By Ritabh Singh, Final Year student at the Government Law College, Mumbai
firstname.lastname@example.org | Oct 25, 2023
The pharmacological definition of a drug is “a chemical agent which when taken into the body affects the processes or alters the structure or function of some part or parts of the organism”. This includes medical as well as illegal drugs. Drugs can simply be understood as substances that change the functioning of the human body and mind and which may make the consumer act in a manner they otherwise avoid[i].
Scientifically, drugs are of two kinds – natural and synthetic. Natural drugs have medical uses such as morphine, codeine and thebaine which are produced from opium. It also includes cannabis, which grows wild in many parts of the world, particularly in hilly and cold areas. Synthetic drugs are manufactured in factories and do not need any plant products as raw materials. LSD is an example of such a synthetic drug[ii].
An illegal drug is that which is made illegal by the government. It is a fact that consumption of illegal drugs for leisure leads to the development of mental health issues along with lung and heart diseases. Consumption of illegal drugs has been associated with decreased motivation which directly affects performance and leads to problems such as loss of memory, slowed reaction times, anxiety, panic, and social and interpersonal deficits. Chronic consumption also leads to a suppressed immune system, respiratory problems, and permanent damage to cognitive ability. Consuming illegal drugs can also be extremely addictive which can have serious consequences on an individual[iii].
However, certain illegal drugs also provide medical relief as they are used to ease the discomfort caused by cancer and other chronic diseases. Scientists have found that these illegal drugs offer therapeutic effects that can relieve nausea and stimulate appetite.
Consumption of drugs uncontrollably and being unable to quit is known as drug addiction. Drug addiction leads to innumerable health-related problems which negatively affect society. It is, thus, unanimously agreed that drug and addiction must be curbed; however, differences arise as to how it should be done. Some argue that the method of criminalizing drug abuse and addiction has not brought the desired outcome. The better alternative is making legal the consumption of illegal and addictive drugs in a controlled manner, as done with intoxicants such as alcohol, tobacco etc[iv]. Others argue that legalizing the consumption of illegal drugs will lead to the inevitable destruction of society and will cause more harm than benefit.
(II) ARGUMENTS IN FAVOUR OF LEGALISATION
- It is accepted that recourse to illicit drugs is inevitable, though undesirable. It is the society’s failure to provide adequate opportunities for the relief of stress, boredom, loneliness or self-realization that leads to the consumption of illegal drugs. The need is for policies that help free individuals from circumstances that led them to consume illegal drugs, enabling them to quit autonomously. Better integration of addicts is required and the same must be achieved by allowing consumption of illegal drugs, if necessary.
- It is argued that the policy of ‘the war on drugs’ has failed despite the colossal investments made by various governments. Courts and prisons are overburdened and there are more drugs in the market than before. Legalizing illegal drugs will reduce the number of prisoners and allow the courts to pass orders on matters having greater importance.
- The addition of a harmfulness tax on the purchase of drugs will lead to the generation of extra revenue for the government which can be used for the betterment of the lives of addicts. Thus, the government will not be losing money on curbing the consumption of illegal drugs as it is under criminalization.
- The illegal drugs circulating in the market are of a cheap and adulterated nature. Consumption of such drugs causes a greater health concern.
- Once illegal drugs are legalized, the black market for the sale and purchase of such drugs will collapse. Illegal trade of drugs would take a nosedive under legalization.
- The positive medical benefits of the consumption of illegal drugs are as indisputable as the negative effects. Medical and scientific uses of such drugs must be promoted and facilitated.
- Legalizing illegal drugs will also create job opportunities through the operation of dispensaries, manufacturing plants, growing operations, etc.
- It is argued by proponents of criminalization that crime would increase due to the effects of illegal drugs on the consumer. However, research shows that decriminalization or legalization of illegal drugs has little impact on the general crime rate.
- How correct is it to punish someone for an action directed against themselves that does not affect anyone else but the person? Many legal systems have made consumption of illegal drugs a serious criminal offence which attracts huge fines and long imprisonment time. The addict must be rehabbed and not incarcerated.
- What is the limit of the right of the state to control its citizen’s behaviour by infringing upon their liberties? If the state holds that it has the duty to safeguard its citizens, why only criminalize the consumption of illegal drugs? Why does the state not criminalize the consumption of alcohol (which has similar effects), tobacco (which is even more harmful than the consumption of illegal drugs) or every such item that harms the human body? The state cannot arbitrarily decide what commodities to legalize and what to criminalize citing its duty to safeguard its citizens[v].
(III) ARGUMENTS AGAINST LEGALISATION
- In several countries, the drug cycle has begun to stabilize. Legalizing illegal drugs will result in re-stimulating a waning interest which will subsequently burden the health infrastructure of the country.
- Citizens of poor countries try to replicate the lifestyle of citizens in developed countries. Groups most vulnerable to drug abuse are those where social cohesion is the weakest. While in rich societies there is a wide range of leisure pursuits to accompany legal and illegal drug consumption, in poorer settings, illegal drugs will serve as the central experience and thus result in increased addicts.
