Author: Devansh Kaushik, Student at Galgotias Law University, Noida (U.P)
ABSTRACT
The main objective of this paper is to study and analyse the current status of the legality of the Cannabis plant in India and how it can be legalized in our nation for the betterment of the citizens of our nation as a whole. Cannabis is not just mentioned in Indian Vedas but can be traced back to ancient Sumerian times. Coming to India in traditional Indian medical texts it has been first mentioned in Atharva Veda thousands of years ago. Ayurveda names of cannabis are “Vijaya” and “Siddhi” meaning the one who conquers and has subtle power. This research focuses on the impact of the legalization of Marijuana in our nation and how it will be beneficial for the government and our nation’s economy. This paper also focuses on the medicinal values of the plant. It also brings light to its harmful effects as well as its impact on the nation’s economy and society.
Keywords: Cannabis, Legalisation, decriminalization, possession, Drugs, Medicinal, Substances.
INTRODUCTION
Cannabis is generally referred to as a group of plants that consist of psychoactive properties. The three plants that fall under this are Cannabis Sativa, Cannabis Indica, and Cannabis ruderalis. When the flowers of these plants are dried we are left with one of the most consumed drugs in the world which often goes by the name of marijuana. Cannabis consists of more than 120 components which are known as cannabinoids. The two most looked upon cannabinoids are THC ( tetrahydrocannabinol ) and CBD (Cannabidiol)[1]
The cannabis plant which is also known as hemp or marijuana is a dioecious plant which means that the male and female plants of cannabis grow differently and on separate plants. When female plants are left unpollinated they form a resin-coated bud which is often seedless which is commonly known as Ganja in India. The resin which coats the bud is referred to as Hash or Hashish. The legality of cannabis is kind of a grey zone in India right now. The use of cannabis as an intoxicant has been mentioned in ancient scripture dating back thousands of years. The laws of Cannabis and all its by-products fall under the psychotropic and narcotic act of 1985 which prohibits the sale, possession, and production of the second-largest and flowers; however, the use of seeds and leaves is still permitted. Apart from the NDPS act states have the freedom to draft their law when it comes to cannabis. Section 10 of the NDPS act provides freedom to the states to regulate certain things when it comes to cannabis like its possession, cultivation, production, manufacture, transport, purchase, or be it inter-state import or export.[2]
HISTORY OF CANNABIS IN INDIA
When we look back in the ancient history of India it’s quite evident that cannabis was regarded as holy in Hinduism. According to Atharva Veda Cannabis is a sacred grass whose leaves are resided by the guardian angel of mankind.[3]
When O’Shaughnessy visited India he published his paper on cannabis in the year 1839 named ‘on the preparation of Indian hemp, or Gunjah’ he came to the conclusion that cannabis were an anti-convulsive remedy of the greatest value. This led to cannabis cultivated in India getting known all across the colonized nations at the time. By the year 1900, the medical journal was flooded with more than a hundred research papers focusing on the cannabis plant which was referred to as miraculous and valuable. According to Queen Victoria’s physician, Indian cannabis was termed as one of the most valuable medicines that they possessed. Cannabis was one of the many crops in the production cycle which were grown by farmers. But Cannabis was their principal source of income. The largest tract was in Bengal province which used to be known as Ganja mahal where the task of licensing and taxation took place. Mark Stewart, a member of parliament of the house of commons kept pushing the fact that cannabis possession should be banned and criminalized by the government. A Few years later another parliamentarian named William Caine asked the government the same which was partially agreed upon by the British government which was surprising because of the monetary profits that they had from taxation on cannabis in India. In Bengal for instance, back in those days, it accounted for more than 20% of revenue from internal customs. The government did set up the Indian Hemp Drug Commission to look into cannabis prohibition.(The Wire)
The decision to prohibit cannabis came because of it being a hurdle in opium trading which was at its peak during the time and gave tremendous profits to the government. By 1843 Opium was the second-largest source of colonial revenue. Between 1893 to 1894 Indian Hemp Commission did a detailed study of cannabis in India and concluded that it shouldn’t be prohibited but should be regulated and taxed accordingly. After Independence during the 1961 Single convention on Narcotic drugs, India faced tremendous pressure from western countries to strictly control and monitor the supply and cultivation of cannabis and were given a period of 25 years to do so which was retaliated by India to some extent. Ultimately India ended up agreeing to the terms in the year 1985 when India passed the Narcotic Drugs and Psychotropic Drugs Act under which anything obtained from the bud of the plant was prohibited but the use of the cannabis leaf was still legal. The law remains in effect today.[4]
WHAT IS MARIJUANA?
