Joe Biden, the President of the United States of America (USA) recently pardoned thousands of people convicted for marijuana possession. In a recorded speech he said, “No one should be in jail just for using or possessing marijuana. It’s already legal in many states and criminal records for marijuana possession have led to needless barriers to employment, to housing, and educational opportunities.”
Earlier, former US President Barack Obama had advocated for marijuana use to be controlled by the state just like alcohol and tobacco.
“We should decriminalise marijuana”, Biden had said in a town hall in 2020 during his election campaign – and after two years he has kept his promise. This is a landmark move by which the US government has put science and human rights above prejudice and morality.
The federal government currently classifies marijuana as a Schedule I substance, the same as heroin and LSD... and that makes no sense. So, I am asking the Secretary of Health and Human Services and the Attorney General to initiate a process to review how marijuana is scheduled under federal law.Joe Biden, US President
He added, “Too many lives have been upended because of our failed approach to marijuana. It’s time that we right these wrongs.”
India's Stand On Cannabis: Contradicting Itself?
This is a clear indication that the US is almost on the verge of abandoning its aggressive and discriminatory war on drugs started by former President Richard Nixon, and is slowly moving towards an evidence-based, more humane drug policy.
India on the other hand, where marijuana has been used for centuries, continues to incarcerate people for possession of marijuana through its overly punitive Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) Act.
Although India wants to follow the progressive west, it doesn’t know why and more importantly -- how to? The country was in a similar situation during the '60s and the '70s when it was being compelled to draft and enforce strong anti-drug laws.
While the US and many European countries are moving towards legalising some drugs and decriminalising all drug use, India is still confused – and the confusion is now visible on the international stage.
With the best legal team at his disposal that any regular Indian can only dream of, Aryan Khan, son of Bollywood superstar Shah Rukh Khan, spent 26 days behind bars. NDPS is a law which has been routinely misused to wrongfully incarcerate Indian citizens.
In December 2020, India voted with the majority at the United Nations (UN) to remove cannabis and cannabis resin from the list of most dangerous substances from schedule IV of the 1961 convention where it was listed alongside drugs like heroin.
India voted in favour to call cannabis a less dangerous drug but was the only country which didn’t explain its position or say a word on why it chose to do so. What could India possibly have said without contradicting itself, as its own law – the NDPS – could send a person to 10 years rigorous imprisonment for possession of cannabis.
Even though the United Nations Office on Drugs and Crime (UNODC) is against the use of death penalty for drug abuse and trafficking, and the International Narcotics Control Board (INCB) urges all governments to review and abolish the death sentence for drug-related offences, India still has a death penalty under the NDPS Act.
Different States, Different Laws
We are living in a unique time where different countries have different laws for drug use. While buying cannabis over the counter is totally legal in a city in America or Europe, the same thing can get a person a death sentence in a city in south Asia.
Both these situations are mandated by the respective laws of each country. This is probably one of the biggest contradictions of modernity.
In India, a person caught with marijuana for consumption in Delhi can land up in jail, while a person caught with marijuana for consumption in Sikkim cannot be incarcerated.
Is it legally tenable for the justice department in the long term?
In 2018, the Sikkim Anti-Drugs Act (SADA) was amended by discarding criminal or administrative penalties for drug use. If India already has a state like Sikkim, where all drug use is decriminalised, why can’t this be implemented across the country so that the role of criminal justice system in drug control can be reduced, with more focus going to public health.
In 2019, 14,158 cases were registered in Maharashtra under the NDPS Act, of which 13,199 cases were for possession of drugs for personal use whereas just 959 cases were for trafficking. This means 93.2% of cases were registered against drug users. The country-wide percentage of cases registered for possession of drugs for personal use in India is 62.5%.
Fast-Changing Drug Laws: A Golden Opportunity For India?
Drug laws across the world are fast changing, and we need a task force at the highest level to catch up.
In the US, Oregon decriminalised hard drugs such as heroin and methamphetamine, and legalised the therapeutic use of psilocybin mushrooms or magic mushrooms. It became the first state in the US to decriminalise the personal use and possession of all drugs while expanding access to addiction and other health services.
New Jersey and Arizona legalised marijuana for adult use and Mississippi and South Dakota legalised medical marijuana.
India can seize a golden opportunity by taking a leading position in Asia where drug laws are extreme, especially in countries such as Singapore and Philippines. It should also listen to the advisories issued by its own ministries which are trying to drive the government on the right path.
A 2019 report published by the Ministry of Social Justice and Empowerment, says, “(the) criminalisation of people using substances, further enhances the stigma, isolation and hinders access to treatment. In the line of recommendations by International Narcotics Control Board (INCB) and many other international agencies, we recommend the State to take necessary steps to minimise the stigma and discrimination around drug addiction and provide health and welfare services to people affected by substance use (rather than subjecting them to the criminal justice system).”
Decriminalising Possession Of Drugs In Small Quantities
In October 2021, the Union Ministry of Social Justice and Empowerment in India suggested the Department of Revenue about decriminalising possession of small quantities of drugs for personal consumption. It was exactly a year ago since the Ministry issued this path breaking advisory – something that can potentially recalibrate our national drug policy fundamentally.
Can the current statement by the US president move things here in India? That too in the right direction as indicated a year ago? We’ll have to wait and see.
Let’s look at the major hurdles that are holding India back.
The US President went to campaign during the elections promising that he will decriminalise marijuana. Imagine a political party doing the same here, it’ll be suicidal. It’s exactly the opposite in India.
Remember Nitish Kumar and his promise of alcohol prohibition? In 2018, in a horrific move, the Punjab government proposed the central government to initiate mandatory death penalty for those convicted of drug peddling or smuggling, even for first time offenders.
Critics have been saying for decades that it’s a violation of Article 21 of the Constitution of India, which talks about personal liberty and “procedure established by law”. The NDPS was used against the poor and recently it’s been used against celebrities.
Political adversaries are silenced by all state governments by misusing the NDPS Act. It’s the high profile activists who are charged under the stringent Unlawful Activities (Prevention) Act (UAPA), but that means the media also talks about them. If a political activist from the opposite camp in a small town or a village is booked under the NDPS by a state government or a local MLA whose party is in power, members of the media fraternity will ever talk about it. It is difficult to secure a bail in the NDPS cases.
Cannabis: The Sacred Plant?
Cannabis is mentioned as one of the five sacred plants (pancha tattva) in the Atharva Veda.
In India, the use of marijuana is thousands of years old and no organised religion has ever prohibited its consumption throughout this massive timeline.
The consensus on prohibition and stereotyping drinking or being intoxicated as something shameful in the 19th century was due to the birth of a new morality fuelled from anti-colonial feelings among the educated, intellectual class who were driving the nationalist movement in India, mostly in Bengal.
When Mahatma Gandhi left for London at a very young age, his mother made him promise he would stay away from wine, women, and meat. Somehow by the early-20th century, men who didn’t consume alcohol in India were put on a pedestal and they were perceived as people morally superior over others who drank.
Gandhi agitated and fought for strict prohibition, and most of India’s prohibition laws and the fact that alcohol consumption or drug use is looked at as something done by the weak who lack self-control can be attributed to him – at least to a certain extent.
We still have some of the most mindless prohibition rules in parts of the country. For instance, you need a drinking license to drink alcohol in Mumbai, even today, at a bar or inside your home. How many of you have a drinking license?
This is India's chance at doing the right thing, by following the path the US has chosen as far as drugs like marijuana are concerned.
(Ronny Sen is an acclaimed photographer, writer, and an award-winning filmmaker.)
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