Legalisation of drugs is in the news again with Patiala MP Dr Dharamvira Gandhi proposing to amend Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 through a private member’s Bill, intended to be moved this monsoon session of Parliament.
In a climate ripe with election manoeuvring, this development constitutes an interesting headline. The proposed Bill seeks to address the failure of punitive measures by legalising the sale of poppy husk, opium and marijuana.
While addressing the media, Dr Gandhi also suggested that the Bill would put an end to the nexus between politicians and the mafia who are working hand-in-glove, circulating more harmful synthetic drugs among the youth. However, as the Bill is not available for public scrutiny, the highlights provided by Dr Gandhi in the press conference make it appear like a charade of drug law reform.
Drug law reform has received varying degrees of attention in the past three decades. While the fact that India is a signatory to several international conventions played critical role in adopting severe penalties for drug use, rest of the law has not been in line with developments in other progressive jurisdictions.
Further, India has been a traditional drug trafficking route, making it a vulnerable region with a volatile economy. Therefore, dealing with the question of legalisation of drugs is not only premature, but also reveals the lack of depth in understanding real nature of drug problem in India.
The Bill which engenders the question of legalisation of drugs is problematic at both conceptual and practical level. Apart from fomenting a discord between what the legislation contains and what it seeks to achieve, it has wrongly prioritised the legal issues surrounding drug use.
Lack of clarity between decriminalisation, de-penalisation and legalisation in the context of drug use has hindered creation of effective alternatives to the existing punitive approach.
Decriminalisation focuses on taking away the stigma of criminality from the issue of drug use while de-penalisation mitigates or erodes the punishment even as it retains the element of criminality.
Legalisation on the other hand creates a space where there is opportunity for creation and regulation of market for drugs. In an ideal situation, legalisation of drug use may appear economically and legally sound.
However, in our current socio-economic condition where de-penalisation is more suitable an option than others, such a drastic shift is neither required nor desirable.
Legalisation is a profoundly responsible regulatory gesture. As former United Nations Secretary General Kofi Annan observed earlier this year, there is a gulf between rhetoric and reality in the formulation of global drug policy.
The present debate around drug problem can also be termed similarly, where emotions and ideology has had more leverage than evidence-based solutions. Legalisation requires setting up of fully equipped legal and economic framework which enables functioning of a regulated market.
In the past, the United States and few other countries of Europe have attempted legalisation of select drugs, like cannabis, and have tasted success on a significant scale. However, a blind imitation of the same may not be appropriate in India as our socio-economic topography is different from jurisdictions which have legalised certain drugs for personal consumption.
Further, the rationale for legalising in the absence of effective health care services to minimise adverse consequences of drug use is weak and insubstantial. Not only is India still an active route for trafficking of drugs with an explosive potential to expand into multiple local markets, but it also lacks assistive welfare mechanisms, like care centres, opioid substitutes, pharmacological interventions and safe syringe options.
It is doubtful that a highly charged debate of legalisation of drugs can be effectuated through a private member’s Bill. But Dr Gandhi’s move is representative of a larger canvas of everything that is wrong with the dialogue around reforming drug laws. The first step to reforming NDPS Act requires us to get our priorities right – one ought to pause and answer the question of whether legalisation is indeed the burning need of the hour?
If the answer is yes, then we shall be foraying into an even complicated territory of which drugs do we legalise and how do we regulate them. At the moment, the choice of drugs mentioned by Dr Gandhi (or the label of ‘recreation drugs’) betray a clear class bias. We are unsure of whether there has been a scientific definition of ‘recreation drugs’ in the bill per se.
Nonetheless, common sense suggests that the access to what has been popularly termed as recreation drugs are limited to certain class and economic groups of individuals. The focus of welfare policy and law reform must be towards the weaker segments who are at the receiving end of drug markets.
It is laudable that Dr Gandhi’s political move has channelled public attention to the question of legalisation of drugs. Whether there is any political will to sustain this debate would be an interesting point to observe.
A wise policy choice would encourage directing resources for efficient enforcement of existing law leading to quicker resolution of structural problems of de-addiction, rehabilitation and harm reduction.
From experiences across jurisdictions it is evident that drug law reform always assumes graded and measured steps and never comes in leaps and bounds. We hope that political parties in India have lessons to learn from these experiences.
(The writer is a Research Fellow at Vidhi Centre for Legal Policy.)