Marijuana which is also referred to as weed, stash, mary jane, and many more slangs is a mixture of dried leaves of Cannabis Sativa which is consumed in different types of ways and forms all across the globe. Marijuana is consumed for medicinal purposes or recreational purposes. Inhalation of Marijuana leads to a euphoric feel and the release of dopamine further relaxes the mind. The two main components of Marijuana that have been researched the most are THC and CBD.
THC is the psychoactive component that causes a euphoric feel while CBD is used for medicinal purposes Ratio of THC and CBD in marijuana is often looked upon if it is regulated by any government body. [5]
MARIJUANA IMPACT ON HUMAN BODY
NEGATIVE IMPACT
- In the last few years, marijuana has been engineered to become much more potent than it initially was. Today marijuana is a strong drug that can cause psychosis. Samples testing showed that THC levels have risen from 4% in the 1990s to nearly 12% in 2014. The increase in potency poses higher chances of cannabis abuse especially, in adolescents.[6]
- A 2015 study found out that 44.7% of people who consumed marijuana consumed some other illegal drug at some point in their life thus giving marijuana the title of a gateway drug.[7] (National Center for Biotechnology Information)
- Several studies have shown that marijuana use is directly linked with increased blood pressure and lung problems hence have serious cardiovascular effects.[8]
POSITIVE IMPACT
- Research conducted on marijuana shows that cannabidiol helps controlling seizures. Further research is ongoing to see if it can help in the treatment of epilepsy.[9]
- Research shows that CBD, an active component of marijuana makes bones stronger during recovery hence reducing the chances of fractures in the future.[10]
- Studies and Research have shown that cannabis can help in stabilizing blood sugar and regulating the proper flow of blood circulation in the body.[11]
IMPACT MARIJUANA CAN HAVE ON SOCIETY
According to Romesh Bhattacharji, ex-Narcotics Commissioner of India out of 640 districts, 400 districts have cannabis cultivation he further goes on to say that prohibition has failed.
Cultivation of cannabis has only been proliferating even after getting banned in 1985. [12] (National Geographic)
As mentioned earlier marijuana can induce psychosis due to high THC. So the reason goes that legalizing marijuana will increase psychosis in the general population but a study from Britain found that while the number of people who smoke cannabis increased between 1996 to 2005 but the overall number of schizophrenia a type of psychosis, however, remained stable.[13] So the reason goes like this that if fewer people have access to marijuana the lower the risk of marijuana-induced psychosis.
But just because marijuana is banned doesn’t mean people are not smoking it. A 2018 study from ABCD, a Berlin-based agency showed that Delhi stands in 3rd position in the world whereas Mumbai stands in 6th position when it comes to consuming cannabis.[14]The number proves that the status of legality of cannabis is not stopping people from consuming it. Precisely because marijuana is illegal more people might end up with psychosis because prohibition makes drugs more potent and stronger since they are not regulated by any government body. To quote an example prohibition of alcohol in the US in the year 1920 proved to be a blunder. Despite reducing alcohol consumption, it leads to an increase in alcohol consumption and makes alcohol more dangerous to consume due to its quality.
The court and prison system reached their saturation point.[15] (Cato Institute)
If marijuana were legal there would be better options for consumers and regulators could insist on high CBD at the same time as well. If regulated, marijuana would have strict laws hence use of marijuana among adolescents would gradually decrease over time.
Taking another example, back in 2001 Portugal was struck with one of the worst drug problems which made them try something radical. Portugal decriminalized all illegal drugs and despite arresting people who were in possession of these drugs they were sent to support services. Drug use was seen as a chronic disease rather than a crime. The number of people who tried and kept using drugs fell from 44% in 2001 to 28% in 2012. It further resulted in a decrease in the use of hard drugs.
Marijuana still lacks proper research which often leads to inconclusive results of tests. For research, funding is required which is often hard to get because of its legality in India. To put it simply, legality creates incentives that drug dealers can’t exploit.
LEGAL ASPECT
According to the constitution of India, the Narcotic Drugs and Psychotropic Substance Act of 1985 extends to the whole of India and it should be also noticed that the NDPS ACT applies to all citizens within or outside India and all aircraft and ships which are registered in India.
