India is one of the largest opium producers in the world and has witnessed a long-standing practice of traditional and cultural use of opium and cannabis for medicinal, religious and recreational purposes. State regulation and community tolerance of drugs was abandoned after India enacted the Narcotic Drugs and Psychotropic Substances Act, (NDPS) in 1985, which created a severely restrictive regime around cultivation, production, possession, use and consumption of drugs. The clampdown on traditionally used substances, that is, cannabis and opium under the NDPS Act in the late 1980’s purportedly triggered more dangerous use – chasing and injecting heroin and other opioids.
The NDPS Act, 1985 proscribes cultivation, production, manufacture, possession, sale, purchase, transport, warehousing, use, consumption, inter-state import and export, import into and export outside India and transhipment of narcotic drugs and psychotropic substances except for medical and scientific reasons. It provides the most stringent penal framework for activities relating to narcotic drugs and psychotropic substances, evidenced in provisions that allow presumption of guilt and reversal of burden of proof, discouraging grant of bail, bar on suspension, remission and commutation of sentences awarded, bar on release of offender on probation, enhanced punishment for more than one convictions and a mandatory death sentence for subsequent conviction for specific offences. Read more
In June 2010, the Lawyers Collective challenged mandatory death penalty for drug offences in Indian Harm Reduction Network v. Union of India before theBombay High Court on the ground of violating the right to life and the right to equal protection of law. The final arguments concluded in December, 2010 and the matter is awaiting decision by the High Court. Read more
Further, criminalisation of drug use and possession has disproportionately affected the health and lives of millions of people who use drugs in India. In particular, poor drug users are trapped in the revolving door between prison and the street, devoid of medical, social or legal assistance. Harm reduction programmes including supply of sterile needles and syringes for persons who inject drugs and oral substitution treatment operate in a restrictive environment.
Although built into the law and State policy, drug dependence treatment is not accorded priority. The NDPS Act supports treatment both as an alternative to, and independent of penal measures. Yet, provisions for depenalisation and diversion into treatment and are rarely applied. On the contrary, drug treatment is synonymous with human rights violations, especially when offered in the private sector. With the exception of some reputed institutions, most “centres” providing treatment for drug dependence in the country do not follow sound clinical practices; instead, utilize outmoded and unscientific methods that affront the dignity and humanity of people who use drugs. Read more
Several instances of human rights abuses including torture and death of persons using drugs have come to light in the State of Punjab. In April 2009, Lawyers Collective filed an intervention application in Talwinder Pal Singh v. State of Punjab in the High Court of Punjab and Haryana asking the State to frame rules for voluntary, evidence based and human rights compliant treatment for drug dependence. Read more
Another area of concern is the non-availability of morphine and other opiates for medical use including pain relief and palliative care. Though the NDPS Act allows medical use of narcotic drugs and psychotropic substances, stringent regulations and onerous licensing procedures together with controls under the Drugs and Cosmetics Act, 1940 have impeded access to opiates for millions of patients.