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  • Prof. (Dr.) Khagesh Gautam & Madhvi Wadhawan

Cannabis Decriminalisation in India

Introduction

A 2018 survey authorised by Ministry of Social Justice and Empowerment (MSJE), and conducted by National Drug Dependence Treatment Centre (NDDTC) and Delhi’s All India Institute of Medical Sciences (AIIMS) on the ‘Pattern of Substance Use in India’, briefly defines cannabis as “Bhang (cannabis leaf) as well as other forms such as Ganja(Marijuana) and Charas (Hashish)”[1].  The definition of cannabis as provided in Section 2(iii) of the Narcotic Drugs and Psychotropic Substances Act, 1985[2] (NDPS Act) also categorizes cannabis (or, as it was traditionally called, ‘hemp’) into charas, hashishand ganja, going into the production of these substances based on the part of the cannabis plant used.  MSJE’s survey reported that after alcohol (used by 14.6% of the population,) cannabis was the second most used psychoactive substance with around 2.8% of the population (3.1 crore Indian citizens) having consumed the substance in the year prior to the survey.[3]


Cannabis Use in India

India has long standing cultural and religious significance attached to cannabis, and it is said to be used to worship Shiva, the deity being called the ‘Lord of Bhang.’[4]  The medicinal use of cannabis to cure catarrh and diarrhoea has been recorded in the Sushruta Samhita, and as noted by sociologist Godlaski[5], this plant also has its origins linked to the famous Samudra-manthan (churning of the ocean) incident in the Hindu mythology.  Psychologist Jann Gumbiner also notes the normalized use of cannabis in the form of bhang[6] mixed in milk and garnished with various nuts like almonds, pistachios which is a commonly enjoyed beverage[7] at festivals like Holi. Gumbiner also pointed to the prevalent use of cannabis in British Raj that was documented by the Indian Hemp Drugs Commission (IHDC) of 1894.[8]  The British administrators whose testimonies were compiled in the IHDC Report, themselves advised against the criminalization of cannabis.  Colonel Bowie, Commissioner of Central Provinces (a huge area of port) said:

“I can call to mind a great many cases which I had to deal with as a Magistrate and as a Sessions Judge, in which serious hurt and homicide had been caused by persons under the influence of alcohol, but not a single case of crime of any kind which has been committed under the influence of bhang or ganja.”[9]


It is prophetic how Colonel Bowie’s words record facts that are now being confirmed by advances in western science.  The fact remains that marijuana is the least toxic drug, while alcohol which is legalized has far more toxicity with “just 10 times the effective dose of alcohol”[10] being enough to cause death in humans. Note here that not one human being has died of cannabis overdose since humanity discovered the psychoactive properties of this plant.[11]


Shortcomings of the NDPS Debate

The NDPS Bill was moved in the 8th Lok Sabha on August 23, 1985 by Shri Vishwanath Pratap Singh, who was the then Minister of Finance in Prime Minister Rajiv Gandhi’s Cabinet.  The NDPS Bill was introduced as a consequence of a ‘calling attention’ motion which was initiated on August 7, 1985 by Shri Mool Chand Daga, MP (Pali).[12]


Equating the issue of Cross-border Smuggling and Drug Use by Individual Choice, and Focus on Opium

The ‘calling attention’ motion was very stirring, because it roused concern for the future of the country, i.e., its youth. Shri Daga said:

“One lakh young men of India have become addicts of these narcotics…in Delhi alone about 15 per cent students consume heroin and smack. …Government should give a serious thought to this matter in order to save the youth from drug addiction.”[13]


These, and several such outlandish claims were made by almost all 16 MPs who spoke that day, all in favour of the Bill.  Unfortunately these claims were not based on anything solid, and do not survive careful scrutiny.  Further, the 8th Lok Sabha’s imagination was captured by illegal smuggling of opium from some neighbouring countries.  It was noted by some MPs that this illegal smuggling should be checked by Indian customs and other such authorities, but this national security angle was never treated with the respect that it deserved.  Besides, it is not clear from the debates as to why cannabis should be criminalized in India on the ground that there is rampant illegal drug smuggling going on.  The confusion between opium and cannabis plants is also very prominent in the 8th Lok Sabha’s debates.


