Thousands of people are arrested every year for illicit consumption of narcotic drugs and psychotropic substances (NDPS). In 2018, 81,778 persons were arrested under the NDPS Act. Fifty-nine per cent of the those were found in possession of substances for personal use. Our forthcoming findings on Mumbai give an insight into how many people are arrested for illicit cannabis consumption, in comparison to other prohibited substances.
During the course of our research, we analysed 10,669 cases from Magistrate Courts in Mumbai, 99.9 per cent of these cases involved consumption of a narcotic substance. Wherever information on the kind of substance involved was available, 87 per cent of the cases involved cannabis. We find, therefore, that Mumbai’s NDPS arrests, which are the highest in the country, are primarily arrests of cannabis consumers. This suggests that criminalisation of cannabis consumption is pushing a substantial number of people into the criminal justice system.
Strain on the criminal justice system
Criminalisation of illicit cannabis use exacerbates the strain on the criminal justice system. The impact is particularly felt by an already overburdened and understaffed police force, where the police per lakh population ratio and vacancies have constantly remained a critical governance issue and the judicial system, already crumbling under high pendency.
In order to arrest, prosecute and sentence a cannabis consumer, the state machinery exhausts substantial human and economic resources. The police, judiciary and correctional institutions are systematically made party to a futile exercise, the cost of which is enormous. With over 3 crore cannabis users in the country, if the NDPS Act were to be implemented effectively, with every cannabis user arrested and prosecuted, the crumbling system would cave in entirely.
Although there is no current research on the cost of enforcing cannabis prohibition in India, studies conducted abroad find that on an average, incarceration costs are 2-6 times higher than money spent on health and social services. A study of budgetary implications of cannabis prohibition in the US indicated that legalisation of cannabis would save $7.7 billion per year in government expenditure.
Perils of a criminal record
Criminalisation of illicit cannabis use ignores the many ills that a criminal record brings, the effect it has on social, economic, physical and mental wellbeing of the person.
A history of any drug offence, even one as minor as consumption of cannabis, can have considerable bearing on sentencing in a subsequent offence, employment opportunities, securing custody of a child, getting visa etc.
Human Rights Watch (HRW) and American Civil Liberties Union (ACLU) have drawn attention to the effect that criminalisation of drug use can have on families, job opportunities, welfare assistance, voting etc.
More importantly, it underscores the discrimination and stigma that accompanies a criminal record. Criminalisation of cannabis use subjects thousands of individuals every year to these hardships, while all they might really need is to be left alone or given access to appropriate health services.
How India should respond
While there are numerous other drugs, with higher abuse potential, cannabis — a relatively cheap substance, remains central to our drug law enforcement. Our forthcoming research from Mumbai shows that nearly every person arrested and convicted for cannabis consumption was a daily wage worker and a slum/street dweller. These drug offenders are sentenced to minor imprisonment and/ or fines ranging from one hundred rupees to eight thousand rupees. This demonstrates how the law, though meant to be applied uniformly across social and economic strata, disproportionately targets the poor and further marginalises the already vulnerable.
This finding also mirrors a trend in the US, which witnesses a clear racial disparity in its cannabis arresting pattern. Human Rights Watch has reported that black adults were more than four times more likely to be arrested for cannabis possession than white adults. Similarly, low income neighbourhoods have been shown to be more prone to drug related arrests. This impact of bias in drug law enforcement has historically been intergenerational and socially and economically devastating to whole populations.
Promotion of unsafe practices
Criminalisation of drug use is in direct conflict with the principles of harm reduction. The stigma associated with criminalisation results in social exclusion and isolation, which then inhibit access to healthcare and harm reduction services. Criminalisation also drives users to unsafe practices, making them prone to disease and overdose.
Criminalisation of drug use creates a parallel market of prohibited substances, taking them out of the regulatory apparatus. This leads to unrestricted access and unsupervised use of substances. In these illegal markets the quality of substances remains unchecked, leading to adulteration and sale of toxic substances. Studies across the world have identified adulteration in various substances, mainly intended to increase quantity or enhance potency. This aggravates the risk of an overdose or addiction to substances unknowingly consumed. In India, cannabis is adulterated with shoe polish and battery acid. Cannabis is also often adulterated with benzodiazepine, a prescription sedative, which can lead to addiction to sedatives without the person’s knowledge or consent.
As the countries across the world begin to now relax norms for personal consumption of cannabis, it is time India also shuns an archaic perception towards drug use in general and cannabis use specifically.
Envisioning alternatives to criminalisation is an important first step and countries across the world have paved a path in this direction. There is a promising indigenous decriminalisation model that India could consider following. The Sikkim Anti-Drugs Act, 2006 (“SADA”) does not utilise deterrence to curb drug use and relies on a public health approach to protect the best interests of a drug user.
Neha Singhal is a Senior Resident Fellow, Vidhi Centre for Legal Policy.
Naveed Ahmad is a Project Fellow, Vidhi Centre for Legal Policy. Views are personal.
This article is an edited excerpt from the authors’ study A Case for De-Criminalization of Cannabis Use in India first published by the Vidhi Centre for Legal Policy.