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Overreaching Penalties and Oversights in NDPSA,1985 in light of the Mental Health Act, 2017: On How Legislative Demonisation of Drug Dependence Overshadows Drug- Associated Mental Health Issues (By-Divyansha Goswami)
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Article Details
Overreaching Penalties
and Oversights in NDPSA,1985 in light of the Mental Health Act, 2017: On How
Legislative Demonisation of Drug Dependence Overshadows Drug- Associated Mental
Health Issues
Authored By-Divyansha
Goswami
Indisputably, there exists a massive taboo around substance abuse in
India, as mental illness and an inextricable nexus between the two is incontrovertible.
This collective ignorance and stigmatization aren’t just a social problem but a
legal one as evident in our legal framework which is more inclined towards a
retributive approach than a reformative approach to the drug question. A close reading
of the statute shows the legislative perception of drug dependents as criminals
rather than victims or patients. The primary focus of the NDPSA has been on
curbing illicit drug trafficking, consumption, etc., and not rehabilitation and
reintegration into society. The constitutionality of some of the stringent
provisions is also questionable, with divergent judicial opinions. The MHA is
like a sister act to NDPSA but is more contradictory than complementary to
understanding addiction. MHA substantially tries to de-stigmatize the rhetoric
around mental health and substance abuse but both statutes, in one way or
another, do a disservice to people who use drugs, despite providing a handful
of conditional safeguards. This paper is an attempt at addressing these
oversights and looking for inconsistencies in domestic law with international
standards on drug abuse control.
I.
Introduction
Over the time, legal ramifications of
drug dependence have had slight shifts towards a more reformative approach but
the Narcotic Drugs and Psychotropic Substances Act, 1985(the Act or NDPSA)
still continues to reinforce the structural stigma surrounding PWUD (persons
who use drugs) that not only holds them back from seeking help but also results
in substandard treatment and care as professionals are insufficiently trained.
For instance, in Punjab which is worst affected, the necessity for
rehabilitation facilities is equated barely with basic dispensaries.[1]
Moreover, public perceptions about mental and substance use
disorders are influenced by knowledge, the degree of contact with people
affected, and media coverage of violent events. The Punjab government advocated
exemplary punishment of the death penalty even for first-time drug peddling/
smuggling offenders.[2]
This stigmatization of dangerousness manifests in public policy and legislation
relating to mental health and substance abuse. According to the findings of
a report, despite provisions in the
NDPSA for people to be directed to de-addiction centers, the courts in Punjab
were sending them to jail.[3]
Through the course of this paper in two main parts, the author shall argue that
the crucial problem is how lawmakers, law enforcement, and courts continue to
view PWUD as criminals failing to categorize the plight of substance abuse as a
public health issue. Part one of the paper talks about the criminal
jurisprudence of NDPSA, counter-productive conditional safeguards, its
(un)constitutionality, drawbacks, and deficiencies when compared with
international conventions and protocols. The Act violates universally accepted
principles like ‘Bail is the rule, jail an exception, ‘Presumption of
innocence, and ‘mandate against self-incrimination’, also incorporated in
Articles 21 and 22 of the Indian Constitution. Conditional immunity, probation
and other safeguards in the act are subject to withdrawal, and subsequent
conviction and are largely incognizant of medical complications related to
substance abuse. A majority of these provisions fail to match the international
standards.
In
part two of the paper, it is stated that stringent drug laws also set back the
de- stigmatization of rhetoric around mental illnesses. Although the Mental
Healthcare Act, 2017 (hereinafter, MHCA) creates a rights-based approach to
mental health care, it still does a fair amount of disservice to PWUD when read
with NDPSA. The Act has included drug dependence within the definition of mental
illness insinuating that it is a disorder beyond the realm of self-control but
the same can prove counterproductive making MHCA a double-edged sword. Further,
it is critiqued how punitive provisions of NDPSA don’t reconcile with
reformative provisions of MHCA while contradistinguishing a deterrence-oriented
structure of NDPSA with that of treatment-oriented MHCA. It also explains how
the two statutes bear an inadequate understanding of addiction, which exposes
PWUD to multiple menaces.
