The overlapping division of authority has resulted in an enforcement-heavy legislation, and an insufficient focus on the rehabilitation and aftercare of drug users.
A critical look at the functioning of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, reveals the extent to which it is burdened by a multiplicity of authorities responsible for its functioning.
While the control of illicit drug trafficking and coordination with international agencies is the responsibility of the Ministry of Home Affairs (MHA), the implementation of the Act and overseeing the legal production of opium is under the purview of the Department of Revenue in the Ministry of Finance. The responsibility for the rehabilitation of addicts lies with the Ministry of Social Justice & Empowerment (MoSJ), but demand reduction by way of treatment and aftercare is the concern of the Ministry of Health & Family Welfare (MoH). Even at the regulatory level, the control vests with the DRI that has the Narcotics Commissioner at the helm. Intelligence is divided between the MHA’s Narcotics Control Bureau (NCB) and the Directorate of Revenue Intelligence (DRI). Instead of facilitating the smooth functioning of the law, the division of power between these ministries and departments has unnecessarily impeded it.
Funds and schemes
At the policy level, there are several ministries in charge of overseeing funding and disbursement. The Act envisages the national fund for control of drug abuse under Chapter IIA in section 7A, lauded as being highly progressive and geared towards rehabilitation during parliamentary discussions on an amendment to introduce the provision in 1989. Despite existing on the statute books for 27 years, there are no clear indications of the extent to which the fund has been utilised. Meanwhile, several NGOs and private organisations, geared towards combating drug addiction and providing rehabilitation, are reeling from a shortage of funds and resources.
There have been numerous projects and schemes for rehabilitation and demand reduction through both the MoSJ and MoH. Our queries on the funds and schemes available to address the problem of drug abuse evoked ambiguous responses from the MoH. While it did respond that there are certain central schemes and funds set aside under the drug de-addiction programme, it redirected the queries to the MoSJ, as drug de-addition is also within the mandate of that ministry. The social defense wing of the MoSJ is in charge of substance abuse, drug demand reduction and rehabilitation programmes. It devices the national policy on drug demand reduction and has been responsible for setting up the sanctioned rehabilitation centres in Punjab in 2014. However, it is questionable if there is any rationale at all behind dividing these responsibilities between the two ministries. It would have been more efficient to vest the monitoring of rehabilitation and schemes for demand reduction with one ministry to avoid any ambiguities.
Surprisingly, even enforcement authorities, such as the NCB, have demanded a reduction in their mandate. In order to fulfil their obligation, they conduct annual camps in central locations (at least where the headquarters of zonal NCBs are present). However, there is no proof of co-ordination in functioning with any other authorities or ministries.
Problems with data collection
The difficulty in understanding the functioning of the law begins at the data collection stage. Obtaining data on the number of arrests made and cases filed under the NDPS Act across the country throws up many issues. The annual statistics on the number of arrests made has been divided between several authorities, such as the police, the NCB and the Border Security Forces. Smaller numbers of arrests are also made by other agencies, such as the customs authorities and the DRI. The data does not converge into one centralised repository, which would have ensured that aggregate statistics were available to make an assessment of the extent of the drug problem in India. The National Crime Records Bureau and NCB statistics have been criticised for being largely inaccurate as the aggregation of numbers happens at several levels, contingent upon what their state counterparts or the district police provide them.
Issue of rehabilitation
The NDPS legislation has two objectives – deterrent punishment and rehabilitation. The latter is difficult to discern within the statutory framework as it is more inferential. The bare text of the provisions has little instructive value except for section 71, which vests discretionary powers in the appropriate government to set up and identify institutions for the purposes of rehabilitation. From our interactions with authorities, lawyers, NGOs and rehabilitation centres, we have realised that there are several perspectives and concerns around rehabilitation. For instance, while some feel rehabilitation can be a standalone process, others find it necessary to involve family and socio-economic factors in designing relief for drug users. Neither the law nor its specific policies have addressed these concerns. This stems from the problem of multiple agencies.
The Department of Revenue is responsible for the enforcement mechanisms of the law and has regularly made rules and policies keeping in line with its mandate. The MoH and the MoSJ, both in charge of treatment and rehabilitation, have neglected to make necessary rules and policies regarding drug abuse. Consequently, we see an enforcement-heavy legislation and rules, with no mention of methods and means of rehabilitation.
Absence of special courts
The efficient operation of the law has been further hindered by the absence of institutional mechanisms as envisaged by the Act. No special courts, as required by section 36 of the Act, have been constituted in Punjab. This is a serious institutional shortcoming and has invariably led to sessions court judges doubling up as special court judges. This often results in inconsistent decisions, especially with respect to people found in possession of an intermediate quantity of drugs, who are completely dependent on the subjective discretion of individual judges.
Further, section 36A of the Act (offences triable by special courts) provides that offences punishable with imprisonment for more than three years can be tried solely by special courts constituted under the Act. The provision has been narrowly interpreted to mean that cases attracting a penalty of less than three years can be brought before regular courts under the Code of Criminal Procedure (CrPC). Such an interpretation has lead to cases under section 27 (punishment for personal consumption of drugs with a maximum punishment of one year) being tried almost exclusively by the chief judicial magistrate as they are empowered by the CrPC to try offences punishable with imprisonment of three years or less. Cases being presented before multiple judges, coupled with the absence of special courts, defeat the fundamental objective of any special legislation – of uniformity and specialisation in case management and judgments.
The NDPS Act, one of the strictest criminal legislations in India, should have been applied with greater thought and deliberation. The lack of such application has only led to considerable abuse and confusion at the institutional and implementation levels.
Neha Singhal is Senior Resident Fellow and Sakshi is Research Fellow at the Vidhi Centre for Legal Policy, New Delhi.