Lack of a proper understanding of ‘Addiction’

The 8th Lok Sabha’s treatment of the issue shows that it either did not understand the concept of addiction, or did very little to understand what it means.  On the other hand, several MPs made astonishing claims that addiction was exclusively a ‘western’ phenomenon and should be curbed in India.[14] Highly respected Canadian physician and an international authority on ‘addiction,’ Dr. Gabor Maté, traces the etymology of the word addiction and notes that its Latin root addicere referred to ‘a habitual activity or interest, often with a positive purpose.’[15] Dr. Maté also highlights the difference between ‘dependence’ and ‘addiction’. It seems, more and more now, that dependence is primarily physical whereas addiction is primarily psychological.  A person exposed to, say opium based pain relief medication, will overtime develop dependence on the substance; and when the medicine is no longer needed and stopped, such a person will go through withdrawal symptoms.  Even though dependent on the substance, such a person cannot be described, in any way, shape, or form, as an addict. As Dr. Maté notes:


“As defined in medical terms, physical dependence is manifested when a person stops taking a substance and, due to changes in the brain and body, she experiences withdrawal symptoms. Those temporary, drug-induced changes form the basis of physical dependence. Although a feature of drug addiction, a person’s physical dependence does not necessarily imply that he is addicted to it.”[16] (emphasis added)


Decriminalization of Small Quantities Possession

The NDPS Act inter alia criminalizes possession of a small quantity of cannabis with rigorous imprisonment for one year, or a fine of Rs 10,000.[17]  According a October 19, 2001 Notification by the Department of Revenue, Ministry of Finance, 100 grams of cannabis is ‘small quantity’ and 1kg is ‘commercial quantity’.[18]  However, this leaves a lot of scope for misuse and arbitrariness on part of the state’s criminal justice system.  A study by the legal think tank Vidhi shows that citizens from mostly an economically and socially disadvantageous background are usually on the receiving end of an overwhelming majority of these small quantities possession charges.[19] Something like this, it seems was also foreseen by Shri Ajay Mushran, MP (Jabalpur) who had said:

“I am referring to Clause 27 which deals with small quantities of any narcotic. If I am allowed to say it, you are opening a Pandora’s Box for the already corrupt officers… Should we not define this ‘small quantity’ which an addict takes? Normally, an addict takes a gram which is the normal dosage. A normal person who uses these narcotics cannot afford to buy more than two or three grams. If you see the number of cases caught in Delhi, it will be not more than 450 or 500 because in 95 per cent cases the addicts are found to be in possession of only small quantities. While leaving the definition of the term ‘small quantity’ in the hands of the department we are reducing this Bill into a scrap of paper. You are providing for deterrent punishment but 95 per cent of the cases are those where only 13 or 25 grams are found.”[20] (emphasis added)


Countries like Netherlands, do not prosecute for possession of cannabis upto 5 grams, and though possessing, producing or dealing in drugs is not blatantly permitted, however, coffee shops which comply with the legal conditions, are allowed to serve customers soft drugs.[21] Something like this, where possession is upto 5 grams or 7 grams, which is obviously for personal consumption without any scope for illegal commercial use, can be considered for decriminalization in India.


A Way Forward?

The ‘War on Drugs’ is a remnant of President Richard Nixon’s policy from the 1970s when the Controlled Substances Act (CSA) was enacted in the United States, and classified cannabis among high-risk substances such as opium.[22] However, the medicinal experience with cannabis seems to be pointing in the opposite direction, and in India, people like Viki Vaurora, who founded the group ‘The Great Legalisation Movement,’ are already advocating the use of cannabis for pain management, and even assist patients in getting cannabis oil for pain relief after chemotherapy.[23] Senior politicians (e.g. Dr. Shashi Tharoor) have espoused the cause of legalization of cannabis in India. Dr. Tharoor’s argument centres on legalizing cannabis, as that would create regulations for a safer-use environment, eliminate the criminal underbelly associated with cannabis’ illegal production, and also provide economic benefits to the country.[24]