In
this regard, Justice Mudgal commented over addicts being made
"scapegoats" in the drug trafficking menace as commercial drug
dealers are hardly convicted and disparaged deterrence as deficient.”[4]
Advocate Salman Khurshid termed deterrence as a "misplaced
aspiration".[5]
II. Criminal Jurisprudence Of The
Code
Possession of drugs is itself an
offense under the NDPSA as much as sale, purchase, production, etc. The
punishment does not depend on purpose (personal use/ resale etc.) but the
quantity of the drug. The Act fails to account for an additional examination of
circumstances, historical background of the accused, and other aggravating or
mitigating factors. There have also been controversies around whether the total
weight of the seized product or pure drug content should be considered for the
calculation of contraband in some neutral substance. The government declared it
is the total weight that must be considered. [6]
This change has proved to be extremely damaging for people who use drugs (PWUD)
and other low-level offenders. Several people arrested for possessing minor
quantities of drugs intended for personal use languish in jail for over a
decade. [7]
There
exist graded penalties based on quantitative categorization subject to certain
procedural safeguards:
Probation
on reasonable grounds -Section 39 empowers the court to
release certain offenders on probation for medical treatment instead of
prosecution, if in the respective court’s opinion there exist “reasonable
grounds”. However, this is a once-in-lifetime available provision requiring the
persons out on probation to remain completely drug-free, not only exposing them
to a threat of subsequent conviction but also being unmindful of relapses i.e.
triggers to reuse. According to several studies, relapses may or may not be
part of recovery but aren’t uncommon or signs of failure.[8]
Relapse as a byproduct of addiction is discussed later.
Immunity
from prosecution-Section 64A is relatively more
significant to see for this paper as it renders the “addicts” immunity from
prosecution, provided they “voluntarily” agree and seek to undergo medical
treatment, but if they fail to complete the treatment term, this immunity may
also be withdrawn and criminal proceedings reinstated. It is to be noted that
this safeguard is contingent upon prior admission to possession of contraband,
which in itself is a crime under the Act.
The
landmark judgment available shows how provision is merely an embellishment for
the restorative theory of justice in an otherwise retributive statute.[9]
The Bombay High Court, in Fardeen Feroz
Khan vs UOI[10]
, refused to grant the petitioner immunity under Section 64A for the reason
that nine grams of cocaine did not constitute a small quantity and merely a
statement of the petitioner to the effect that he was an “addict” was not
enough to qualify him for immunity.[11] It
was further observed that immunity is available only for drug-dependent
individuals, not occasional users.[12] The
court also held that drug dependence must be “proved by the production of
sufficient evidence by the person concerned.”[13]
Being
beneficent in nature, the provision ought to be construed liberally and not
strictly as per the well-settled principle of law that welfare provisions are
to be interpreted widely in favor of the class of people for whose benefit the
statute is enacted, as opposed to criminal provisions. The Courts, by giving
such rulings, on the contrary, have tended to restrict its scope.
Search
and seizure – Section 50 of NDPSA guarantees a
person being searched the right to be searched before a Gazetted Officer or a Magistrate and directs
the officer to explain this right to the person. However, the officers can
search if they have a reason to believe that compliance to the provision could
give the person a chance to part with the contraband. The search and seizure safeguard
is the only one that has a bearing on the appreciation of evidence regarding
arrest or seizure as well as on the merits of the case and its non-compliance
can even result in vitiating the trial of the accused. It thus forms a
relatively strong safeguard amongst other execrably weak ones. NDPSA, being a sui generis code, Code of Criminal
Procedure, 1973 (CrPC) applies to it, in so far as CrPC provisions are not
inconsistent with its provisions. Also, after a series of conflicting opinions,
the Supreme Court has observed that the Act doesn’t warrant or justify any
extended meaning to the word “Person” occurring in section 50, so as to include
even some bag, article or container or some other baggage being carried by him,[14] which has
further strengthened the safeguard.