- What will be the form of regulation is not decided upon. Should there be a bar to the purchase and consumption of illegal drugs made legal? What percentage of tax should be levied? What role will a regulatory authority have? Where will such drugs be sold? What would be the age limit allowing the purchase and consumption of such drugs? How will testing be done? It must be borne in mind that an excessive tax rate or an age limit to purchase and consume drugs will result in a continuation of the black market.
- Illegal drugs do cause serious physical, mental, and social problems, rehabilitation for which is extremely difficult. The more accessible drugs are, the more people are to consume them and the more abnormal or uncontrolled behaviour will be witnessed.
- Economic effects, especially in poor households, will be disastrous. The birth of an addict will lead to meagre or no money for essential commodities. Upliftment of the poor will become an even more challenging process post-legalization[vi].
- Legalization, or even decriminalization, of illegal drugs, will send a wrong message to society by implicitly removing its unequivocal disapproval of use. It would suggest that the state has given up on its war against drugs.
- A principal risk of legalization is that of irreversibility. It took 30 years from the identification of cigarettes with lung cancer to bring a reversal in the smoking habits of adults only in affluent societies. The poor are still the victims of tobacco. Once illegal drugs are legalized, criminalizing them will almost be impossible and the effects of the same will be everlasting.
- Habits acquired during teenage and early adult life are particularly hard to dislodge. How will young adolescents be protected from such legalized drugs, especially if parents themselves are consumers? Children tend to behave like their parents, and a habit of consumption by the parents may lead to the ill of addiction for the child.
- In today’s democracy, the state is a welfare state. It is obligated to safeguard its citizens and work for their upliftment. The state, after taking into account all the effects of illegal drugs, the socio-economic and cultural circumstances of its citizens, the possible revenue which can be generated, and the long-term and short-term effects of legalization/criminalization of certain drugs, has taken the informed decision to keep criminalized consumption of such drugs. Moreover, the state is nothing but the representation of the majority. Policies are merely the will of the electorate. The majority, due to various reasons, have decided to keep criminalized the consumption of illegal drugs.
(IV) POSITION IN OTHER COUNTRIES
A. POSITION IN THE UNITED STATES OF AMERICA
The legalization and criminalization of cannabis is a highly debated topic in the US. Many states in the US began decriminalization of small amounts of cannabis in the 1970s[vii]. In 1996, California became the first state to legalize medical cannabis, and Colorado and Washington became the first two states to legalize recreational cannabis. As of 2023, recreational use of cannabis is legalized in 23 states of the US[viii]. As for the sales of marijuana, in 2015 Colorado collected more than $135 million in taxes and fees on medical and recreational marijuana. Sales in the state have totalled over $996 million[ix]. However, this does not certainly translate to an improved economy as it is yet to be seen how much the state spends on direct health care costs. To provide an analogy, $13 billion collected in cigarette taxes is only about a sixth of the $75 billion spent in direct health care costs directly attributed to tobacco. Traffic safety also became a concern as the number of intoxicated drivers increased along with an increase in the number of accidents. Nearly 92,000 Americans died of drug overdoses in 2020, up from around 70,000 in 2017. During the same period, the rate of fatal overdoses rose from 21.7 to 28.3 per 100,000 people. Thus while revenue has increased, so have the problems associated with the consumption of drugs[x].
B.POSITION IN SWEDEN
Sweden has adopted complete criminalization of the consumption of drugs as it has made it illegal to sell or to possess drugs, except for medical use. In 1988 there was a change of policy aiming to show that society is against drugs of all kinds. In 1993, imprisonment was awarded for illegal drug consumption. The status of a national project is given to fighting against drugs in Sweden and achieving a drug-free society is viewed as a higher goal than simply keeping the drug problem within acceptable boundaries. The punishment accorded for the consumption of illegal drugs was adjusted by the policymakers to restrain young people from consuming illegal drugs and at the same time to make treatment better for those being imprisoned. A “if you are not with us, then you are against us” policy has been adopted by Sweden and the government can strongly intervene in the private lives of its citizens and require urine and blood tests. In 2023, the government proposed to increase criminal penalties, such as criminalizing attempts and conspiring to commit a narcotics offense. The Swedish drug policy has been highly effective in preventing drug use but seems to be less effective in preventing drug users from becoming drug addicts. Nonetheless, heavy drug use levels in Sweden are still below the EU average[xi].
(V) POSITION IN INDIA
Article 47 of the Constitution of India mandates that the “…state shall endeavour to bring about prohibition of the consumption except for medical purposes of intoxicating drinks and of drugs which are injurious to health”.
In India, the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 prohibits, except for medical or scientific purposes, the manufacture, production, trade, use etc. of narcotic drugs and psychotropic substances. Without going into the intricacies of the Act, the section dealing with the consumption of illegal drugs is under[xii] –
“27. Punishment for consumption of any narcotic drug or psychotropic substance. -Whoever consumes any narcotic drug or psychotropic substance shall be punishable,
(a) where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetylmorphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government by notification in the Official Gazette, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to twenty thousand rupees; or with both; and
(b) where the narcotic drug or psychotropic substance consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both.”
