Category: Legislative Analysis
Paper Code: LA-SP-02
Page Number: 476 - 480
Date of Publication: February 10, 2021
Citation: Shivangi Pandey, Relevance of Narcotics Drugs and Psychotropic Substances (NDPs) Act, 1985, 1, AIJACLA, 476, 476-480, (2021).
Details Of Author(s):
Shivangi Pandey, B.A LLB(CONST. LAW SPZ.) (5th Year), University of Petroleum & Energy Studies, Dehradun
INTRODUCTION After the recent arrest of actress Rhea Chakraborty by the Narcotics Control Bureau, Mumbai under the famous NDPS Act a whirlwind of debates surrounding the validity of the Act and legalization of psychoactive drugs like marijuana and cannabis have uproared this country again. This Act which illegalized the sale and even possession of marijuana across India lead to Rhea’s arrest. But is this Act valid in the light of current issues? Does this Act cover all the necessary facets of the drug usage scenario? The answer can only be obtained after analyzing all the provisions of this Act which has continued to demonize all the users of cannabis and marijuana for ages. The NDPS Act was meant to meet India's treaty obligations under the global Single Convention on Narcotic Drugs, Convention on Psychotropic Substances, and United Nations’ Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. However, the law was amended in 1988, 2001, and 2014. Under this Act, NCB was established in 1986. This primary piece of legislation that revolves around drug usage was an effect of the 1985 worldwide war against drug usage brought under the Rajiv Gandhi government. After the introduction of this legislation in 1985 though there have been amendments made, unlike many other countries that have decriminalized such usage with certain restrictions, India continues to follow the draconian idea of demonization of drugs. Under the effect of these provisions, thousands are arrested every year under the illicit use of psychotropic substances and are given punishments accordingly.
FAILED IMPLEMENTATION But there are major flaws in the Act which has been prevalent and continue to hamper the lives of such drug users. This is where the flaws of Indian narcotics legislation can be observed. First of all, even despite such rigorous imposition of a hastily made piece of legislation, there are major lacunae when it comes to the imposition of these laws. Even though there are severe forms of sanctions for every violation, there are no checks regarding the targets. The major targets should be youngsters, school, and college students who are prone to peer pressure and may indulge in such activities. But the act fails to address this issue and today nearly all college students and youngsters get easy access to these drugs. Since Sushant’s case was a high profile one that is why it was brought to light. But what about the college students who are addicted to it? Are there any checks by this legislation created under that aspect, are there any mandated rules. The answer is a clear no. The objective of this legislation is flawed in many aspects and this is just one of them.
MORAL CRISIS Another drawback of this legislation is that of no clear set of rules for addiction and its recovery. One may think that as legislation concerning psychotropic substances there may be clear references to the addiction scenario and help the individual to get out of it. But the clear misunderstanding and the frowned-upon idea of the Indian society on those who are addicted in the form of ignorance of our society is reflected even in our laws. The biases towards the mere usage of drugs are so huge that our society forgot to create a distinction between people who consume drugs for recreational purposes and those who are addicted. The mere formation of laws for treatment, care for such addicted people is not enough. There should be a clear definition as to what is an addiction and not left to the whims of interpretation, but this piece of legislation fails in doing so. However, this legislation continues to put stringent measures that signify the biases towards such individuals. As provided under S.42 of this Act, it maintains that in case of a doubt of such activity the authorities have the power to inspect without even a warrant which fails to address the issue of unnecessary exploitation of such individuals. Though there is a provision for instances where allegations are charged on a woman under S.50 that a woman must be searched only by a woman, but the essence of the effect of such inspection is yet not addressed. What needs to be realized is that addiction is an illness and not a moral crisis and should not be frowned upon. Many nations have clearly defined the scope of addiction and help is provided to those who are addicted as it is a medical disorder and needs medical attention. This even helps in creating awareness among people regarding addiction as their society, their laws address it. This even helps in judicial decisions and to avoid conflicts during judicial interpretation and prevent moral ignorance of society affect them. But our legislation fails to address this aspect of public health which has both physical and psychological connections.