The fact that around 3.1 crore people in India had used cannabis in 2017 [25]shows that there is an untapped economic potential for our country, with areas like cannabis tourism that can be explored to bring revenue for the states, if cannabis laws are liberalised. Himachal Pradesh is already looking towards utilizing the potential of cannabis to boost its economy.[26] In the United States specifically,[27] and in the entire North America generally, the cause for legalization is gaining steam. Canada has already legalized it federally, the U.S. may follow suit soon (with several states already going the Canadian way), and now the Mexican Congress is looking to legalize it.[28] A significant step towards federally de-scheduling cannabis from the infamous Schedule 1 of the Controlled Substances Act was taken by the U.S. Congress on December 4, 2020 when the House of Representatives passed the Marijuana Opportunity Reinvestment and Expungement (MORE) Act of 2020.[29]


It is clear that the war on drugs has failed. It is clearer still that it is a senseless conflict waged on account of human ignorance, and against a plant that innocently occurs in nature and causes no, or very little harm either on its own or upon its consumption. Not one human has every lost their life on account of cannabis consumption,[30] while several have been able to live a more dignified human existence by being able to manage their pain (both physical and psychological) with aid of cannabis. There seems to be no correlation between crime and cannabis, but a very strong positive correlation between how much money the state can realize in tax revenue.[31]  There is more to be said about this issue, and more shall be said later.  But for now, it would appear that the 8th Lok Sabha’s decision to criminalize cannabis by way of enacting the NDPS Act, 1985 requires to be reconsidered by the Parliament.

 

[1] Magnitude of Substance Use in India, 2019, Explanatory Notes, Ministry of Social Justice and Empowerment, Government of India and NDDTC, AIIMS, New Delhi, February 2019, http://socialjustice.nic.in/writereaddata/UploadFile/Magnitude_Substance_Use_India_REPORT.pdf.

[2] Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’).

[3] Magnitude of Substance Use in India, 2019, Executive Summary, Ministry of Social Justice and Empowerment, Government of India andNDDTC, AIIMS, New Delhi, February 2019, http://socialjustice.nic.in/writereaddata/UploadFile/Magnitude_Substance_Use_India_REPORT.pdf, at p.2.

[4] Jann Gumbiner, History of Cannabis in India, Psychology Today, June 16, 2011, available at:

[5] Adrija Roychowdhury, Cannabis in India: A rather long story, with its highs and lows, The Indian Express, Sept 12, 2020, available at: https://indianexpress.com/article/research/cannabis-in-india-a-rather-long-story-with-its-highs-and-lows-6592020/#:~:text=It%20is%20in%20fact%20particularly,%3A%20’Lord%20of%20Bhang‘.

[6] Tripti Tandon, Drug policy in India. IDPC (International Drug Policy Consortium), (Feb. 2015), https://idhdp.com/media/400258/idpc-briefing-paper_drug-policy-in-india.pdf, at p. 3 (bhang or the cannabis leaf is excluded (in accordance with the United Nations 1961 Single Convention on Narcotic Drugs) and regulated through state excise laws.)

[7] Jann Gumbiner, History of Cannabis in India, Psychology Today, June 16, 2011, available at:

[8] Report of the Indian Hemp Drugs Commission 1893-94, (‘IHDC Report’).  

[9] Id. at 196.

[10] Nick Wing, The Exhaustive List Of Everyone Who’s Died Of A Marijuana Overdose, Huffington Post, Aug. 30, 2018, available at: https://www.huffingtonpost.com.au/entry/marijuana-lethal-dose_n_58f4ec07e4b0b9e9848d6297, (last accessed July 7, 2021); Robert Gable, The Toxicity of Recreational Drugs, (2006), American Scientist, available at: https://www.americanscientist.org/article/the-toxicity-of-recreational-drugs.

