Intervention Application filed and admitted before the Supreme Court in the NDPS Section 64 A Matter
Press Release Towards a Health and Human Rights Approach to Drugs, 30th June, 2011.
Lawyers Collective’s SUBMISSION on removal of Narcotics Control Bureau’s Exemption from the Right to Information Act, 2005 to the Ministry of Personnel, Public Grievances and Pensions, April 2011
Lawyers Collective’s SUBMISSION on the Draft National Policy on Narcotic Drugs and Psychotropic Substances to the Department of Revenue, Ministry of Finance, Government of India, March 2011
Press Release: Drug users demand dignity, participation and evidence based policies, June 26 2009
The Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 is the central law on control, regulation and prohibition of narcotic and psychotropic drugs in India. The Act was last amended in 2001, to rationalize punishment and adopt a sentencing structure based on the quantity of drugs involved. The stringent penal structure and rigid implementation of the NDPS Act created many problems including non-availability of opioid medication and lack of access to drug dependence treatment.
On 8th September, 2011, the Government introduced the NDPS (Amendment) Bill, 2011 in the Lok Sabha. The Bill was referred to the Parliamentary Standing Committee on Finance on 13th September, 2011 for further consideration.
The Bill seeks to amend a number of provisions of the NDPS Act including:
•Modification of the definitions of ‘small’ and ‘commercial’ quantity to include the entire amount of drugs involved and not only the pure drug content [Section 2(xxiiia) and Section 2(viia)]
•Standardisation of punishment for consumption of drugs to a maximum of 6 months or fine [Section 27]
•Transfer of power to regulate “poppy straw concentrate” from the State to the Central Government [Sections 9 and 10]
•Widening provisions for forfeiture of illegally acquired property, wherein any property of a person who is alleged to be involved in illicit traffic whose source cannot be proved is termed as ‘illegally acquired property’ and liable to be seized [Sections 68-B, 68H and 68-O]
•Addition of the term ‘management’ to provisions on treatment for drug dependence [Section 71]
Concerns over the Bill
The proposed quantity definitions would have far reaching implications on sentencing for NDPS offences and may expose low-level drug offenders, including people who use drugs to stringent punishment. Despite standardisation of punishment for consumption of drugs, the policy of criminalisation of drug use remains unchanged. The overbroad scope of the forfeiture provision makes it susceptible to misuse and subject to constitutional challenges. Further still, the Bill fails to address key issues and contradictions that have arisen such as, death penalty for repeat offenders, immunity for treatment seeking, regulation of treatment centres, support for harm reduction measures and access to opioid medicines. Read more.
Some of these concerns are reflected in the Committee’s Report, which was presented to the Parliament on 21st March 2012. Read Standing Committee’s Report here.
Civil Society organizations have rejected some of the recommendations of the Standing Committee, including the suggestion to enhance penalties for the use and possession of drugs. Read civil society letter to the Ministry of Finance here.
Bombay High Court overturns mandatory death penalty for drug offences; first in the world to do so-
16 June 2011, Mumbai: In an unprecedented decision, the Bombay High Court struck down the mandatory death penalty for drug offences, becoming the first Court in the world to do so. Announcing the order via video conferencing, a division bench of Justices A.M Khanwilkar and A.P Bhangale declared Section 31A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) that imposes a mandatory death sentence for a subsequent conviction for drug trafficking ‘unconstitutional’.
The Court however, refrained from striking down the law, preferring to read it down instead. Consequently, the sentencing Court will have the option and not obligation, to impose capital punishment on a person convicted a second time for drugs in quantities specified under Section 31A.
The decision brings some reprieve to Ghulam Mohammed Malik, a Kashmiri man sentenced to death by the Special NDPS Court in Mumbai in February 2008 for a repeat offence of smuggling charas [cannabis resin]. Because of the mandatory nature of the punishment under Section 31A as it stood then, Malik was sentenced to death, without consideration of individual circumstances or mitigating factors. The High Court’s verdict came in response to a petition filed by the Indian Harm Reduction Network (IHRN), a consortium of NGOs working for humane drug policies, who assailed mandatory capital punishment as arbitrary, excessive and disproportionate to the crime of dealing in drugs.
