A study on India and Mexico
There are no necessary evils in government. Its evils exit only in its abuses.
-Andrew Jackson (American statesman, served under 7th president)
Government enjoys an autonomy to frame laws on the principles of morality and public order for a fair governance of the people, supposedly ‘by the people’. However, the responsibility of considering ‘good’ of every citizen becomes a task with executional flaws. Recently in India the alleged suicide of an actor Sushant Singh Rajput’s case has developed in a drug racket involving high-end famous personalities of the city Mumbai, where several of them were called in by the NCB office for questioning over consumption of marijuana, a contraband. This draws attention towards the issue of plant-based drug use in personal capacity being prohibited by the government where similarly, rather more harmful alcohol’s consumption is legalised.
Several countries have faced similar issues and 33 countries have categorised consumption and possession of marijuana or such psychotropic drugs. Lester Grinspoon says, “Despite its use by millions of people over thousands of years, cannabis has never caused a death.” Therefore, several countries have decriminalised marijuana. Well-reasoned claims have been given in favour of human rights of right to life and bodily autonomy meanwhile criminalisation has been argued as ruining the youth and causing economic loss of a state. Less has been discussed about why the ban exists on marijuana whereas alcohol consumption is legalised with more addictive and harmful effects.
This paper explores both ends of debate of criminalisation as well as decriminalisation with respect to government’s discretion and motives behind the same. Also, the paper analysis this situation of authoritative constitutionalism of India in comparison with liberal constitutionalism of Mexico where courts ruled to declare personal possession and consumption of marijuana as a fundamental right.
Cannabis has been used since centuries for its recreational and medicinal use. It is also prescribed in Vedas and used by vedyas and hakims in ancient India as painkiller, analgesics etc. Boiling with milk has said to remove its toxins and aid as medicinal drug. Then why was it banned in India? Under the pressure generated via US to be a signatory of Single Convention on Narcotic Drugs, the then prime minister Rajiv Gandhi was bound to pass the NDPS, which u/s 2 banned charas, hashish, ganja, and similar produces of cannabis plant. The ban was first and foremost imposed in 1942 when under MTA, cannabis was classified as Schedule I drug susceptible to abuse and no medicinal use. It is contended that the ban was not in favour of public interest rather for the economic benefits of William Randolph Hearst (Dupont Corporation) and Andrew Mellon (Dupont’s investor) aided by Harry Anslinger as well as against the newly introduced cannabis use for personal possession and consumption by the migrant Mexicans similar to association of heroin with blacks. The attorney general of United States then said, “good people do not smoke cannabis”, invoking social morality and claimed that cannabis consumption would lead to addiction which would work as “gateway for opium and heroin use”.,
Currently in India cannabis stands criminalised however movements like #legalizeit have been aired in support of decriminalisation of cannabis for at least medicinal use. Under section 78 of the NDPS act, state governments have a discretionary power to make rules with respect to control, permit and regulate cannabis cultivation, use and transportation. Uttarakhand government thus has recently allowed the research on CBD and THC within the revenue wing of finance minister. On one hand where cannabis is legalised for research and development, Mumbai celebrities are facing arrests for personal possession and consumption.
Courts in cases like Aditya Barthakur v. Department of Family health and welfare and Prashant Sharma v Ministry of Health and Family Welfare and ors. simply ruled that the courts could not decide on such issues of legalisation of marijuana. In a case Great Legalisation Movement Trust vs. Union of India, courts in one hearing said, “decriminalisation will degrade the society as the soci-economic standing of our nation as well as still evolving citizens are not mature enough to handle this liberty as currently there are 3.2 crore users of cannabis according to INCB report 2019 and it would worsen if decriminalised according to WHO’s report”.
Where legalisation of cannabis would bring in quick drug money, it will burden the existing healthcare burden which is struggling with addiction of tobacco and alcohol, yet not decriminalised. Nearly 30% of Indian population uses alcohol leading to 3.3 crore deaths. Government also argues the ill effects of smoking marijuana leading to reduced working population, other psychotropic affects such as decision-making power while driving leading to accidents or attempt to rapes.
