NDPS ACT: UNCOVERING A DRACONIAN LAW

The war on drugs began in the 1960s, during the heyday of hippie culture and the Beatles. Inspired by these, people began experimenting with psychedelics and other types of drugs. As a result, governments believed?that drugs will cause widespread devastation to the world and?humanity. The United States was the first to push for a ban on such substances, and that was accepted?by many European countries, which?agreed that the drug problem is the world's single most serious problem.

In July 1967, a drug convention called the Single Convention on Narcotic Drugs was held in Paris, where nations from all over the world met and approved a resolution mandating that all signatory countries pass extremely strict drug laws within the next 25 years.?

The NDPS Act, 1985 was enacted as a result of this convention. The only reason this law was enacted was due to pressure from the West. This act has been amended several times over the last four decades, but it remains disastrous, ineffective, and draconian.

It establishes definitions and parameters that do not differentiate narcotics based on their nature. They divide?them into categories based solely?on quantity and commodity, and hence, essentially?all of the drugs are?classified as illegal.

In many ways, this act is draconian and requires reform. To begin with, the definition clauses are extremely restrictive, and the term "consumption" is never defined in the act. Second, section 35 of the Act presumes the accused's mental state for all the offences under the act. In criminal law, the prosecution bears the burden of proving the accused's mental state, but the NDPS Act places the burden of proof on the accused. Third, the title of section 37 of the act reads, "Offense to be cognizable and non-bailable". The section's heading says "non-bailable," but the provision makes no mention of the term. It creates a sense of ambiguity. In criminal law, the benefit always goes to the accused. However, this is not the case in this instance. The section starts with a non-obsolete clause that says "notwithstanding anything contained in?Cr.p.c.," and thus excludes Cr.p.c. bail provisions. The term "cognizable" is also used in the provision, which means that police can make arrests without a warrant. Because section 35 places the burden of proof on the accused, he must prove his innocence in order to be released on bail. Hence, section 37(1) of the act declares that an accused person is not to be released on bail unless the court has reasonable grounds to believe that the accused is not guilty and is not likely to commit an offence while on bail. This leads to long periods of incarceration. The requirement for speedy disposition of cases under the NDPS Act to offset the curtailment of liberty by denial of bail remains an unachievable target in our clogged justice delivery system. Fourth, sections 17-20 of the act prescribe stringent punishments of at least 10 years and up to 20 years in prison.

Previously, section 31A of the Act, which dealt with repeat offenders, required the death penalty to be imposed without judicial discretion. However, in a fortunate turn of events, the provision was amended in 2014 to provide an alternative to the death penalty.

In a paradigm shift, India’s ministry of social justice and empowerment recently made a proposal to the department of revenue to decriminalize possession of small quantities of drugs. The suggestions purportedly step away from subjecting drug users to irrational aspects of the criminal justice system and put science and public health before punishment. Section 64A of the existing NDPS Act, which was added in 1989, already grants full immunity to addicts who volunteer for treatment. It grants the addict immunity not only for drug consumption (section 27), but also for drug-related offenses involving small amounts of drugs. As a result, it's unclear what's new in this most recent proposal. One hopes that this does not imply that addicts will be granted immunity only for drug consumption, with their immunity being quietly revoked for all drug offenses involving small amounts of drugs.

The recommendations also place a strong emphasis on court-ordered substance abuse treatment. However, India's infrastructure is not up to the task. The majority of the centers are private, with only a few government-run facilities. In addition, addiction treatment in India is still largely medieval.

Therefore, India must focus on improving its rehabilitation infrastructure, and the government should launch an insurance scheme to cover the cost of drug addicts' treatment, de-addiction, and rehabilitation. Furthermore, the legislature should reform the law and create policies that are based on science, compassion, health, and human rights.