The State of Marijuana in India

The State of Marijuana in India

Author: Srinthan Hampi
3rdYear,
School of Law, Christ University.

History of Marijuana and Cannabis in India.

Historically, Marijuana’s legal history has seemed to devolve worldwide especially after the U.S Governments addition of Marijuana to the list of synthetic drugs which already included Class 1 drugs such as Cocaine and Heroin followed by the addition of Cannabis to the U.N convention in 1961 as a synthetic drug[1] which are chemically synthesized unlike the naturally grown cannabis sativa. In the broad worldwide perspective, marijuana can be traced back originally to 2727 B.C[2] ., where for the first time there was a recorded use of cannabis in Chinese pharmacopoeia. Marijuana or rather cannabis was cultivated for food and fibre in China. In the Indian context however, the first recorded extract found is in the Atharvaveda [3]where cannabis has been referred to as the “Sacred Grass” and was known as one of the five sacred plants of the Plant Kingdom. In Hindu Mythology also, the reference of smoking Cannabis is often made with Lord Shiva. One of the most prominent Hindu Lords who has been mentioned in several Mythological texts as a lover of Cannabis and Bhaang.

In the sacred Hindu mythology of Samudra Manthanam, where the main objective was to collect the Amrith (Nectar) had Cannabis as its main ingredient[4] .The Vedas called cannabis as the source of Happiness, a Liberator and as a Joy Giver that was compassionately given to humans as to attain Satisfaction and to lose their fears[5] . Post the British Colonization, The British found the user of cannabis very extensive in India and hence commissioned a large scale study in the late 1890s[6] .The findings of the Commission set up[7] in 1894 are surprisingly relevant even today as Cannabis continues to be available illegally for consumption. The review done by Chopra and Chopra in the mid-1950s[8] found little change to the findings of the report, as cannabis is still seen to be used very frequently and is used a lot especially during the festival of Holi where the tradition is to drink bhang, which is a mixture of milk and cannabis that extracts the THC content of marijuana to produce the Psychoactive Nature of Behaviour. Even Indian Sadhus , who have shunned material life, use cannabis to seek spiritual freedom. Soma, is a vedic ritual drink, which also prescribes the addition of the ingredient cannabis to make the drink[9] As of the twentieth century, the Prevelance of Abuse of Cannabis in India was 3.2% according to the UNODC[10] . The smoking of Cannabis is legal in Odisha and the sight of people smoking from chillums is quite common[11] .Even in Assam, were Bhaang has been banned since 1958; it is consumed at the Ambubachi Mela where even the Law Enforcement Agencies did not stop the public from the consumption of marijuana[12] . In November 2015, the Uttarakhand Government also legalized the cultivation of Cannabis for industrial purpose. It can be seen on the face of it that marijuana is getting back its lost image and is slowly changing the mindset of the society as well and this can be seen as there is a bill pending in the Parliament regarding the legalisation of Marijuana for both medicinal and recreational purposes.

Legal State of Marijuana in India

Since its been established that the usage of marijuana in India has a historical and a religious importance, we can now examine the legal status of cannabis and its derivatives in a more modern context.

The very first attempts of criminalising the use of cannabis in India was made in the colonial era, specifically in 1838, 1871, and 1877. The first attempt was following the reintroduction of marijuana in a medicinal context by Dr William Brooke O’Shaughnessy[13]. The attempts of criminalising cannabis usage in India was met with severe backlash by the general native population in colonial India, simply due to the implications it would have on the culture of Hindus in India.

Furthermore, the recent criminalising of cannabis in India also has a long and convoluted history attached to it.
The first instance of an attempt being made to criminalise marijuana on a global level came from the Single Convention on Narcotic Drugs in 1961, where marijuana, cannabis and its derivatives were placed in the first schedule, along with hard drugs like cocaine and heroin. The Single Convention on Narcotic Drugs 1961 carried with it a blanket ban on marijuana and its derivatives, which was obviously opposed by the Indian Government due to its importance in cultural
and religious customs. It was in 1961 that India, leading a group of cannabis and opium producing countries against the clubbing and classification of the herb with the likes of cocaine and heroin[14]. Therefore, during negotiations, the Indian government was given a time period of 25 years to criminalise marijuana on Indian soil.

