Medical Use, Decriminalization, and Legalization of Narcotic Drugs and Psychotropic Substances—What Does It Mean and What Is Its Current Status in India?

The type and level of regulatory control on narcotic and psychotropic substances remain a topic of global debate. The existing regulatory framework for narcotic and psychotropic substances, guided mainly by the three United Nations conventions (the Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol; the Convention on Psychotropic Substances, 1971, and the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988) has been critiqued. The current policies on narcotic and psychotropic substances have been described as prohibitionary. They have been identified as offering little space and scope for reformative steps in the context of the use of narcotic drugs and psychotropic substances. ¹ Also, in various jurisdictions, over time, there has been a shift in the policies on narcotic and psychotropic substances.

India is a signatory to the UN conventions on narcotic drugs and psychotropic substances. The Narcotic Drugs and Psychotropic Substances Act of India (NDPS Act of 1985, with amendments over the years) offers the regulatory framework for narcotic and psychotropic substances in the country. This article aims to offer an understanding into the meaning of medical use, decriminalization, and legalization of narcotic and psychotropic substances. It also aims to offer an understanding of the current status, in the Indian context, of medical use, decriminalization, and legalization of narcotic and psychotropic substances.

Narcotic Drugs and Psychotropic Substances

According to the NDPS Act, “narcotic drug means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs.” The Act defines psychotropic substance as “any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule.” ²

Medical Use

Both the Single Convention on Narcotic Drugs of 1961 and the Convention on Psychotropic Substances of 1971 have commented on the need to allow the use of narcotic drugs and psychotropic substances for “legitimate purposes.” These conventions have also asserted that “the availability of such substances for medical and scientific purposes should not be unduly restricted.” In fact, these narcotics and psychotropic substances are listed as “controlled” substances. Various Articles of these conventions contain provisions relating to their medical and scientific use. Moreover, despite being listed in schedule IV, some narcotic drugs such as heroin have also been used medically. One such example is the heroin-assisted treatment for opioid use disorders.^{3, 4, 5}

However, despite the potential role of certain narcotics and psychotropic substances in the management of certain medical conditions and the permissions they enjoy under the existing regulatory framework, across the countries, the availability and use of these remain limited and skewed. The International Narcotic Control Board (INCB) has identified the following factors as the major barriers to increased access to the controlled substance for medical use: Regulatory, attitudinal, knowledge-related, economic, and procurement-related factors; concerns about addiction; reluctance to prescribe or stock, and insufficient training for professionals. ⁶

Indian Status

Article 47 of the Indian constitution, while prohibiting the consumption of intoxicating drinks and drugs that are injurious to health, permits their use for medicinal purposes. Various psychoactive substances have been used in different medicinal formulations in India. This includes alcohol, nicotine, codeine, opioid analgesics, and benzodiazepines. There are multiple medicinal formulations available for sale and use in the country that have included these either as the primary or as one of the multiple active constituents or as a base. Also, currently, trials are registered at the Clinical Trial Registry of India (CTRI) that explore the use of cannabis plant derivatives in cancer and cervical spondylosis (CTRI/2016/02/006658; CTRI/2020/12/029967; CTRI/2020/06/ 026049; CTRI/2020/11/028838; CTRI/ 2022/06/043081) and cannabidiol (CBD) oil in stress and mild to moderate anxiety disorder (CTRI/2022/03/041165).

The NDPS Act of 1985 directs the Central Government to take measures for the “availability of narcotic drugs and psychotropic substances for medical and scientific use.” ² Section 71 of the Act makes provisions to supply narcotics and psychotropic substances to “registered addicts” and others, if such a supply is medically required. It also includes and defines “medicinal cannabis” and “medicinal opium.”

The NDPS policy of India (2012) mentioned the use of opium poppy for persons with opioid use disorders (mentioned as “addicts”) and for Ayurvedic pharmaceutical companies in the country. ⁷ It also acknowledged limited medical use of cannabis in the form of alternative medicine such as homeopathy and Ayurveda. The policy also specified that the cultivation of opium poppy for medical and scientific purposes as per actual requirements would continue. However, it also specified that the cultivation shall be permitted (only) for research, including trials of various varieties of cannabis, as it had limited proven use for medical purposes.

