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Drug Policy Reform: Shifting Focus From Criminalisation To Harm Reduction

Sohini Chowdhury
16 Oct 2021 6:36 AM GMT
Drug Policy Reform: Shifting Focus From Criminalisation To  Harm Reduction
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In 1971, when the United States of America called for a war on drugs, most of the countries were quick to jump on the bandwagon. By putting their faith in the concept of retribution and deterrence, the policy adopted by all and sundry was to enact stringent laws to combat drugs. Later, Government officials confirmed that President Richard Nixon's warcry was a racist and...

In 1971, when the United States of America called for a war on drugs, most of the countries were quick to jump on the bandwagon. By putting their faith in the concept of retribution and deterrence, the policy adopted by all and sundry was to enact stringent laws to combat drugs.

Later, Government officials confirmed that President Richard Nixon's warcry was a racist and antiquated political tool against the 'antiwar left' and the African Americans.[1] A campaign strategy turned global policy, which encouraged governments worldwide to spend huge amount of resources, is now losing support of the international community at full tilt.[2] Instead of stunting the growth of the illegal drug market, the retributive approach has escalated the transmission of blood borne infections, especially HIV to the level of a 'global pandemic'[3]. The 'tough on drugs' policy had reinforced social stigma and restrained people who use drugs, who are in urgent need of medical attention from accessing healthcare facilities. Unaware and unguided, people have been left behind to overdose. It is now being acknowledged by the medical community that, people dying of overdose of heroin and opioids are in reality dying from ignorance, because they combine these drugs with alcohol and other sedatives which make them lethal.[4] With educational institutions expelling them and employers refusing to recruit, the stigma had cast its shadow over the social lives of the people who use drugs.[5]

Drug Policy Reform: In Portugal and the Rest of the World

In the wake of Portugal's success in decriminalising drugs, governments of other countries are considering a more humane approach to personal use and possession. An epiphany seems to have dawned upon the nations that the focus of the criminal justice system needs to be urgently shifted from users to big suppliers. There is also a growing support of the International Organisations to disown the tough law regime and shift to a human rights-public health centered approach.[6]

After Portugal decriminalised the personal use and possession of all illicit drugs in July, 2001, the HIV transmission rate that was once highest amongst all the European Union countries, have plummeted; the usage of drugs amidst certain vulnerable groups have decreased and more importantly, there is an increase in the number of people voluntarily accessing the public health care facilities for drug related concerns.[7]

In 1974 the totalitarian regime in Portugal ended in a military coup and as the markets were opened up, the streets of Portugal were flooded with marijuana and heroin, smuggled from India and Pakistan via the former colony of Mozambique.[8] The drug crisis rapidly intensified and it became almost impossible to find a family in Portugal that was not fighting drug related problems. Tough on drugs, like the rest of the world, Portugal also indulged in punitive measures and by the late 1990s; half of the prison population in Portugal consisted of people who had landed behind bars for drug-related reasons.[9] Efforts were being made at the individual/community level, especially in the healthcare sector to tackle addiction in a dignified manner. Álvaro Pereira and João Goulão established the first Centros de Atendimento a Toxicodependentes (Drug Addict Service Centres) in 1988 to provide respite to the people who use drugs. The support from the legal community came with former constitutional court Judge Rui Pereira, who strongly believed that it wasn't legitimate for the state to punish users. Later, in 1997 Goulão was invited by the Portuguese Government to study potential solutions to the nation's drug problem. Eventually, he and his team came up with the recommendation of decriminalising use of all drugs, which received government approval and was brought into effect in 2001.[10]

There is no one single model of decriminalisation. Portugal's approach is to divert users with threshold quantities of illegal substances[11] from the criminal justice system, but to still impose administrative penalties. People using or possessing drugs are referred to the Dissuasion Commission, comprising lawyers, healthcare workers, and social workers, who determine the treatment that might be required for an individual. For the ones using drugs problematically, the protocol is to refer them to treatment, which is voluntary in nature. If at all, administrative sanctions like revocation of driving license and community service, are imposed as alternatives to treatment. The ultimate goal of the Dissuasion Committee is not to force people to access healthcare facilities without consent, but to make them well-informed so that they can develop healthier relationships with drugs. By decriminalising drug use, Portugal has made a commitment not to incarcerate someone for failing to enter treatment, failing a drug test or continuing to use drugs.[12]

Unlearning drug war propaganda, Czech Republic has decriminalised personal possession of small quantity of any drugs, while Netherlands practices de facto decriminalisation, whereby prosecutors have standing instructions not to proceed with cases of possession of roughly a single dose of any drug for personal use.[13] Columbian Courts have decriminalised small amounts of marijuana and cocaine for personal use and the Supreme Court of Argentina in 2009 ruled that criminalising drug possession for personal use is a violation of the Constitution, in particular, right to privacy and personal autonomy.[14] Norway, which along with its Nordic neighbours record higher drug mortality rate than the rest of Europe, had plans to decriminalise the personal use of illicit drugs in small quantities, but the same was rejected this year by the opposition, which had apprehensions of increased drug experimentation amidst the youth.[15] With a 78% increase in opioid overdose deaths since 2019, Toronto much like Vancouver is urging the federal government in Canada to decriminalise possession of drugs for personal use.[16]

