Abstract
Cannabis, more commonly known marijuana or Ganja, embedded in the Indian history for ages immemorial, currently faces strict regulations and restrictions laid down by the Narcotic Drugs and Psychotropic Substances (NDPS) Act of 1985. This paper aims to explore the potential for legalisation of marijuana as a recreational drug in India, shedding light on its economic, social and public health impacts. The same is further analysed by drawing comparison and lessons from countries that have successfully legalised the use of marijuana and diversifying the research by optimizing statistical studies done on the same. This paper investigates the current regulatory framework implemented in India and whether it’s sufficient to absorb this drastic change. Lastly, the paper proposes changes that can be made to open the road for long-term research opportunities and potential implementation of recreational marijuana in India. The feasibility and potential consequences are thoroughly analysed in this paper with the aim to successfully inform a comprehensive debate on marijuana policy reform in India.
Keywords
Legalisation, decriminalisation, Marijuana/Cannabis, psychoactive substances
Introduction
Cannabis, a widely known psychoactive substance, holds a deeply woven and complex interconnection with the Indian society since times immemorial. Yet, modern India has deemed its legal status null, standing in stark contrast with its wide ancient acceptance. Be it in the form of Bhang in Holi, or in religious ceremonies, cannabis has been embedded in the Indian religion, ranging from its first mention in the Vedas as being one of the only five sacred plants to accepting residence of religious deities like Shiva in its leaves. This paper illuminates the paradigm shift from viewing cannabis as a sought-after medicine and plant of religious and cultural importance to being a criminalised substance in this day and age.
Post Independence India observed a relatively relaxed stance on cannabis, however the 1961 Single Convention on Narcotic Drugs (CNDs) brough in a change in the international front, influencing the nation. It classified cannabis as a Schedule IV drug, falling in the same category as cocaine and heroin, hence banning its recreational use along with excluding it for medicinal and research purposes as well. The Narcotic Drugs and Psychotropic Substances Act (NDPSA), 1985 further clarified India’s stance on it by classifying cannabis (hemp) as a “narcotic drug” as per Section 2 (xiv) .
Even though the statute bans the use and distribution of cannabis, loopholes can be witnessed in the country with the permit to government-licensed retail shops to sell Bhang legally. Along with the sale of bhang, it was also used to smoke and vaping, however vaping was later on banned in India. Moreover, Cannabis was found to be the most abused drug in India according to the study on “Magnitude of substance use in India.” The report also shines light on approximately 2.2 crore people indulging in the use of bhang, and 1.3 crore people indulging in the use of Ganja and charas.
As mentioned before, Cannabis comes in various forms and the from that needs to be put forth in terms of legalisation is medicinal marijuana. The component existent in marijuana or the cannabis plant called the tetrahydrocannabinol (THC) is responsible for it’s medicinal or recreational properties. More than using it to treat symptoms of various diseases, it shall be used for the recreational use of the drug. It refers to using marijuana for neurological relief such as elevation of stress, achieving a euphoric state, relaxation and the most common effect of increase in appetite.
On one hand, the legalization of recreational use of marijuana would mean an open road to long term research opportunities in the medical field, however on the other hand, it might lead to increase in crime rates or neurological problems induced by long term consistent use of the drug.
Research Methodology
This paper uses secondary sources for an in-depth analysis of benefits and drawbacks of legalising use of recreational marijuana in India. These secondary sources include newspapers, journals, and reputed websites for research.
