Acting against the poor and voiceless: NDPS Act needs an urgent reboot

The Narcotic Drugs and Psychotropic Substances Act (NDPS Act), 1985, has been in the news recently due to its association with celebrities. To comprehend the controversies it generates, one must understand the law’s framing and implementation. They are striking illustrations of the criminal justice system’s workings (and failings).

The law was enacted after only four days of legislative debate in August 1985, with the explicit goal of reducing trafficking in India. Legislators adopted a series of deterrents, including shifting the burden of proof onto the accused, restricting bail, and mandatory minimum sentences. Though these harsh provisions were necessary to ensure the arrest and conviction of traffickers, they were applied to any person found consuming or in possession of drugs, no matter the quantity. The critical fallout was that people caught with small amounts of drugs faced lengthy prison sentences and heavy fines, unless they could prove that the drug was for personal use. The disproportionately high number of arrests of drug users led to a change in the law in 2001. The penalty structure was rationalised to provide deterrent punishments for traffickers and lenient treatment for users. Despite these progressive changes, the police continue to target consumers, often ignoring key people involved in the drug trade. States such as Karnataka, Maharashtra, and Kerala exemplify this fact, with arrests for personal consumption constituting 76.5%, 86% and 92%, respectively, of all NDPS-related offences in 2020.

In practice, this law is applied in two main ways: One, for the consumption of drugs. Here, the police arrest a person (usually male) ostensibly in the act of (usually) smoking marijuana, the person is brought before a magistrate, made to confess his guilt and is convicted immediately. Unfortunately, the provision (Section 27 of the NDPS Act) is poorly drafted and makes the offence of consumption ambiguous. It does not require personal possession of drugs, or specify a procedure to establish consumption. Consequently,

both the police and judiciary seem to be at a loss in identifying what constitutes the offence of consumption and rely on forced admissions of guilt to secure a conviction. Two, for possession of drugs. Here, the police file template charge sheets, which contend that a suspicious-looking person was apprehended during patrolling. The person is frisked and drugs are found in his possession. Since proving possession is sufficient under the law, the prosecution does not bother to prove intent and secures easy convictions regardless.

The purpose of the NDPS Act, as of our criminal justice system, is to deter crime through assured convictions and harsh punishments. The law, in its implementation, is successful in achieving this, but only through deceit and duplicitousness. Since the law does not require intent to assign criminal culpability, it calls for minimal investigation. The police make no effort to investigate the actual source of the drug or the chain of drug supply. Further, to bolster convictions, they force people to plead guilty while the judicial system looks on indifferently.

Abuse is endemic to this law, waiting for a corrupt and inefficient police force to swoop in and exploit every loophole in the book. It is no wonder then that almost everybody arrested and convicted under the Act is socially marginalised, who do not have the means to hire competent lawyers. Our research in Mumbai, for example, found that 99% of all arrests under the act were of cannabis users even though expensive psychotropic substances made up the lion’s share of the drugs seized, by value. The social profiles of those arrested revealed that many of them hailed from marginalised sections and were either street or slum dwellers. The largest chunk of arrestees were labourers. The act captures the essence of our criminal justice system; the smooth functioning of which rests on the persecution of the voiceless.