The Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) – India’s primary law to combat drug trafficking – turned 30 last November with scant public or parliamentary discussion about the contradictory objectives of rehabilitation and deterrence that have rendered the statute strikingly ineffective.
The law was enacted to fulfil India’s obligations under a series of international conventions and reiterate its commitment towards eradication of the drug problem across the country. In its present form, it envisages stringent punishments for drug traffickers and rehabilitation for addicts. While the consumption of drugs is prima facie criminalised, the Act makes a clear distinction between traffickers – who are subject to strict penal action – and individual consumers, who can be pushed towards rehab.
Several exit routes – for instance sections 39 and 64A, which allow for probation and immunity from prosecution to addicts volunteering for treatment respectively – have been provided for addicts to leave the penal system. However, from our interaction with lawyers and rehabilitation centres, it is clear that these two sections are the most unused provisions in the statute. We find that both the police and judiciary share a lack of understanding of the statute and its mechanisms for rehabilitation. While this has given way to abuse of the law, the lacunae in training and sensitisation of the investigation agencies, prosecution, and the judiciary has handicapped the objectives of rehabilitation.
Further, based on our analysis of judgments from some sample districts of Punjab, we have found a complete absence of court ordered probation or rehabilitation. The judges, seemingly uninformed about the larger objectives of the legislation, find it expedient to convict and fine consumers as it achieves illusory deterrence. We learned though our interaction with organisations working on rehabilitation of drug addicts that not a single individual has been sent to a rehab centre by court order. The objectives behind the two-pronged approach of deterrence and rehabilitation may have been conceived as being complementary, but nevertheless, they appear irreconcilable when it comes to application.
In fact, the problem of implementing the NDPS Act stems from an unclear legislative intent. At the time of drafting the legislation, MPs were equivocal about the intended functions and ends of the law. This is visible from the parliamentary debates around the NDPS Act and its subsequent amendments.
Detrimental effects of unclear legislative intent
Although the purported intent of the law at the time of enactment was to specifically deter drug traffickers, MPs argued for imprisonment for all, irrespective of whether they were traffickers or individual consumers. The debates in 1985 oscillated between demanding deterrence and rehabilitation of individual consumers, thus leading to obscurity regarding the true legislative intent behind the Act. The 2001 amendment to the Act, which introduced graded punishment according to the quantity of drugs involved, rationalised the sentencing structure marginally. However, the aspect of court-monitored rehabilitation failed to receive any attention.
Even the parliamentary standing committee report of 2011, which dealt with section 27 (punishment for personal consumption of narcotic and psychotropic substances) at length failed to adequately address the issue of rehabilitation. The committee accepted submissions from several sources, including NGOs, who argued that the section contradicts the legislative intent of treatment and reformation drug users, as they require medical assistance and not punishment. The committee concluded that it was not possible to move away from the deterrence framework and recommended that provisions for punishment ought to stay even for drug users if the objective of the legislation was to be achieved. The committee thus continued to conceptualise rehabilitation within the ambit of criminalisation.
Of addicts and rehabilitation
Another problem that afflicts the legislation is the continued absence of any perceptible distinction between a consumer and an addict. The existing definition of an addict is neither medical nor legal. During the discussion of the bill in 1985, the words ‘consumer’ and ‘addict’ were used interchangeably. The 2011 standing committee report is unclear on the status of an ‘addict’. It uses ‘addict’ to mean an individual on the lower end of the scale of guilt but nonetheless someone who ought to be punished. The language used here reflects the ambiguity in the nature of treatment designed within the statute for users and addicts. The statute uses words like ‘consumption’, ‘possession’, ‘use’, without providing any guidance on what they mean or how they differ in indicating the guilt of the individual.
Another key aspect, which has contributed to the inability of law to handle the drug menace in India is the lack of political will in creating institutions responsible for monitoring and implementing rehabilitation.
During the parliamentary debates in 1985 and 1989, several MPs suggested that section 71, pertaining to rehabilitation needs to be more nuanced – with certain obligations placed on the government to introduce the necessary medical establishments and facilities. There were several suggestions for operationalising the provision, which included making necessary budgetary allocations, setting up boards to oversee rehabilitation mechanisms, collaborating with the Ministry of Social Justice and Welfare to ensure effective rehabilitation, etc. Subsequently, attention towards institutional support for rehabilitation dwindled. The measures and recommendations made earlier were not followed through either.
The debates surrounding the recent amendments indicate that the idea of rehabilitation has been significantly marginalised, although several states, primarily Punjab are in critical need of state-led intervention through social reform initiatives. It was only in 2014, after drug abuse in Punjab gained nation wide notoriety, that the state government set up 28 rehabilitation centres under the Central scheme provided by the Ministry of Social Justice.
Further, the debates tend to centralise both the drug problem and the suggested solutions. Most of the discussions have revolved around the facilities available and institutions set up in Delhi. Even in 1985, it was no uncertain fact that there were several porous border regions, which were problematic transit routes. They required constant monitoring, but this was unfortunately neglected at the policy level.
On the aspect of rehabilitation, the apathy and redundancy of the NDPS Act has been writ large. The inadequacy of accompanying institutional mechanisms – in terms of training of the judiciary, essential rehabilitation systems, etc – has rendered the reformatory objective of the statute nugatory. This, coupled with the problematic implementation of the legislation by multiple authorities and the absence of government established rehab programmes, has hindered effective implementation of the statute. The Act has not only been excessive and abusive, but has also cast a huge burden on the criminal justice system because of its structural defects. If the government is serious about reforming the criminal justice system, reform of the NDPS Act is a necessary first step.
Neha Singhal is a Senior Resident Fellow and Sakshi is a Research Fellow at the Vidhi Centre for Legal Policy, New Delhi.