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Decriminalisation of Cannabis in India.
Cannabis can Boom the Economy and put an end to Drug Trade as well as
increase tourism.
We live in a country where government owned shops in holy cities like Varanasi
sell cannabis in the form of bhang. This Essay seeks to cover various dimensions of
this topic from the medicinal and religious use of cannabis in Ancient India to its
widespread use under the British raj and present situation under the Narcotic
Drugs and Psychotropic Substances Act which forced drug dealers to switch from
selling ganja to selling smack and other hard drugs. It further seeks to give an
elaborate perspective by taking into consideration views of Indian Government
officials from Narcotics Control Bureau and AIIMS and Government Reports from
various other countries including the Indian Hemp Drugs Commision Report.
The authors have focussed on the scientific aspect and chemical theory of
Cannabis taken from various medical journals which shows that THC has mild to
moderate analgesic effects and its use is much less dangerous than tobacco,
prescription drugs, and alcohol in social harms, physical harm, and addiction. The
authors have also focussed on evidence and data collected by various
governmental and non-governmental organisations indicating positive effects of
decriminalisation of cannabis.
Further the essay suggests decriminalization of cultivation, possession, trade and
consumption of drugs made from Cannabis Plant in small quantities using the
Portuguesemodel which comprises of necessary preventive and educational
activities where drug users identified by law enforcement agencies will be
referred to the Drug Addiction Review Judge. It promotes the fundamental notion
of “fighting the disease, not the patients”
Keywords: Decriminalization, cannabis, bhang, scientific, criminal, hemp,
commission, medical.
INTRODUCTION
“In strict medical terms marijuana is far safer than many foods we commonly
consume. For example, eating 10 raw potatoes can result in a toxic response. By
comparison, it is physically impossible to eat enough marijuana to induce death.
Marijuana in its natural form is one of the safest therapeutically active substances
known to man. By any measure of rational analysis marijuana can be safely used
within the supervised routine of medical care.”[1]
17 years ago, All India Institute for Medical Sciences, Delhi (AIIMS), conducted a
national workshop on “Cannabis-Health Damage and Legislative Options” in
which medical professionals concluded that “cannabis does not have adverse
health effects, it gave recommendations to the Home Ministry to reconsider
existing laws for drugs made from the female Cannabis Sativa plant i.e. ganja,
charas and bhang”.[2] At the same time, A.K. Srivastava, Joint Director, Narcotics
Control Bureau (NCB) said: “we have no objection to making changes in the
Narcotic Drugs and Psychotropic Substances Act (NDPS Act), he further added
that cannabis grows wild and burning it down has been a futile exercise, you
burn it and it grows back in a year. [3]
These aforesaid mentioned reactions were recorded on the 10​
th ​
Anniversary of
the NDPS Act which was a poor law that clubbed cannabis, hashish and bhang
with hard drugs like smack, heroin and cocaine and banned them all. Most drug
dealers switched from selling ganja to selling smack and other hard drugs. This
was so because while the risk was the same, the profits from selling heroin were
several times higher.[4] The NDPS Act did more bad than good.
The sad part was not only we criminalized use of all drugs but we also failed to
do this systemically or by taking medical opinion into consideration, in fact the
British in the 1890’s did a better job the us when they set up the Indian hemp
Commision.
1. BACKGROUND
Since 1961, the US has been campaigning for a global law against all drugs, both
hard and soft. India objected to this campaign and the draft of single convention
which included the seeds and leaves in the definition of cannabis,[5] due to use
of cannabis leaves in making bhang. It was excluded later. Hence, the traditional
use of bhang in India could continue.[6]
In most of the countries consumption of any product made out of cannabis plant
is illegal, but Indian law surprisingly allows use of cannabis leaves in
preparation of bhang, in fact the government owned and licensed shops sell
bhang throughout the country.
Large tracts of cannabis grow unchecked in the wild in many states such as West
Bengal, Tripura, Andhra Pradesh, Karnataka, Kerala, and Tamil Nadu.[7]
Moreover, Hashish has been used for medicinal and religious purposes for
thousands of years[8] and was sold in government shops during the times of the
British Raj and in independent India until the 1980’s.[9] It is still being sold
today.