The United States of America, pioneer of the global war on drugs, has softened its stance on drug use and possession. California has re-notified drug possession from felony to misdemeanor, whereas some states are now actively opting for decriminalisation of drug use and possession. Twenty one States and the District of Columbia has adopted 911 Good Samaritan immunity laws, which has the effect of decriminalising small possession and other minor drug offences at the scene of overdose.[17] With the aim to divert users of drugs from the criminal justice system, Seattle had initiated the 'Law Enforcement Assisted Diversion' programme (LEAD). It directs the people with certain minor drug law violations towards healthcare services. Oregon has decriminalised drug possession of small amounts.[18] In 2019, Denver became the first city in the United States of America to decriminalise psychedelic mushrooms[19] and this year Seattle became its largest city to decriminalise psilocybin – the psychoactive compound in psychedelic mushrooms and related plant derived drugs[20]. The legislature of the State of Washington was impelled by the judiciary to de-felonise drug possession and to allocate more resources to healthcare.[21] Oakland, Santa Cruz and Michigan have de-prioritised criminalisation of entheogenic substances.[22] Other states, on the path to decriminalisation have set up committees to study the benefits of different kinds of drugs to initiate discussions on drug reforms.

Southeast Asia, which has the world's most punitive drug laws, is witnessing a drastic change as Malaysia proposes to decriminalise personal drug use and possession.[23] The other drug reforms in the region have taken place in Thailand, which has already initiated reform in the health sector, and Myanmar, which has taken a step towards decriminalisation of drug use.[24]

India's Approach towards Drugs: The Evolution of the NDPS Act

The Narcotic Drugs and Psychotropic Substances Act, 1985

The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)[25] is a product of India's international obligation to the UN Conventions. A legislation to primarily curb economic crimes like illicit trafficking and sale of narcotic drugs, the NDPS Bill was tabled in the Parliament by the Ministry of Finance, Government of India. During the Parliamentary debates in 1985[26], the majority thought it fit to fight drugs with harsher punishments for traffickers and addicts alike. As the primary piece of legislation on drug trafficking, it sought to prohibit possession and use, irrespective of its purpose. However under Section 27, a lesser punishment was stipulated for consumption or illegal possession of narcotic and psychotropic substances in 'small quantity' for personal use, with the onus on the accused to prove the purpose.

The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1989

With a misplaced sense of course correction to curb the menace of drugs, the 1989 Amendment Act[27] made sentencing more rigorous and even introduced mandatory death penalty (Section 31A). Realising that in 1985, the narrative had moved far away from recognising the dignity of the people who use drugs within the four corners of the statute, some Parliamentarians sympathised with the misery of the 'addicts', who were being subjected to an additional burden of punishment – one for drugs and the other by it.

The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001

The Parliamentary debate that paved the way for the 2001 Amendment Act[28], witnessed a pragmatic shift. The detrimental quality of harsh punishments were acknowledged. The same was also reflected in the Statement of Objects and Reasons of the Amending Act, wherein the legislature sought to rationalise the sentencing structure so as to ensure that, while drug traffickers who deal in significant quantities of drugs are punished with deterrent sentences, the 'addicts' and those who commit less serious offences are sentenced to less severe punishments. Thus, graded penalties based on the quantity of the drugs were introduced.

The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014

The 2014 Amendment Act[29] attempted to revive the supply of drugs like morphine, which had dropped drastically owing to excessive licensing restrictions under the NDPS Act, by introducing a new category of 'essential narcotic drugs' for medical and scientific use. The Amendment that seemed to have encouraged harm reduction services by tweaking the text of Section 71, in the same breadth increased the punishment for small quantity offences.

The unconstitutionality of the mandatory death sentence had struck a chord with the Bombay High Court in Indian Harm Reduction Network v. Union of India[30] and the legislature was sent scrambling to amend Section 31A(1) in 2014, making it more flexible and leaving scope for judicial discretion. It is still unclear as to how the framework of 'rarest of rare' cases developed by the Supreme Court to limit the scope of death sentence is being overlooked in the drug-related matters. It might be an indicator that when it comes to combating a social malady like drugs, dignity of human life can take a backseat.

Navigating the Labyrinth of the NDPS Act - Challenges in theory and practice

Possession and Presumption of Culpable Mental State: Prosecution to establish conscious possession beyond reasonable doubt

Conscious or mental state of possession is necessary and that is the reason for enacting Section 35 of the NDPS Act.[31] More so, the International Conventions that have influenced the NDPS Act also uniformly emphasises on adoption of penal measures for offences, when committed intentionally.[32]

Section 35 and Section 54 of the NDPS Act raises presumption with regard to culpable mental state and places burden of proof on the accused to rebut the same.[33] But, this shift in the legal burden would take place once the initial burden of establishing foundational facts of conscious possession is satisfied by the prosecution beyond all reasonable doubts.[34] It is also the responsibility of the prosecution to prima facie demonstrate that the investigation was fair and judicious.[35] Given the gravity of the penal consequences under the scheme of the NDPS Act, the Court is required to be more vigilant in scrutinising the evidence for establishment of foundational facts by the prosecution.[36] By principle, prosecution is to be put to stricter test for compliance with statutory provisions where reverse burden of proof is provided for.[37] It is left to the accused to establish that there was no conscious possession, because how they came to be in possession will only be within the special knowledge of the accused.[38] The threshold to rebut is preponderance of probabilities and even if the accused can reasonably convince the Court the they could not have had the knowledge or the required intention, even without adducing any evidence, they would have sufficiently discharged their burden of proof.[39]

As it is understood from the array of cases that come before the Supreme Court, the reality of application of the principle of reverse burden of proof in NDPS cases is quite grim. From the investigation being extremely casual, perfunctory and shoddy in nature to gross misappreciation of evidence by lower courts have unfairly augmented the burden of proof, which often result in forcing the accused to suffer incarceration.