Reacting to the order, Director of the Lawyers Collective, Anand Grover, who led the case for IHRN, said – “the order marks an important advance in drug policy and anti-death penalty campaigns. We will examine the decision fully to assess whether striking down the death penalty, as was done by the Supreme Court for Section 303 of the Indian Penal Codewould have been more appropriate””
Across the world, 32 countries impose capital punishment for offences involving narcotic drugs and psychotropic substances. Of these, 13 countries (including India until today) prescribe mandatory death sentences for drug crimes. In countries like Iran and China that actually carry out executions, drug offenders constitute the vast majority of those executed. In May last year, the Court of Appeal in Singapore upheld the mandatory death sentence imposed upon a young Malaysian for possession of heroin. “This is a positive development, which signals that Courts have also started to recognize principles of harm reduction and human rights in relation to drugs. It is not utopian, but it is a giant step” remarked Luke Samson, President, IHRN.
Welcoming the decision, Rick Lines, Executive Director of Harm Reduction International, a UK based agency that specializes in drug control and human rights and the author of ‘The Death Penalty for Drug Offences: A violation of International Human Rights Law’ (2007), said ““The Court has upheld at the domestic level what has been emphasised for years by international human rights bodies – capital drug laws that take away judicial discretion are a violation of the rule of law. India’s justice system has affirmed that it is entirely unacceptable for such a penalty to be mandatory. This will set a positive precedent for judicial authorities in the region, which is rife with draconian drug laws.”
Over the last two decades, South Asia has witnessed a significant increase in HIV prevalence among drug using populations, particularly those injecting drugs. To stem the twin epidemics of HIV and drug injecting, several countries in the region have introduced needle-syringe and oral substitution programmes among injecting drug users (IDUs). Besides reducing HIV transmission, these interventions bring IDUs in contact with drug treatment and recovery to eventually overcome dependence.
The positive outcomes of such ‘harm reduction’ measures have been endorsed by the World Health Organisation (WHO) and the Joint United Nations Programme on HIV i.e UNAIDS. However, these interventions are not exactly within the bounds of narcotics and/or penal laws. South Asian governments can exercise several legal and policy options to initiate and scale up IDU harm reduction to reduce individual risk and promote public health.
These are among the findings of the report, titled “Legal and Policy concerns related to IDU Harm Reduction in SAARC Countries”.Commissioned by the United Nations Office on Drugs and Crime (UNODC), Regional Office for South Asia, to the Lawyers Collective HIV/AIDS Unit, a non-government organisation (NGO) working on Public Health, HIV and Law in India, the report examines the interface between law, policy and IDU harm reduction practices in Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka. It also suggests potential measures to harmonise IDU harm reduction with law.
The report relies on primary and secondary sources of information. It combines a review of international and regional drug conventions and country-specific laws, policies and programmes on drug use and HIV with site visits and stakeholder interviewsincluding with health and narcotics law officials, NGOs, lawyers and representatives fromconcerned ministries, U.N and international agencies. Preliminary findings from the report were peer reviewed individually by country experts and jointly at a Regional Tripartite Review Meeting organised by UNODC from 30-31 March 2006 at Colombo, Sri Lanka.
Across South Asia, narcotic laws proscribe inter alia possession, use/consumption and supply of prohibited drugs. Notwithstanding stringent penalties, no country has seen a diminution in drug use. On the contrary, drug consumption is reportedly on the rise; in some countries, legislative and enforcement action have coincided with a shift towards riskier use, particularly injecting pharmaceuticals with the attendant threat of HIV and blood borne infections. The report cites studies that attribute the phenomenon of injecting pharmaceuticals to non-availability of heroin but finds no conclusive links between narcotic law enforcement & drug consumption patterns in South Asia.
According to the report, interventions to reduce risk of HIV transmission among drug injecting populations through provision of sterile needle and syringes, Methadone and/or Buprenorphine oral substitution, treatment for drug dependence, outreach and peer support, drug safety education and condoms have been initiated by NGOs in Bangladesh, India, Nepal and Pakistan. Though critical to prevent HIV among IDUs and their sexual partners, these programmes have not been implemented at scale and found only partial acceptance in national drug policies.