2.1. HISTORICAL / MEDICAL
The use of bhang between the fifth and twelfth century is frequently mentioned
in dictionaries, and the names used would seem to show that its use as an
intoxicant was then known. In the Rajanighantu of Narahari Paandita, A.D. 1300,
the effects of hemp on man are described as excitant, heating, astringent: it
destroys phlegm, expels flatulence, induces costiveness, sharpens the memory,
and excite appetite. In the Carngadharasamhita, a medical work, the date of
which is unknown, but which must have been compiled during the
Muhammadan period of Indian history, bhang is specially mentioned as an
excitant.[10]
In 19​
th Century clinical trials carried out by physicians on Indian patients at that
time showed it to be a” useful anodyne, hypnotic and antispasmodic. According
to the Indian Hemp Drug Commission, bhang was considered as a refreshing
beverage corresponding to beer in England and moderate indulgence in it was
attended with less injurious consequences than similar consumption of alcohol
in Europe.[11]
During the period that followed the report of these early observers, cannabis
was used for its analgesic and hypnotic effects in such affections as asthma,
neuralgia, tinnitus, dysmenorrhoea, muscular and joint pains, etc. It was also
used to relieve the lightning pains of tubes, fornication, numbness, paraesthesia,
convulsions, etc.[12]
Bhang and ganja are prescribed extensively by Hakims and Vaidyas in bowel
complaints and are recommended as appetizers, as nervous stimulants and as a
source of great staying-power under conditions of severe exertion or fatigue.
[13] Several recognized medical capabilities of cannabis leaves are:
o Pulverized dried leaves are used as snuff “for clearing the brain”.
o The juice extracted from the leaves is applied to the head to remove dandruff
and vermin.
o Dropped into the ear it is said to allay pain.
o It is also believed to destroy worms.
o It checks the discharge from the intestines in diarrhoeal conditions and also
the urethral discharge in gonorrhoea.
Cannabis preparations are popularly used as household remedies in the
treatment of many minor ailments. A mild beverage made from bhang leaves is
believed to sharpen the appetite and help the digestion. Religious mendicants
who roam throughout India often carry bhang with them and use it for all sorts
of gastrointestinal and rheumatic troubles from which they frequently suffer on
account of exposure to inclement weather. [14]
2.2. RELIGIOUS
Reference to cannabis drugs is found in the classical literature as well as in old
medical works of many countries in the world. In Indian literature the earliest
reference to the word “bhang” occurs in the Atharva Veda, which, according to
western scholars, dates as far back as 2000 to 1400 B.C. Whether the term was
used at that time to mean only a particular species of a sacred grass, or the true
cannabis plant, is an open question.[15]
The cannabis plant is regarded by the Hindus as holy, and the origin of this
conception can be traced to the Vedic period. In the Atharva Veda, the plant is
described as a sacred grass, and the guardian angel of mankind is supposed to
reside in its leaves. In Bengal, for instance, the custom still persists among
certain classes of offering a beverage prepared from the leaves of the cannabis
plant to the various family members and to guests present on the last day of
Durga Puja (Vijaya Dasmi) which is the biggest Hindu festival in that state.[16]
According to the Indian Hemp Commision, at the Shivratri festival, and on
almost all occasions before it, not only that ganja is offered to the god but is also
consumed by all classes of the worshippers and these customs are so intimately
connected with their worship that they may be considered to form in some
sense an integral part of it and there was abundant evidence before the
Commission. [17]
1. SCIENTIFIC DISCUSSION CHEMICAL THEORY/ EFFECTS
Tetrahydrocannabinol (THC) is the principal psychoactive constituent of the
cannabis plant which has mild to moderate analgesic effects.[18] According to a
2006 UK Government report, using cannabis is much less dangerous than
tobacco, prescription drugs, and alcohol in social harms, physical harm, and
addiction.[19] No evidence exists that anyone has ever died of a cannabis
overdose.[20] The ratio of cannabis material required to produce a fatal
overdose to the amount required to saturate cannabinoid receptors and cause
intoxication is approximately 40,000:1[21] whereas for alcohol it is between 4:1
and 10:1.[22]
“There are no deaths from cannabis use. Anywhere. You can’t find one,” said Dr.
