Marijuana! The Law, Loopholes, and a case for Legalisation

Published on 29 Sep 2017 by Tushar

The world is consuming more marijuana than ever before, and more so visibly. Amongst marijuana users, the general consensus is that if alcohol and cigarettes can be a moderated, taxable and freely available commodity then logically marijuana should be as well.

A pop-culture movement which began as a symbol of defiance in the west sometime during the 1960s- 1970s has picked up the pace all across the world, where users are claiming the war against the ostensibly innocent substance is illogical, to say the least.

Canada and Uruguay are two nations which have legalized the recreational use of marijuana very recently. Albeit these laws are for nationals and give only limited leeway for consumption, possession and production in different capacities, it nevertheless leads to various advantages for the society and users. The contamination can be checked, the commodity can lead to huge revenues as taxes etc, awareness can be spread about the proper age and methods of consumption, and a general safeguard against harassment are a few benefits amongst a slew of others relating to research in medicine and scientific usage as well as economic usage of hemp obtained from the marijuana plant. States like Colorado, California and various others in the USA, Amsterdam in the Netherlands, France and other European Countries are progressing at an accelerating rate towards legalization with caveats and disclaimers in the laws.

Peculiar scenario in India- surviving on a legal loophole

1985 was a significant year as far as marijuana is concerned for India. It is not a mere coincidence that Narcotic Drugs and Psychotropic Substances Act was brought into force the same year.

Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act") puts cannabis as a narcotic drug. It does, however, only prohibits the consumption of certain parts and preparations from the cannabis plant, namely hashish resin created from the plant or its buds. The law allows for the consumption of the leaves of the plant, the exact element used in bhang.

Until 1985 Marijuana use was not illegal in India. Police harassment for the consumption of Ganja as is witnessed today was not as common. In villages across the nation, old men smoked ganja in pipes, chillums or however the culture prevailing in that part of the nation generally consumed the substance.

The “Single Convention on Narcotic Drugs”, 1961 held in New York was the end of free recreational marijuana consumption for a good part of five decades before modern governments starting waking up from careless slumber and realized what the then Indian Government and certain other Cannabis and opium producing states had advocated during the Convention.

The realization as advocated decades ago by the caucuses led by India during the 1961 Convention was that marijuana was far from being addictive and wasn’t dangerous per se. It was stated that it rather had ‘mild euphoria’ and ‘pleasant relaxation’ as the evident benefits. This was found by the Indian Hemp Drug Commission appointed all the way back in 1893.

Why Bhang remains legal for Consumption

The result of the 1961 Convention was a blanket ban on Marijuana amongst other drugs across the world, and states were given 25 years to implement the policies at the municipal level.

The LOOPHOLE was created nevertheless by the final draft of the treaty which defined ‘cannabis’ in such a manner that it left scope for India to carry on, with the tradition of bhang being consumed on a large scale on Holi.

The treaty clarified that the cannabis forbidden by it was only "the flowering or fruiting tops of the cannabis plant", specifically "excluding the seeds and leaves when not accompanied by the tops". Hence the leaves and seeds of the plant were not banned for consumption which is essentially what bhang is.

Accordingly, NDPS Act, 1985 replicated the loophole provided in the treaty's definition of cannabis, whereby its leaves and seeds have been spared the stigma of contraband. Besides, NDPS specified that cannabis meant charas (the resin extracted from the plant), ganja (the flowering or fruiting tops of the plant) and any mixture or drink prepared from either of the two permitted forms of marijuana. Thus, NDPS allows people to smoke pot or drink bhang so long as they can prove that they had consumed only the leaves and seeds of the cannabis plant.

Cultivation vs Found in Wilderness

Under the NDPS Act, 1985 there is a distinction between parts obtained from the whole plant. Charas, Ganja is defined separately and are distinguished from cannabis plant which covers the leaves and seeds. The cannabis plant remains legal while charas and ganja are illegal.

2 (iii) "cannabis (hemp)" means- 
(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish; 
(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and 
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom; 
(iv) "cannabis plant" means any plant of the genus cannabis;

Growing cannabis is illegal under section 2(viiia) of the NDPS Act, 1985 and it also includes the definition of “illicit traffic” the cultivation of “any cannabis plant”. Nevertheless, Harvesting cannabis plant leaves in the wild, is not covered.

Marijuana grows wild across the country as a hardy weed, hence it is difficult for the Narcotic Control Bureau, set up under NDPS, or the local police to check people from imbibing the forbidden tops. The vagueness of the provision on marijuana is the closest India has been able to come to acknowledging what Colorado and Washington in the USA have sought to achieve by passing laws which are pro recreational use of marijuana.

