Narcotic Drugs and Psychotropic Substances Act, 1985
India had no legislation regarding narcotics until 1985. Cannabis smoking in India has been known since at least 2000 BC and is first mentioned in the Atharvaveda, which dates back a few hundred years BC. The Indian Hemp Drugs Commission, an Indo-British study of cannabis usage in India appointed in 1893, found that the “moderate” use of hemp drugs was “practically attended by no evil results at all”, “produces no injurious effects on the mind” and “no moral injury whatever”. Regarding “excessive” use of the drug, the Commission concluded that it “may certainly be accepted as very injurious, though it must be admitted that in many excessive consumers the injury is not clearly marked”. The report the Commission produced was at least 3,281 pages long, with testimony from almost 1,200 “doctors, coolies, yogis, fakirs, heads of lunatic asylums, bhang peasants, tax gatherers, smugglers, army officers, hemp dealers, ganja palace operators and the clergy.”
Cannabis and its derivatives (marijuana, hashish/charas and bhang) were legally sold in India until 1985, and their recreational use was commonplace. Consumption of cannabis was not seen as socially deviant behaviour, and was viewed as being similar to the consumption of alcohol. Ganja and charas were considered by upper class Indians as the poor man’s intoxicant, although the rich consumed bhang during Holi. The United States began to campaign for a worldwide law against all drugs, following the adoption of the Single Convention on Narcotic Drugs in 1961. However, India opposed the move, and withstood American pressure to make cannabis illegal for nearly 25 years. American pressure increased in the 1980s, and in 1985, the Rajiv Gandhi government succumbed and enacted the NDPS Act, banning all narcotic drugs in India.
Anyone who contravenes the NDPS Act will face punishment based on the quantity of the banned substance.
- where the contravention involves a small quantity, with rigorous imprisonment for a term which may extend to 1 year, or with a fine which may extend to ₹10,000 (US$130) or both;
- where the contravention involves a quantity lesser than commercial quantity but greater than a small quantity, with rigorous imprisonment for a term which may extend to 10 years and with fine which may extend to ₹1 lakh (US$1,300);
- where the contravention involves a commercial quantity, with rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and also a fine which shall not be less than ₹1 lakh (US$1,300) but which may extend to ₹2 lakh (US$2,600).
Critics of the NDPS Act say that the restriction that the act is “draconian” and that it imposes on the grant of bail amount to “amount to virtual denial and ensure years of incarceration”. Critics say that the conditions of bail under this act are needlessly harsh and are similar to provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and Prevention of Terrorism Act, 2002 which result in long periods of imprisonment and that the NDPS act places the burden-of-proof entirely on the accused to establish innocence. Furthermore, some critics point out that under this act, there is a presumption of “culpable mental state”, that is, the court will presume that there was an intention to commit a crime. They claim that this goes against the general principle of the law where people accused of a crime are assumed to be innocent until proven guilty.
There is a higher threshold for bail in serious cases under the Act. Under Section 37 of the NDPS Act, if a person is accused of an offence involving “commercial quantities”, that is, more than 1 kg in case of hashish, and serious offences such as financing illicit traffic and harbouring offenders, then bail can only be granted if “the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail”.
During the discussion of the Bill in Parliament, several members opposed it for treating hard and soft drugs as the same. However, the Rajiv Gandhi administration claimed that soft drugs were gateway drugs.
The NDPS Act was criticized in The Times of India. The paper described the law as “ill-conceived” and “poorly thought-out” due to the law providing the same punishment for all drugs, which meant that dealers shifted their focus to harder drugs, where profits are far higher. The paper also argued that the Act had “actually created a drugs problem where there was none.” The Times of India recommended that some of the softer drugs should be legalized, as this might reduce the level of heroin addiction.
In 2015, Lok Sabha MP Tathagata Satpathy criticized the ban on cannabis as “elitist”, and labeling cannabis the “intoxicant” of the poor. He also felt that the ban was “an overreaction to a scare created by the United States”. Sathpathy has also advocated the legalisation of cannabis. On 2 November 2015, Lok Sabha MP Dharamvir Gandhi announced that he had received clearance from Parliament to table a Private Member’s Bill seeking to amend the NDPS Act to allow for the legalised, regulated, and medically supervised supply of “non-synthetic” intoxicants including cannabis and opium.
In November 2016, former commissioner of the Central Bureau of Narcotics Romesh Bhattacharji said of the law, “This needs to be debated in the face of such stiff ignorance which often takes root in the moral high grounds people take after being influenced by the UN conventions. This law [NDPS Act] has been victimising people since 1985”.