IGNORANCE OF PSYCHOLOGICAL DISORDER Recreational usage of drugs and addiction is intertwined in a complex structure. Addiction is a form of psychological disorder, which is embedded deeply in a human’s personality. An addicted individual is always recovering and that phase can be affected by any distraction. So there are only two phases in the life of an addict where one part is the usage and the other is recovering. In this legislation, an addict is defined as any person who depends on any psychotropic substance, and that is it. This is the scope of addiction which is determined by our only piece of legislation regarding narcotics. Even under S.8 of the Act, the main objective is to prohibit the production and cultivation of any psychotropic substance in India and not about saving people who are under the clutches of the effects. NDPS only focuses on criminalizing usage and nothing else, but clearly, that is not helping in the context of Indian society. The behavioral pattern, the withdrawal issue, trauma, depression which can easily spiral an individual who has been sober for years is not even addressed in this legislation. What Indian society understands about this situation is that the mere limitation of the circulation of these substances will remove this issue, but at a point of time where this clearly cannot be helped, there should be a recourse. The pathological connection, the medical factor, and deeply embedded behavioral patterns and no effect of self will be understood.
WITHDRAWAL AND RECOVERY Another effect of this business is that issues like withdrawal and recovery are not even addressed. This draconian piece of even legislation fails to even define the withdrawal scenario. Withdrawal is one of the effects of drug addiction where the body of an addict reacts to the non-availability of the psychotropic substance and there can be serious consequences of this issue where an addict can forget basic activities and may even die if there is more deterioration of health. This legislation somehow presumed that issues of withdrawal would be addressed by the Judiciary at the time of giving judgments. How can such a piece of legislation ensure protection to addicts who are patients of a form of illness? Some provisions establish that under certain “medical necessity” certain drugs could be provided to certain individuals. But again this legislation fails to define what is a medical necessity and if addicts are not clearly defined then how will this exception be used in the favor of such patients. No definition of treatments, accessibility, and even state-owned recovery centers demonstrate the objective. The Indian stigma towards the users of such psychotropic substances has forced the Indian legislation to make cruel sanctions but failed to raise genuine concerns about drug usage. Even the concept of fair trials is affected by this stigma. This is how a lack of any kind of government support affects the recovery, as this is a luxury that can be afforded by only a few. Also what about the economically weaker sections, the legislation again fails even in that respect.
CONCLUSION In 2018, the Punjab government had recommended to the Centre that the death penalty should be given to drug peddlers and smugglers. Though in 2014 this was subjected as a discretionary power and not a mandated one, the stigma is still present, and that stigma is still observed in cases like Rhea and Sushant’s case. This new life given to this discussion by the Punjab government has again fuelled this discussion. Severe restrictions on pharmaceutical treatments, no government based therapy groups are the harsh reality of the Indian structure of denial. In Punjab, the government is giving addicts something they are calling “de-addiction pills”, which are Buprenorphine but what they do not realize is that they are again pushing them into the trap of addiction which is a never-ending cycle. Death sentences, high forms of sanctions, and restrictions on distribution would no effect on this situation. It is the situation, the legislation that needs to be changed, and above all awareness is much needed. Merely criminalizing and imposing sanctions should not be the objective, rather the recovery of those who are addicted, and to help them to gain access to such facilities should be the idea. It can be thus maintained that with the recent developments new and reformed legislation is a necessity that cannot be denied. India is a welfare nation and one of the most important legislation of such a nation should have all the facets which are deemed to be necessary.
 Money Control News, How effective is the NDPS Act, under which Rhea Chakraborty was arrested? (Sep. 2020, 19 03:31 PM), https://www.moneycontrol.com/news/india/how-effective-is-the-ndps-act-under-which-rhea-chakraborty-was-arrested-5820951.html.  Saurav Datta, Punjab’s Recommendation of Mandatory Death Penalty for Drug Smuggling Is Problematic, The Wire, August 1,2018.  Ronny Sen, What We Get Wrong About Drug Abuse, Akademi Mag, (Sep. 2020, 21 02:11 PM), https://www.akademimag.com/what-we-get-wrong-about-drug-abuse