Bail under the NDPS Act: Inconsistent and Ambiguous Interpretation

The jurisdiction of the Court to grant bail is demarcated by the text of Section 37 of the NDPS Act. The stipulations of Section 37 is to be read conjointly with those in the Code of Criminal Procedure, 1973 (CrPC) for grant of bail. Section 37 requires the satisfaction of two conditions. The first one is that the prosecution must be given an opportunity to oppose the application, and the second condition is that the Court must be satisfied that there are reasonable grounds to believe the accused is not guilty of such offence. However, these two conditions would kick in only when the offences committed fall under the ambit of Sections 19, 24 or 27 and the offences dealing with commercial quantities. In cases with possession of 'small quantities' the conditions to be met for grant of bail are only the ones enumerated in the CrPC.[40] Unfortunately this is not the consistent position taken by the Courts and recently the ambit of Section 37 has been widened by considering all offences under the NDPS Act as non-bailable.[41]

Another problem that is witnessed in this regard, is the determination of the quantity of the narcotic and psychotropic substance recovered. In Hira Singh v. Union of India[42] the Supreme Court had held that, in case of seizure of a mixture of narcotic drugs or psychotropic substances with one or more neutral materials, the weight of the neutral material should be taken into consideration along with the weight of the offending drug in determination of quantity. Thereafter, in Iqbal Singh v. State[43], the Delhi High Court distinguished Hira Singh and held that formulations like Codeine used in cough syrup, which have a miniscule percentage/quantity of an offending substance cannot be treated at par with other illicit substances like heroin. In this case the Court had granted bail considering that, though the weight of Codeine based cough syrup was 5.5. kg, the amount of pure codeine was only 10 gram, which was within the limits of 'small quantity'. In Mohd Ahsan v. Customs[44] the Delhi High Court observed that going by the arguments of the prosecution in Hira Singh, a person purchasing a single bottle of codeine based cough syrup would come in possession of an 'intermediate quantity' of 100 gm of manufactured drug and would face the same treatment as a person who possesses 19 kgs of marijuana, which could not have been the intention of the legislature.

Further, making the provision more ambiguous, the Supreme Court has now expanded the ambit of reasonable grounds in Section 37(1)(b)(ii) by reading into it substantial probable causes for believing that the accused is not guilty of the alleged offence.[45] The same Court that had added several safeguards while interpreting the scope of Section 35 and 54, has diluted protection by adding higher threshold for grant of bail.

Search and Seizure: Diluted Safeguards

The punishments prescribed by the NDPS Act are rigorous. Hence, there is a need to strike a balance between the enforcement of the law and the fundamental rights of the citizens guaranteed by the Constitution. In view of the same, certain provisions found its place in the statute to act as safeguards against arbitrary exercise of authority by the law enforcement agencies.

Prior to the 2001 Amendment, the mandate of Section 42 was that, the concerned officer on receiving information from any person regarding whereabouts of drugs had to record it in writing and forthwith send a copy to their immediate superior officer. In case the information was received when the officer was not in the police station, but when they were on the move, or under any special circumstances and it called for immediate action as delay would result in removal or destruction of goods or evidence, following the procedure of writing down the information would not have been feasible and could be postponed by a reasonable period.[46] Moreover, only the empowered officers under Section 42(1) could arrest, search and effect seizure otherwise the act would have been considered illegal.[47] Total non-compliance with the requirements of section 42 was impermissible, but, the rigour of the provision could be lessened in cases of delayed compliances only when it was accompanied by an explanation. In cases where the officer was at the police station when they received the information and had sufficient time, but still delayed with compliance, it was considered to be suspicious circumstances.[48] A complete disregard in recording the statement was considered as a clear violation of Section 42 and had the effect of vitiating the trial.[49]

By enacting the 2001 Amendment Act, the time for sending the information report to the superior officer has been specified to be within 72 hours of writing it down. This has thoroughly diluted the safeguards of Section 42. The removal of the element of urgency in sending the information report, has rendered the provision toothless to check the misuse of power by the law enforcement officers.

Section 50 is a safeguard against planting of illicit substances by the law enforcement agencies. It provides protection to the extent that, if a person intended to be searched expresses their desire to be taken to the nearest Gazetted Officer or Magistrate, they cannot be searched till the Gazetted Officer or the Magistrate directs the authorised officer to do so. It is the duty of the empowered officer to inform the concerned person his right to be taken to the nearest Gazetted Officer or the nearest Magistrate for making the search.[50] Failure to inform would render the recovery of the illicit article suspect, without vitiating the trial. But, where the conviction is recorded solely on the basis of such recovery, the conviction and sentence of the accused would be vitiated.[51] No presumption under Section 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the Court that the requirements of Section 50 were duly complied with.[52]

Though the mandatory compliance under Section 50 seems to be trite, the law is still unclear for instances where, even if personal search was conducted, the recovery is effected not from the body of the accused, but from their bag, vehicle, etc. In S.K. Raju v. State of West Bengal[53] where the recovery was made from a packet inside a jute bag carried by the accused, but the person of the accused was also searched, the Supreme Court was of the view that the mandatory compliance under Section 50 was attracted. But, in State of Punjab v. Baljinder Singh And Anr.[54] the Supreme Court took a contradictory stand, wherein the Court held that the recovery that was made from the search of the vehicle would not invalidate the effect of the recovery even though Section 50 was not complied with while searching the person of the accused, when no recovery was actually made from such personal search. The same was reiterated by the Supreme Court in Than Kunwar v. State of Haryana[55].

