Is it time for India to hop on the 'cannabis legalisation' train?

Cannabis has a vibrant history in India, as a plant that has been used for spiritual, recreational and even medicinal purposes for millenia. It earned its legitimacy as a medicinal ingredient due to its active use in many Ayurvedic formulations and doses. Today, its status has been reduced to that of a dangerous drug comparable to the likes of heroin and cocaine. Some of its bad reputation is deserving, as its recreational use has been known to be addictive with harmful effects on the brain and body in the long term. However, cannabis’s notoriety overshadows its wide ranging medical benefits. This stigmatisation has brought the debate on its decriminalization and legalisation in India to a standstill.

Globally, the perspective around cannabis has seen a dramatic turnabout with countries decriminalising its usage and even legalising its recreational use. This recanting of strongly held viewpoints is largely driven by the inefficacy of the ‘war on drugs’ in curbing widespread usage and ties of cannabis’ illicit trade with organised crime. The growing global consensus that the harmful effects of cannabis are exaggerated has also forced governments to shift focus from criminalisation to progressive harm reduction policies. India’s own drug policy enforced through the Narcotic Drugs and Psychotropic Substances(NDPS) Act, 1985 is “all bark and no bite”, as displayed by its substandard execution. In this context, India can benefit immensely from softening its stand and cashing in on the booming global market for cannabis derived products.

Evolution of India’s drug policy

In its pre-Independence and post-Independence days India maintained a hard stance on drugs by passing legislations like the Dangerous Drugs Act, 1930 and the Drugs and Cosmetics Act, 1940 to regulate all aspects of a drug’s value chain and regulate medicinal drugs like Cannabis and opium. India’s position on cannabis and other drugs further hardened when the 1961 International treaty Single Convention on Narcotic Drugs classified cannabis in the Schedule IV as a dangerous drug. India being a member nation to the 1961 convention, vehemently opposed this move citing the country’s religious and social customs. However, the Convention’s directives induced its member nations to ban non-medical use of cannabis, coercing India to draft a domestic legislation to bring this to effect. These factors led to the passing of the Narcotic Drugs and Psychotropic Substances(NDPS) Act, 1985 which essentially prohibits cultivation, production, possession, sale, purchase, trade, import, export, use and consumption of narcotic drugs and psychotropic substances except for medical and scientific purposes in extent of the provisions in the legislation[1].

Despite the popular belief that cannabis is banned for all consumption purposes in India, in reality it can be cultivated and used for its medicinal qualities according to Sub section 8 (c) of the NDPS Act. However, there has been little to no use of cannabis for medical purposes in India. The Constitution of India has placed ‘drugs and poisons’ in the concurrent list empowering State Governments to veer away from the National Drug policies. In fact, section 10 of the NDPS Act empowers the State Governments to formulate their own rules to permit, control and regulate the cultivation of cannabis and to grant licenses to manufacturers. However, most state governments are disinclined to legalise cannabis cultivation and lay down proper procedures for its growth and medicinal formulations. In 2015, Uttarakhand became the first state in India to take advantage of this and legalised the cultivation of cannabis to boost their economy. Even with an appropriate license or permit, manufacturers find it difficult to procure high-quality cannabis seeds that can be used to manufacture standardised medicinal products. As legal cultivation is practically non-existent, almost all the cannabis that grows in the country grows in the wild without human supervision and quality control. Seeds from unregulated cannabis plantations will most likely grow into low quality plants themselves, deeming their mere cultivation as unlawful according to the Act. As the barriers to enter the sector are aplenty, manufacturers typically shy away from venturing into the production of cannabis based medicines. There is mounting evidence from the global medical fraternity regarding the groundbreaking medical benefits of cannabis. It is increasingly being used by medical practitioners for pain management associated with numerous illnesses and for its positive impact on treating mental and neurological disorders. As such, there is an impending need to invest in cannabis based medical research and simplify its safe cultivation.