Review of Literature
The history of cannabis and its criminalisation ages back to the arrival of William Brooke O’Shaughnessy in 1833, amidst a pandemic. Employed as a doctor in Bengal after landing a job with the East India Company, O’Shaughnessy took avid interest in the study of plants and the main plant that drew his attention was cannabis. Exploring more on the same, he discovered that it was used in various forms like bhang, charas, hashish and was sold in Calcutta bazaars. He studied the effects reported by people on consumption but gained in depth knowledge when Pandit Madhusudhan Gupta, an Ayurvedic practitioner, shed light on the properties of cannabis to sharpen memory, excite appetite etc. by translating old Sanskrit texts. He continued to explore the benefits of cannabis by administrating it to animals and noticed no side effects before he decided to administer it to humans. Post several trials, he defined its remedial powers as “satisfactory and incontrovertibly established” and published these findings in his 1893 paper titled “On the Preparations of the Indian Hemp, or Gunjah”, concluding that cannabis was an “anti-convulsive remedy of the greatest value”.
Between then and 1900, hundreds of articles singing the glory of cannabis appeared in medical journals and O’Shaughnessy was the pioneer in sending Indian hemp to England so much so that Queen Victoria’s personal physician proclaimed it to be one of the most valuable medicines possessed, if administered properly and in right quantity. This drew attention to commercialisation and implementation of taxes on the harvest and sale of cannabis, bringing in loopholes found by Indians to illegally indulge in procurement and sale of the same to avoid paying high taxes imposed by the colonial government. Owing to this, the government started avidly connecting instances of insanity to the use or smoking of cannabis. If any admits were found with possession or to be using cannabis, an instant connection was drawn between the symptoms and its “cause”. Mills wrote that gunjah-smoking was simply a convenient way of filing the documents and one was likely to believe it as well. This solidified the criminalisation of cannabis in India in the colonial times.
Legalisation of Recreational Use of Cannabis in Other Countries
This section aims to explore and earn from other countries like USA, Canada, Uruguay that have legalised the use of recreational marijuana and analyse their statistics to compare the impacts it has had.
Impact on prevalent users
According to the World Health Organization study, cannabis is considered to be one of the most widely used substance, with approximately 2.5% of the global population indulging in the same. Around the world, Canada, Uruguay, Thailand, Mexico, Belize, 15 states in USA and many more countries have implemented legalisation of the use of marijuana.
Post legalization, US experienced an increase from 5% to 8% in up to 8 states, namely Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregan and Washington. However it was found that the rate of cannabis users among adolescents remained more or less the same. Similarly, Canada and Uruguay also showed increase in the amount of cannabis users but the influence of the same on adolescent users always remained stable. This is to say that legalisation of cannabis merely brought forth users already indulging in the use of cannabis, rather than motivating newer, younger generations to engage in it.
Impact on Mental health
The study of State Cannabis Legalization and Psychosis-Related Health Care Utiization is one the largest known studies to have analysed the association between marijuana and recreational cannabis policies with the rates of psychosis-related health care claims across the US states. The results showed that comparison that compared to no legalization policy, states with legalization policies showed that no statistically significant increase in the rates of psychosis-related diagnoses. However, their second analysis did show a significant increase in the rate of psychosis-related diagnoses among men ranging from 55-64 years of age.
Impact on Physical health and Economic Impact
The impact that legalisation of marijuana has on the physical health of public also needs to be highlighted. Lung cancer, chronic bronchitis, impairment in memory, motor coordination are some of the few physical concerns that arise with the consistent use of marijuana. Since the legalisation in USA, it has experienced a 7% increase in the amount of marijuana associated emergency department visits. Furthermore, the Centre for Disease Control reported increase in rates of deaths related to cannabis overdose post legalisation of marijuana use.
It is to be kept in mind that most of these studies used the level of THC in the blood as a marker. This is important as blood marker merely shows the presence of THC induced due to use of cannabis in the past few weeks and cannot be directly related to sole use of cannabis.
One of the main economic concerns revolving around cannabis is the prominent black market that exists for its sale and procurement. Such markets are seen to be highly costly and the consumers are ripped off their money for low grade cannabis. Legalisation would help eradicate these unnecessary costs and moreover give the government enough power to regulate the quality of cannabis being sold to consumers. USA was seen to have been able to tackle problems of unemployment and sustain the economy post legalisation.
