TOTAL RECALL: REVIVING CULTURAL USE EXEMPTIONS IN DRUG LAW

Using the Law for ChangeOral Abstract Session International AIDS Conference, Vienna 19 July 2010

Tripti Tandon

The “harm” of drugs?

A Culture of Tolerance ...

South Asia reports long standing use of Opium & Cannabis

Grown locally Used for social, cultural, religious,

medical & recreational purposes Use sanctioned & controlled by

community Excessive or problematic use was rare

PROHIBITION – an ‘alien’ legacy

‘Commercial' drug use

Late 18th century, British Colonial Govt introduced: Licensing of poppy cultivation Control over opium trade Tax on domestic use

Expansion in areas growing poppy Opium remained one of India’s top exports &

source of revenue until 1920s No policy on Cannabis

Profit or Prohibition?

House of Commons debates… “…growth, sale & traffic in poppy is a disgrace to

our Christianity & our morality”

“ If it be righteous to draw taxes from a gin-palace, it is equally righteous to do the same thing from an opium den. There is no wrong morally in taxing a spirit or in taxing a drug.”

“ I hardly care to distinguish b/w opium, alcohol & ganja. I regard them all as bad. I am prepared to prohibit all three intoxicants on account of the evil which I see done by them all.”

Evidence informed policy

Inquiries into the “ill-effect” of drugs: Royal Commission on Opium (1893-95) Indian Hemp Drugs Commission (1893-94)

“Opium is not deleterious in reasonable moderation, and is…far less deleterious than alcoholic drink”.

Witness, Opium Commission

“There is no evidence of any weight regarding mental & moral injuries from the moderate use of these drugs………..regular, moderate use of Ganja or Bhang produces the same effects as moderate & regular uses of whiskey.”

Indian Hemp Drug Commission

Harm reduction then….

Practice of supplying opium to registered addicts

Akin to present day heroin maintenance programmes?

International drug control

Single Convention on Narcotic Drugs, 1961 mandated drugs to be limited to medical & scientific use

Time frame for banning traditional use: Opium smoking: 15 years Non medical use of Cannabis: 25 years

India enacted the Narcotic Drugs & Psychotropic Substances (NDPS) Act in 1985 upon expiration of transitional period

Cultural use concerns

Parliamentarians’ question the NDPS Act:

“Peasant keeps 5 to 10 gms in their houses. They use opium as medicine for their sick children. Even today this practice is in vogue in rural areas. Now, according to the law such peasants are culprits?”

Keeping in view that the rural population of Uttar Pradesh, Bihar & parts of Orissa consume cannabis on special occasions,.. punishment [for consumption] is on the higher side”.

“I am a consumer of poppy seeds [“posto”]. It is a delicacy in Bengal. ..i respectfully submit that necessary amendments be made in the Act”

Prohibit, yet permit…

The NDPS Act, 1985 :

Prohibits: Consumption

Possession

(Except for medical & scientific use & in manner prescribed)

Permits through delegated legislation: Possession, sale, purchase, consumption of opium

Distribution of smokable opium to registered users

Cultivation, possession, sale, purchase, consumption of cannabis (except

cannabis resin)

(State govts can enact Rules to enable the above)

Exceptions to prohibition

The NDPS Act, 1985 exempts forms of Cannabis:

Ganja ( for 4 years)

Bhang Courts exercise restraint in fixing penal liability :

Possession Sevaram v State of Rajasthan 1993 CriLJ 2503

Arjun Singh v State of Haryana 2005 Cri LJ 253

Growing Manjee v State of Rajasthan RLW 1996 (1) Raj.

Alakh Ram v. State of U.P 2004 CriLJ 905] 503

State Amnesia….

Few State govts have Rules to allow cultural use

No. of opium shops have declined as have the no. of registered users

Penal aims overshadow regulatory powers

Attempt to revive cultural use

Desirable?.... do-able?

Cultural use: why & how?

Harm reduction Stigma reduction Alternative to criminalisation Pillar of drug policy reform

Strategy for Revival: Legal? Political? Mobilisation of growers, users, or both?

Both Indian and British history appear to have glossed over this part of colonial history.

Absolutely. Opium was the fundamental undergirding of our economy for centuries. It is strange that [even] for someone like me who studied history and knew a fair amount of Indian history, was completely unaware of it.

Why do you think that happened?

I think the reason is some sort of whitewashing of the past.