Constitutionality of Marijuana Laws (NDPS Act, 1985) and future of marijuana in India

Reading time : 12 minutes

Table of Contents

1.  Introduction. 3

2.  The Narcotic Drugs and Psychotropic Substances Act, 1985. 3

 History Leading To Formation Of NDPS Act, 1985. 3

 Constitutionality Of The NDPS Act 4

3.  Future Of Marijuana In India. 6

Monetary Benefits. 6

Medical Effects Of Marijuana. 7

Should Marijuana Be Legalized In India?. 9

4.  Conclusion. 9

5.  References. 10

1.    Introduction

Marijuana, ganja, charas, bhang, hemp, hash oil, are all derivatives of a plant called Cannabis. Marijuana has been an integral part of India’s socio-cultural landscape for a very long time. A variant of marijuana i.e., bhang is a widely accepted social drink in India especially during the festival of Holi, where its consumption is at an all-time high. “Nearly 400 of the 640 districts in India have cannabis cultivation,” says Romesh Bhattacharji, ex-Narcotics Commissioner of India, which means almost 60% of districts in India grow it[1]. Cannabis has a long history in India, dating back thousands of years. Marijuana found its earliest mention in the ancient Vedas, a sacred Hindu text. The writings are estimated to be compiled as early as 2000 to 1400 B.C. Lord Shiva is claimed to have sat in meditation on the Himalayan alpine peaks, consuming ganja flowers. Marijuana has many medicinal abilities, for instance in the Atharva Veda cannabis is lauded for being a cure to illness and also for fighting away demons.[2]

2.    The Narcotic Drugs and Psychotropic Substances Act, 1985

The Narcotic Drugs and Psychotropic Substances Act, 1985, often known as the NDPS Act, is an Indian law that forbids anybody from producing, manufacturing, cultivating, selling, purchasing, transporting, storing, or consuming any narcotic drug or psychotropic substance.

 History Leading To Formation Of NDPS Act, 1985

Back in 1894, the Indian Hemp Drug Commission set up by the British concluded that moderate use of these was a rule and excessive used was comparatively optional. Also, moderate use has almost no ill effects. Fast forward to 1961 the Single Convention on Narcotic Drug (SCND) was organized by the United Nations sought to criminalize the use of cannabis alongside other dangerous drugs. However, the Indian delegation opposed the criminalization on the grounds that marijuana is an integral part of India’s socio-cultural landscape for instance bhang which is still legal in many states.

Later in 1985, the Rajiv Gandhi government enacted the NDPS Act after immense pressure from the United States President Ronald Reagan’s administration. During that decade, the US had increased what it called its “war on drugs,” which was originally the idea of Richard Nixon. There was no law on narcotics before 1985, but India had signed two different UN conventions. Its hesitancy stemmed from the country’s long-standing cultural acceptance of and recreational use of cannabis[3]. However, one must understand that according to the NDPS Act, ganja is defined as the flowering or the fruiting tops of the plant. It excludes seeds and leaves when not accompanied by the tops.[4] 

Constitutionality Of The NDPS Act 

The NDPS is without a doubt one of India’s most severe criminal statutes. It features strict bail requirements that require a court to have reasonable reasons to think that the accused is not guilty before granting release. These restrictions have been mirrored in severe anti-terrorism legislation.

In 1989, the death penalty was first introduced in the NDPS. Anyone convicted of drug trafficking more than once had to face the death penalty, thanks to an amendment. Furthermore, once passed, the new amendments prevented any remission, suspension, or commuting of the term. It was interesting how it happened at that time. Five years prior to this change, the Supreme Court ruled in Mithu vs. State of Punjab[5] that the mandatory death penalty provision in the Indian Penal Code was unconstitutional. The NDPS implemented this draconian step despite this precedence. It was in 2011 after a Bombay High Court judgement that diluted this provision in the act, after almost 22 years.

There are no official statistics on executions, death sentences, or the number of people on death row. Project 39A at the National Law University of Delhi revealed the last two confirmed death sentences for drug offences in 2017. “Over the last 15 years, none of the prisoners sentenced to death for drug offences by trial courts had their convictions affirmed in the first appeal,” according to Project 39A. All of these sentences were either mitigated or the accused was exonerated on appeal in each case. Regardless of whether the death penalty has been imposed in any recent instance involving the trafficking of narcotic drugs and other similar substances, the sheer presence of a death penalty clause is enough to presume respect for human rights and the right to remain in the nation. The death sentence in drug-related crimes under Section 31A of the NDPS Act is arbitrary and disproportionate to the offence committed, and it also violates Articles 14 and 21 of the Indian Constitution.

