Imprisonment of Addicts: A Norm rather than an Exception in India

Profile of the Author: Dheerja is a 4th-year B.Com LL.B (Hons.) student of University Institute of Legal Studies, Panjab University, Chandigarh. She has a keen interest in the Constitution, Economics of Law, and Minority Rights.

Introduction

Since time immemorial, substance use has been ubiquitous. In response to the perpetual problem of drug abuse and trafficking, India enacted the Narcotic Drugs and Psychotropic Substances (NDPS) Act in 1985 repealing the Opium Act, 1857, Opium Act, 1878, and the Dangerous Drugs Act, 1930. The NDPS Act was hastily enacted to give effect to Article 47 of the Constitution of India (COI) that directs ‘The State to endeavour to bring about prohibition of intoxicating drinks and drugs which are injurious to health’ and the United Nations Drug Conventions to which India was a signatory, that were the 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances and the 1988 Convention against Illicit Traffic in NDPS.

The NDPS Act [1] was amended in 1989, 2001, and most recently in 2014, nevertheless doesn’t answer an essential concern under Section 64A of the Act. The rigid prosecution measures stipulated in the punitive Act are appalling when examined through the prism of international jurisdictions as the definition of addicts is in the throes of a fundamental metamorphosis across the world.

Section 64A of NDPS Act: Disregarded Legislative Intent

The traditional approach to narcotics supports the view that an addict is an offender of a crime which is axiomatic in Chapter IV and V of the NDPS Act, whereas the modern approach emphasises that an addict as a victim of drug abuse is an offender of a victimless crime. The complexity of these two approaches is entangled which, when unravelled, releases a thread of inconclusive questions. The issue is highlighted when the executive presumes discriminate powers and the judiciary tries to obliterate the distinction between an individual substance user and drug traffickers as the former are subject to rehabilitation while the latter to austere penal action.

Section 64A of the Act provides ‘Immunity from prosecution to addicts volunteering for treatment’. [2] Nonetheless, the proof of addiction, a psychosocial condition, and admission of guilt as pre-requisites for availing the immunity have resulted in undermining the legislative intent of the section that was ‘To refrain direct criminalisation of substance users’. This is apodictic in the report of ‘From Addict to Convict: The Working of the NDPS Act in Punjab’[3], which asserts a 90.7% conviction rate of addicts in Punjab under the NDPS Act in contrast to 30.9% rate of conviction under the Indian Penal Code. Additionally, according to the Report, no addict was directed to rehabilitation centres between the years 2013 and 2015 by Punjab Courts, thus, exemplifying the traditional view of criminalisation of addicts.[4] Consequently, prolonged interaction with criminals exponentially increases the probability of substance users transforming into criminals.

Another inherent flaw that is indicated in the Act is excessive powers of search and seizure with police under Chapter V of the Act. This is evident in the case of State of Punjab v. Baldev Singh [5], wherein due to arbitrary use of executive powers, it was held that the search and seizure powers should be cautiously exercised. This is distressing as these conventional agencies are oblivious to the implications of addiction. The large multitude of research showing how addiction is a vicious biochemical cycle in the brain that becomes near-impossible to escape alone [6]; how long-term addiction damages the brain [7]; and the larger risk factors at play such as genes, environment, and comorbid mental illnesses [8], have been neglected by the policymakers of the country which is evident in the fact that only 3 rehabilitation centres operationalised under the Ministry of Health and Family Welfare [9] out of 375 NGO’s funded by the Ministry of Social Justice and are notified of these implications.

These research studies [10], correspondingly signify the violation of Article 21 of the COI which states that ‘No person shall be deprived of his life or personal liberty except according to the procedure established by law’. In Maneka Gandhi v. Union of India [11], the Supreme Court held that ‘The right to live does not merely mean a physical right but also includes the right to live with human dignity’. The same was advocated in the cases of Francis Coralie v. Union Territory of Delhi [12] and Bandhua Mukti Morcha v. Union of India [13]. Moreover, Right to Health has been concluded in the ambit of Article 21 in cases like CERC v. Union of India [14] and Paschim Banga Khet Mazdoor Samity v. State of West Bengal [15], where the Supreme Court in unambiguous words held that ‘Right to life under Article 21 includes in it the right of a person to receive medical aid’. Addiction is an internationally recognised Mental Illness and incorporated in India under Section 2(s) of the Mental Healthcare Act, 2017, hence, intensifying the need to provide detoxification facilities and de-addiction treatments like harm reduction in prison.