In Section 50, the time prescribed to send the record to superior officers was made flexible by the 2001 Amendment. The mandatory compliance of Section 50 was diluted and made directory in an emergent situation.

Sampling Protocol: Non-compliance with Standards

The procedure for sampling is stipulated in the 'Standing Instructions' issued by the Narcotics Control Bureau (NCB). However, in reality the sampling is largely based on assumptions and extrapolations, wherein the implications of the results of one unit of the sample sent to forensics is applied to the whole of the recovered quantity, in violation of the standard set by NCB. Based on the sampling of one out of ten bottles, conviction has been upheld by Courts if the sample otherwise does not seem to have been tampered with.[56] At times, adequate quantity of samples from each bag of the recovered substance are not taken as per the norm.[57] Though the discrepancies prejudice conviction, the Courts do not seem keen to enforce compliance with the 'Standard Instructions'.[58]

Evidentiary Value of 'Confession Statement'

The statement recorded under Section 67 of the NDPS Act ought not to be used as a confessional statement. The officers referred to in the NDPS Act are police officers in the same sense as in Section 25 of the Indian Evidence Act, 1872. Therefore, by the application of the bar in Section 25, confessional statements made to such officers cannot be considered to convict an accused under the NDPS Act.[59] Though unclear about the evidentiary value of WhatsApp in drug-related offences, implicating an accused would not be possible without authenticating such chats by a certificate under Section 65 of the Indian Evidence Act.[60] However, WhatsApp chats can be one of the considerations for rejection of bail, especially when the recovery is of commercial quantity.[61]

In practice, in a plethora of cases convictions have been upheld on the basis of confessional statements made before the officers. In several cases, the confessional statement leading to another person is used to rope them in as co-accused, and eventually to convict them.[62]

Immunities for 'Addicts': Lack of understanding of the continuum of substance use

The First Information Reports (FIRs) registered for possession of drugs for personal use/consumption have outnumbered the ones registered for possession of drugs for trafficking, consecutively for the years - 2017, 2018, 2019 and 2020.[63] In view of the same, the application of immunity provisions like Section 39 and 64A becomes vital.

Section 39 comes into play once the 'addict' is found guilty of offences relating to small quantities. For the 'addict' to successfully avail the benefit, the Court has to be of such opinion, after considering age, character, antecedents or physical or mental condition of the offender, that instead of prison they can be sent to hospital for detoxification and de-addiction. If the Court decides to release the 'addict', they have to vouch abstinence from committing any offence under Chapter IV for a maximum period of three years from release. In cases where the 'addict' fails to abstain they have to appear before the Court to receive a sentence. By providing an abstinence clause, clearly, the legislature has turned a blind eye to the realities of 'relapse' in 'addicts'.

Section 64 provides immunity to 'addicts', who commit offences involving small quantities of illicit substances and volunteers for treatment. The immunity can be withdrawn if the 'addict' does not undergo the complete treatment for de-addiction. It is quite unfortunate that a purportedly ameliorative provision puts the burden on the people who use drugs to fulfill a number of conditions before availing protection. Apart from satisfying the condition of quantity of substance used, they have to establish that they qualify as 'addicts' as per the definition in Section 2(i) of the NDPS Act.[64] The provision seems to be counterproductive since it discourages treatment by forcing the accused to openly declare their addiction. Unfortunately, even when the conditions are met, the Judge's own reservations to accept the same, might preclude them from getting immunity.[65] Restricting the immunity only to 'addicts' (defined as persons who are dependent on any narcotic drugs or psychotropic substance) stems from the lack of understanding of the continuum of substance use. Let alone users, the statute does not even recognise the problematic use of illicit substances. The person developing problematic use, though not dependent on it, might experience negative consequences from substance use and are in dire need of medical assistance.

Dilution of safeguards by the Legislature and broad interpretation of substantive provisions by the Judiciary, leaves ample room for the law enforcement agencies to exploit their authority to implicate easy targets, like users. The same is evident from the number of cases against users as opposed to those against traffickers. Even if Courts show a compassionate outlook towards the people who use drugs, such an approach is not uniform. Therefore, in order to check the misuse of power exercised by officers to criminalise the actual victims of the drug problem, it is essential that the statute is amended to decriminalise drug use.

