The story so far: In the backdrop of several high-profile cases under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), the Central Government recently convened an inter-departmental meeting to re-evaluate it. As per reports emerging from the meeting, the Central Government, based on the recommendations of the Ministry of Social Justice and Empowerment, is considering amending the NDPS Act to decriminalise the possession and consumption of small quantities of drugs.
State policy of controlling drug trade and usage has traditionally been punitive in nature since the usage of drugs is treated as a criminal law issue. This approach traces its roots back to the U.S.’s stance of pursuing a global ‘war on drugs’, first declared in the 1970s by President Richard Nixon. India, under the influence of Nixon’s policy and in recognition of its international obligations to deter drug trade and usage, enacted the NDPS Act in 1985.
- The Central Government recently convened an inter-departmental meeting to re-evaluate the NDPS Act. Based on the recommendations of the MSJE, the Centre may amend the NDPS Act to decriminalise the possession and consumption of small quantities of drugs.
- Under the NDPS, any person who consumes or possesses a narcotic substance can be sentenced to imprisonment and the imposition of fines. Despite over 35 years of the Act being in force, the number of people dependent on drugs has exponentially increased over the past few years.
- If the law is amended, substance use will be tackled as a public health concern. This will promote alternative strategies such as de-addiction and rehabilitation.
What does the Act stipulate?
The NDPS Act is an umbrella legislation dealing with the control and regulation of narcotic drugs and psychotropic substances. If the law is amended to decriminalise small drug offences, it will depart from the approach of regarding drug usage to be a criminal activity and focus on tackling it as a public health concern. Therefore, as the Government actively considers decriminalisation under the NDPS Act, it is important to understand the benefits of promoting alternative strategies to reduce demand, such as de-addiction and rehabilitation over criminalisation.
At present, under the NDPS, any person who consumes or possesses a narcotic drug or psychotropic substance can be sentenced to imprisonment and be slapped with monetary penalties. The NDPS Act provides a limited avenue to courts of law to exempt an ‘addict’ from facing imprisonment in case they volunteer for treatment at a de-addiction centre. No such exemptions are provided to first-time or recreational users. Moreover, despite over 35 years of the NDPS Act being in force, its enforcement mechanisms have only been able to exercise limited control over the drug market in India. In fact, the number of people dependent on drugs has exponentially increased over the past few years. According to a report published by the Ministry of Social Justice and Empowerment titled ‘Magnitude of Substance Use in India’, as of 2019, there were about 6 crore drug users in India (from an earlier estimated 1.1 crore users in 2004). Of them, about 1.7 crore persons required professional help to reduce their dependence on drugs. In the same report, the Ministry notes that criminalisation of drug usage by the NDPS Act has only enhanced societal stigma, isolation, and hindered access to treatment.
Despite the fact that tackling the supply side of drugs to curb access will likely have a greater impact in controlling the drug menace, prosecution agencies have in the past continued to target persons possessing drugs for personal use or consumption. According to statistics released by the National Crime Records Bureau, over 60% of the total cases registered under the NDPS Act between 2018 and 2020 were for possession of drugs for personal use or consumption. These numbers highlight the ineffectiveness of a criminal deterrence policy, envisaged under the NDPS Act, to tackle drug use.
What can India learn from Portugal?
As the Union Government now looks to take a positive step of moving away from a punitive framework and consider the decriminalisation of possession or consumption of small quantities of drugs, it could borrow from Portugal’s experiences in the field. In 2001, Portugal, after suffering from one of the worst drug epidemics in Europe, was the first country to shift to a policy of decriminalisation, eliminating criminal charges for possession and consumption of drugs for personal usage. This shift was in recognition of the inefficacy of criminal penalties to deter substance abuse. As per the Portuguese legislation, persons caught with less than a 10-day supply of any drug are not subject to the criminal justice system. Instead, they are required to appear before a panel, comprising a doctor, psychologist, and social worker, which determines suitable sanctions, ranging from fines to community service. The panel also has the power to determine whether an individual needs to be sent to a de-addiction centre for rehabilitation.
The ripple effects of the Portuguese model of decriminalisation have been significant. For instance, the number of persons who were admitted for treatment for substance abuse increased by 63% between 1998 and 2008. This is because access to de-addiction facilities became easier, due to reduced fear of criminal sanction. The drug-induced death rate in Portugal, which was earlier higher than the European Union average, also plummeted to a level five times lower than the EU average. In recognition of the success of the Portuguese model, the UN and the WHO have advocated for nations to repeal punitive laws relating to the use and possession of drugs for personal use.
What are the advantages?
Decriminalisation has multiple advantages, including promoting better access to treatment facilities, as well as providing a breather to the Indian criminal justice system, currently clogged with cases involving small quantities of drugs. As a corollary, this will allow the State to focus its resources on the prosecution of persons involved in large-scale trafficking and manufacture of drugs, as well as control clandestine profits associated with illegal drug trade – the raison d’être behind the historic war on drugs.
Sahil Raveen and Shaileja Verma are lawyers based in New Delhi