The 2014 amendment to the NDPS Act of 1985 introduced the “essential narcotic drug” (END) as “a narcotic drug notified by the Central Government for medical and scientific use.” ⁸ Consequently, methadone was available for treatment for opioid use disorders and pain management. While this was a significant amendment, the fact remained that one of the most widely used medicines globally for the management of opioid use disorders and pain, was included in this list only many decades after its approval in other parts of the world. Also, the availability and use of these medicines remain limited in the country, and many potential beneficiaries do not have access to these evidence-based treatments. ⁹ The Telepsychiatry Operational Guidelines 2020 of India prohibit the prescription of psychotherapeutic medicines listed in the NDPS Act during telepsychiatry consultation. ¹⁰

Decriminalization

Decriminalization refers to an approach aimed at removing criminal penalties for drug-law violations, usually possession for personal use. The INCB has defined decriminalization as “the process through which an offence is reclassified from criminal to non-criminal through legislative action. While the behaviour remains an offence, it may be addressed through other means than criminal law.” ¹¹ It refers to the use of treatment, education, aftercare, rehabilitation, and social reintegration for minor offences related to the use of narcotic drugs and psychotropic substances, in place of a criminal conviction.

Decriminalization of the personal use and possession of small quantities of drugs is documented to be consistent with the provisions of the drug control conventions by the regulatory agencies. Decriminalization of the use of narcotic drugs and psychotropic substances has been considered as a way to adopt alternate measures to promote a balanced and human rights-based approach to drug policy.

Indian Status

The NDPS Act prohibits cultivating, producing, manufacturing, possessing, selling, purchasing, transporting, warehousing, using, consuming, importing or exporting inter-state, importing into or exporting from India, or transshipping of any narcotic or psychotropic substance except for medical or scientific purposes. This means that the use of narcotic and psychotropic substances for recreational purposes and among those who have developed a substance use disorder is a punishable offense in the country. The Act makes a provision that “instead of sentencing him at once to any imprisonment, with his consent, that he be released for undergoing medical treatment for detoxification or de-addiction….” However, even in this scenario, the act of use of narcotic drugs and psychotropic substances is considered an offence. Hence, this does not amount to decriminalization as specified by the INCB.

This provision of the NDPS Act falls somewhere in the space between the concepts of decriminalization and depenalization. Depenalization describes “a situation in which the behavior in question remains a criminal offence but in which there is a reduction of the use of existing criminal sanctions, which does not require changes to the law, as in the case of decriminalization.” ¹¹

The depenalization approach has been described to include the adoption of mechanisms such as police diversion practices, conditional sentences, and the widening of prosecutorial discretion as an alternative to criminal prosecution. In such cases, using narcotic or psychotropic substances remains an offence, but the offender might be required to undergo treatment or rehabilitation as a condition for release from criminal liability. ¹¹

As mentioned earlier, any use of narcotic drugs or psychotropic substances for non-medical or non-scientific purposes is a criminal offence in India. Also, since the provision to be “released for undergoing medical treatment for detoxification or de-addiction” is already listed under the NDPS Act, it does not strictly meet the definition of depenalization as well. However, it seems to be aligned with the concept of depenalization.

Another related point to note is that the Scheme of National Action Plan for Drug Demand Reduction (NAPDDR) has included provisions for providing financial assistance for establishing and assisting de-addiction centers in closed settings such as prisons and juvenile homes. ¹²

Legalization

In drug policy parlance, legalization, depenalization, and decriminalization fall on a spectrum of legal frameworks that depart from the conventional idea that simple drug use and possession must be criminalized. Legalization is frequently associated with regulating and commercializing controlled narcotic drugs and psychotropic substances for nonmedical and nonscientific purposes, entailing no penalty (whether criminal, administrative, civil, or otherwise) for the production, manufacture, export, import, or distribution of the drug. INCB recognizes this to be in violation of the conventions on narcotic drugs and psychotropic substances. ¹¹

Indian Status

The NDPS Act includes both narcotic drugs and psychotropic drugs. The preamble of the Act mentions that the Act was drafted, among other reasons, “to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances.” The list of narcotic drugs and psychotropic substances included in the Act is updated with time. However, the NDPS act does not explicitly include “bhang” in the definition of “cannabis (hemp).” ¹³ While it includes the definitions of charas, ganja, a mixture of charas and ganja, and cannabis plant, it does not include the term “bhang” in the list of definitions. The national policy on NDPS also specified that those “licenced to produce Bhang shall be allowed to produce it from the leaves of the wildly grown cannabis plants only.” ⁷

An Overview of Decriminalization and Legalization Models Around the World

The existing models of decriminalization and legalization of narcotic drugs and psychotropic substances across different jurisdictions can help better understand the different approaches to the same.

