Deterrence to Prevent Drug Use The genesis of the NDPS Act of India (as well as similar laws in most countries) can be traced to the three United Nations (UN) International Drug Conventions: 1961 (on narcotic drugs), 1971 (on psychotropic substances), and 1988 (on precursor chemicals), to which India is a signatory. Concern for the “health and welfare of humankind” is the premise on which the three UN conventions are based. Parties to this convention are required to, inter alia, take practicable measures to control diversion and abuse of NDPS. Most countries have interpreted this as an obligation to enact laws which make all the activities related to controlled drugs – production, trafficking, sale, and even consumption – criminal offenses attracting punishments of varying severity. It is believed that the fear of punishment acts as a deterrence which prevents people from using illicit substances. However, a growing body of research in the fields of addictive behaviors and criminology has established the limited effectiveness of deterrence as an approach to prevent drug use. For instance, the Canadian Senate Special Committee on Illegal Drugs (2002)[2] examined the prevalence of cannabis use in “prohibitionist” (i.e., countries with stringent drug laws which explicitly regarded drug use as a criminal act) and “liberal” countries (i.e., those with more permissive drug policies). The committee could not find a discernible pattern; the prevalence of cannabis use was not less in the prohibitionist countries (like Sweden, the USA, and Canada) as compared to more liberal countries (like the Netherlands, Australia, and Sweden). A study compared experienced cannabis users from two contrasting drug policy environments: San Francisco (cannabis use criminalized) and Amsterdam (de facto decriminalization) and concluded that while criminalization was associated with higher risk and fear of arrest, it did not significantly affect access to drugs.[3] Indeed, while deterrence does not work, even undergoing actual arrest and punishment has been shown to not affect drug consumption. Data from a 21-year longitudinal assessment of drug use and related arrests in New Zealand showed that among those cohort members who were arrested or convicted for a drug offense; 90% did not change their pattern of use and 5% reported increased use![4] Thus, it appears that fear of punishment is not an effective deterrence for drug consumption. Why do then lawmakers tend to rely so heavily on strong drug laws aimed at punishing drug users? For the purpose of any criminal punishment, various types of justifications are cited, many of which perform overlapping functions: retribution, incapacitation, deterrence, rehabilitation, or reform. Arresting and putting in jail someone for merely consuming a substance satisfies none of these justifications. Since drug use is practically a victimless crime, retribution and incapacitation cannot be valid goals of punishment from a human rights perspective. For the sake of argument, maybe one can try justifying punishment with reform or rehabilitation as a goal (if the criminal justice system is geared toward providing treatment and rehabilitation to people convicted of the offense of drug use). Indeed, the compulsory drug treatment systems that exist in some countries (notably in Southeast Asia) are justified using a similar perverse logic – compulsory long-term detention in residential settings in the name of treatment instead of a jail term as punishment. However, scientific evaluations have concluded that there are no improved outcomes with compulsory treatment and in fact, there may be harms in terms of human rights abuses, forced labor, and lack of adequate nutrition.[5] Rightly, the UN agencies have been calling for closing such compulsory treatment facilities, which remains a work in progress.[6] In fact, the UN system does not just stop at recommending voluntary treatment with consent for drug addiction. It has explicitly called upon the member states to reform “…punitive laws that have negative health outcomes and counter established public health evidence” including laws that “…criminalize or otherwise prohibit drug use or possession of drugs for personal use.”[7] In other words, a call for decriminalization of drug consumption. This contrasts with the position of the UN system as understood by the national governments a few decades ago which resulted in the framing of prohibitionist policies and punitive drug laws across the world. Understanding Decriminalization Regarding laws and policies about the consumption or possession of illegal drugs, a variety of terms appear in the literature which sometimes confuses the average citizen. Decriminalization, the most well-known term refers to either removal of criminal penalties (de jure), or an operational decision of nonenforcement of criminal penalties (de facto). Depenalization refers to the removal of all penalties or reduction of severe penalties. These two terms must be distinguished from legalization through which a previously illegal act is made a legal (though regulated) act. For instance, Canada has now legalized the trade and consumption of cannabis, meaning it is possible legally to sell and consume cannabis products in Canada (though within a regulatory framework). With decriminalization, on the other hand, the act of using drugs remains prohibited (but not punished), although selling drugs attracts punishments. It can be understood with the example of underage alcohol consumption in India. Most Indian states prescribe a minimum legal age for drinking. Drinking by a person below that age does not attract penalties but someone selling or serving alcohol to an underage individual can be prosecuted.[8] In other words, drinking by an underage individual is not legal but decriminalized. Many countries across the world appear to be paying heed to the evidence staring them in the face and making reforms in their drug laws and policies. Portugal is the most notable example. In 2000, Portugal decriminalized possession of a small amount of all drugs for personal consumption and instead instituted a system whereby people who use drugs can easily access health and welfare services without stigma or fear of punishment. Eventually, the impact of these reforms has been visible. Contrary to the popular (mis) perception, after decriminalization, the prevalence of drug use among young people in Portugal reduced, not increased. There has been a noticeable improvement in many other parameters such as a reduction in health complications of drug use such as HIV, improved treatment seeking, and an overall reduction in petty crimes.[9] Subsequently, many countries have been on a path to bring about legal reforms aimed at decriminalizing drug consumption, although the progress is slow.[10,11] Indian Scenario With this background, it is useful to examine the situation in India, specifically the drug use scenario. Our figures for the prevalence of the use of most of the drug categories are much below the global average, except for opioids which is three times higher (the current use of opioids in the general population: India 2.1%; world 0.7%).