NDPS Amendment, 2014

Following the Mumbai high court’s division bench’s decision in the Indian Harm Reduction Network case, which deemed Section 31A of the NDPS Act, which imposed obligatory death punishment for repeat offenders, as “unconstitutional,” There was an amendment brought to the NDPS Act in 2014 especially in the Section 31A of the Act. The words “shall be punishable by death” in Section 31A of sub-section (1) were replaced with “shall be punished with punishment specified in Section 31 or with death” by this Amendment Act.

 Violation of Article 14

The first objection to the death penalty provision is the arbitrariness of the rarest of the rare doctrine. In the Maneka Gandhi case[6], it was decided that Article 14 also operated as a safeguard against legislative or executive arbitrariness. The notion of the rarest of the rare cases, in particular, violates Article 14 since it operates outside of any defined rules or structure. Similarly, Section 31A of the NDPS Act does not establish any framework or rules for labelling repeated narcotic drug offences as “rarest of the rare cases.” As a result, the clause violates Article 14 of the Constitution. Furthermore, the adoption of the aforementioned theory gives the judge unrestricted and unregulated discretion. When judges are given discretionary powers, they are also given the capacity to discriminate, as is the case with Section 31A of the NDPS Act. The legislature is breaking Article 14 by giving judges the authority to decide whether repeat criminals should be sentenced to death. Because there is no recognized scale for determining what is “too barbaric,” the court’s labelling of some acts as “too barbaric” and “rocking the foundations of society” is a breach of Article 14, since there is no recognized scale for determining what is “too barbaric.” Similarly, determining which crimes are more savage than others in terms of receiving the death punishment under Section 31A is problematic.

Violation of Article 21

The procedure for depriving someone of their life and liberty, as determined in the Maneka Gandhi case [7], must be rational, fair, and just. However, it has been argued on several occasions that the Supreme Court did not establish any method for depriving someone of their life and liberty. Personal discretion is used to decide whether or not to take someone’s life or liberty, and it is subject to prejudices and defects in human nature.

Another reason why the death penalty indicated in Section 302 violates Article 21 of the Indian Constitution is the lack of a system for evaluating the circumstances necessary to distinguish between capital punishment and life imprisonment. If the death penalty is declared for serial offenders, the NDPS Act fails to create a mechanism. As a result, Section 31A’s provision for the death sentence fails the constitutional validity test since it contradicts Article 21 of the Indian Constitution.

3.    Future Of Marijuana In India

Marijuana is often looked upon as an anti-social element of society. This common misconception is due to its association with other hard drugs. This is completely false. Marijuana has a wide array of benefits and advantages ranging from a medical perspective to monetary benefits. It does have some pitfalls also but they are relatively negligible.

Monetary Benefits

In 2019, the Ministry of Social Justice and Empowerment released research revealing that India had 3.1 million active cannabis users. According to the Berlin-based statistics firm ‘ABCD,’ Delhi is the world’s third-largest cannabis user, while Mumbai is the sixth-largest. If cannabis were taxed at the same rate as cigarettes, Delhi and Mumbai could generate ₹725 crores and ₹641 crores, respectively, according to ‘ABCD’[8]. In fact, Colorado, the first state in the US to legalize recreational marijuana, has earned about $8 billion in revenue and $1 billion in taxes over the last six years, all while creating employment for 39,000 people [9].

Many of India’s big entrepreneurs recognize the monetary potential of marijuana. Mr Ratan Tata, former chairman of Tata Sons and Tata Group and Mr Rajan Anandan, former managing director of Google India have invested in a start-up company based on hemp research called Bombay Hemp Company (Boheco)[10]. To quote Mr Acharya Balkrishna, CEO of Patanjali Ayurveda, from a TEDx event held in Panchkula in January 2018. “By criminalising marijuana, we are denying a fully-fledged business opportunity to our people”. He strongly suggested the legalisation of marijuana in India.

Medical Effects Of Marijuana

To further discuss the medical effects of marijuana, it is very crucial to understand that there are two main chemical components present in the marijuana plant i.e., THC (Tetrahydrocannabinol) and CBD (Cannabidiol). While THC produces the intoxicating and psychotropic effect, CBD on the other hand has no intoxicating effects. CBD oil is proven to relieve pain. CBD is administered to reduce symptoms of anxiety, epilepsy, arthritis and schizophrenia. It has also shown positive results for pain relief in cancer patients too. Legally speaking, CBD extracted from seeds and leaves of the cannabis plant is completely legal but the societal stigma around the use of CBD due to labelling of cannabis in the NDPS Act deprives many of these medical benefits. Some other medical benefits that marijuana has to offer are:

  1. Helps in weight loss:

Cannabis is associated with helping your body regulate insulin while efficiently controlling calorie consumption. So usually in most cases, an avid cannabis user might not be overweight.