As of 2022, over 30 jurisdictions all over the globe have introduced changes to the existing laws to incorporate medical use and decriminalization of personal use and possession of narcotic drugs and psychotropic substances (Table 1). The impact of most of these models has not been systematically studied. Among those that have been reviewed, the impact of the policy change has varied across jurisdictions. While we do not intend to offer a detailed critique of these models here, we present a couple of observations from the available literature to highlight the diversity of the outcome of such measures. In countries (e.g., Portugal) where decriminalization of illicit drug use was accompanied by a scale-up of preven- tive, treatment, and harm-reduction services, there was little change in drug use prevalence and a reduced rate of blood-borne viral infections. There was a drop in high-risk behaviors related to drug use, a downward trend in the number of overdose deaths, and an increased rate of voluntary treatment seeking. ¹⁴ In 2009, Mexico transitioned towards a drug policy that promoted harm reduction and “partial” decriminalization of possessing small quantities of illicit drugs. A study on the impact showed how the lack of concurrent health sector reforms hampers success. Health services were either unavailable or financially not viable for those referred by the courts. ¹⁵ The recent World Drug Report, 2022, has included a section on the implications of the legalization of cannabis in certain jurisdictions and has expressed notes of caution over the possible adverse public health impact of such measures in some of these jurisdictions. ¹⁶

Table 1.

An Overview of Changes in Drug Control Policies Around the World regarding Personal Use and Possession of Narcotic Drugs and Psychotropic Substances.

Country, Year of Initial Implementation	Have Threshold Amounts Been Specified to Determine the Penalty?	Is There a Mechanism for Diversion (Referral) to Medical Intervention?	Type of Penalty for within Threshold Amount (No Response, Option to Take Treatment in Lieu of Fine, Incremental Penalty, etc.)	Were Public Health Initiatives Taken in Tandem with Drug Policy Changes?c
Argentina, 2009	No	No	Fine or another kind of civil penalty	No
Armenia, 2008	No	Yes	Option to take treatment in lieu of fine	No
Antigua and Barbuda, 2018a	Yes	No	No penalty	No
South Australia, 1987a	Yes	Yes	Incremental penalty	No
Australian capital territory, 1993a	Yes	Yes	Fine, option to take treatment in lieu of fine	No
Australia: northern territory, 1996a	Yes	Yes	Fine	No
Australia: Western Australia, 2011a	Yes	Yes	Compulsory brief intervention	No
Belgium, 2003a	Yes	No	Incremental penalty	No
Belize, 2017a	Yes	Yes	No penalty or diversion to treatment and support services	No
Bolivia, 2009 (only for coca leaf cultivation and use)	Yes	No	No penalty	No
British Columbia, Canada, 2022	Yes	Yes	No penalty	Yes
Canada, 2018a	Yes	No	No penalty except for driving under the influence	Yes
Chile, 2007	No	Yes	Fine, civil penalty, or diversion to treatment and support services	No
Colombia, 1994	Yes	Yes	Incremental penalty	No
Costa Rica, 1998	No	Yes	Fine, option to take treatment in lieu of fine	No
Croatia, 2013	No	Yes	Fine, option to take treatment in lieu of fine	No
Czech republic, 1990	Yes	Yes	Fine or another kind of civil penalty	Yes
Dominica, 2020a	Yes	No	Fine	No
Ecuador, 2008	Yes	Yes	Fine or another kind of civil penalty	Yes
Estonia, 2002	No	Yes	Fine or another kind of civil penalty, including administrative detention	No
Germany, 1992	No	Yes	No penalty	Yes
Ghana, 2020	No	Yes	Fine	Yes
Italy, 1975	No	Yes	Fine or another kind of civil penalty	No
Jamaica, 1977a	Yes	Yes	Fine or another kind of civil penalty	No
Kyrgyzstan, 2020	Yes	Yes	Fine or another kind of civil penalty, including administrative detention, mandatory treatment	No
Malta, 2021a	Yes		Fine	No
Mexico, 2009	Yes	Yes	Mandatory treatment after a third offence	Yes
Netherlands, 1976	Yes	No	No penalty	Yes
Paraguay, 1988	Yes	Yes	Mandatory treatment	No
Peru, 1991	Yes	No	Fine, diversion to a treatment program, incremental penalty	No
Poland, 2011	No	No	Fine and voluntary diversion to prevention/ education or treatment programs.	No
Portugal, 2001	Yes	Yes	No penalty, fine, civil penalty, or diversion to treatment and support services	Yes
Russia, 2005	Yes	No	Fine, civil penalty, or diversion to treatment and support services	No
Slovenia, 1999	No	Yes	Fine and voluntary diversion to prevention/ education or treatment programs.	No
South Africa, 2020a	No	No	No penalty	No
Spain	Yes	No	Fine or another kind of civil penalty	No
Switzerland, 2013a	Yes	No	Fine	Yes
Thailand, 2022a	No	No	No penalty	No
California, USA, 1974b	Yes	Yes	Fine, diversion to a treatment program, incremental penalty	Yes
Oregon, USA, 2020	Yes	Yes	Fine, civil penalty, or diversion to treatment and support services	Yes
Uruguay, 1974	No	No	No response	Yes