The Sikkim Model [66]

Sikkim has been encumbered with illicit use of pharmaceutical drugs since 1980. In order to tackle the drug menace the Sikkim Anti-Drugs Act, 2006 was enacted.[67] Following the NDPS Act, it initially took the path of deterrence. However, by way of the 2017 Amendment Act, Sikkim took a leap from penalties to a healthcare centered approach. Distinction was drawn between consumers and peddlers to effectively extend medical assistance to the people who use drugs, in the form of psychiatric evaluation, detoxification and rehabilitation. The 2018 Amendment Act was a watershed moment as Sikkim became the first State in India to decriminalise illicit use of drugs. All penalties for drug use – criminal or administrative, were dropped. Interestingly, the legislature of Sikkim understood that forcing rehabilitation on the people who use drugs could not yield positive results and thus, admission to rehab and detoxification programmes is not made compulsory. It appears that decriminalisation has been able to remove the associated stigma of drug use and is encouraging more people to enter the healthcare system through awareness drives and peer education imparted by state-run programmes like State Action Plan for Drug Demand Reduction (SAPDDR) and the Sikkim Against Addiction Towards a Healthy India (SAATHI) initiative.

Harm Reduction: A Humane Approach to Drug Use

When Sikkim is moving away from stigmatisation, the rest of the country is embracing it by strictly enforcing the NDPS Act, which marginalises and criminalises the victims of drug use. While the NDPS Act has provisions to divert the people using drugs from prisons to hospitals, it comes without the scope of exercising rights to choose their treatment, even when 'choice' has now been accepted by International Organisations to have improved health outcomes. Drug dependency treatment is a form of medical care and therefore, there is a requirement that standard treatment protocols are followed, respecting human rights and right to privacy. By forcing declaration of addiction to avail treatment, India has already moved away from the standard health care practice. Often there are allegations of treatment facilities mistreating patients - from chaining them and meting out cruel and inhuman treatment to causing death in flagrant violation of human decency and Article 21 of the Constitution.[68] The reason for such maltreatment can be attributed to the fact that most of these facilities are running without a license and a conscience to stick to the minimum quality standards of care.[69]

The talk about harm reduction for people who use drugs was initiated by the World Health Organisation (WHO) in the context of HIV transmissions. 'Injecting drug use' accounts for approximately 10% of the new HIV infections globally and 23-39% of new HCV infections (viral hepatitis C).[70] As per the HIV Estimates Report, 2019 of Government of India, 23.49 lakh people are living with HIV and unsafe 'injecting drug use' behaviour has been identified as one of the primary reasons for such prevalence.[71] Harm reduction techniques for people who inject drugs promoted by the international community and adopted by India includes, provision of sterile needle/syringe, opioid substitution therapy (OST) referral to HIV testing, TB and antiretroviral treatment (ART) as well as detoxification and rehabilitation services.[72] Stigma and lack of judicial intervention to divert 'offenders' away from the criminal justice system, discourages people who use drugs from accessing healthcare - this has the effect of nullifying the positive efforts made in the sphere of HIV eradication. WHO has now identified that criminalisation of drug use, stigma and discrimination against people who inject drugs contribute to ongoing epidemics of HIV, viral hepatitis and TB.[73] Therefore, it is essential that India rises up to the challenge and commit to harm reduction by incorporating the highest attainable standard of health, for people who use drugs, into its health care system.

Conclusion

The number of cases pertaining to the NDPS Act has been on a steady rise. The data for 2020[74] shows a dip in the numbers, but officials of law enforcements agency in Punjab - the state consistently recording the highest number of cases pertaining to the NDPS Act, have admitted that it is largely because the focus in 2020 was shifted to implementation of policies related to the COVID-19 pandemic.[75] Not only the rise in numbers of cases, but in particular, the fact that more cases are against possession for personal use as compared to possession for trafficking, make the objectives of the NDPS Act to eliminate trafficking and illegal drug market seems far-fetched. A draconian law with diluted safeguards, whether in theory or practise, and without a clear distinction among users, peddlers, traffickers and addicts would only vilify the people whom it purports to protect. It's time that, like Portugal, India embraces the reality that eradication of all drugs is an impossible goal and works towards a more dignified and evidence-based response to drug use.

Decriminalisation of drug use, without a strong and responsive health care system and community-based outreach initiatives to educate people who use drugs, would not be effective in harm reduction. The most crucial step of decriminalisation is eradication of stigma by unleashing an exceptional public health campaign to tackle addiction. According to João Goulão, the architect of Portugal's decriminalisation policy, the biggest effect of decriminalisation was that it allowed the stigma of drug addiction to fall, and encouraged people to clearly talk about their drug problems and pursue professional help without fear.[76]

It is argued that factors like social and economic welfare policies had a role to play in Portugal's success in tackling drug addiction - what had worked for the Portugal model is that before decriminalisation was put into place, Portugal by policy refrained from prosecuting users and had been working on strengthening the healthcare sector.[77] Oregon, which has recently undergone decriminalisation is facing difficulties considering the lack of standard infrastructure in healthcare.[78] The Portugal model has however, been criticised for not doing away with administrative penalties and for not moving towards regulation of illicit drugs so as to fight drug overdose in an efficacious manner.[79]

Another issue that ought to be borne in mind is that, while fixing the threshold limit for decriminalisation, maximum quantity thresholds that reflect the realities of drug consumption in India it to be set, otherwise decriminalisation may not have any impact and there might be an increase in the number of incarceration.[80]

The lack of awareness amongst the law enforcement agencies also acts as hindrance. Often clinics of doctors prescribing buprenorphine and other psychotropic medicines for opiate dependency are raided even when the NDPS Act does not criminalise medical use.[81] Such harassment and threat of legal enforcement discourages treatment of people who use drugs forcing them to relapse. As an important stakeholder of decriminalisation, who closely and more frequently interact with people who use drugs, the police need to be sensitised and trained adequately.