India, thus, has criminalized the consumption and position of illegal drugs. The policy against consumption of illegal drugs in India is of a restrictive nature[xiii]. However, being a state between two of the world’s largest illicit drug-producing regions, India has been a transit country for the smuggling of illegal drugs for long. In certain areas, illegal drugs are grown and manufactured as well. This is how illegal drugs are made available for consumption in India.
(VI) LEGALIZATION IN INDIA?
To legalize illegal drugs in India, first the NDPS Act must be amended accordingly or repealed. Arguments invoking the liberty of citizens have been made by liberals, but it is quite unlikely that any government will take steps to legalize the same. As of now the same is not a political issue, which can make the legalization of illegal drugs a quick affair, but not a politically helpful one. However, subsequent political ramifications may motivate governments to not make any changes in the current law as the common consensus in the general population is heavily against the consumption of illegal drugs.
Considering the socio-economic conditions in India, it does not make sense to legalize the consumption of illegal drugs. As a country, we must focus on issues of overall development and growth. An obvious effect of legalizing illegal drugs in the country now will be that of burdening the health infrastructure, which is already facing mammoth challenges. The young and impressionable youth, especially those unemployed, already resort to the consumption of illegal drugs as a leisure activity or a coping mechanism[xiv]. It can also be said that the youth already fancies the consumption of drugs, being infatuated by Western movies and television shows wherein the same is propagated[xv].
An interesting parallel drawn by the youth of our country to consume cannabis is that “Lord Shiva used to indulge in the same“. This uneducated opinion stems from a lack of knowledge and abundant misinformation available on the same. To strike down this inconceivable argument, it is recommended that the entire story of Samudra Manthan[xvi] ( churning of the ocean ) be read. In short, it is said that the lord consumed Bhang to reduce the intensity of the poison he consumed. This event is extended to affirm his love for intoxication, which is factually unforgiving and mildly amusing as none of the Hindu texts acknowledge any liking or addiction of the lord for intoxication.
In the end, legalization or criminalization of drugs is more of a social and ethical question than a legal and policy one. Does the money legalization consumption of illegal drugs generate have greater importance than the social and intellectual impacts it brings with it?
It does not make sense for the state to make the argument of safeguarding overall health. Many more injurious substances than drugs are freely sold in the market. The state has never arrested anyone for consuming food and drinks known to be unhealthy. What about personal choices known to be harmful to an individual? Will the state step in and prevent that as well on its undefined limits to intervene for social good? What is the problem in making personal choices that can be proved to bring no harm to anyone else? Lastly, the decision to consume drugs is on the consumer only. If that brings them happiness, what right does the state have to judge the same as legal or illegal?
At the same time, an individual’s right to consume drugs conflicts with the collective good of having a drug-addict-free society. The notion that individual consumption imposes no harm on society is not sustainable. In nearly all countries, alcoholics and those suffering from ailments due to tobacco consumption have access to public health care, whose costs the democratic society accepts as a collective burden. If the state must not infringe on the liberty of individuals by restricting them from consuming whatever they want to, the state must also not pay for the healthcare of those who caused themselves problems by consuming whatever they want to. In a developing country like India which is already dealing with various challenges, legalizing drugs will cause extraordinary problems, especially for the poor. Perhaps later on consumption of certain drugs can be made legal, but for that adequate infrastructure must be built.
Lastly, reformation is more important than restriction. There is an apparent disproportion between the act of consuming illegal drugs and the punishment awarded for it. Instead of imposing heavy fines and rigorous imprisonments, a system of rehabilitation of the addict must be worked upon by the state. More rehabilitation centers with proper facilities must be constructed instead of prisons. It also makes little sense to criminally punish and legally extort an addict instead of helping him. An obvious reaction to this disproportion is that drug addicts fail to even seek help and treatment due to fear of criminal fines and imprisonment.
[i] “Legalizing or criminalizing drugs – the debate that never ends” – Maryam Mortzkar
[iv] ALCOHOL LEGALIZATION IN INDIA: A CRITICAL ANALYSIS OF LAWS, REGULATIONS AND FUTURE PRESPECTIVES – Mohammad Sameen Reshi, Aligarh Muslim University
[v] The Regulation-Legalization Debate
[vii] The effects of the legalization of recreational marijuana – Michael S. Paul, School of Law Enforcement
[ix] Criminal Justice System Impacts of Cannabis Decriminalization & Legalization – Maggie Bailey, UNC School of Government
[xi] UN Office on Drugs and Crime – Sweden’s successful drug policy, a review of the evidence
[xiii] NATIONAL POLICY ON NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES
[xiv] Drug Abuse Monitoring System – UN Office of Drugs and Crime – pub by Ministry of Social Justice and Empowerment, GOI
[xv] Rapid Assessment Survey of Drug Abuse in India – Ministry of Social Justice and Empowerment, GOI
[xvi] SAMUDRAMANTHANA – San Sarin, Rashtriya Sanskrit Sansthan