Lester Grinspoon, professor emeritus at Harvard Medical School. Believe it: In
10,000 years of known use of cannabis, there’s never been a single death
attributed to marijuana.[23]
3.1. EFFECTS
According to the Indian Hemp Commission Cannabis doesn’t cause any serious
mental or physicals effects:
Effects
Opinion on Effects
Physical
The moderate use of hemp drugs appears to cause no physical
injury and doesn’t cause irreversible health or social damage
even if used on a long-term basis. [24]
Mental
The moderate use of hemp drugs produces no injurious effects on
the mind.[25]
The commission also concluded that:
1. Total prohibition of the cultivation of the hemp plant for narcotics, and
of the manufacture, sale, or use of the drugs derived from it, is neither
necessary nor expedient in consideration of their ascertained effects,
of the prevalence of the habit of using them, of the social and religious
feeling on the subject, and of the possibility of its driving the
consumers to have recourse to other stimulants or narcotics which
may be more deleterious (Chapter XIV, paragraphs 553 to 585).
1. Bhang is the Joy-giver, the Sky-filler, the Heavenly- Guide, the Poor
Man’s Heaven, the Soother of Grief. No god or man is as good as the
religious drinker of bhang. The supporting power of bhang has brought
many a Hindu family safe through the miseries of famine. To forbid or
even seriously restrict the use of so gracious an herb as the hemp
would cause widespread suffering and annoyance and to large bands of
worshipped ascetics, deep-seated anger. It would rob the people of a
solace on discomfort, of a cure in sickness, of a guardian whose
gracious protection saves them from the attacks of evil influences.”
These conclusions not only reiterate that cannabis has no malicious effect on
physical and mental health but also point out that how ironic the current
situation is that the British Government didn’t attempt any prohibition on the
cannabis plant so as not to hurt the sentiments of the Indian people; The plant
was later prohibited much later, by our own Indian Government.
The Lancet, a respected medical journal, in its November ’95 issue commented
in an editorial that “smoking of cannabis, even long term, is not harmful to
health yet this widely-used substance is illegal just about everywhere.” It further
went on stating that the new evidence is in fact nothing new and merely
confirms the conclusions drawn by the Royal Hemp Commission in 1895 that
cannabis products had benign effects and that they caused no irreversible
health or social damage even if used on a long-term basis. Reversible
intoxication also occurs with cannabis which temporarily affects motor
functions. But this also happens with alcohol intake.[26] This opinion was also
quoted in a 1997 AIIMS publication[27]
Also, talking about the addiction from marijuana Dr R C Jiloha, director and head
of psychiatry at G B Pant Hospital and in-charge of de-addiction says: “Very few
patients come to us for marijuana de-addiction. The drug is less addictive
compared to heroine, crack cocaine or even alcohol. It doesn’t cause body ache,
abdominal pain and other physical symptoms.[28]
3.2.SOFT DRUG
The NDPS Act itself recognizes cannabis as a soft drug. It recommends a lighter
sentence for possession of both ganja and hashish compared to the jail term
prescribed for violations involving opiate drugs, like heroin and its impure
form-brown sugar. While possession of five grams of charas would invite a
year’s sentence and 500 grams of ganja would put you in jail for six months, a
heroin or morphine rap could mean sentences up to 15 years and in severe
cases of trafficking, even the death penalty.[29]
Various findings been made by organisations and individuals have time and
again proved that cannabis is a soft drug, one such finding was made by
Devendra Mohan (Head, Department of Psychiatry) at AIIMS who concluded
that:
“When compared to alcohol I would say that cannabis is less harmful. It is
nonaddictive and less anti-social. With alcohol, crisis behaviour probability is
higher and well documented in accidents, domestic violence and sexual crimes.