It is time India takes a decision to treat illicit drug use as a medical challenge rather than a criminal justice issue. Instead of overcrowding the prisons with victims of drug use, India should allocate its resources towards building a strong public healthcare system. Studying the existing decriminalisation models, especially the one in its own State of Sikkim, India should devise an approach to shift from its addiction to punishment to a holistic and evidence-based policy for drug use.

References

[1] Tom LoBianco, Report: Aide says Nixon's war on drugs targeted blacks, hippies, CNN Politics, available at https://edition.cnn.com/2016/03/23/politics/john-ehrlichman-richard-nixon-drug-war-blacks-hippie/index.html.

[2] War on Drugs, Report of the Global Commission on Drug Policy, June 2011, Global Commission on drugs, available at http://www.globalcommissionondrugs.org/wp-content/uploads/2017/10/GCDP_WaronDrugs_EN.pdf;

George P. Shultz and Pedro Aspe, The Failed War on Drugs, New York Times, available at https://www.nytimes.com/2017/12/31/opinion/failed-war-on-drugs.html;

Jamie Doward, The UN's war on drugs is a failure. Is it time for a different approach, The Guardian, available at https://www.theguardian.com/world/2016/apr/02/un-war-on-drugs-failure-prohibition-united-nations.

[3] As referred by the Global Commission on Drug Policy.

[4] Lea Winerman, Paying a high price for the war on drugs, American Psychological Association, available at https://www.apa.org/monitor/2014/03/war-drugs.

[5] Discussion Paper: A Public Health Approach to Drug, Toronto Public Health, available at https://www.toronto.ca/wp-content/uploads/2018/05/9105-A-Public-Health-Approach-to-Drugs-Discussion-Paper.pdf.

[6] Matt Ferner, World Health Organization Calls For Decriminalizing Personal Drug Use, Huffpost, available at https://www.huffpost.com/entry/who-drug-decriminalization_n_5606609.

[7] supra note 4.

[8] Naina Bajekal, Want to Win the War on Drugs? Portugal Might Have the Answer, Time, available at https://time.com/longform/portugal-drug-use-decriminalization/.

[9] Susana Ferreira, Portugal's radical drugs policy is working. Why hasn't the world copied it?, The Guardian, available at https://www.theguardian.com/news/2017/dec/05/portugals-radical-drugs-policy-is-working-why-hasnt-the-world-copied-it .

[10] Id.

[11]Law no. 30/2000 stipulates the threshold quantities of illegal substances defined as possession for personal use. These amounts are generally derived from estimations of the average quantity required for an individual for 10 days.

[12]Drug Decriminalization in Portugal, A Drug Policy Alliance Release, available at https://drugpolicy.org/sites/default/files/dpa-drug-decriminalization-portugal-health-human-centered-approach_0.pdf.

[13]Approaches to Decriminalizing Drug Use and Possession, Drug Policy Alliance, available at https://www.unodc.org/documents/ungass2016/Contributions/Civil/DrugPolicyAlliance/DPA_Fact_Sheet_Approaches_to_Decriminalization_Feb2015_1.pdf.

[14] Id.

[15] Kenneth Arctander, The Norwegian Drug Policy Reform is Dead, but the Movement Has Grown, available at https://www.dianova.org/opinion/the-norwegian-drug-policy-reform-is-dead-but-the-movement-has-grown/.

[16] Toronto to ask feds to decriminalize possession of illicit drugs for personal use, available at https://www.chroniclejournal.com/life/health/quebec/toronto-to-ask-feds-to-decriminalize-possession-of-illicit-drugs-for-personal-use/article_5c4f69b1-57a7-51ae-9ba3-7613ba02d6e5.html.

[17] Ben Adlin, Seattle Overdose Task Force Call for Decriminalization of All Drugs, available at https://filtermag.org/seattle-drug-decriminalization/.

[18] Decriminalization of Drug Possession: Policy Recommendations for Maryland, John Hopkins, Bloomberg School of Public Health, available at https://www.jhsph.edu/research/centers-and-institutes/institute-for-health-and-social-policy/award-programs/lipitz-award/past-awardees/_documents/Decriminialization-Policies.pdf.

[19] supra note 17.

[20]Seattle Just Became the Latest City to Decriminalise Psychedelic Drugs, available at https://www.gq.com/story/seattle-became-the-latest-city-to-decriminalize-psychedelic-drugs.

[21] supra note 17.

[22]Id.

[23] Preeti Jha, Why Malaysia's New Proposal Could Change Southeast Asia's Drugs Debate, the Diplomat available at https://thediplomat.com/2019/07/why-malaysias-new-proposal-could-change-southeast-asias-drugs-debate/.

[24] Id.

[25] The Narcotic Drugs and Psychotropic Substances Act, 1985 available at https://dor.gov.in/sites/default/files/Narcotic-Drugs-and-Psychotropic-Substances-Act-1985.pdf.

[26] Sakshi, India's Anti-Narcotics Law Shows Harsh Punishment May Not Necessarily Deter Crime, The Wire, available https://thewire.in/law/deterrence-as-justification-for-punishments.

[27] The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1989, available at http://lawmin.nic.in/legislative/textofcentralacts/1989.pdf.

[28] The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001, available at https://www.medindia.net/indian_health_act/narcotic-drugs-and-psychotropic-substances-act-2001-introduction.htm.