However, it should be noted that there is immense potential for the medical usage of cannabis even within the purview of the current provisions of the NDPS Act. The legislation makes an exception for cannabis leaves which have low levels of the psychoactive component THC (Tetrahydrocannabinol) while still having an ample amount of CBD(cannabidiol), a component that is primarily used in cannabis-based medicinal products. Sub-section (2) (iii) of the NDPS Act excludes the plant’s seeds and leaves from the definition of cannabis. Products made from cannabis leaves (such as bhaang) are in fact entirely legal. Nonetheless, states that have legalised cannabis cultivation cannot realise the full economic potential of the plant and its allied products, only by utilising the leaves for commercial or medicinal purposes. The flowers and seeds could also be optimally utilised to manufacture a host of products that have a prime market.

Over the past 35 years the NDPS Act has undergone multiple amendments in 1989, 2001 and 2014. The 2001 amendment brought increased clarity to the extent of incarceration for drug offences, by linking the punishment to the amount of drug(classified as “small”, “intermediate” and “commercial”) in possession of the offender through clause 20(b)(ii) of the NDPS Act. This important reform was brought about due to the growing criticism on the harsh sentencing of people possessing small amounts of cannabis or other drugs for personal consumption. Many of the accused prior to this were put behind bars for years, with little to no chance of bail and were also charged heavy and disproportionate fines. However, this amendment came with its set of drawbacks. The Government directed that the quantity based sentencing would account for the total weight of the seized drug and not the narcotic content contained in the product. This provision is particularly detrimental to the offenders who are sentenced for “intermediate” and “commercial” levels of possession, despite the pure narcotic content in the seized cannabis falling into the “small” quantity category.

Push for decriminalisation

The growing global movement pushing for the decriminalisation of drugs is based on the argument that the “war on drugs” has resulted in inadvertent and harmful consequences including illegal trafficking, adulteration of drugs, increased violence and brutality, stigmatisation and the rise of a black market. The severe fallout from the ban on drugs is exacerbated by the poor enforcement rate that calls into question the efficacy of the law and its need. Evidence from India supports this claim. A 2019 study called the National Survey on Extent and Pattern of Substance Abuse in India, by the Ministry of Social Justice and Empowerment pegged the number of cannabis users in the country at 3 crores. However, according to the National Crime Records Bureau only 145,558 people were prosecuted under the NDPS Act in 2019, while 45,503 were charged for possession of drugs for personal consumption and only 27,276 were charged for possession for trafficking. With an enforcement rate of 0.5% the law’s efficacy is poor at best. Moreover, a substantial number of the offenders charged are prosecuted for personal consumption which has little to no effect on reducing the consumption of drugs within the general population. The rationale for a drug policy that bans the use and consumption of cannabis is entirely bulldozed by the fact that drugs are highly price inelastic. In the absence of a legal market in India, cannabis cultivation and distribution is undertaken by illegal entities who make billions off drug trafficking.

India’s window of opportunity

With a flourishing demand, an intact supply chain, albeit illegal, and poor enforcement, India’s drug policy has little to no impact on reducing cannabis consumption. Moreover, each year the government loses out on a very lucrative cannabis market, estimated to garner a whopping 25 billion Dollars for India in the next five years, according to a study by the Indian seed industry. Additionally, a substantial amount of tax revenue could be generated by legalising cannabis in a populous country like India. In light of India’s vote in favour of removing the label of the “most dangerous” drug from cannabis and its derivatives at the 63rd session of the United Nations Commission on Narcotic Drugs, the government should rethink its rigid stance on cannabis in a holistic manner. The Indian states have much to gain from legalising cannabis and shifting the focus of its drug policy towards harm reduction as opposed to increased incarceration. It can achieve this by allowing licensed cultivation of cannabis, similar to opium production. The government can encourage private investors to invest in medical research and cultivation of cannabis for commercial purposes. To do this successfully, the government authorities will have to make concerted efforts to build and manage a seed bank to not only supply domestic investors with good quality seeds but to also export it to other countries.

Akanksha Borawake is an Associate, Research at Centre for Public Policy Research, Kochi. Centre for Public Policy Research (CPPR) is an independent Public Policy Think Tank based in Kochi, Kerala.

[1] Sub-section 8(c) of NDPS Act