[11] Nick Wing, The Exhaustive List Of Everyone Who’s Died Of A Marijuana Overdose, Huffington Post, Aug. 30, 2018, available at: https://www.huffingtonpost.com.au/entry/marijuana-lethal-dose_n_58f4ec07e4b0b9e9848d6297, (last accessed July 7, 2021).

[12] LOK SABHA DEBATES (August 7, 1985), Third Session (Eighth Lok Sabha), Vol. VIII, No.12 (Lok Sabha Secretariat), column 272.

[13] Id. at column 276.

[14] LOK SABHA DEBATES (August 28, 1985), Third Session (Eighth Lok Sabha), Vol. IX, No. 25 (Lok Sabha Secretariat), columns 38-39.

[15] Gabor Maté, In The Realm of Hungry Ghosts: Close Encounters with Addiction 306 (2018, Vermilion London), at 127.

[16] Id. at 130.

[17] NDPS Act, § 20(ii).

[18] Gazette of India, Part II, Section 3, October 19, 2001, available at: https://egazette.nic.in/WriteReadData/2001/E-2510-2001-0773-113878.pdf, (last accessed July 7, 2021).

[19] Neha Singhal & Naveed Mehmood Ahmad, A Case for De-Criminalization of Cannabis Use in India, Vidhi Centre for Legal Policy, https://vidhilegalpolicy.in/wp-content/uploads/2020/08/Cannabis_Final.pdf, at p. 7.

[20] LOK SABHA DEBATES (August 28, 1985), Third Session (Eighth Lok Sabha), Vol. IX, No. 25 (Lok Sabha Secretariat), column 28.

[21] Am I committing a criminal offence if I possess, produce or deal in drugs?, Government of the Netherlands, https://www.government.nl/topics/drugs/am-i-committing-a-criminal-offence-if-i-possess-produce-or-deal-in-drugs.

[22] War on Drugs, History.com, updated Dec 17, 2019, available at: https://www.history.com/topics/crime/the-war-on-drugs.

[23] Avantika Mehta, A silent movement for the legalisation of cannabis is spreading across India, Scroll.in, Sept 3, 2018, available at: https://scroll.in/magazine/887593/a-silent-movement-for-the-legalisation-of-cannabis-is-spreading-across-india.

[24] Shashi Tharoor & Avinash Tharoor, High time India, the land of bhang, legalises marijuana, The Print, Oct. 18, 2018, available at:  https://theprint.in/opinion/when-india-legalises-weed/66245/.

[25] Magnitude of Substance Use in India, 2019, Executive Summary, Ministry of Social Justice and Empowerment, Government of India andNDDTC, AIIMS, New Delhi, February 2019, http://socialjustice.nic.in/writereaddata/UploadFile/Magnitude_Substance_Use_India_REPORT.pdf, at p.2.

[26] Gaurav Bisht, Himachal to legalise cannabis cultivation to boost economy, Hindustan Times, March 22, 2021, available at:https://www.hindustantimes.com/cities/chandigarh-news/himachal-to-legalise-cannabis-cultivation-to-boost-economy-101616413074575.html.

[27] Sarah Rense, Here Are All the States That Have Legalized Weed in the U.S., Esquire, July 1, 2021, available at:  https://www.esquire.com/lifestyle/a21719186/all-states-that-legalized-weed-in-us/#.

[28]  Diego OréMexico’s Congress approves landmark cannabis bill, Reuters, March 11, 2021, available at: https://www.reuters.com/article/us-mexico-marijuana-idUSKBN2B22UT.

[29] H.R.3884 – MORE Act of 2020, 116th Congress (2019-2020), https://www.congress.gov/bill/116th-congress/house-bill/3884/text.

[30] Id. supra note 11.

[31] Khagesh Gautam & Yashowardhan Tiwari, Cannabis: The other prohibition, The Indian Express, November 3, 2020, available at: https://indianexpress.com/article/opinion/cannabis-the-other-prohibition-6927254/.


This article has been authored by Prof. (Dr.) Khagesh Gautam, Associate Professor of Law at Jindal Global Law School. He was assisted by Ms. Madhvi Wadhawan, a student at RGNUL, Punjab. This blog is a part of RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues.

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