As inferred, the judiciary’s approach to incarcerating addicts, with negligible drug treatment for drug abuse in prison violates Article 21 of COI.

International Perspective

International jurisdictions have redefined their contours of dealing with substance abuse by considering addiction as a disease. The prominent instance is the Portuguese Experiment, 2001 as a response to the Heroin Epidemic. Under the 2001 laws, citizens found guilty of possessing small amounts of drugs were sent to a panel made up of a psychologist, a social worker, and a legal advisor, who would then devise an appropriate treatment plan. The particular citizen had the right to refuse their decision without criminal intimidation. [16] Washington, DC’s Cato Institute evaluation in 2009 [17] revealed the success of the unprecedented decision in Portuguese that was a decrease in heroin addiction from 2.5% to 1.8% in children in the age group of 16-18 while 50% overall decline in HIV infections. In countries like Switzerland and the UK, similar transitions are happening. Thus, the world is paving way for decriminalisation of addicts.

Conclusion

With the aforementioned conclusive reports and judgements, it is apparent that decriminalisation of addiction to some extent and major focus on health over punishment is the future of drug policy-making.

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FAQs

Q. When did the NDPS Act come into force?

Ans. The Narcotic Drugs and Psychotropic Substances (NDPS) Act came into force on November 14, 1985, and has been amended thrice (1988, 2001 and 2014) which has changed its scope and direction.

References

[1] Referred to as the Act later in the article.

[2] India Code, ‘Narcotic Drugs and Psychotropic Substances Bare Act’ <https://www.indiacode.nic.in/show-data?actid=AC_CEN_2_2_00029_198561_1517807326222&sectionId=25181&sectionno=64A&orderno=83> accessed 20th August 2020.

[3] Vidhi Centre for Legal Research, ‘From Addict to Convict: Working of the NDPS Act in Punjab’ (April 2018) <https://www.icsiindia.in/download/anti-drug/FromAddictToConvict-Vol1.pdf> accessed 20th August 2020.

[4] Ibid.

[5] (1999) 6 SCC 172. Also refer to Karnail Singh v. State of Punjab, AIR 1954 SCR 904.

[6] Kalivas PW and Volkow ND, ‘The Neural Basis of Addiction: A Pathology of Motivation and choice’ (American Journal Psychiatry, August 2005) <https://pubmed.ncbi.nlm.nih.gov/16055761/> accessed on 20th August 2020.

[7] Gould TJ., ‘Addiction and Cognition’ (Addict Sci Clin Pract, December 2010) <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3120118/> accessed 20th August 2020.

[8] Nora D. Volkow and Ting-Kai Li, ‘Drug addiction: the neurobiology of behaviour gone awry’ (Nature Reviews Neuroscience 2004) <https://www.nature.com/articles/nrn1539> accessed 20th August 2020.

[9] Joshua George and Ashwin Krishnan, ‘Loopholes in the Narcotic Drugs and Psychotropic Substances Act, 1985’ (SSRN 14 March 2020) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2021750> accessed 20th August 2020.

[10] Supra Note 6, 7, & 8.

[11] 1978 AIR 597.

[12] 1981 AIR 746.

[13] 1984 AIR 802.

[14] (1995) 3 SCC 42. Also, refer to M.C. Mehta v. UOI, (1996) 6 SCC 9.

[15] (1996) 4 SCC 37.

[16] Editorial Staff ‘How Other Countries Deal with Addiction and Treatment’ (Desert Hope 27 February 2020) <https://deserthopetreatment.com/addiction-guide/drug-industry-trends/other-countries-addiction-treatment/> accessed 21st August 2020.

[17] Ibid.