A. (Un)Constitutionality of the Code
and the International Approach
NDPSA
is a sui generis code i.e. specific
criminal legislation with an overriding effect over the general criminal
procedure. Section 37 is such a non-obstante
clause that declares all offenses listed in the Act as cognizable and
non-bailable[15]
but provides for conditional bail.[16]
This means, that even for a minor offense, a person can be placed under police
custody without a warrant. The sections also make getting bail a more stringent
process than it already is, compromising the legal principle laid by the SC
that ‘Bail is rule, jail is an exception.[17]
1. Presumption of Guilt
Section
35 violates the principle of ‘Presumption of Innocence, which is fundamental to
criminal jurisprudence. It is a universal legal right[18] of
an accused, being sine qua non to a
fair trial. Lord Sankey famously described the prosecution’s duty to prove
guilt beyond doubt as the ‘‘golden thread’’ running throughout English criminal
law.[19]
The reverse burden of proof is, however, compatible with the principle of
presumption of innocence considering the seriousness of a crime. They aim to
achieve a ‘‘fair balance between the general interest of the community and the
personal rights of the individual”[20].
Globally, violent crimes in nature of murder, assault, rape, etc. are
categorized as ‘serious crimes.’ In this
light, overburdening a drug dependent for proving just personal consumption
seems disproportionate. Though in a recent SC judgment, the Court reiterated
that because there is a reverse burden of proof, the prosecution shall be put
to a stricter test and the accused will naturally get the benefit of defense of
reasonable doubt at any stage,[21]
it is still very cumbersome for the accused to disprove the presence of
“culpable mental state”(mens rea),
and it still favors law enforcement. Once possession is proved, then it is for
the accused to establish that he was not in “conscious possession” of the
contraband.[22]
2. Possibility of Self-Incrimination
Section
67 r.w. Section 42 and 53 confers the power on certain state/ central
government officers to call any person for the information or document delivery
during the inquiry. The questions of whether the officers authorized to
investigate be deemed “police officers” and whether statements made by the
accused or anyone else under this section are confessional in nature carrying
the evidentiary value before a court of law, have been contentious. Indian
courts have taken divergent viewpoints over time but the position that stayed
inconclusive for decades has recently been determined in Tofan Singh v. State of Tamil Nadu.[23] The Supreme Court held by a 2:1
majority that officers of the Central & State agencies appointed under
NDPSA are "police officers" within the meaning of section 25 of the
Evidence Act, as a result of which any confessional statement made to them
would be barred under
the provisions of section 25 of the Evidence Act, and cannot be taken into
account in order to convict an accused under the NDPS Act.
The Court also observed that using statements
made under section 67 as the basis convict a person would be “a direct
infringement” of constitutional guarantees”[24]
This decision shall have an impact on all ongoing cases, appeals and future
cases but the general principle is that judicial decisions
do not have a retrospective effect on decided cases.
(i)Decades of indecision
After
over 30 years of indetermination, it was only in 2013 that the Supreme Court in
Tofan Singh considered arguments on
these aforementioned points and referred the case to a larger bench for
consideration. The Court has eventually rightly held that the provision not
only infringed upon the constitutional mandate against making
self-incriminating statements but didn’t fall in line with the universally
accepted Latin maxim ‘Nemo debet prodere
se ipsum’ (no man is bound to betray himself)’[25] In State of Bombay v. Kathi Kalu Oghad[26],
Supreme Court highlighted as to what qualifies as ‘tendency to self-incriminate
.and differentiated between statements that might lead to “crimation” and
“confession”.[27]
The former means “the potency to make crime conclusive” whereas the latter
“tendency to make guilt probable.”. The Court primarily relied on two American
judgments where it was held that a person might not answer questions that’d
lead to a subsequent possibility of self-incrimination and that answering a
question depends upon ‘careful consideration of all the circumstances.’ [28]
The Supreme Court has issued guidelines for
recording confessions maintaining that voluntary statements regarding admission
of offense would be a “valid confession” if made under a “free atmosphere”.[29]
In Mohammed Fasrin v. State [Cri. Appeal
No.296 of 2014], SC set aside the conviction of the accused and
categorically opined that a confession is admissible if the Court is satisfied
that it is a voluntary statement and the accused was apprised of his rights
before recording it. However, given the absence of any checkpoints, it would be
difficult to ascertain the authenticity of the confessional statement. Despite
being theoretically fair, this makes an awfully weak safeguard as investigating
officers being persons of great authority can very easily coerce or threaten a
person to elicit confession, also compromising a diligent investigation.