Sources: The information in the table has been gathered from the following sources—https://www.talkingdrugs.org/drug-decriminalisation

https://www.opensocietyfoundations.org/publications/quiet-revolution-drug-decriminalisation-policies-practice-across-globe.

^aOnly law related to personal use and possession of cannabis have been amended. ^bSeveral states in the USA have legalized cannabis for personal use. ^cPublic health initiatives include expansion of treatment and harm reduction services, building trust with high-risk, hard-to-reach drug-using populations and connecting them to harm reduction and treatment services, taking steps to reduce stigma related to drug use and encourage treatment-seeking, and planning evidence-based prevention programs.

While arguments in favor of moving away from the prohibitory approach to narcotic drugs and psychotropic substances have been presented in the literature, ¹⁷ the critiques of the impact of decriminalization and legalization on health and socioeconomic outcomes have also highlighted the concerns and limitations of the existing evidence for such approaches. ¹⁸ Broadly speaking, research shows that decriminalization is not associated with increased use, while risk perception varies based on age, gender, and cultural factors. The results of the legalization of narcotic drugs and psychotropic substances are more complex and mixed.

Future Implications of These Provisions in the Indian Context

Medical Use

The existing regulatory framework in the country permits the use of narcotic drugs and psychotropic substances for medical purposes. However, there is limited sync between the provisions and the implementation approach. For example, the NDPS policy made mention of the limited utility of cannabis for medical purposes. More recently, in the year 2020, India voted in favor of the resolution to remove cannabis and cannabis resins from Schedule IV but voted against the resolution to add delta 9-THC (tetrahydrocannabinol) and delete the extracts and tincture of cannabis from Schedule I of the 1961 single convention. India also voted against the resolution that would have put the preparations containing predominantly CBD and not >0.2% of delta-9-THC out of international control. ¹⁹

Also, further simplification and streamlining of the procurement, transportation, storage, and use of the narcotic drugs and psychotropic substances (including END) are needed to facilitate their use across the country. While the existing regulatory framework allows the use of narcotic drugs and psychotropic substances, currently there are few registered clinical trials on the medical use of cannabis (as listed above) and no clinical trials on the medical use of THC. The tough regulations and ensuing hurdles can become an impediment to the research. Additionally, concerns about the stigmatization of the investigators among their peers and within the institution have been cited as a potential barrier to research in settings with a prohibition-based drug policy. ²⁰

Decriminalization (and Depenalization)

