A legal hallucination - Independence Day Special News

A legal hallucination – Independence Day Special News


Seventy-one years ago, at the stroke of midnight on August 15, 1947, the people of India took a bold leap of imagination. Not only did they win their freedom from their colonial masters but also decided to give that freedom wings in the boldest way possible. And despite occasional bouts of turbulence, that flight of fancy and hope has endured.

During the past seven decades, when most of our neighbours flirted with varieties of unfreedom, our flight of freedom turned into an enduring saga of courage and determination. India is about a million freedoms now. A right to privacy has recently been affirmed as of constitutional value, gender and caste are continuously interrogating privilege. Gay rights are on the verge of being legally recognised. Euthanasia and suicide find greater legal and social acceptability. The differently abled are increasingly being seen and heard, and thereby, making a difference to their own lives and the society as a whole. Of course, in the process, some fault lines have hardened too. However, they too share the common foundation of freedom that allows this cacophony of aspirations to coexist and compete.

To opt for a universal franchise for a young, illiterate nation, traumatised by Partition, was a bold step indeed. That, in turn, has continually reshaped the direction of the evolving relationship between the citizen and the state. This is not a process unique to India; others have gone through it as well. But the audacity of hope evident in our leap was simply unprecedented. And it still is. It has resulted in the creation of a vibrant democracy that is the envy of societies richer than ours. But this freedom is not a destination. It is a journey. As we grow richer, and hopefully fairer, our citizens will imagine new forms of freedom. As a society, perhaps we may not be content merely with strengthening the freedoms won thus far but also prepare ourselves for the freedoms that will be demanded soon.

A LOST BATTLE

One such freedom is a freedom that is already being experimented in many countries: the freedom to imbibe substances for recreation. In other words, a right to intoxication. Like all old civilisations, we have an ambivalent attitude to sensual pleasures. Worldwide, the 20th century has seen both the heady days of the 1960s and 1970s, when a global youth culture, powered by mass education, travel and commerce, became a force in its own right. At the same time, societies adopted very tough legal measures to tackle the increased levels of use of recreational drugs of all kinds. The 1980s were the age of enforcement; more specifically, a war on drug abuse.

The war on drugs, led and funded primarily by America, paradoxically also celebrated as the land of the free, has raged on in the western world for over three decades. Societies elsewhere, bound by their obligations under the 1961 UN Convention on Drugs and subsequent international treaties, began cranking up their legislative and enforcement machineries through the 1970s. By the mid-1980s, the international regime against recreational drug production, distribution and consumption was largely in place. And ranged against these laws and agencies was a motley collection of producers, distributor cartels and, most importantly, millions of consumers willing to run the risk of being on the wrong side of the law. Simply because they believed that to do so would be to be on the right side of freedom.

One would have assumed that the outcome of this war would be a foregone conclusion. Billions of dollars, and millions of incarcerations later, one would have a Trump-like grasp of reality to declare any kind of success or progress in this war. Each year, we hear of great success where tonnes of marijuana or quintals of cocaine are intercepted by authorities and burnt in a spectacular display of public resolve. However, it doesn’t seem to make much of a difference to either the street price, availability or consumption levels of these substances. It is a strange war indeed where we keep winning battles, and yet, the outcome of the war remains in doubt.

Gradually, as with sexual freedom, public opinion on the freedom of intoxication has been turning in the West. This is partly due to the devastation caused by the war on drugs, and partly due to a changing conception of freedom itself. The wheel turned full circle when in 2011, the Global Commission on Drug Policy, a body comprising two dozen eminent public figures, including former UN secretary general Kofi Annan, former US secretary of state George Schultz, and former chairman of the US federal reserve Paul Volcker, said in a comprehensive report that, the global war on drugs has failed, with devastating consequences for individuals and societies around the world. It went on to analyse the havoc caused by this war and as an alternative, advocated large-scale decriminalisation of drug use for those who do not cause any physical harm to others. This position has been further elaborated in a report by the Commission, published in 2017 as Countering Prejudices About People Who Use Drugs.

Coming to the Indian experience of the enactment of drug control laws and their enforcement, it is just as mixed a bag of hits and misses as the experience worldwide. We have not experienced the violent convulsions experienced by many societies in South and Central America. However, we too enacted a draconian Narcotic Drugs and Psychotropic Substances (NDPS) Act in 1985 that was designed to comply with our obligations under the various United Nations conventions, beginning with the original 1961 convention. In over three decades of its existence, the NDPS Act has been criticised from several quarters as a glaring example of alleged abuse of police authority, similar to the more notorious Terrorist and Disruptive Activities (Prevention) Act or TADA.

As a police officer, I would argue that the real problem lies not in its implementation by our enforcement agencies, but in the fundamental philosophy at the root of the law itself. Once you pass draconian laws, the potential for abuse becomes a given. A state that seeks to govern through penal provisions, the manner in which its citizens are allowed to intoxicate themselves, is a state that will always be prone to overreach and abuse.

The war on drugs in India is all the more ironic given the rich and complex history of the use of narcotic substances in our traditional culture. As with other forms of amusement such as music and art, the consumption of various substances has been woven into religious practice. Like South Americans who used psychedelic substances like Ayahuasca and Mescaline for shamanistic rituals, the consumption of bhang and charas has been integral to the Shaivite school of worship in the Naga Akharas. One has to only go to a Kanwar Mela in Haridwar or a Kumbh Mela in any one of the four cities that host it to see the celebration of charas, not as a gateway drug, but as devotion to Shiva. Similarly, the use of opium is fairly common and socially accepted across large parts of the country.

The criminalisation of these practices has done little to curb their consumption. All it has done is give the police another tool to harass citizens and fill jails with people whose only crime was that they wanted to get high.

As with sexual mores, this is an area where the state is losing the battle with individual freedom on a daily basis and at a great cost to the moral authority of the state and individual liberty. It is a war that the state cannot win.

A rational and graceful retreat into decriminalisation and thoughtful regulation based on medical research and evidence is the only solution.

(The author is a serving IPS officer. The views expressed are personal)



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