  • Regulate and prevent diabetes:

With its insulin-like properties, it’s only natural that cannabis can aid in the control and prevention of diabetes. The American Alliance for Medical Cannabis (AAMC) has linked cannabis to research that show it can help control blood sugar, decrease blood pressure, and improve blood circulation.

  • Depression Treatment:

Anxiety is quite prevalent without most people even realizing it. Cannabis can help stabilize moods that can alleviate depression through the presence of endogenous cannabinoid compounds.

  • Alleviate anxiety:

Although cannabis is known to induce anxiety, it is possible. Taking a regulated dose, cannabis can contribute to alleviating anxiety and calming users

  • Slow development of Alzheimer’s disease:

The illness of Alzheimer is one of several caused by the loss of cognition. Cognitive deterioration is nearly inevitable when we age. Anti-inflammatory drugs included in the endocannabinoid of Cannabis combat brain inflammation leading to Alzheimer’s disease.

  • Reduces side effects linked to hepatitis C and increase the effectiveness of treatment:

Hepatitis C treatment involves a variety of negative symptoms such as nausea, tiredness, depression and muscular joint discomfort. This can persist some time for certain hepatitis C patients. The effects produced by medicine can be reduced with cannabis while also making it more effective.

Marijuana also has some pitfalls as well. Researchers have claimed that excessive use of cannabis makes you prone to depression, schizophrenia and memory loss. According to The Atlantic, 9 percent of marijuana smokers are prone to addiction, compared to 16 percent for alcohol and 32 percent for nicotine. Smoking for the first time after the age of 25 has virtually no probability of being addicted; nevertheless, young teenagers are significantly more likely to get addicted[11].

Should Marijuana Be Legalized In India?

After looking at all the monetary benefits, its potential to generate crores for the government exchequer and medicinal advantages legalizing marijuana should not seem like a bad choice after all. In fact, at the United Nations, India voted with the majority to remove cannabis and cannabis resin from the list of the world’s most dangerous substances in the landmark international convention on narcotic drugs [12]. This is the same convention that happened 59 years ago in 1961 that sought to put cannabis on the list as opioids and heroin.

As discussed above the effect of smoking cannabis in teenagers, so how can they be kept away from smoking up too early? By brushing the matter under the carpet? No! Instead of criminalizing and punishing, legalizing and regulating should be the course of action. This will not only help the government but also the consumers so that they consume safe stuff.

4.    Conclusion

Cannabis has been a part of India’s socio-cultural landscape for a very long time now. The benefits that cannabis has to offer are far more than the disadvantages. There is money to be made, jobs to be created, an agricultural sector to be promoted, climate change to be battled, and tax income to be generated if India takes decisive action in favour of deregulation. In many aspects, we are at a critical juncture for such action to be taken. The recreational and industrial cannabis markets appear to be on the approach of significant expansion. This potential, however, is not exclusive to India. Other nations may follow suit, enticed by the UN’s classifications and economic promise. In the world of cannabis, things are changing, and India cannot afford to fall behind.

