Drug trafficking and substance abuse has been a burgeoning issue at both Municipal and international stature for the last half a century. Drugs are not only harmful to the health of an individual but is also a source of various other crimes such as theft, money laundering or any other criminal activity to procure such substances for satiating the addiction for the same. Along with this, such trafficking also provides financial backing to the terrorist activities and is itself a form of terrorism, to disturb social order of any country by injecting such substances in the society called narco-terrorism. Until a few years ago there has been a very clear perception regarding manufacturing, consumption and selling of drugs, to be sanctioned as these are harmful to the health of an individual as well as to the society. But recently it has been observed that despite formulating legislation within the municipal laws and conventions and treaties at the international level, not much deterrence can be caused in such abuses. As a consequence, a debate got initiated regarding the legalization of such drug-related crimes. However this debate did not reach any conclusion, instead formed two sections citing the benefits and consequences of either legalizing or criminalising the drug related crimes. This created a deadlock situation which needs to be overcome in order to find resolution to curb the menace of drug and substance abuse.
THE DEBATE : LEGALIZATION OR NOT
The section of society advocating the legalization of drugs, cites numerous benefits that will accrue as a result of eliminating the barriers in the use of drugs which makes this alternative very alluring. These benefits involve, terminating the profits of the illegal drug trade, reduce the financial as well as administrative burden on the criminal justice system, stop the spread of AIDS due to the use of contaminated syringes, reduces other crimes committed to gain money such as theft, pick pocketing etc., in order to satiate the addiction. In addition to this, they also argued that most illegal drugs are not more harmful than legal substances such as alcohol and cigarettes and drugs will be considered at par with them.
However, these all the benefits will be overlooked, if the possible approaches to legalization has been taken into consideration. The simplest and easiest approach is to outrightly legalize the drugs, which will make it available to every section of the society including children as well and surging the possibility of negative physical effects caused by drug usage. Now, if you say that let the drugs to distributed by the government and it institutions without any participation of private entities, then the efficiency becomes problem because government already has numerous engagement and along with distribution, it also needs to take due care of the manufacturing of drugs, otherwise in private hands, it might be misused by the industries involving in black marketing, hoarding and other illegal activities. Another approach that might be adopted is distribution through heath-professionals, it will help in the course of medical treatment but in order to cope with addicts, it might collapse as occurred in Britain which followed this system till 1960s.
While the plan for creating a legal market is being executed, another impediment may arise. If the regulatory agencies and government adopt a lenient mechanism, keeping prices close to manufacturing and distribution costs, the purpose of expelling the illicit drug market will vail but in case of straitjacketed and restricted regime to regulate, for instance, imposing heavy taxes, requiring licenses for manufacturing and selling and various other constraints, then it will lift up the costs and increase the possibility of lower price supply of illegal drugs or even black market for their supply.
Thus, whenever any attempts are made to legalize the usage of drugs, all these consequences needs to be taken into consideration and due resolution for the same needs to be adopted through regulations.
Currently, there exists three international conventions for drugs control, the Single Convention on Narcotics Drugs of 1961 (as amended 1961), the Convention on Psychotropic Substance of 1971 and the United Nations Convention against Illicit Traffic in Narcotics Drugs and Psychotropic Substances of 1988. The purpose of the first two treaties is to ensure the availability of narcotic and psychotropic drugs only for medical purpose and to hamper its diversion to illegal channels. The latter treaty, further extends its reach to prevent illicit-drug trafficking and other related crimes such as money laundering and promote international cooperation in criminal matters. These conventions are outrightly rejecting the idea of legalizing the drug usage but certain states such as United States of America, despite being party to 1988 convention is heading towards decriminalizing the consumption of soft drugs usage in some of its states, violating the convention, whose purpose is to curb both demand and supply of the drugs because as long as the consumers continue to demand, the manufacturer cannot be prevented from supplying. Not only USA, but numerous European countries such as Netherlands, Portugal, Uruguay, Spain and Switzerland, also adopted a health-oriented approach instead of executing the consumers for consuming such substances.
These facts calls for determining the practice of decriminalizing soft drugs as customary international rules. There exists two elements for a practice to be recognized as customary rules i.e., state practice and opinio juris. This practice qualifies the opinio juris element as it creates legal obligation but there exists contention regarding it being a state practice. In order for a practice to be a “state practice” need not be practiced from time immemorial but needs to be uniform and accepted by all states concerned. According to this, it will should qualify as customary rule because its cost will much higher for the producing countries to follow the old obligation and get involved in the war against drug cartel. The USA and European Countries openly supported this by violating the treaty and other producing countries by questioning the unequal burden of the obligations. However, these violations of treaty so grave, that it will subsume the treaty but make it very tough for certain producing states to tackle the cartel without the corresponding efforts of consuming countries.
NATIONAL POLICY CHANGES
In India, presently there exists, only single legislation which has also been formulated in order to comply with conventions signed at the international level i.e., Narcotics Drugs and Psychotropic Substances Act, 1985. In 1988, Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic Substances Act which will provide preventive detention of people alleged or suspected of involvement in drug trafficking, will provide for effective deterrent. Further, the NDPS Act and all its amendments in the year 1989, 2001 and 2014, focuses on providing punishment instead of resurrection and harm reduction. The provision of the NDPS with amendments in 2001 provides for sliding scale punishment as per the quantity of the drugs possessed but this makes role of offender and motive irrelevant. So, along with quantity, the “purpose for possessing” the drugs should also be considered as a criteria for punishing an alleged individual because the person acquiring the drugs for consumption is addicted as needs treatment more than punishment. In the current regime, due to the delay in the proceedings, the person in arrest already completes its punishment as prescribed and thus denied opportunity for treatment.
The NDPS Act provided for the provisions for treatment and rehabilitation in the government hospitals, NGOs, which receive grants from Ministry of Social Justice and Empowerment, Psychiatric hospitals or nursing Homes and Private De-addiction centres. However, the guidelines for their operations have not been provided as result the private de-addiction centres take advantage of the eagerness of the individual having drugs and their family members. Along with this, young population of the country is also major chunk influenced by this bane of drugs consumption, so, certain special provisions should also be characterised for them, though under Juvenile Justice Act, 2000, provisions has been specified regarding how to conduct proceeding against juvenile in conflict with law such as the Juvenile should never be kept in jail instead be kept in special homes, child care homes or any other safe place. Despite, this in case of juvenile suffering for drug addiction, separate rehabilitation centres should established both at the centre and state level with strict guidelines for enforcement.
In India, there exists no debate concerning legalization of drugs but this should be taken into consideration as an alternative solution, along with provisions for regulation of all those contentions mentioned above. But, the Indian society does not seem to be prepared for accepting the legalizing the drugs usage, which can be implied from the public response against the public figures, recently being accused of offences under NDPS Act. The general public admiring these figures began to look down upon them. Thus, the Indian society seems not be at par with European countries regarding the solutions to substance abuse and drug trafficking. As a result, India should emphasis on harm reduction and rehabilitation in drug abuse crimes, with strict regulations for those manufacturing and supplying the same.
6. George S. Yacoubian, Beyond The Theoretical Rhetoric: A Proposal To Study The Consequences Of Drug Legalization, J. Drug Education, (2001) Vol. 31.
9. Tripti Tandon, Drug policy in India, International Drug Policy Consortium (2015), https://idhdp.com/media/400258/idpc-briefing-paper_drug-policy-in-india.pdf.
Maharashtra National Law University, Nagpur