Penalties for Possession/ Consumption/ Cultivation

The illegality extends not only to the consumption but cultivation, possession, use, sale/purchase, import/export, transportation and warehousing of cannabis, except for medical or scientific purposes. This might vary from one State to another as each State has the power to control, permit and regulate these activities. In the case of cultivation, a fine of up to one lakh rupees and rigorous imprisonment of up to 10 years might be levied. 

For possession of small quantities (100 grams for charas and hashish, 1000 grams for ganja), a penalty of ten thousand rupees or a jail term of 6 months to 1 year. One caught with commercial quantities (1 kg for charas and hashish, 20 kgs of ganja), can serve a rigorous imprisonment for up to 20 years and pay a fine of 2 lakh rupees or even more as the court may rule. 

Case for Legalisation

As of now, countries like Uruguay, Chile, Australia, France, Romania, Colombia Czech Republic, Netherlands, Switzerland, Spain, Canada, United States and Jamaica have legalised the use of cannabis for medical purposes and some for recreational purposes.

Tathagata Satpathy, MP (Odisha) - 2015

In December 2015, Lok Sabha MP from Odisha Tathagata Satpathy had suggested that weed should be legalised in the county as it could help fight alcohol addiction.  He had sought the change in the law, calling the ban on cannabis “elitist.”

Dr. Dharamvira Gandhi, MP (Patiala) - 2016

The latest development on legalising marijuana was in November 2016 when Dharamvira Gandhi, Lok Sabha MP from Patiala received clearance for amendment of the NDPS Act, 1985. According to him, this bill shall seek legalisation of the “non-synthetic” intoxicants like opium and marijuana to provide relief to common drug users through a cheap, regulated and medically supervised supply of traditional and natural intoxicants like afeem and bhukki to help society get rid of lethal medical and synthetic drugs.

Dr Gandhi had come up with a strong case for the legalization of marijuana stating the following

  • 30 years of enactment and implementation of NDPS has produced only results contrary to that sought after. NDPS Act has failed in achieving its professed goals and the ‘war on drugs’ has directly achieved goals opposite to the professed goals.
  • There can be no better verdict and/or evaluation of such punitive drug laws than frank admission statement of the United Nations Conference on 12th March 2009, admitting that ‘the war on drugs has failed.
  • Dr Gandhi described the intentions behind the enactment through a statement to the media stating- “NDPS Act was enacted in order to meet then UN Conventions on Drug Policy... The objective was to prevent rampant drug use in society, as it was believed drugs and intoxicants degrade the moral character of individuals and destabilize well-ordered society.” He had further stated“Most drugs were made illegal. Anyone found using or possessing such substances was prescribed harsh punishments, and large amounts of money were invested in the enforcement of drug restrictions and punishments handed out herewith. Plants and chemicals used in the manufacture of drugs were strictly controlled, and drug enforcement agencies spent large amounts of money and time ensuring that drugs were eradicated from society,” he added.
  • The ‘war on drugs’ has led to the creation of a dangerous drug mafia, hundreds of scores of human rights violations and innumerable precious lives have been destroyed.
  • He further gave the argument that the common man’s recreational substances were made unavailable, the newer, more potent, addictive and dangerous alternative drugs flooded the markets. Heroin replaced opium, cocaine replaced cannabis, and so on. As the drug business involves huge super profits, on one hand, it creates rivalries spilling into gang wars and on the other hand, it promotes the ruthless and aggressive marketing, thus pushing more and more people into the drug world. Consequently, the petty traditional drug users are turning to the easily available and aggressively marketed more addictive and dangerous street drugs.”
  • He said statistics of the Narcotics Control Bureau (NCB) indicate that a number of drug users arrested contributes to 88% of those jailed under NDPS. “Traffickers and distributors are 2%. No financers have been arrested. The drug mafia operates with impunity, increasing the scale of its operations.”

Maneka Gandhi, Union Women and Child Development Minister- 2017

Citing the example set by countries like the USA, Canada and Australia, Union Women and Child Development Minister Maneka Gandhi had suggested legalising marijuana in India. The suggestion was made by Mrs. Gandhi at a meeting of a group of ministers (GOM), which examined the draft cabinet note National Drug Demand Reduction Policy. She suggested that such a move will help in curb drug abuse, something that countries, where medical marijuana is legal, has experienced."Some of the developed countries like the US, marijuana has been legalised which ultimately results in less drug abuse. The possibility of the same maybe explored in India", she told the GOM."Marijuana should be legalised for medical purposes, especially as it serves a purpose in cancer," the minister told PTI. 

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