Where the NDPS act provides for stringent punishment for cannabis produce consumptions maximum till death penalty for repeated offenders, there exists a loophole for the act only bans buds and resins udder section 2. However, bhang, derivative of cannabis leaves is not covered. This dichotomy of the government shows the reason why the country faces drug abuse, reasons why it is claimed that Indian citizens are unfit for such liberties of decriminalisation of cannabis like that in Portugal and Mexico. The government give reasons for ban and yet does not make stringent laws and rules for regulation of drug abuse of the country.
Mexico has faced the war of drugs and yet its first attempt to decriminalise possession of small quantities of marijuana was raised in 2006 which was fairly criticised by Washington DC. A step towards it was again took in November 2007 where congresswoman Elsa Conde Rodríguez presented Conde Initiative regarding drug users with a proposal to refrain from prosecuting marijuana users as criminals along with right to grow own to abstain from contacting drug lords/black market which was further reformed in 2008 and finally implemented in august 2009. Mexican supreme court took a step ahead and rule the treatment of addicts not as criminals rather patients under small-scale trafficking laws and strike down Art. 199 which discriminated between the addicts caught with drugs and not caught with drugs. Post certain ups and downs in 2012, Prevention and Identification of Resources from Illicit origin to combat organised crimes of drug cartels and money laundering was introduced. Mexico then decriminalised personal possession and consumption of marijuana under Art. 193 of Federal Criminal Code, along with Art. 478 of Laws on Small-Selling of Drugs.
Four members of Mexicans United for Responsible and Tolerant Consumption (SMART in Spanish) in 2013 challenged cultivation, possession and consumption of marijuana as they had “basic human rights to get high” on the grounds of government interfering with constitutional doctrine of free development of personality., It was proposed to increase tax like that on drinks that promote obesity, on use of marijuana rather than imposing ban. Furthermore, instead of imposing ban, awareness should be spread. The court ruled in their favour and declared marijuana as fundamental human right, yet not formulated in a law.
The courts after further cases on medicinal use of marijuana ruled in 2017 and recreational purposes ruled in 2018, gave ultimatum of 15th December 2020 to formulate laws of legalisation of marijuana. The policies are made considering international models of U.S.A., Uruguay and Canada to support indigenous people and small-scale producers and avoiding monopoly of corporations.
Ackerman’s dualism in his “two-track” theory suggests what today is the dilemma of India. The private citizen’s interest or normal politics v. constitutional politics of putting national welfare first and a need for higher law-making for ‘we the people’. Where it can be seen via international reports, the criminalisation in a country like India is justified however, what can be advised is to regulate sale and cultivation of marijuana for less than 0.3% THC cannot produce psychoactive effects which can be bred in industrial hemp cultivations regulated by the government. Also, age limits like that for alcohol can be set for consumption and stringent punishment can be imposed by the government. where both the countries appear to be acting for public welfare and health, the underlying question like why not ban alcohol, cigarettes, gutka, tobacco etc if it is more harmful w.r.t India and how will Mexican government ensure regulation of rich corporates and poor cultivators along with protection of drug abuse by minors and drug cartels? One solution is for sure that massive investment is required in treatment and rehabilitation centres as well as prevention programmes are needed to protect young people. The government has discretionary power which can be only checked and balanced by courts like in case of Mexico, however, this debate of criminalisation and decriminalisation is unending yet an attempt to resolve can be made with appropriate policies (without loopholes) and Ackerman’s dualist judicial review.
List of Abbreviations
- MTA- Marihuana Tax Act, 1937
- NDPS- Narcotics Drugs and Psychotropic Drugs Act. 1985
- CBD- Cannabidiol
- THC- Tetrahydrocannabinol
- INCB- International Narcotics Control Board, 2019
- W.R.T- With Respect To
- Uruguay has legalised production marketing and consumption, Netherlands has given a relaxation for soft drugs, Mexico, Portugal, Czech and Costa Rica have allowed personal consumption of drugs.