The Supreme Court has observed how absence of
rights against self-incrimination would incentivize investigating agencies ‘to
sit comfortably in the shade rubbing red pepper into the devil ‘s eye rather
than go about in the sun hunting up evidence.’[30]
Although,
the Supreme Court’s recent interpretation of the statute pertaining to
statements recorded by officers doesn’t undo years of injustice but finally
upholds the rights and dignity-based approach enshrined in the Indian
Constitution and international conventions.
3.
International Call For Restorative Drug Policy
India is a party to the three United
Nations drug conventions – the 1961 Single Convention on Narcotic Drugs (1961
Convention), the 1971 Convention on Psychotropic Substances (1971 Convention),
and the 1988 Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances (1988 Convention). In light of these conventions,
anti-drug legislation NDPSA was hastily passed in the Indian Parliament. UNODC
is the United Nations agency with a mandate to support countries in the
implementation of these three UN conventions. UNODC has declared that its
approach to the drugs issue encompasses the most diverse aspects of the subject,
with orchestrated and specific actions in the areas of health, education, and
public safety, among others. It promotes strategies based on knowledge,
sensitization prioritizing respect for human rights and the real needs of the
affected people in their clinical, motivational and social aspects. Countries
like the USA, Canada, and New Zealand have formed and implemented their drug
prohibition legislations and policy from this perspective of seeing substance
addiction as a public health issue. This is further discussed in a more
detailed manner in the second part of the paper.
On one hand, there is international
advocacy for restorative and rehabilitative legislation as opposed to
deterrence through heavy criminalization while on the other hand, extreme capital
punishments like the death penalty are invoked for drug-related crimes. They
are associated with organized crimes and viewed in the likes of heinous crimes
like murder instead.
If it were not for this demonization,
reformative drug policy with a public health enhancement and harm reduction
approach could progress in India, as it did with AIDS. In early 2012, UNODC in
partnership with the NDDTC started a pilot program for methadone maintenance
treatment (MMT) for opioid dependence.
Encouraged by the effective results,
the Ministry of Health has shown willingness to offer MMT as part of its Drug
De-addiction Program as well as under the National AIDS Control Program.[31] But when
it comes to drug-issue, the government’s understanding of harm reduction
narrowed even further in 2012, when the National Policy on Narcotic Drugs and
Psychotropic Substances was introduced. The policy casts harm reduction in very
negative and incorrect terms. Besides derogatory and pejorative references –
such as “shooting galleries”, “weaning from drugs” and “supporting or
incentivizing the drug-using habit”. [32]
III.
Law Of The Land On The Dual Diagnosis Question
Gone
are the days when substance use disorders (SUDs) were seen exclusively through
the moral lens of society and thought to be a disease of character.[33]
The outcome document of the United Nations (UN) General Assembly Special
Session on drug abuse, ratified by 193
member states, collectively expressed, “drug addiction is a complex multifactorial health disorder characterized
by chronic and relapsing nature.” It also advocated for the elimination of
stigma attached to substance abuse and for it to come within the purview of the
public health system rather than the criminal justice system.[34]
Mental
Healthcare Act 2017 which governs mental health care laws in India includes
“mental conditions associated with the abuse of alcohol and drugs” in the
definition of mental illness.[35]
This can prove to be counterproductive, as MHCA, just like NDPSA, fails to
differentiate between a recreational user and an addict. The term ‘abuse’ then
seems vague as to what it constitutes. It is ironic if the term “abuse” has
been used in the Act as a lay, nontechnical, nondiagnostic term, as this would
then constitute offensive, pejorative, and stigmatizing language something the
Act purports to address.[36]
The
use of such moralistic phraseology in the law meant for people suffering from
SUDs becomes questionable. The current version
of the International Classification of Diseases (ICD) of the World Health
Organization (WHO) too, does not have any diagnostic category termed “abuse”[37]. Furthermore, the definition of mental illness
in the Act includes only those illnesses in which there is a “gross impairment
of judgment, behavior, or capacity to recognize reality or ability to meet the
ordinary demands of life.”[38]
So, provisions like ‘supported admission’ meant for treating people with severe
mental illnesses with gross impairment may become applicable to all types of
SUD, consequently exposing them to involuntary or coerced treatment as
discussed in the next section.
