October 30, 2021
Hello and welcome to All Indians Matter. I am Ashraf Engineer.
The arrest of Shah Rukh Khan’s son, Aryan, the convoluted probe, the revelations about the investigating officer, the allegations and counter-allegations make for a potboiler. But this episode isn’t about Aryan, Shah Rukh or the case. In this episode, we put under the microscope the Narcotic Drugs and Psychotropic Substances Act, or the NDPS Act, the law under which Aryan was charged and some provisions of which are thought to be more draconian than even the dreaded Unlawful Activities (Prevention) Act, or UAPA. What is the NDPS Act all about and why does it desperately need a relook?
The NDPS Act came into force as far back as 1985 and was probably passed under international pressure when the US’ ‘War on Drugs’ was at its peak. Globally, what’s been observed is that laws like the NDPS Act do little to solve the problem of addiction.
Many countries have understood this and are changing their focus from prosecuting drug users to rehabilitating them. For instance, some states in Australia have adopted alternative responses, such as referring drug users to education and treatment. Portugal, meanwhile, focuses on treatment and prevention. It applies civil sanctions, such as fines or suspension of driving licences. Within five years of this policy being introduced, Portugal saw a significant decline in drug overdose deaths.
India, however, has gone the other way. The law has been used here to prosecute some users while the drug kingpins remain untouched. Also, the NDPS Act has got stricter over time and every offence under it is now non-bailable.
The law was amended thrice — in 1989, 2001 and 2014. The first amendment introduced capital punishment for repeat offenders. The Bombay High Court declared this provision unconstitutional in 2011 and the law was amended in 2014, leaving the death penalty to the discretion of the judge.
Let’s talk about the bail provision, which has been the subject of much discussion. Under the NDPS Act, to get bail, the court must have “reasonable grounds” to believe that the accused is not guilty and that they won’t commit another crime while on bail. This is actually more stringent than the bail provision of the UAPA – which does not have such a pre-condition. The Supreme Court, too, has noted this. In fact, the NDPS Act’s bail provisions match those of the now repealed Terrorist and Disruptive Activities (Prevention) Act, better known as TADA.
In layman’s terms, it means that, while for offences under other laws, bail is the rule and jail the exception, getting bail under the NDPS Act is extremely difficult. So, even if the accused person is innocent, they more often than not remain in jail while the trial plays itself out.
Let’s talk now about the Narcotics Control Bureau, or NCB. It relies heavily on voluntary statements of the accused logged under Section 67 of the NDPS Act as evidence, which is otherwise not admissible in court. It was only last year that the Supreme Court made it clear that a confession made to an officer cannot be used to convict an accused person.
Even WhatsApp texts, which have been under scrutiny in the Aryan Khan case, are not admissible under other laws. However, they are under the NDPS Act.
Strangely enough, the law fails to explain what constitutes consumption. Shockingly, it leaves it to the enforcement agency to interpret if a crime has been committed. This is how the law can be misused to keep those caught with even small quantities of drugs in jail for prolonged periods. What is procurement? What is consumption? Each seems to blend into the other under the law. No drugs were found on Aryan but he has been booked under Section 27A of the law, which deals with “financing illicit traffic and harbouring offenders”. The charges are based on phone chats that the NCB says suggest that Aryan “purchased drugs”.
These are the reasons the NDPS Act is absolutely draconian and also why it has failed to crush drug networks. The NCB, instead, is focused on consumers.
There can be no doubt that we need to curb narcotics consumption but this cannot be done by flouting basic legal principles.
There is a crying need for a makeover of the law. At the time of making this podcast, the Social Justice and Empowerment Ministry had recommended a review of the NDPS Act and to decriminalise the possession of small quantities of drugs for personal consumption. The ministry suggested rehabilitation instead of jail for those caught with a small quantity of drugs. The recommendation was sent to the Department of Revenue, the nodal authority of the NDPS Act, which has in turn asked other ministries to weigh in.
Terming consumers as “drug users” instead of the NDPS Act’s definition of them as “addicts”, the ministry recommended a mandatory minimum period of 30 days at a rehabilitation or de-addiction facility followed by a year of community service.
These recommendations make a lot of sense but the government needs to do more. The focus must shift to the real problem: trafficking of drugs and not their consumption; and from users to drug cartels.
Thank you all for listening. Please visit allindiansmatter.in for more columns and audio podcasts. You can follow me on Twitter at @AshrafEngineer and @AllIndiansCount. Search for the All Indians Matter page on Facebook. On Instagram, the handle is @AllIndiansMatter. Email me at firstname.lastname@example.org. Catch you again soon.