In the context of decriminalizing the use of narcotic drugs and psychotropic substances, the current regulatory framework also offers opportunities to make amendments to the existing procedures. As mentioned earlier, the NDPS Act has provision akin to depanelizing the use of these substances. However, there are concerns about the utilization of this provision. While in the year 2020 around half of the cases registered under the NDPS Act 1985 were for possession of drugs for personal use and consumption, there is a large pendency rate of such cases in the courts (>80% in 2019 and >90% in 2020). ²¹ In the previous years, such proportions were even larger. This undermines the existing provision of referring those arrested, to medical treatment for “detoxification” or “de-addiction” (as specified in the NDPS Act). The low referral rates to “detoxification” or “de-addiction” raises concerns. An analysis of the impact of the NDPS Act in Punjab shows that up until 2015, no one has been redirected to “de-addiction” facilities by Special Courts of the state. ²²

In addition, the current provisions aimed at depenalization do not consider the complexities of different patterns of use of narcotic drugs and psychotropic substances. While “detoxification or de-addiction” would help cater to those who have developed addiction (dependence on these substances), these shall not be suited for those who use these substances for recreational purposes or in a nondependent pattern. Prompt processing of such cases, coupled with a wider set of interventions aimed at use of narcotic drugs and psychotropic substances, can be implemented within the existing regulatory framework. Moreover, using a person-first and rights-based approach to the depenalization provisions can also be carried out within the existing regulatory framework. Additionally, provision for screening, assessment, management, and recovery-focused interventions can also be built into the existing criminal justice system and prisons. The current NDPS policy of India makes provision for only “de-addiction” in prison settings. ²³ Applying alternatives to conviction or punishment, such as drug dependence treatment for those in need, has been identified as an effective criminal justice strategy. Moreover, treatment as an alternative to conviction or punishment has been reported to contribute to public health and public safety in an integrated way ²⁴ and is described within the existing international regulatory frameworks as well. ¹¹ It is important that, as and when these amendments are made, there is a systematic evaluation of their impact.

Given the current state of the legal provision and its implementation, there is a need to improve the application of the existing provisions and introduce newer provisions in the legal framework. This is important from the medical, public health, human rights, and humanitarian perspectives.

Legalization

This is probably the most complex of the three. While the regulatory agencies cite that legalization of the use of narcotic drugs and psychotropic substances for reasons other than medical and scientific purposes is against the currently agreed upon regulatory framework, there are examples where members signatory to these conventions have drafted local regulations that are not in keeping with the same. Countries such as Canada, Uruguay, and many states in the US have made cannabis use legal. ¹⁶ In fact, as mentioned earlier, India kept bhang out of the purview of the regulatory framework of the NDPS Act. However, the legalization of one or more of the narcotic drugs and psychotropic substances (that is, use for nonmedical and nonscientific purposes) shall require significant amendments to the NDPS Act and shall call for a major policy shift in the country. The limited data on the implications of the current regulatory frameworks in the country and the fact that the previous provisions have never been studied systematically for their impact (desirable as well as undesirable) make it challenging to have informed, data-driven, and evidence-backed answers to the questions around the theme of legalization of narcotic drugs and psychotropic substances in the Indian context. However, the lack of evidence and data from the past cannot be an argument to avoid or delay a discussion on this theme. The experience from other countries and territories on this is valuable but cannot be directly extrapolated to the Indian context. ²⁵

Conclusions

The existing regulatory framework on narcotic drugs and psychotropic substances in India offers ample provisions for their medical use. However, there is limited focus on exploring newer medical indications for the use of these substances. Moreover, there is a need to streamline the procedures further and focus on the existing barriers to address the concerningly restricted availability and use of such medicines and further study of other molecules for various medical conditions. In the context of decriminalization and depenalization, the existing provisions are limited, do not account for the diversity and complexities of patterns of use of these substances, and do not follow the person-first and rights-based approach. Significant amendments can be made to the current provisions while remaining within the existing regulatory framework. These changes could be used to further facilitate use for medical and scientific purposes and create a mechanism to divert those in need of therapeutic and preventive intervention to the appropriate services. Legalizing the use of narcotic drugs and psychotropic substances in the country shall require a significant shift in policy and approach. Such attempts, as and when they happen, should be guided by science (in addition to a multitude of other factors) and must have the interests of the most vulnerable at their core.