A. Right to Refuse
Treatment and Self-Determination
Mostly,
PWUD (persons who use drugs) are only treated with consent but if they don’t
have “capacity” as per MHCA’s criteria and are deemed unfit for voluntary
admission to DACs (de-addiction centers), their decisional and bodily integrity
can be gravely undermined. Decision-making capacity is derived from the
doctrine of informed consent, which means that consent to be informed, free and
capable to be deemed valid.[39]
Charland has argued that besides medical factors, the personal -social
circumstances; type of substances; the manner of metabolization; nature,
duration, and severity of addiction; profiles of action; levels of intoxication
or withdrawal; the presence of concurrent psychiatric or medical conditions;
and degree of cognitive impairment, all have a bearing on determining capacity.[40]
The clinical impact of cognitive impairment on judgment and decision-making
power due to drugs, being an emerging area of neuroscientific research, is yet
to be characterized.[41]
In
this light, the option of choosing a “nominated representative” with decisional
authority, under the Act may prove counterproductive too as it becomes
complicated to assess (in)capacity. The provision empowers the state and the
service providers to forcefully admit patients against their explicit consent,
which is not only against human rights laid down internationally but also
against
the
principles of effective treatment laid down in most guidelines like drug
dependence treatment document UNODC and WHO (2008) that state “As any other
medical procedure, in general conditions drug dependence treatment, be it
psychosocial or pharmacological, should not be forced on patients.”[42]
The Committee on Economic, Social and Cultural Rights, the UN body monitoring
compliance with the covenant, has also emphasized the state’s obligation to
refrain from applying coercive medical treatments, unless on an “exceptional
basis”.[43]
However, India has been largely lagging behind in the implementation of policy
on international lines, let alone their execution. MHCA lays down rights for
the mentally ill (including PWUD) against protection from cruel, inhuman, or degrading
treatment in any mental health establishment but such inhuman treatment in
“rehabilitation centers” is a common practice throughout the country. In this
regard, the High Court of Delhi issued an order to the Delhi State Legal
Services Authority for conducting inspections of DACs in Delhi in response to
petitions against these centers, from where even deaths due to torture are
reported.[44]
Also, while out of the few state governments that have notified rules under the
NDPSA for licensing and regulation of DACs[45],
most have not utilized this provision.
B. Inadequate understanding of
‘addiction’ in NDPSA
Drugs
and addiction are entwined and yet what ‘addiction’ actually means isn’t dealt
with in the Act. Countries like the USA and Canada have distinct laws to
acknowledge addiction for what it is that lay down treatment protocols
accordingly. In the US, the treatment of opioid dependence with opioid
medication is governed by federal regulations, under the Substance Abuse and
Mental Health Services Administration, which acknowledges that ‘addiction is a
medical disorder that may require different treatment protocols for different
patients.’[46]
The Supreme Court of Canada recognizes addiction as ‘a primary, chronic disease, characterized by
impaired control over the
use
of a psychoactive substance and/or behavior.’[47]
Indian anti-addiction laws continue to reflect a skewed and stereotyped
understanding of substance abuse. NDPSA only defines an addict in an
oversimplified way - a person who is chemically dependent on a certain
substance at a given point might quit on their own, while an addict in sobriety
for decades could easily relapse. The definition overlooks an
obsessive-compulsive behavior pattern as a precondition to addiction.[48]
Moreover, as already discussed, MHCA lists SUD as a mental illness intermixing
the two and lays down treatment guidelines accordingly. This lack of separation
might result in involuntary treatment of PWUD even where the capacity for
taking decisions is preserved, like in most cases of SUD (even in those with
dependence syndrome) except for periods of intoxication or during severe
withdrawals.[49]
So, the advance directive provision serves its purpose well in cases of people
with severe mental illnesses but works to the detriment of people suffering
from SUDs when applied without any gradation. A gradation model is followed by
New Zealand via enactment of a separate statute for admission and treatment
regarding substance addiction that clearly lays down the process of assessment
of severe substance dependence and procedures to assess capacity to make
decisions. [50]
Such criteria can be effective in India to determine admissions on an
involuntary basis. MHCA has succeeded, even if partially, in acknowledging drug
dependence as a public health issue rather than a law-and-order issue, and
amendments like that of New Zealand could prove path-breaking in a country like
ours.