- Racism and Its Effect on Cannabis Research. Retrieved November 29, 2020, from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7173675/ Films, V. (Producer). (2017). “Good people don’t smoke marijuana” – Sen. Jeff Sessions [Video file]. Retrieved November 28, 2020, from https://www.youtube.com/watch?v=hY5o6vN1xZ4
- Solomon, R. (2020, February 27).
- Ingraham, C. (2016). ‘Good people don’t smoke marijuana’. The Washington Post. Retrieved November 29, 2020, from https://www.washingtonpost.com/news/wonk/wp/2016/11/18/trumps-pick-for-attorney-general-good-people-dont-smoke-marijuana/?utm_term=.04d6aa6d51da
- NDPS Act, 1985, S.78. Power of State Government to make rules- ….. (2) Without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:— (a) the conditions and the manner in which narcotic drugs and psychotropic substances shall be supplied for medical necessity to the addicts registered with the State Government and others under sub-section (1) of section 71; (b) the establishment, appointment, maintenance, management, superintendence of centres established under sub-section (1) of section 71 and appointment, training, powers and duties of persons employed in such centres; (c) any other matter which is to be, or may be, prescribed…..
- Bhardwaj, D. P. (2019, August 17). Spare the rod and spoil the Child- Why India is not ready to decriminalise Cannabis, just yet By: Dev. P Bhardwaj. Retrieved November 29, 2020, from https://www.latestlaws.com/articles/spare-the-rod-and-spoil-the-child-why-india-is-not-ready-to-decriminalise-cannabis-just-yet-by-dev-p-bhardwaj/
- Chaturvedi, P. (2019, January 26). Why cannabis shouldn’t be legalised in India. Financial Express. Retrieved November 29, 2020, from https://www.financialexpress.com/opinion/why-cannabis-shouldnt-be-legalised-in-india/1455236/
- Summary report on Mexico’s history on drugs and regulations for same summarised by TNI group, international human rights group, https://www.tni.org/files/summarymxlaw_2006-2012.pdf
- Federal Penal Code, Article 193, “proceedings will not be initiated against a person who is not a drug addict and who is detained for the first time in possession of a quantity of narcotics included in article 193 and when the quantity is determined to be for personal consumption [and] no penalty will be applied to drug addicts who possess narcotics listed in Article 193 strictly for personal consumption.”, https://mexico.justia.com/federales/codigos/codigo-penal-federal/libro-segundo/titulo-septimo/capitulo-i/
- Which eliminates penalties for personal consumption and possession of 5g marijuana, 2g opium, 500g cocaine, 50g heroin or 40g methamphetamines also stating that no one can be arrested and penalised before the third attempt of drug-related crimes of selling to minors or near schools.
- Ingraham, C. (2015, November 5). Mexico’s Supreme Court rules that smoking pot is a fundamental human right. The Washington Post. Retrieved November 29, 2020, from https://www.washingtonpost.com/news/wonk/wp/2015/11/05/mexicos-supreme-court-rules-that-smoking-weed-is-a-fundamental-human-right/
- It was contended that the state cannot prohibit the right of an individual to use their judgements of what is best for their health. alcohol consumption, eating junk and being obese is not condemned by court then why shall smoking marijuana an issue.
- Christopher Ingraham, Mexico’s Supreme Court rules that smoking pot is a fundamental human right (2015)
- Staff, R. (2020, November 14). Mexican lawmakers take up sweeping pot legalization bill. Retrieved November 29, 2020, from https://in.reuters.com/article/mexico-cannabis/mexican-lawmakers-take-up-sweeping-pot-legalization-bill-idINKBN27U03C
- BAPAT, S. N. (2016). CANNABIS: THE FORGOTTEN SACRED PLANT OF INDIA. JAHM. www.jahm.in
- Magnitude of Substance use in India, 2019, MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT, http://socialjustice.nic.in/writereaddata/UploadFile/Magnitude_Substance_Use_India_REPORT.pdf
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