THE debate on the pitfalls of incarcerating drug addicts is an old one, and a recent study has made a strong pitch for the decriminalisation of drug use. The findings of the study, conducted in Punjab, prove that despite the pre-election rhetoric and campaign promise of every political party in the State the problem on the ground is far from being solved. In 2013, Punjab had the highest crime rate for drug offences across India: 42.3 per cent, or 14,564 out of a total of 34,668 cases. Captain Amarinder Singh’s promise to eradicate the problem within a month of his becoming Chief Minister is nowhere near fulfilled.
Leaders of the ruling Congress blame the decade-long rule of the Shiromani Akali Dal and the Bharatiya Janata Party preceding theirs for having allowed the problem to take root and fester. The Aam Aadmi Party rode on an anti-drug campaign to make inroads into Punjab early on. Already, political parties have begun the blame game ahead of the 2019 general election. But the problem continues to trouble the people of the State. Recent reports suggest that the profile of a typical drug user is widening, and virtually everybody, from housewives to police personnel, young people and politicians, is involved in the drug trade as either users or peddlers.
Health issue, not crime
An analysis of 13,350 cases registered in the special courts of Punjab under the Narcotics, Drugs and Psychotropic Substances (NDPS) Act between 2013 and 2015 found that no one was sent to de-addiction centres by any court in Punjab. Instead, all addicts were sent to prison. The police, the prosecution and the courts repeatedly failed to treat addiction as a health issue requiring medical and psychological care and put drug users behind bars. Sections 39 and 64A of the Act, which allow addicts to be diverted out of the criminal justice system, were never put to use.
The study “From Addict to Convict: The Working of the NDPS Act (1985) in Punjab”, done by the Vidhi Centre for Legal Policy, advocates the removal of criminal penalties for drug use and instead wants it to be treated as an administrative offence. It examined whether drug trafficking and addiction could be curtailed by harsh punishments under the Act and whether drug addicts were being rehabilitated effectively. It focussed on the strict liability provisions of the law, where punishment is assigned by virtue of a wrongful act (possession of drugs) independent of any accompanying intent or mental state (trafficking, sale, consumption). It recommends that the police or the judicial authorities should refer addicts to an administrative body comprising legal, health and social work professionals, which could then decide to penalise users with a warning, fine or community service or encourage them to seek treatment.
The NDPS Act was initially projected as a deterrent against trafficking. But the study found that the law had not lowered crime rates for drug offences or trafficking in Punjab. Instead, a disproportionate number of addicts were incarcerated under it. This shows the need for a rethink on the handling of addiction through the criminal justice system and for considering the adoption of a public health framework. The study urges the Central government to cooperate with Punjab in amending the legal framework and gathering data on the extent and pattern of drug use.
“The State government can focus on ensuring that infrastructure and financial resources are adequate and all treatment centres adhere to minimum quality standards. If the policies are reoriented along these lines, drug addiction in Punjab can be tackled more meaningfully and effectively,” the study says.
‘Facilities for treating addicts inadequate’
Neha Singhal, senior resident fellow with the Vidhi Centre for Legal Policy and a co-author of the study, advocates decriminalising drug use. “The death penalty was introduced to the NDPS Act in 1989 as a strong deterrent to traffickers. Until 2011, second offence in trafficking attracted mandatory death penalty. But trafficking has continued unabated. Our criminal justice system is geared towards punishing the weakest sections of society. Harsh punishments only make more victims and solve little, if anything,” she told Frontline .
According to the study, the facilities available for treating addicts in Punjab are inadequate. Treatment and demand-reduction strategies within existing hospitals are also not up to the mark. Responses to applications under the Right to Information (RTI) Act from various hospitals and de-addiction centres revealed that rehabilitation strategies largely focus on counselling and on providing recreational and sports facilities, lectures and campaigns. Further, the Ministries of Social Justice & Empowerment and Health & Family Welfare are responsible for funding de-addiction and rehabilitation programmes respectively. While the MSJE handles demand reduction, the MHFW handles treatment and rehabilitation of drug addicts. De-addiction and rehabilitation, however, are part of the same process and breaking them down into two different functions, allocated to two different Ministries, does not make sense. In order to effectively tackle drug addiction, treatment and rehabilitation should be under a single Ministry. This would help avoid confusion about who is responsible and ensure greater accountability.