NDPSA,
inter alia, disables and decelerates
the de-stigmatization process initiated by MHCA. The former treats every illicit possession
criminally with mandatory sentencing depending on the quantity possessed; while
the latter provides for treatment of all persons with any kind of drug
dependence. NDPSA also has no mention of ‘withdrawal’ and ‘relapse’. Though it
empowers the government to supply drugs to addicts under any ‘medical
necessity, but fails to recognize the withdrawal as one. In fact, a person can
be charged twice if subsequently arrested on the seizure of contraband after
once being sent to or released for de-addiction treatment. NDPSA safeguards
operate on an abstinence-based model, absolutely oblivious to the chronic
relapsing nature of
drug
addiction.
It
is for this moralist approach to substance abuse that even the death penalty on
judicial discretion is provided for repeat offenders (drug peddlers and
smugglers) even though according to international conventions, a sentence to
death should only be awarded for the ‘most serious crimes’ and narcotics
offenses do not fall within them.[51]
IV.
Conclusion And The Way Forward
Legislations
related to substance abuse and mental healthcare in India, have been striving
to be more progressive than their antecedents but still stand exposed to a
number of inconsistencies with international protocols and domestic law. The
structural stigma around both stiffens it for the people already suffering to
seek help, as well as overburdens them with the threat of tedious trials and
prosecution.
NDPSA
operates essentially on the theory of deterrence and thus is predominantly retributive.
However, both retributive and reformative provisions infringe constitutional
values, fundamental principles of criminal jurisprudence, and international
protocols on the prevention of drug abuse. Even the safeguards provided under
the act prove to be counterproductive when read between the lines.
MHCA
tries to de-stigmatize substance abuse disorders and redirects the
prosecutorial approach to the rehabilitative approach but fails to do justice
to PWUD (people who use drugs), for the lack of India’s commitment to mental
health issues and its own policy fallacies. Both acts are inconsistent with
each other and NDPSA proves to be a hindrance in the way of a
treatment-oriented approach. De-addiction facilities and efficient professional
training are still wanting in the country.
The
cumulative effect is that PWUD continue to be viewed as criminals and
inherently dangerous, rather than a victim or a patient in dire need of
appropriate healthcare. The responsibility now lies with the institutions as
well as us as a society, who need to harbor and foster a community-based
outlook
towards drug dependents for their reintegration into mainstream society with
deserved care and respect.
A
few out of the numerous ways to realize this responsibility can be showing
solidarity individually, through institutional reforms by improving
coordination between government departments, and encouraging self-help groups.
Representatives of PWUD and medical professionals or academics working for the
cause should be consulted while formulating drug policy.
A
more reformative response to the drug question can be reviewing the stringent
and disproportionate sentencing structure under NDPSA and replacing punitive
sanctions with legal provisions that enable an evidence-based treatment model.
It must be ensured in theory and more so practically that no human-rights
violations are done through the course of treatment programs. A harm-reduction
based can also be introduced to drug policy with a welfare objective of
reducing drug-related harms rather than struggling to achieve a utopian
drug-free society.
Article Information
Overreaching Penalties and Oversights in NDPSA,1985 in light of the Mental Health Act, 2017: On How Legislative Demonisation of Drug Dependence Overshadows Drug- Associated Mental Health Issues (By-Divyansha Goswami)
Authors: Divyansha Goswami
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/09/05
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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