Implications of Legalising Use of Recreational Marijuana in India
Even though India has a historical tie with the use of cannabis plant, in today’s day and age, legalisation of marijuana may prove to be a setback for the country. It’s prevalent to be used as a gateway drug for innumerable people and is recorded to have been a starting drug for people who later on make a switch to drugs like cocaine, heroin which can prove to be even more harmful. It also poses a danger to the influential youth of India and how they may become victims to second-hand smoke, long term brain damage and cancer if they were to indulge in it from a young age. Many a times, marijuana smoking is compared to cigarettes and have been asserted as more addictive as it’s a narcotic drug and this may hinder the population’s overall health. Cases of abuse of marijuana are already being witnessed in states like Punjab where the youth not only exploit cannabis but has also fallen into the grips of various other narcotic drugs.
Moreover, the associated challenges that legalisation may be an even bigger problem. Cannabis is known to hinder perception and coordination, putting one in a euphoric state. Problems such as drunk driving and other related crimes are already on a high and it has often been asserted in numerous debates on this topic that once legalised, cannabis could also add to these accidents, creating immense burden on the police and other enforcement forces to help curb the same.
Looking on the other side of the coin, India does have a major black market for the sale of cannabis or marijuana-related products and its legalisation would help curb this. Once legalised via statutes, consumers wouldn’t have to succumb to purchasing products from local dealers or the black market, instead they could purchase high grade cannabis at good rates from legal channels itself. Drug cartels and black-market sales would undergo a downfall and the government would be able to ensure good quality and safety of cannabis consumers.
The most lucrative aspect of legalising marijuana would be the power of government to impose taxes on the same and flourish economically via the additional tax revenue received. Significant amount of money that currently goes into law enforcement to keep cannabis off the streets could be used elsewhere along with the tax revenue received. Imposing tax on sale and purchase of cannabis would also help discourage consumers to indulge in its consumption. Today most offenders breaking laws under NDPS Act are held for the mere possession or consumption of cannabis. Its legalisation would allow the forces to invest their time in more grievous offenders, posing as a harm to the general public at large instead.
The most important benefit of legalisation of cannabis would be its use as a medicine. There has been proof since ages that cannabis can be used to treat multiple ailments like chronic pain, chemotherapy-induced nausea and also epilepsy. It would allow cannabis to be utilised for its true potential and would help medical professionals to research the plant and its qualities further. Cannabis is a plant made up of 120 components and yet the only two known to India are non-psychoactive cannabinoid CBD and psychoactive cannabinoid THC. It is clear that such a valuable plant needs to be studied further to gain access to its full capacity and the benefits that can be derived from it.
Current Legal Status of Marijuana in India
Currently, the act that regulates cannabis use in India is the Narcotic Drugs and Psychotropic Substances Act, 1985, also known as the NDPS Act. The act was first implemented in 1985 and has undergone three amendments, after that in 1988, 2000, and 2014.
The word “cannabis (hemp)” is clearly defined in the act as follows:
(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom;
“Cannabis Plant” is also defined as any plant of the genus cannabis according to the act. The act furthermore prohibits the production, manufacturing, cultivation, selling, buying, transporting, storing and/or consuming any kind of narcotic drug or psychotropic substance. This Act lays down specific punishments for breaking this provision. These are laid down in Section 20, Section 21 and Section 22 of the act. It provides for punishment based on the quantity of substance found.
- If found in small quantity, the violation could lead to imprisonment for a term of up to one year, a fine of up to Rs. 10,000, or both
- If the quantity found is lesser than the commercial quantity but still found to be higher than what is considered as small quantity, the term of imprisonment could be up to 10 years and a fine of up to Rs. One lakh.
- If the quantity found matches the criteria for commercial quantity, the violation would amount to imprisonment for a term not less than 10 years which may extend up to 20 years, along with a fine not less than Rs. One Lakh, extendable to up to Rs. Two Lakhs.