[29] The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014, available at https://dor.gov.in/sites/default/files/NDPS-Amendment%20Act%20-%202014.pdf.

[30]2012 Bom CR (Cri) 121, available at https://indiankanoon.org/doc/993388/.

[31]Mohan Lal v. State of Rajasthan (2015) 6 SCC 222, available at https://indiankanoon.org/doc/24170317/.

[32] Lawyers Collective, A critical look at Vidhi Centre's – 'From Addict to Convict: Working of the NDPS Act in Punjab' Report, available at https://theleaflet.in/wp-content/uploads/2018/09/Critique-Vidhi-Addict-to-Convict-Report-2018-.pdf ;

Article 36(1)(a), Single Convention on Narcotic Drugs,1961, available at https://www.unodc.org/pdf/convention_1961_en.pdf;

Article 22(1)(a), Convention on Psychotropic Substances, 1971, available at https://www.unodc.org/pdf/convention_1971_en.pdf;

Article 3(1), United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, available at https://www.unodc.org/pdf/convention_1988_en.pdf.

[33] Baldev Singh v. State of Haryana (2015) 17 SCC 554, available at https://indiankanoon.org/doc/155953979/.

[34] Noor Aga v. State of Punjab (2008) 16 SCC 417, available at https://indiankanoon.org/doc/1584447/.

Bhola Singh v. State of Punjab (2011) 11 SCC 653, available at https://indiankanoon.org/doc/173254082/.

Naresh Kumar v. State of Himachal Pradesh (2017) 15 SCC 684, available at https://indiankanoon.org/doc/85677142/.

[35]supra note 31.

[36] Gangadhar Alias Gangaram v. State of Madhya Pradesh (2020) 9 SCC 202, available at https://main.sci.gov.in/supremecourt/2019/22820/22820_2019_34_1503_23302_Judgement_05-Aug-2020.pdf.

[37] Hanif Khan v. Central Bureau of Narcotics (2020) 16 SCC 709, available at https://www.livelaw.in/pdf_upload/pdf_upload-363726.pdf.

[38] supra note 31.

[39]supra note 33.

[40] Stefan Mueller v. State of Maharashtra 2010 SCC OnLine Bom 1974, available at https://indiankanoon.org/doc/1707592/;

Minnie Khadim Ali Kuhn v. State of NCT of Delhi & Ors. 2012 SCC OnLine Del 2657, available at https://indiankanoon.org/doc/149156523/;

Haresh Rawal v. Narcotics Control Bureau 2021 SCC OnLine Del 3007, available at https://indiankanoon.org/doc/18914407/.

[41] Rhea Chakraborty v. Union of India 2020 SCC OnLine Bom 925, available at https://indiankanoon.org/doc/134581494/.

[42] (2020) SCC OnLine SC 382, available at https://indiankanoon.org/doc/128615827/.

[43] APPLN.645/2020, available at https://indiankanoon.org/doc/106426756/.

[44]2021 SCC OnLine Del 3465, available at https://indiankanoon.org/doc/126656481/.

[45] State of Kerala v. Rajesh Etc. Criminal Appeal 154-157 of 2020, available at https://main.sci.gov.in/supremecourt/2019/24163/24163_2019_16_1501_19743_Judgement_24-Jan-2020.pdf.

[46] Karnail Singh v. State of Haryana (2009) 8 SCC 539, available at https://indiankanoon.org/doc/1036527/.

[47] State of Punjab v. Balbir Singh 1994 (3) SCC 299, available at https://indiankanoon.org/doc/795643/.

[48] supra note 46.

[49] Karnail Singh v. State of Haryana (2009) 8 SCC 539, available at https://indiankanoon.org/doc/1036527/.

State of Rajasthan v. Jagraj Singh alias Hansa (2016) 11 CC 687, available at https://indiankanoon.org/doc/126713299/.

Boota Singh & Ors v. State of Haryana Criminal Appeal No. 421 of 2021, available at https://www.livelaw.in/pdf_upload/boota-singh-vs-state-of-haryana-ll-2021-sc-218-391982.pdf.

[50] State of Punjab v. Baldev Singh 1999 (6) SCC 172, available at https://indiankanoon.org/doc/1438183/.

[51] State of Punjab v. Baldev Singh 1999 (6) SCC 172, available at https://indiankanoon.org/doc/1438183/.

Vijaysinh Chandubha Jadeja v. State of Gujarat (2005) 12 SCC 574, available at https://indiankanoon.org/doc/1145861/.

[52] supra note 50.

[53] (2018) 9 SCC 708, available at https://indiankanoon.org/doc/84174937/.

[54] (2019) 10 SCC 473, available at https://indiankanoon.org/doc/1438183/.

[55] (2020) 5 SCC 260, available at https://indiankanoon.org/doc/147432673/.

[56] Neha Singhal, Arpita Mitra and Kaushiki Sanyal, From Addict to Convict, The Working of the NDPS Act in Punjab, Volume 1, Vidhi Centre for Legal Policy, available at https://vidhilegalpolicy.in/research/2018-8-23-from-addict-to-convict-the-working-of-the-ndps-act-1985-in-punjab/.

[57] Union of India v. Bal Mukund & Ors. (2009) 12 SCC 161, available at https://indiankanoon.org/doc/1792963/.

[58] supra note 32.