[12] It must be noted that opioids are the drug category associated with the highest burden of disease and disability among all illicit drugs. The drug use situation has worsened in India since the NDPS Act was enacted in 1985. Experts have commented how the NDPS Act came into being without adequate debates and discussions by the legislature. However, looking at the records of the parliamentary debate in 1985, it appears that deterrence of punishment was the primary objective behind this law. Parliamentarians sought to heavily punish not just the drug traffickers but even the consumers.[13] The NDPS Act 1985 explicitly criminalizes the consumption of NDPS, except for medical and scientific reasons. The act achieves this by including “use or consumption” among the various terms for defining “illicit traffic” (such as production, manufacture, sale, transportation, etc.). Further reinforcement of drug consumption as a crime comes through section 8 of the act which lists various prohibited activities – “No person shall………produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume,……any narcotic drug or psychotropic substance” (emphasis added). Finally, section 27 prescribes punishment for the consumption of any narcotic drug or psychotropic substance – rigorous imprisonment for 1 year and/or a fine of 20,000 rupees. The label of “draconian” on the NDPS Act notwithstanding, the law does strive to distinguish drug users (i.e. possession for personal consumption) from drug traffickers (i.e. dealing in drugs with commercial motives) through prescribing a graded structure of penalties. Thus, for every scheduled drug or substance, threshold quantities have been defined as “small quantities” below which an offense of possession attracts lesser degrees of punishment. Another ostensibly progressive feature of the NDPS Act is the provision of “Immunity from prosecution to addicts volunteering for treatment” (section 64A). In practice, however, this section is seldom utilized. People charged with drug possession must admit the guilt and prove that they are “addicts” for the court to divert them to treatment instead of jail. Since the onus of proof of being an “addict” is with the accused (while the prosecution claims that the accused is a trafficker), this provision is rendered useless.[14] Thus, in effect, the NDPS Act continues to treat people who use drugs as criminals and sends them to jail when they can be helped more by facilitating access to health care and support. Is punishment necessarily a bad thing? Are there any adverse consequences of punishing people for using drugs? Why Criminalize Drug Use at All? The arguments against criminalizing drug use can be philosophical in nature, rooted in contemporary understanding of human rights (considering the basic principle of crime and punishment), and based on a utilitarian perspective. Proportionality – meaning, the level of punishment should correspond to the severity of harms caused by behavior to others or society – is a key philosophy of the rule of law.[15] If people who use drugs are not harming anyone else, should drug use attract punishment at all? There is growing support for this view worldwide that while drug trafficking needs to be curtailed (and hence deserves to be punished); drug consumption need not attract punishments. Hence, the United Nations Office on Drugs and Crime has recommended that “…for offenses involving the possession, purchase, or cultivation of illicit drugs for personal use, community-based treatment, education, aftercare, rehabilitation, and social integration represent a more effective and proportionate alternative to conviction and punishment.”[16] Besides such philosophical arguments against the criminalization of drug use, there are more practical considerations as well. Putting all the people who use drugs in jail is simply neither feasible nor cost-effective. In India, estimates of people using various illicit drugs run into crores: about 2 crores for cannabis, 2 crores for opioids, and 1 crore for sedatives. It is unimaginable to punish each of these drug users with a jail term since we simply do not possess the infrastructure for the same. More importantly, a substantial proportion of resources of our drug law enforcement and criminal justice systems get diverted toward punishing drug users. These resources can be more efficiently utilized by targeting large-scale drug traffickers. For instance, analyses of the reports by the National Crime Record Bureau indicate that in any given year most of the cases booked under the NDPS Act are for possession of drug use as opposed to drug trafficking.[17] Research has established that in India, the deterrent punishment has not resulted in lowering drug crimes.[18] It appears that for the drug law enforcement agencies, people who use drugs represent a low-hanging fruit who can be easily caught and sent for punishment. Simultaneously, the large-scale drug trade continues to flourish as evident by the data on both – drug consumption and drug seizures. Going Forward The status quo should not be acceptable. The law (as well as its implementation) is in urgent need of reform. However, it is heartening to hear the voices of reason from some quarters. Some ministries within the Government of India have explicitly called for decriminalizing personal drug consumption.[19] A professional society of psychiatrists, the Addiction Psychiatry Society of India has formally provided its inputs to the government in the form of a discussion paper, which is publicly available.[20] The momentum needs to continue to build up. Going forward, it will be important to remember that reforming the drug laws while necessary is not sufficient. The country needs to invest heavily into making health and welfare services available for people who use drugs aimed at the prevention of drug use and treatment and rehabilitation of drug use disorders. It will also be important to avoid falling into the two, often encountered traps. One of these is compulsory treatment instead of jail term which is often framed as a progressive and liberal move. Any coerced intervention for drug use disorders falls foul of the provisions of the Mental Health Care Act (2017) and should not be acceptable. Another trap is decriminalization, but only for some (ostensibly less harmful) drugs. Punishing people with a jail term for using any substance is not justifiable and hence creating the artificial categories of soft versus hard drugs is not logical. To bring about the desired reforms, the role of psychiatrists will be paramount in creating the environment in the country through participating in and enriching the public discourse and through direct advocacy with the government and people's representatives. It is pertinent to recall the three types of behaviors that we the psychiatrists are intimately concerned with, and which have been (unfairly) criminalized by society: (i) same-sex relationship or homosexuality, (ii) suicide attempts, and (iii) consumption of psychoactive substances. The psychiatric fraternity has played an exemplary role in advocating legal reforms in India for the first two of these criminalized behaviors and we deserve to be congratulated for the same. Are we ready to accept the challenge of passionately advocating for the third? (Epilogue: On March 15, 2022, the following self-explanatory headline appeared in the newspaper, the Hindustan Times: “No plan to decriminalize personal consumption of drugs, says Centre”).

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