It is noteworthy to consider that even though the Act lays down punishment for violation in terms of quantity, it fails to define what “small” quantity entails and it’s usually left at the discretion of the law enforcement officer to decipher whether quantity found amounts to quantity for personal consumption or commercial business.
Over the years, many have raised issues concerning the vague and ambiguous provisions in the constitution regarding criminalisation of marijuana.
- Narcotics Control Bureau v. Charas, 1994 revolves around the concept of possession of drugs, highlighting the intent behind it. A case was made regarding the concept that possession of small quantities of cannabis or other drugs, done for personal consumption should attract lesser punishment in comparison to possession for sale or distribution. Quantum of punishment should not be kept same regardless of quantity and intent.
- Sagar v. State of Uttar Pradesh, 2008 questioned rationale behind punishment on basis of mere recovery of cannabis from an accused. The Allahabad High Court held that it wasn’t enough to penalise a person, rather punishment can only be imposed once the prosecution has been able to establish that the accused was in possession and had knowledge of the illegal substance so found.
- PIL in Bombay High Court, 2015 was instituted by a lawyer in favour of decriminalisation of cannabis in India, arguing the lack of scientific backing for inclusion of cannabis in the strictest category of narcotics in the NDPS Act. It was dismissed on the basis that it wasn’t in the judiciary’s power to make such changes and should be taken up with the Parliament to allow for legislative changes on the same matter.
- Bhola Singh v. State of Punjab, 2017 and Mohd. Rashid v. State of West Bengal, 2020 were some other cases that took up the same issue.
Implementation of NDPS Act
In light of the implementation of the NDPS Act, the Narcotics Control Bureau was established in the 1986. It consisted of a nodal organization made to control and manage matters pertaining to drug use, in charge of coordinating drug law enforcement efforts while simultaneously collaborating with other ministries, offices and state and central governments to effectively tackle this problem.
The rules laid down in the NDPS Act do not apply on cannabis grown for horticultural or industrial use. Cannabis, under the National Policy on Narcotic Drugs, is acknowledged as an important source of biomass, fibre and high-value oil. The Indian government further supports the growth and research of low THC cannabis.
Bringing to attention the medicinal value of cannabis or the hemp plant, the Food and Drug Administration (FDA) too authorized the use of medication called Epidiolex, containing CBD, in 2018. It was authorized and deemed fit to treat Lennox-Gastaut syndrome and Dravet syndrome. Both these syndromes are considered two uncommon forms of severe epilepsy that conventional medicine fails to treat properly.
The Food Safety and Standards Authority of India (FSSAI) also weighs in as it has certified hemp seed and hemp seed products having less than 0.3 percent THC as “Food” on November, 2021. This shows a positive shift towards a highly misunderstood plant holding immense medicinal value.
Conclusion
The only way forward for India is a nuanced approach, keeping in mind both domestic and international experiences, drawing from domestic territories like Assam and Manipur. In a country where one strand bhang enjoys acceptance whereas recreational use remains shrouded in prohibition is a disappointment. It is a necessity for this complex issue to be addressed for India to actualise its potential and unlock innumerous economic benefits, bring in tourism and foster responsible cannabis related policies.
Suggestions
It necessitates a national conversation, overlooking the narrow-minded arguments and opening the floor to embrace reason. Focusing on Canada, Uruguay and USA are examples, India should delve into potential benefits and allow policymakers, public health experts and society to weigh in. Building stringent regulations is a must for enforcing responsible cannabis policies. A well-defined policy for cultivation, prescribed legal age for consumption and limit of THC level in cannabis for recreational use are indispensable. Proper enforcement will only be possible with collaboration to ensure regulation of legal markets and well- researched, trained health professionals to address the potential health outcomes. Only a balanced approach would pave the way for generation of revenue, tourism boost and establishing a responsible use of this plant. It’s time for India to take a medieval approach and reclaim a positive outlook towards the valuable cannabis plant.
Author- Akanksha Gupta
College- Symbiosis Law School, Pune