The meaning of cannabis is defined under section 2(3) of the Narcotic Drugs and Psychotropic Substance Act, 1985 which defines
- Charas – a resin that comes from the cannabis plant in any form be it purified or crude that also includes concentrated preparation and a complete separate reis referred to as hashish oil or liquid hashish.
- Ganja – excluding the seeds and leaves if not attached to the cannabis plant is the flower part or fruiting tops of the cannabis plant.
Under section 2(4) of the NDPS act Cannabis plant refers to any plant belonging to the cannabis genus.
The NDPS act prohibits the usage and selling of cannabis but exempts seeds and leaves of the plant.[16] (Legislative Department)
PUNISHMENT FOR CANNABIS POSSESSION
Under section 20 of NDPS act whoever in transgression of any provision of the mentioned act or condition or license granted thereunder, –
- Grows cannabis plant, or
- Produces, import, export, possesses, sell, Shall be punishable
According to the NDPS Act, if any illegal drugs, cannabis in this case are found in possession of a person they will be charged under the NDPS act. The sentence is contingent upon the quantity and drugs seized. The punishment for the consumption and cultivation of cannabis is mentioned under section 20 of the NDPS act and varies according to the quantity seized from a person.
The punishment for above mentioned is as followed:
For Small Quantity – Meticulous imprisonment for a term that may go up to 6 months and a fine that may go as high as 10,000 INR.
For Quantity Less Than Commercial Use But Significantly Higher Than Small Quantity – Meticulous imprisonment for a term that may go up to 10 years with a fine imposed, which can go as high as 100000 INR.
For Commercial Quantity – Tenacious imprisonment for a term of a minimum of 10 years which may be extended up to 20 years with a fine imposed of at least 100000 INR and can go as high as 200000 INR.[17] (Legislative Department)
Actions Or Offence Whose Punishment Is Not Provided – Whoever is found in breach of any provision of this act or any rule issued under it for which no punishment is provided, shall be punishable with imprisonment for a term as long as 6 months or with a fine.
A person under 18 referred to as “JUVENILE” cannot be prosecuted, and falls under section 18 of the Juvenile justice act.[18]
CRIMINALISATION RESULTS IN THE EXPLOITATION OF UNDERPRIVILEGED
Drug consumption or use in any way is a punishable offense in India. It is believed to be the harshest way of showing your criticism. Looking at some reports from Mumbai it is evident that the whole purpose of criminalizing is defeated when people have to go through a lot more trouble than drugs can put them in.
Definition of CONSUMPTION in LAW is relatively vague and often puts people in a dilemma. The stage at which a crime is said to be committed is still something people don’t know about. From all we know can be from any stage from during consumption or post-consumption. To cite an example, the police of Punjab depend on seizures and post residue objects, light lighter, matchsticks, foil, and many more to establish a proper channel with consumption. The problem is that the law criminalizes every drug user, even if the user meant no harm to society. Legally the court has the power under section 39 of the NDPS Act to send any addict convicted for consumption to rehabilitation centers but unfortunately, these people are mostly convicted which ultimately shows the system is broken.[19] Between the years 2010 to 2013 the average number of cases that used to fall under the NDPS Act was 1766 cases per year but in the year 2013 – 2014, the cases rose to a stand at 14622 which is a staggering five times the cases seen between 2010 – 2013. Now more than 80% of cases since the year 2013 have been observed in Mumbai, even reaching up to 98.10% of the total cases in the year 2015.[20] In the year 2017 and 2018, all the cases from Mumbai that were categorized and fell under NDPS act showed a significant disparity in the number of cases that involved personal use and the cases which involved trafficking. The staggering percentage of 97.7% in the year 2017 and 97.3% in the year 2018 of cases that involved personal use made 2.3% in the year 2017 and 2.7% in the year 2018 cases of trafficking a dwarf. This clearly depicts the flaws and concern which arises with these statistics.[21] Surprisingly, Cannabis constituted only 9.2% of the value of 60.6 crore while the gap continues to broaden even now but still out of all the cases filed under the NDPS Act 87% of all the arrests and convictions made for consumption were due to cannabis. Now people who are generally arrested for cannabis consumption are usually from lower sections of the society and are not financially strong, most of them young too. Now the problem is that even before they can know about their rights or get hold of the scenario they are made to plead guilty. On a survey, over 90% of cases like this were disposed of on the same day they were brought in front of the court. This in a way can be said that they plead under duress.