[59] Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, available at https://main.sci.gov.in/supremecourt/2012/26682/26682_2012_33_1501_24551_Judgement_29-Oct-2020.pdf.

[60]Rakesh Kumar Singla v. Union of India CRM-M No. 23220 of 2020, available at https://www.livelaw.in/pdf_upload/crm-m23220202014012021finalorder-387533.pdf

[61]Taha Toufiq v. NCB Bail Application 1625/2021 and Crl. M. (Bail) 552/2021, available at https://indiankanoon.org/doc/146819244/

[62]supra note 32.

[63] Table 1.3, Crime in India, 2019 Statistics, Volume – I, National Crime Records Bureau, Ministry of Home Affairs, available at https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf;

Table 1.3, Crime in India, 2020 Statistics, Volume – I, National Crime Records Bureau, Ministry of Home Affairs, available at https://ncrb.gov.in/sites/default/files/CII%202020%20Volume%201.pdf.

[64] Fardeen Feroze Khan v. Union of India 2007 (109) BOMLR 358, available at https://www.casemine.com/judgement/in/5608fbcae4b014971114a9e9.

[65] Anuradha Sanyal v. State of Maharashtra Criminal Application No. 3202 of 2010, available at https://bombayhighcourt.nic.in/generatenewauth.php?bhcpar=cGF0aD0uL3dyaXRlcmVhZGRhdGEvZGF0YS9jcmltaW5hbC8yMDEwLyZmbmFtZT1BUFBMTjMyMDIxMDI4MTAxMC5wZGYmc21mbGFnPU4mcmp1ZGRhdGU9JnVwbG9hZGR0PSZzcGFzc3BocmFzZT0xMTEwMjEyMTU0MzM= .

[66] Neha Singhal and Naveed Ahmad, Sikkim stopped seeing drug users as criminals and look what happened, the Print, available at https://theprint.in/opinion/sikkim-drug-users-criminals-sada-amendment-decriminalise/508133/.

[67] Sikkim Anti Drugs Act, 2006, available at

https://www.indiacode.nic.in/bitstream/123456789/4524/1/sikkim_anti_drugs_act.pdf.

[68] Teja Ram, How India's drug laws fail those with substance use disorder, available at https://www.thenewsminute.com/article/thalassemia-patients-karnataka-struggle-without-free-medicines-promised-govt-156094;

Thirteenth session of the UPR Working Group of the Human Rights Council Human Rights violations associated with India's anti-drug laws, available at https://lib.ohchr.org/HRBodies/UPR/Documents/session13/IN/JS1_UPR_IND_S13_2012_JointSubmission1_E.pdf;

What is Harm Reduction, Harm Reduction International, available at https://www.hri.global/what-is-harm-reduction;

Lawyer's Collective, the Narcotic Drugs and Psychotropic Substances Act - Ignoring Health; Infringing Rights, available at http://fileserver.idpc.net/library/The-narcotic-drugs-and-psychotropic.pdf;

Health, Rights and Drugs, Harm Reduction, Decriminalization and Zero Discrimination for People Who Use Drugs, UNAIDS, available at https://www.unaids.org/sites/default/files/media_asset/JC2954_UNAIDS_drugs_report_2019_en.pdf.

[69]Id.

[70]Global HIV, Hepatitis and STIs Programmes, People who inject drugs, World Health Organization, available at https://www.who.int/teams/global-hiv-hepatitis-and-stis-programmes/populations/people-who-inject-drugs.

[71] HIV/AIDS Patients in India, Ministry of Health and Family Welfare, available at https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1657057.

[72] Tripti Tandon, Drug Policy in India, International Drug Policy Consortium, available at http://fileserver.idpc.net/library/IDPC-briefing-paper_Drug-policy-in-India.pdf.

[73] supra note 70.

[74] supra note 63.

[75] Punjab Records 13% Rise in Crime In 2020, Drug Cases Drop By 40%: NCRB, available at https://www.news18.com/news/india/punjab-records-13-rise-in-crime-in-2020-drug-cases-drop-by-40-ncrb-4211051.html.

[76] Drug Decriminalisation in Portugal: A Health-Centered Approach, We are the Drug Policy Alliance, available at http://fileserver.idpc.net/library/Portugal_Decriminalization.pdf.

[77]Oregon's Pioneering Drug Decriminalization Experiment is Facing the Hard Test, available at https://www.npr.org/2021/06/18/1007022652/oregons-pioneering-drug-decriminalization-experiment-is-now-facing-the-hard-test.

[78]Id.

[79] Is Decriminalisation Enough? Drug User Community Voices from Portugal, International Network of People who Use Drugs, available at https://www.inpud.net/sites/default/files/Portugal_decriminalisation_final_online%20version%20-%20RevisedDec2018.pdf;

Alissa Greer, Caitlin Shane, Decriminalizing drug use is a necessary step, but it won't end the opioid overdose crisis, available at https://theconversation.com/decriminalizing-drug-use-is-a-necessary-step-but-it-wont-end-the-opioid-overdose-crisis-162497;

Drug Decriminalisation: Progress or Political Red Herring?, International Network of People who Use Drugs, available at https://www.inpud.net/sites/default/files/INPUD_Decriminalisation%20report_online%20version.pdf.

[80]supra note 13.

[81]Anand Grover and Tripti Tandon, Too hard to work, The Indian Express, available at https://indianexpress.com/article/opinion/columns/too-harsh-to-work/.


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