However, you don’t associate such behaviour with cannabis abuse
We are not saying that you should advertise Indian cannabis as the best in the
world on STAR TV. What we are saying is that the Government need not take the
view it has taken on a drug which is relatively less harmful and which has been
consumed in this country for centuries.”​
[30]
The following scientific graphs further support such conclusions including the
ones made by the Indian Hemp Commission and various other medical and
legislative authorities that cannabis has moderate mental and physical effects,
has very low dependence probability, and definitely is less harmful than tobacco
and alcohol which still remain the most abused psychoactive drugs in the world.
GRAPH 1
[31]
GRAPH 2
[32]
These graphs show that how marijuana ranks only moderate/low in
dependence potential, also it is almost negligible in lethal dose, which ironically
in turn is much less than caffeine, alcohol and various other widely used
psychoactive drugs and is lesser than alcohol and tobacco in physical harm.
1. PROPOSED POLICY CHANGE
Taking into perspective the legislative, religious, social and spiritual history of
cannabis, along with its widespread use in the country, there is a need to change
the current policy i.e. to decriminalize the use cannabis in India.
Decriminalisation is often mistakenly understood to mean complete removal or
abolition of possession offences, or confused with ‘legalisation’ (legal regulation
of drug production and availability).
Under decriminalisation regimes,
possession and use of small amounts of drugs are still unlawful but not criminal
offences.[33]
While many people within the government fear about the negative impact of
such a policy change, the evidence and data collected by various governmental
and non-governmental organisations indicates otherwise and that any such fear
is based in prejudice. Countries like Portugal and Spain have successfully
decriminalised possession of small amounts of some drugs[34].The following
figure and table shows why and how this policy should be implemented. It also
provides some justifications to such a policy.
FIGURE 1
Non-criminal sanctions in different jurisdictions include: fines, community
service orders, warnings, mandatory treatment or education sessions, driver’s
or professional
licence suspensions, travel bans, property confiscation,
associational bans, mandatory reporting, mandatory drug testing, termination
of public benefits, administrative arrest, or no penalty at all community-based
treatment, education, aftercare, rehabilitation and social integration represent
a more effective and proportionate alternative to conviction and punishment,
including detention.[35]
1. JUSTIFICATIONS TO THE PROSPOSED POLICY
Since policy makers might argue that decriminalization might have negative
effect on the society there are few justifications as to the positive effects of
decriminalization of cannabis.
● Usage: The Netherlands’ drug policy is one of the most nonpunitive in
Europe. For more than twenty years, Dutch citizens over age eighteen
have been permitted to buy and use cannabis (marijuana and hashish)
in government-regulated coffee shops. This policy has not resulted in
dramatically escalating marijuana use. For most age groups, rates of
marijuana use in the Netherlands are similar to those in the United
States. However, for young adolescents, rates of marijuana use are
lower in the Netherlands than in the United States. The Dutch
government occasionally revises existing marijuana policy, but it
remains
committed
to
decriminalization[36].Therefore
decriminalization does not necessarily lead to increased use.[37]
●
Incarceration costs: These costs are incurred to keep a person
confined in prison. A US report says that costs for cannabis
enforcement are the highest at $328 per user while for alcohol it is
$153[38]. In 1997 Judiciary Committee of the Connecticut General
Assembly in its report emphasized that drug policies relying heavily on
penal sanctions and incarceration are costly and fail to address the
social and public health aspects of substance abuse. Criminal laws
should be administered in concert with treatment and other social and
public health initiatives. They also mentioned that such a policy change
will drastically reduce drug related incarceration costs.[39]
●
Consumption and Cost: Decriminalization does not result necessarily
lead to lower prices and higher consumption rates.[40] It also saves a
tremendous amount in enforcement costs. California saved an
estimated $857 million in 2006 alone.[41] Also, most cannabis users
never use any other illicit drug[42].