Law in itself doesn’t make any difference between the different people of the society but it’s the system that focuses on the people of the lower section of the society.[22]
JUDICIAL ASPECT
Shashi Tharoor, a member of parliament, Lok Sabha used Twitter as a platform to express his opinion of the legality of cannabis in India. He tweeted that cannabis can be better regulated if legalized in India, referring to India as the land of Bhang.[23]
Tathagata Satpathy Lok sabha MP Orissa is one of the most strong supporters of legalizing cannabis in India considers the cannabis ban elitist. He was not hesitant to admit that he smoked marijuana when he was young and also guided people of Orissa on how they can get their hands on it legally in Orissa.[24]
CONCLUSION
The whole purpose to save people from the ill effects of marijuana is defeated when it is left unregulated and exploited by the black market. Emphasizing the fact that India voted in favor of cannabis to be removed from scheduled iv drugs in The Drug Convention 2020. The Narcotic Drugs and Psychotropic Substance act was established in the year 1985 and requires amendments in it. Laws were established to keep society in order and ensure the safety of the people by bringing moral justice. The author believes that laws must be flexible at times and not rigid all the time to ensure that the spirit of law fits the society as we move forward. Taking the example of child marriage in India which was legal until 1929 when it was outlawed under the Child Marriage Restraint Act which was not possible at all if our judiciary system was not ready to be flexible enough to incorporate changes. Cannabis if legalized will help to reduce pressure on the judiciary system which is overwhelmed by the cases of possession for personal use meaning no harm to society, an example being Mumbai which stood at 87% conviction and arrest due to personal consumption which falls under drug consumption. The global cannabis market is expected to hit 70.6 Billion USD by the year 2028.According to a study if Mumbai and Delhi will generate 89.38M USD and 101.2M USD if it is taxed at cigarettes level.[25]
India’s special connection with the cannabis plant can be traced back in history to hundreds of years and it’s high time that the government realizes it and legalizes cannabis for medicinal and industrial purposes while setting up the framework for the future to legalize it for recreational purposes too ensuring that it helps our nation economically while being a breakthrough for medical research.
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FOOTNOTES
[1] https://www.healthline.com/health/what-is-cannabis
[2] https://www.thenewsminute.com/article/what-legal-and-illegal-about-weed-india-look-ndps-act-1985-133726
[3] https://www.unodc.org/unodc/en/data-and-analysis/bulletin/bulletin_1957-01-01_1_page003.html
[4] https://science.thewire.in/the-sciences/oshaughnessy-cannabis-ganja-mahal-lunatic-asylums-ndps-act/
[5] NIDA. “What is marijuana? .” National Institute on Drug Abuse, 13 Apr. 2021, https://www.drugabuse.gov/publications/research-reports/marijuana/what-marijuana Accessed 20 Jun. 2021.
[6] https://pubmed.ncbi.nlm.nih.gov/26903403/
[7] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4291295/
[8] https://www.nature.com/articles/nrcardio.2017.130#citeas
[9]https://www.epilepsy.com/learn/treating-seizures-and-epilepsy/other-treatment-approaches/medical-marijuana-and-epilepsy
[10]https://www.washingtonpost.com/news/morning-mix/wp/2015/07/20/can-pot-heal-broken-bones-the-answer-is-yes-study-finds/?noredirect=on
[11] https://www.diabetes.co.uk/recreational-drugs/cannabis.html
[12] https://www.nationalgeographic.com/science/article/160201-indian-himalayan-cannabis-farm-photos
[13] https://pubmed.ncbi.nlm.nih.gov/19560900/
[14] http://weedindex.io/
[15] https://www.cato.org/policy-analysis/alcohol-prohibition-was-failure#the-iron-law-of-prohibition
[16] https://legislative.gov.in/sites/default/files/A1985-61.pdf
[17]https://legislative.gov.in/actsofparliamentfromtheyear/narcotic-drugs-and-psychotropic-substances-act-1985.
[18] https://legislative.gov.in/actsofparliamentfromtheyear/narcotic-drugs-and-psychotropic-substances-act-1985. #20
[19] https://vidhilegalpolicy.in/research/criminalisation-leads-to-exploitation-the-mumbai-story-no-one-knows-about/
[20] http://mahacid.com/activities.html
[21] https://ncrb.gov.in/en/crime-india-2018
[22] Id at 21
[23] https://twitter.com/ShashiTharoor/status/1003883075611262977
[24]https://timesofindia.indiatimes.com/india/Cannabis-ban-is-elitist-It-should-go-Tathagata-Satpathy/articleshow/46732106.cms
[25] http://weedindex.io/