The report documents statutory hurdles to IDU harm reduction in all countries. Provision of sterile syringes to IDUs is open to prosecution under penal and/or narcotics law as abetment of drug consumption. Though punishable, most country laws allow consumption of prohibited drugs strictly for medical reasons. Oral substitution is; however; not considered treatment as in most jurisdictions; treatment requires ‘giving up drugs’. The report finds varying legal controls on Methadone and Buprenorphine that impact affect availability and access. Furthermore, absence of protocols for prescription and supervision has hindered policy on oral Methadone and Buprenorphine therapy. Across South Asia, treatment for drug dependence is offered through complex penal and civil arrangements leaving a vast majority of drug users without medical and/or social assistance. Information on safe injecting and drug use is scant, and, if offered, would be in contravention of law. Though available, condoms are not supplied in prisons in any country on account of anti-sodomy laws.
The report outlines types of legal interventions that national governments may adopt to bring IDU harm reduction in conformity with law. One such way is to read harm reduction within the rubric of medical treatment. Another option is to offer immunity to heath and harm reduction staff under the good faith exception, ordinarily available to the prosecution. Protecting harm reduction interventionists from penal and civil liability by an overriding ‘non obstante’ clause is yet another strategy. The report recognises that the choice to make amendments vests with individual countries given their particular legal regimes and interpretation of laws by judicial bodies.
Court admits plea for scientific and human rights standards for drug dependence treatment
22nd April 2009, Chandigarh: SHARAN, an NGO working with people who use drugs, approached the Punjab and Haryana High Court for protection of rights of persons dependent on drugs. Intervening in Talwinder Pal Singh v. State of Punjab, Crl. Misc. No. M- 26374 of 2008, SHARAN, sought the observance of clinical and human rights standards in the delivery of drug dependence treatment. Admitting SHARAN as a party to the proceedings, a single bench of Justice Rajiv Bhalla issued notices to the Ministries of Health and Family Welfare and Social Justice and Empowerment – the two agencies in charge of drug related treatment.
Facts leading up to the case date back to August 2008, when the District Magistrate, Mohali, Chandigarh directed centres providing treatment for drug dependence to ensure adequate accommodation, food, sanitation and medical care, documentation and record keeping and allow family visits. The said order was passed in response to a report of a death of a drug user due to alleged beating at a “de-addiction centre” near Mohali. At that time, SHARAN and Lawyers Collective HIV/AIDS Unit had written to the Ministries of Health and Social Justice to clean up drug dependence treatment facilities. Read More
In October 2008, the petitioners, who claim to provide counseling and rehabilitation to “drug addicts”, objected to the magisterial order, which, they alleged, was causing harassment. Expressing concern over drug addiction and the neglect of treatment services, Justice Bhalla sought replies from officials from the states of Punjab, Haryana and the Union Territory of Chandigarh.
In its application, SHARAN highlights incidents of drug users being held against their will and tortured in the name of treatment. It complains of the Government’s failure to uphold its constitutional and statutory responsibility to provide safe and evidence based treatment to drug dependent persons.
Appearing on behalf of SHARAN, Advocate Anand Grover drew the Court’s attention to “treatment obligations” under the Narcotic Drugs and Psychotropic Substances Act, 1985. Grover pointed out that the government had not framed statutory rules for establishment, maintenance and superintendence of treatment centres. The only guidance available is the Scheme for Prevention of Alcoholism and Substance (drug) Abuse and Manual on Minimum Standards of Care in Addiction Treatment Centres, which are deficient and lack legal force. Grover also alluded to denial of medicines including for relief from withdrawal despite the legal obligation to supply drugs at treatment facilities. Such practices, he argued, contravene the right to life and health of people who use drugs.
SHARAN has sought the Court to instruct the government to enact and implement rules for setting up, management and monitoring of treatment facilities in accordance with:
SHARAN has also sought provision of pharmacotherapy including Methadone and Buprenorphine substitution for opioid dependence.
Fact sheet on the NDPS Act- Read Here