Between 70 to 90 per cent of all cases under the NDPS Act across all districts involved intermediate quantities of drugs. Only 6 per cent of all narcotics cases involved commercial quantities of drugs. Even within the category of intermediate quantity, most cases veered towards small quantities. This meant that people who were arrested were largely addicts or users and not peddlers or smugglers. The psychological risks associated with incarcerating drug users are too many to enumerate. In an era where movements around prison abolition were gaining ground, incarcerating drug users was reminiscent of a time when imprisoning people with mental health issues, homosexuals or black persons to perpetuate slavery was the norm.
Drugs seized were categorised into small and commercial quantities, and thus a large negatively defined category of intermediate quantity was created. For example, an intermediate quantity for heroin was anywhere between 5 and 250 grams. “Intermediate quantity” cases received disparate sentences because of the wide range of punishments available to a judge together with a lack of sentencing guidelines. Because of this arbitrariness, addicts found with intermediate quantities of drugs were denied de-addiction treatment. The report says high convictions under the NDPS Act did not offer any long-term solution; besides, they did not comprise cases of trafficking.
Since intermediate quantity cases largely involve addiction, they should be given the benefit of judicial and prosecutorial discretion under Sections 39 and 64A, according to the authors of the study. Of all the cases that came to NDPS Special Courts across 18 districts of Punjab, 71.4 per cent involved people between the ages of 20 and 40. Out of these, about 40 per cent were between the ages of 20 and 30. Given how young drug users are, “the law should allow addicts to be diverted to rehabilitation through the non-punitive sections of the NDPS Act, regardless of whether they have been found with small or intermediate quantity of drugs. Further, the police and the judiciary should be trained on the non-punitive provisions of the Act. They should be empowered to discharge offenders pre-trial or refer them for treatment before or during the trial,” said the report. Incidentally, a Department of Revenue notification dated November 18, 2009, called for determining the drug quantity on the basis of the weight of the whole quantity, and not the pure drug quantity. The notification had in effect worked contrary to the original intent of the law: individuals caught with relatively smaller quantities of pharmaceutical drugs were sentenced to a mandatory minimum punishment of 10 years.
Problematic perspective
During the launch of the report, Salman Khurshid, Senior Advocate and former Member of Parliament, said: “The problem is the entire perspective regarding crime. The only magic formula that we see to address crime is deterrence. There is need to reassess and re-examine the overall concept. It has not yet happened that anybody has been deterred from committing a murder because there is a possibility of death sentence. The ministry, the judiciary and the police all are overworked. This may hamper the lawmaking process and the approach to lawmaking has to change. We don’t take as much feedback and whatever we take is not circulated enough and we should be receptive and open towards feedback.”
The NDPS Act incorporates strict liability provisions. Section 54 provides that possessing any narcotic or psychotropic substance is sufficient to constitute an offence. Similarly, Section 35 shifts the burden onto the accused to prove that no mental state to commit an offence existed while committing it. Since the law does not require establishing motive or intent, it has resulted in repetitive police narratives across districts, which indicates poor investigation. Further, more people were arrested and kept behind bars longer for possessing pharmaceutical drugs than those found with narcotics. Pharmaceutical drugs comprise over-the-counter options such as alprazolam, buprenorphine, codeine, dextropropoxyphene, diphenoxylate, metamphetamine, nitrazepam and pentazocine. Narcotics constitute cannabis, heroin, smack, opium and poppy husk.
Interviews by Frontline with a disparate group of people, from unemployed Jat boys in Chhattarpur village to middle-class corporate workers in Gurgaon to artists, over many years revealed that pharmaceutical drugs were widely in use in Delhi as well. Contrary to perceptions, men and women of all ages and classes were frequent users of these drugs. “It’s just that drug abuse is not seen as a major problem in Delhi as it is in Punjab. But it is also not unusual,” said a former user on condition of anonymity.
Being a border State, Punjab’s geographical proximity to the drug-trafficking zones of Pakistan, Himachal Pradesh and Rajasthan had contributed to drug addiction within its districts. The report was conceptualised to fill various gaps in understanding Punjab’s drug situation and showed how the NDPS Act failed to meet its twin objectives of deterrence and rehabilitation in Punjab where drug offences continued unabated.
Justice Mukul Mudgal, former Chief Justice of Punjab and Haryana High Court, said: “The disparity that has emerged in the report is distressing. What is more distressing is the ignorance the judges show by sending the addicts to prisons instead of de-addiction centres. Long spells in prisons lead to interaction with hardened criminals and make addicts hardened criminals as well. Commercial drug dealers are hardly convicted, and this is something that needs to be reversed. Deterrence as a theory does not work.”
COMMents
COMMents
SHARE