5.    References

  1. Tavernini, M. (2021, May 3). See Inside the Himalayan Villages That Grow Cannabis. National Geographic. https://www.nationalgeographic.com/science/article/160201-indian-himalayan-cannabis-farm-photos
  2. Roychowdhury, A. (2020, September 12). Cannabis in India: A rather long story, with its highs and lows. The Indian Express. https://indianexpress.com/article/research/cannabis-in-india-a-rather-long-story-with-its-highs-and-lows-6592020/
  3. Gumbiner, J. (2011, June 16). History of Cannabis in India. Psychology Today. https://www.psychologytoday.com/intl/blog/the-teenage-mind/201106/history-cannabis-in-india
  4. Menon, S. (2020, December 13). All the highs and lows on marijuana. The Economic Times. https://economictimes.indiatimes.com/industry/miscellaneous/all-the-highs-and-lows-on-marijuana/decriminalisation-of-marijuana/slideshow/79703752.cms
  5. SURENDRANATH, A. (2018, August 4). Why introducing death penalty for first-time offenders under the NDPS Act would do little to deter Punjab’s opioid epidemic. The Caravan. https://caravanmagazine.in/law/death-penalty-ndps-act-punjab-opioid-epidemic
  6. Ramdev’s Patanjali wants marijuana legalised in India; social media can’t keep calm. (2018, February 9). India Today. https://www.indiatoday.in/lifestyle/what-s-hot/story/ramdev-s-patanjali-wants-marijuana-legalised-in-india-social-media-can-t-keep-calm-1165782-2018-02-09
  7. Rai, D. (2020, August 15). Constitutionality of death penalty vis-a-vis repeating offenders under the NDPS Act. IPleaders. https://blog.ipleaders.in/indian-is-one-of-the-many-countries-in-the-world-who-still-provide-the-death-penalty-for-certain-heinous-crimes-by-applying-the-rarest-of-the-rare-principle/
  8. Ratan Tata, Rajan Anandan invests in cannabis research firm Boheco. (2017, December 21). Business Standard. https://www.business-standard.com/article/companies/ratan-tata-rajan-anandan-invests-in-cannabis-research-firm-boheco-117122100386_1.html
  9. Kishwar, S. (2021, January 29). What Happens if India Legalises Marijuana: It Can Reach New “High” and Beat China at its Game Too. News18. https://www.news18.com/news/buzz/if-india-legalises-marijuana-it-can-reach-new-high-and-beat-china-at-its-game-too-3352991.html
  10. Khazan, O. (2014, September 17). Is Marijuana More Addictive Than Alcohol? The Atlantic. https://www.theatlantic.com/health/archive/2014/09/is-marijuana-more-addictive-than-alcohol/380183/
  11. Marathe, O. (2020, December 6). India too votes to reclassify as UN decides cannabis not a dangerous narcotic. The Indian Express. https://indianexpress.com/article/india/un-decides-cannabis-not-a-dangerous-narcotic-india-too-votes-to-reclassify-7089562/
  12. newslaundry. (2020, December 17). Why marijuana is banned in India, and the case to legalise it | NL Cheatsheet [Video]. YouTube. https://www.youtube.com/watch?v=wVaibd2RCME

[1] See Inside the Himalayan Villages That Grow Cannabis, available at: https://www.nationalgeographic.com/science/article/160201-indian-himalayan-cannabis-farm-photos (Visited on 5th July, 2021)

[2] Cannabis in India: A rather long story, with its highs and lows, available at: https://indianexpress.com/article/research/cannabis-in-india-a-rather-long-story-with-its-highs-and-lows-6592020/ (visited on 5th July, 2021)

[3] Why introducing death penalty for first-time offenders under the NDPS Act would do little to deter Punjab’s opioid epidemic, available at: https://caravanmagazine.in/law/death-penalty-ndps-act-punjab-opioid-epidemic (Visited on 11th July,2021)

[4] Narcotic Drugs and Psychotropic Substances Act, 1985

[5] Mithu vs. State of Punjab AIR 1983 SC 473: 1983 Cri LJ 811

[6] Maneka Gandhi v. Union of India AIR 1978 SC 597

[7] Maneka Gandhi v. Union of India AIR 1978 SC 597

[8] Study Finds Delhi and Mumbai Are Among the Top 10 Cities in Cannabis Consumption Globally, available at: https://www.vice.com/en/article/bjwj7q/study-finds-delhi-and-mumbai-are-among-the-top-10-cities-in-cannabis-consumption-globally (Visited on 13th July,2021)

[9] Truth Or Consequences: The Pitfalls Of Federal Marijuana Legalization, available at: https://www.forbes.com/sites/roberthoban/2020/06/30/truth-or-consequences-the-pitfalls-of-federal-marijuana-legalization/?sh=43b787a81852 (Visited on 13th July,2021)

[10] Ratan Tata, Rajan Anandan invests in cannabis research firm Boheco, available at: https://www.business-standard.com/article/companies/ratan-tata-rajan-anandan-invests-in-cannabis-research-firm-boheco-117122100386_1.html (Visited on 13th July, 2021)

[11] Is Marijuana More Addictive Than Alcohol? available at: https://www.theatlantic.com/health/archive/2014/09/is-marijuana-more-addictive-than-alcohol/380183/ (Visited on 15th July)

[12] India too votes to reclassify as UN decides cannabis not a dangerous narcotic, available at: https://indianexpress.com/article/india/un-decides-cannabis-not-a-dangerous-narcotic-india-too-votes-to-reclassify-7089562/ (Visited on 17th July 2021)

Author: Omkar Chaudhari, Maharashtra National Law University, Mumbai

Editor: Kanishka VaishSenior Editor, LexLife India.

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