As regards measures against trafficking in drugs and precursors, under the
current policy India will use satellite imagery to detect and eradicate illicit
cultivation of opium poppy and cannabis plant. The Government of India is
pursuing a sustained effort to reduce the level of illicit cultivation of cannabis
plant in the country. In 2010, the estimated area under illicit cultivation was 552
ha, following the eradication of 681 ha of illicitly cultivated cannabis plant
during the course of that year. A further 1,114 ha were eradicated in 2011.
Cannabis is the most abused drug in India, followed by opium. No matter how
much money or technology the government might put in, it seems highly
illogical and extremely costly to eradicate a naturally growing plant which
despite a legal ban has widespread use in the country[43] and has been used for
past thousands of years and now has become a part of the culture and everyday
lives.
Most people don’t like calling bhang an intoxicant but a prasad (holy offering) of
Lord Shiva.”​
Don’t call it nasha (intoxicant). It is the prasad of Lord Shiva,​
” said
Radhey Lal, in his late 60s, cradling a glass of bhang’s thandai in his hand. “We
do not drink alcohol. All we take is bhang, which we consider as prasad,” said
Krishna, who is in his early 30s. There are around 785 government-licensed
bhang shops in the state of Rajasthan alone which sell around 400 quintals of
bhang in a year.[44] One can only imagine the widespread reach cannabis has in
this country.
This policy option will decriminalize drug cultivation, possession, trade and
consumption of drugs made from Cannabis Plant in small quantities (the word
small quantities means quantity meant for personal use as mentioned under the
NDPS Act, which has classified offences into two types i.e. small quantities and
large quantities) therefore focusing on improvement of those who are
consuming it rather than punishing them, as the latter as neither helped in
reduction in the usage nor has had any effect on the society at large.
1. CONCLUSION AND RECOMMENDATIONS
Clearly there is a gap between the legislators and the public. Where on the one
hand the government plans to use satellite imagery to eradicate illicit
cultivation of cannabis plant and on the other hand cannabis is the most abused
drug in India, proven by the fact that among those treated for drug problems in
India in 2010, 22 per cent abused cannabis.[45]
In a decriminalized framework, the law continues to prohibit drug usage, but it’s
completely removed from the criminal sphere, so that if one violates that
prohibition or do the activity that the law says one cannot do they’re no longer
committing a crime. One cannot be turned into a criminal by the state. Instead,
it’s deemed to be an administrative offense only, and they’re put into an
administrative proceeding rather than a criminal proceeding.
Therefore the proposed policy change is recommended and should be
implemented by making major modifications in the NDPS Act as well as state
drug laws. Section 8, Section 10 and Section 20 of the Act which talks about
punishment for contravention in relation to cannabis plant and cannabis need a
major amendment. Use of community punishments rather than imprisonment
for most drug dependent offenders should be the object of the modified law.[46]
The new strategy and legislation should be based on the fundamental notion of
“fighting the disease, not the patients”.
Maximising the use and cost effectiveness of community sentences is likely to be
more beneficial than imprisoning problem drug-using offenders.[47] The
strategy and actions could be based on Portuguese model which comprises of
necessary preventive and educational activities and steps which should be
taken in order to improve treatment programs. [48] Under the new
decriminalization law, drug users identified by law enforcement agencies are
referred to the Drug Addiction Review Judge(DARJ), equivalent to Judicial
Magistrate First Class (JMFC) who will asses users and decide the most
appropriate sanction and referral to educational or treatment programs.
If a person fails to attend the proceedings under DARJ, an administrative
sanction may be applied such as a fine, revocation of a driving license,
community
service,
[49]
travel
bans,
property
confiscation
and
rehabilitation.[50]According to UK Drug Commision, imprisonment is more
likely to entrench some problems for the offender and their family, rather than
solve them.[51]
There must be a reasonable ground in creating a law, and a proportionate
ability to enforce it. One without the other renders the law untenable as is the
case in India. Legislating for the sake of legislating or to impose a viewpoint on
the people is both tedious and expensive. Therefore, decriminalizing the use of
small quantities of products made from Cannabis Plant is recommended and
hence submitted.