International Pressure

One of the main reason the criminalisation of the herb took place was due to the pressure incited by the United States of America through its international anti – drug campaigns (starting in 1961) to 1985 when the Rajiv Gandhi government buckled under the pressure they had been bearing for 25 years, marked by the enactment of the Narcotic Drugs and Psychotropic Substances Act (NDPS) in 1985.[15]

After considering these facts which contributed towards the criminalising of cannabis in the first place, it is easier for us to argue for the legalisation of the same in a domestic context.
The current legal state of marijuana in India is also one with nuances and complications.
As given in the Narcotics, Drugs and Psychotropic Substances Act 1985, cannabis id defined in section 2 as “(a) Charas – a separated resin, in whatever form, whether crude or purified; obtained from the cannabis plant, which also includes the concentrated preparation and resin known as hashish oil or liquid hashish; (b) ganja – 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 natural material, of any of the above forms of cannabis or any drink prepared therefrom.

Although this definition is comprehensive, we find that ‘bhang’ in its traditional sense does not fall under the umbrella of the term ‘cannabis’. Therefore, we see that cannabis in its bhang form would not be subject to the terms and provisions of the act. We also find that the National Policy on Narcotics and Psychotropic Substances acknowledged the fact that the production and subsequent sale of cannabis in its bhang form is permitted by many state governments[16].

The issue of bhang not falling under the purview of Section 2 of the Narcotics, Drugs and Psychotropic Substances has been discussed at length in plenty of judgements from various courts[17]. Contributing to this legal limbo which cannabis in the bhang form is the fact that even the National Policy on Narcotics and Psychotropic Substances recognized this fact.[18]

This shortcoming in the government’s attempt to criminalise all forms of cannabis can be attributed to the that on a global scale, marijuana prohibition mainly focuses its efforts towards suppressing marijuana in smokable form (cannabis extracts, hash etc.)
It is also important to consider the fact that cannabis in the bhang form is relatively less harmful to the human body. Apart from its socio – cultural importance, individuals seeking any form of alternative treatment for their primary abusive drug, prefer cannabis and bhang for ridding themselves of the addiction[19]. With its growing potential in its medicinal role (which we will examine in this research paper), it is imperative to encourage the study of different forms of cannabis per se, for its safety profile. Until then, from a legal standpoint, bhang still remains beyond the purview of the NDPS Act 1985.[20]


Marijuana for Recreational Usage and the Dharamvira Gandhi bill

In 2017, Dr Dharamvira Gandhi moved a bill to legalise the recreational usage of marijuana[21], which surprisingly received the support of many members of Parliament while on the floor. This bill particularly attracted the attention of Tathagata Satpathy, a Biju Janata Dal Member of Parliament from Odisha. Mr. Sathpathy had advocated for the legalisation of marijuana while at the same time admitting to smoking marijuana recreationally, several times while in college[22].

Tathagata Satpathy had even worn a kurta made only from hemp to a session in the Lok Sabha. Mr. Satpathy had entailed in an interview that “in Odisha, people smoking chillum is a common sight and not something you notice, just like someone drinking water or tea”. This sort of unbridled public support by members of Parliament all point towards more comprehensive efforts towards legalising marijuana for recreational purposes also.

A cardiologist by profession, Dr Dharamvira Gandhi was a oart of the Aam Aadmi Party until 2015. He moved a private member’s bill which would legalise recreational use of marijuana, which garnered him the support of late actor and politician Vinod Khanna, a BJP Member of Parliament at that time. In an interview with the Hindutan Times in 2017, Dharamvira Gandhi emphasozed on the fact that the only reason the Narcotics, Drugs and Psychotropic Substances Act had been put in place was to comply with United Nations Conventions on Drug Policy. Referring to India as the ‘wannabe United States of America’, Tathagata Satpathy mentioned that the state of cannabis in India was how it is today also because it was the intoxicant of the poor, and was not seen with the same scrutiny as a wine glass held in the hands of the rich.

We also find that almost 25 states in the United States of America, and at least 16 countries in the world have legalised the use of marijuana, especially for medicinal purposes like chronic pain – related illnesses, nausea for post – chemotherapy patients, epilepsy and symptoms of multiple sclerosis. The main and monumental change the bill put forth by Dharamvira Gandhi would amend the Narcotics, Drugs and Psychotropic Substances Act so that marijuana and cannabis is no longer clubbed with hard drugs like cocaine, heroin and smack.[23]

Currently, the ban and the subsequent ‘War on Drugs’ results in the creation of drug mafias that have the means to supply extremely dangerous and potent drugs like cocaine which are monumentally more addictive. Because of the hefty profits in the underground market for the drug trade, there have been rivalries, leading to gang wars. Moreover, we find that the petty dug users are turning to more aggressively marketed, dangerous and addictive street drugs. The amendment to the Narcotics, Drugs and Psychotropic Substances Act would amend it to an extent that “cheap, regulated and medically supervised supply of traditional intoxicants like ‘afeem’ and ‘bhukki’ can be made available”. This, according to Dharamvira Gandhi would push a considerably less number of people towards more dangerous and aggressive intoxicants.

