The NDPS: Cannabis laws in India- Where they stand and what the future holds

The infamous Cannabis plant grows wild throughout most parts of India—with bushels of the distinctive leaf poking out from every other empty plot, Indians are no strangers to the herb and its many uses. Vast amounts of historical evidence support the usage of Marijuana in Indian culture for medicinal, spiritual and recreational purposes, and despite prohibitive laws, this culture has not seen much change— A 2018 study by German data firm ABCD placed New Delhi third, and Mumbai sixth in its list of highest cannabis consuming cities; respectively consuming 38.26 and 32.38 metric tonnes annually.[1] Considering the regulations in place to prevent this from happening, figures of this magnitude cannot be taken lightly as they clearly allude to failure of the law. In this regard, the PMO has recently been hearing proposals to bring reform to the existing laws, that are likely to be included in drafting an amendment bill in the upcoming parliament session. Essentially, the amendment would decriminalise personal possession and consumption, and allow for lenient trials.[2] It becomes important, with this context, to understand where the cannabis laws in India stand at the moment.

What is and what isn’t legal

The main law regulating Cannabis in India is the Narcotic Drugs & Psychotropic Substances (NDPS) Act, 1985, which was a direct result of the UN’s 1961 Single Convention on Narcotic Drugs. The UN treaty listed Cannabis under Schedule I, which contains the most harmful and addictive drugs, as well as under schedule IV which enlists substances with “particularly dangerous properties” and nearly no medicinal benefits; the Indian delegation opposed this move, citing the religious and cultural importance of the plant.[3] As a compromise, the final draft made concessions in its definition of Cannabis, and so S.1(b) of the resolution defined “Cannabis” as “the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin has not been extracted” and this definition, which excludes the possession and consumption of cannabis leaves and seeds, was then used in the Indian NDPS act, which under S.2(iii) only includes Charas and Ganja. This prevents the criminalisation of ‘Bhang’ at the national level, which is generally made up of cannabis leaves, and holds major cultural significance in the country.

However, ‘Bhang’ is not legal all over the country. As under S.10, the NDPS allowed states to regulate the leaves and seeds that it omitted in its own definition. Accordingly, Assam for example, completely bans the substance under The Assam Ganja and Bhang Prohibition Act, 1958. Maharashtra and Karnataka, also similarly have their own laws prohibiting ‘Bhang’. In states where Bhang is legal, it can be sold as Golis or powders in Ayurvedic concoctions under some popular brand names like Bhola ka Gola, power Bhola,lehar.[4]

What happens, however, if one is caught in possession of the parts of the Cannabis plant that do fall within the NDPS definition? S.20 of the NDPS covers cultivation, production, possession, transportation, and the buying and selling of Cannabis. If accused of cultivating the herb, the penalty is up to 10 years of rigorous punishment and a fine of up to ₹ one lakh. If found in possession of commercial quantities (20 kgs of Ganja or 1 kg of Charas),[5] the penalty would be between 10 to 20 years of rigorous punishment and a fine between ₹1 to 2 lakhs, for small quantities (1kg of Ganja and 100 grams of Charas)[6], the penalty would be rigorous punishment for a year, or a fine of up to ₹10,000, or both; and for possessing quantities lower than commercial but higher than ‘small’, the penalty is rigorous punishment up to 10 years and a fine up to ₹1 lakh. The government under S.64A allows for immunity from prosecution to addicts volunteering for treatment, for those prosecuted for offences involving small quantities of substance or those charged under S.27 which punishes the consumption of any narcotic or psychotropic substances. Additionally, if a person knowingly allows their property to be used for an offence under any provision of the act, they will be punishable with the same punishment awarded for that offence[7].

Despite the fairly stringent laws, the government recognizes the Hemp plant as an important raw material, and accordingly provides a special provision relating to cannabis under S.14 allowing the cultivation of cannabis for industrial purposes in obtaining fibre, seed or for horticultural purposes. Considering that the cannabis plant contains 483 known compounds, many of which are exclusive to it, and that cannabis is such a cheap and ready source of many different raw materials—the profitability of the plant is obvious. The need to reform cannabis laws in India is apparent, but the question remains, whether or not the government will be able to rise to the occasion.

The Rocky Road Ahead

Accounting for about 10% of all jailed undertrials in the country, the NDPS is one of the more controversial and contested laws in India. Among other issues, the bail provision under S.37 has drawn great backlash, which requires courts to have “reasonable grounds” to believe the accused’s innocence and that they won’t commit another crime during their bail, which is an extremely high expectation to fulfil, and is something not even the UAPA mandates. Although deaddiction protocols under S.64A are supposed to protect vulnerable citizens from unnecessary incarceration, a recent study shows that not a single person was diverted to de-addiction and rehabilitation in the courts of Punjab between 2013 and 2015. Another study revealed that 93.3% of all arrests under NDPS in Mumbai in 2020 were on personal consumption charges.[8]

In a country still struggling with poverty and farmer suicides, Cannabis plants worth ₹ 137 crore in 2018, ₹ 498 crore in 2019; and ₹325 crore in 2020, were destroyed by the excise officials. To curb the Ganja menace in Odisha, the state government urged cannabis cultivators to grow vegetables and other crops, in response to which the tribals of Malkangiri district protested at panchayat headquarters, demanding fair prices of vegetables and enrolment into several schemes, if they were to stop cultivating their only source of income. Tathagata Satpathy, an MP from Odisha has on multiple occasions called the Cannabis ban elitist, and considering the plight of all those currently languishing in jail, it is only fitting.[9]

The United Nations Commission on Narcotic Drugs (CND) in 2020, proposed removing Cannabis from the schedule IV category of drugs, and the Indian delegation was part of the voting majority in favour of this move. Now, in 2021 November, The Modi government has, at a high level PMO meeting with the Department of Revenue, Ministry of Home Affairs, Narcotics Control Bureau, Social Justice Ministry and health ministry, heard proposals to introduce amendments to the NDPS. The reforms would aim to decriminalise personal consumption through an amendment of S.39 along with sections 15,17,18,20,21 and 22 which deal with procurement, consumption and financing. The word ‘consumption’ would be replaced with “other than personal consumption (in small quantity)”, so as to make the distinction between the two clear, and provide the leniency required in personal consumption cases.[10]

 

Although the government appears to be taking affirmative and positive action, there is no knowing what the final amendment might include, and simply decriminalising personal consumption might be a band-aid to the much deeper drug crisis India finds itself in. Legalisation, as opposed to decriminalisation, would allow the industry to expand in a mutually beneficial way for both the state and the farmers, while cutting out criminal elements from the midst. It would also perhaps allow for a more streamlined and scientific approach towards de-addiction and counselling. Legalisation would also allow Hemp industries to grow in a scalable manner once they’re free from inter-state legalities, which could potentially be a major market for India, where the plant grows with such ease.