The most recent person to join the debate for the legalisation of marijuana is Women and Child Development Minister Maneka Gandhi. In July this year, she called for the legalisation of marijuana for medicinal purposes. She made the suggestion at a meeting, which scrutinized the National Drug Demand Reduction Policy draft.

Citing the US, she said that legalisation of cannabis for medicinal usage had ultimately resulted in lesser instance of drug abuse. She further told PTI that marijuana should be legalised especially if it helps in treating cancer.[24]
Conclusion
We can firmly determine the effects of such a legalization of cannabis on Indian soil. We can see that the entire black market would be eliminated, along with the gangs and cartels which control the flow of drugs and such within our borders. If India follows the Netherlands or Portugal brand of legalisation (which is highly unlikely, as the current Indian society and framework is not cut out for a drastic change), or even amends the Narcotics Drugs and Psychotropic Substances Act (as proposed by Dharamvira Gandhi), we can be assured of a safer and more regulatable flow of the herb among various parts of society.

READ  Constitution and Legislature of India

[1] Single Convention on Narcotic Drugs (1961).


[2] The Pen Tsao/ The Herbal (2200 BCE.).

[3] William Dwight Whitney (1905). Atharva Veda Samhita, Volume 2 p438.

[4] Rig Veda 4.8.3.

[5] Abel, E.L (1980). The First Twelve Thousand Years. New York : McGraw Hill.

[6] Iverson ,L.L.(2008). The Science of Marijuana. New York: Oxford University Press.

[7] The Indian Hemp Drugs Commission Report (1894).

[8] Chopra,I.C. and Chopra, R.N. The use of cannabis drugs in India. Bull Narc. 1957. Jan. 4-29.

[9] Rig Veda 4.8.3.

[10] Report of the International Narcotics Control Board (2008).

[11] Deeptiman Tiwary (2015-03- 29).”Cannabis ban is elitist. It should go: Tathagata Satpathy.

[12] Samudra Gupta Kashya (2015-06- 23). “Kamakhya ushers in annual festival, with annual cannabis problem”.

[13] A Cannabis Reader: Global Issues and Local Experiences : Perspectives on Cannabis Controversies, Treatment and Regulation in Europe. European Monitoring Centre for Drugs and Drug Addiction. 2008. p. 100. ISBN 978-92-9168-311-6

[14] Manoj Mitta (2012-11-10). “Recreational use of marijuana: Of highs and laws”. The Times of India.

[15] Rayomand (December 21, 2017) Banned by American Pressure, These People now want Marijuana to get a Second Chance in India

[16] National Policy on Narcotics and Psychotropic Substances. Available from: http://cbn.nic.in/html/NationalPolicyEnglish.pdf 


[17] Jain N. Sevaram vs State of Rajasthan on 2 December, 1992. Rajasthan High Court 1992


[18] Mittal S. Arjun Singh vs State of Haryana on 21 August, 2004. Punjab-Haryana High Court. 2004


[19] A retrospective chart review of treatment seeking middle aged individuals at a tertiary care substance use disorder treatment centre in North Part of India over five successive years: findings from drug abuse monitoring system.
Balhara YP, Mishra A, Sethi H, Ray R
ScientificWorldJournal. 2013; 2013():316372

[20] Cannabis use among opioid-dependent individuals on opioid substitution therapy.
Balhara YP, Jain R
J Pharmacol Pharmacother. 2014 Jul; 5(3):203-5.


[21] Meghana Ganeshan ‘Why these Indian MPs want marijuana to be legalized’, https://www.gqindia.com/content/marijuana-legalisation-india/


[22]https://www.reddit.com/r/india/comments/2z493l/hello_rindia_i_am_tathagata_satpathy_member_of/?st=jecltawz&sh=1b172ffe


[23] TNM Staff, “You want ganja to be legal in India? These MPs want it too”, December 15th 2017.

[24] PTI, ‘Maneka Gandhi suggests legalising marijuana for medicinal purposes’, http://indianexpress.com/article/india/maneka-gandhi-suggests-legalising-marijuana-for-medical-purposes-4773915/

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