The Tug of War Between Criminalization, Decriminalisation/Legalization- Elusive role of Drug Treaties
Mind altering substances may have been around before humans and they show no inclination to leave for the planet Mars, though humans may wish they do. Their place is firmly set in our midst. We could not eradicate them when they were a few (or rather the then identified few) and needed Mother Earth to make their presence felt, it is foolhardy to hope to eradicate them now, when mind altering chemicals are born in labs, and synthetic products are competing successfully with their natural counterparts to be a preferred choice of users.
The Single Convention on Narcotic Drugs 1961 and the subsequent drug conventions (1) offered a conceptual framework for Member States to enforce and address their domestic drug situation, whether it was relevant to their specific reality or not. Since then the media has been getting regular news to cover on the growing aspirations of those who believe one day the world will be free from drugs. Others who believe decriminalization/ legalisation is the only rational way forward have caught the attention of media rather haphazardly. The public preyed upon with diverse perspectives to drug control, remain unclear on who would in the long run give them a respite from war on drugs, for none have stated the basic truth, drugs are here to stay and we have to learn to deal with it.
Drug conventions achieved something very few other conventions could, drug conventions got significant number of Member States to be signatories. While this can be upheld as a positive measure towards strengthening global governance, the question to be asked is what is the legitimacy of a centralized and uniform format for drug polices across Member States and did it attain its stated goal to control drug use through penal sanctions and drug treatment, and will uniform norms lead to a uniformity in drug of choice across Member States and implications of the same.
Have worked in the field of drug use/abuse management from 1989, saw the reality of drug users on the streets, came across ex-users who believe in living one day at a time and who often go through a complete profile change in terms of aspirations as a professional or Being, interacted with children who were exposed to the harshness of abuse at tender age and opted for numbing their senses with the cheapest form of drugs – inhalants, heard the voices of girls/women narrate their interaction with drugs how they found selling sex an easy way to satisfy their goal to get the next shot/snort/smoke. But none asserted nor did their life stories indicate that a single shot/smoke/snort had made them addicted to drugs.
Drugs are incapable of turning anyone an addict without our desire to further the interaction on multiple different instances, it a process where our mind plays a powerful role, far more than drugs; or at least till our body physically craves for the drug. Yet, our emphasis on the role of mind is limited and often ends with the slogan “Just Say, No!, to drugs”. A slogan that was made the centrepiece of drug prevention, decades ago, in the United States, the initiative made popular by Nancy Regan(2) still has a spot in drug prevention and will as long as the inert, immobile, lifeless substance is seen as the villain of our reality, and not our interaction with the drug, whereby it acquires value, status of being coveted for and is considered capable of pulling the strings in our lives against our will. There have been a few stray instances of considering sports or other forms of activities as a way to deal with drugs, but even then the focus was on the standardized format and not our mind, which can be unique and diverse in how it decides to evolve its relationship with drugs.
Later as research guided prevention activities, the focus turned to interactive approach where parents, teacher and others in social network have an important role to play regarding drug use among adolescents and youth. Besides, community interventions with a combined set of activities organized in a specific region or town with participation of residents proved more effective (3). Interestingly India has had community based prevention programs for decades, they have been interactive including community members and youth but its relevance is highly questionable. There is an important difference between preventive programs in India, and what is considered to be apt as per research. Prevention in India focuses on “ drug free community” with no room for manoeuvring other than identifying drug users and offering treatment or putting them in touch with Narcotics Anonymous groups. While prevention programs in places such as Netherlands focuses on: a) increasing knowledge about drugs b) reducing the use of drugs c) delaying the onset of drug use, d) reducing the abuse of drugs, e) minimizing the harm caused by the use of drugs (3 (pg.4). This is very much in line with how drug use was managed within communities in India, prior to Narcotics Drugs and Psychotropic Substances Act, 1985 (4) setting a new frame for control.
The role of our mind in our interaction with drugs is not new, it was very much part of how normalization happened in cultural use of drugs, though it was not the mind but cultural adherence that was focused on. If societies, with limited scope for surveillance, policing, and laws could manage to gain some form of control through the normalization of drugs (5,6), isn’t possible that we could gain something if we focused not on the drug but process of turning a drug user and on our mind.
We have come a long way from traditional societies and drug use within its context, our global programs on criminalization of drugs, have changed the former socio-cultural context of use in cities, rural areas and even in villages where traditional forms of use existed alongside the cultivation of psychoactive plants even in these places the focus now is on the market value of illicit drugs. That has led to a profile change of psychoactive plant growers or it has led to human rights violations of traditional growers often indigenous people. Research has looked at diverse ways in which indigenous groups are displaced, adverse impact on their subsistence activities, being forced to associate with criminal world against their will and the militarization of indigenous people’s land (7). Under the changed dynamics hoping for cultural use management to be the answer for saner interaction with drugs is naive, but what cultural use can offer is insights into the process of normalization and possibility of their relevance or irrelevance in present day reality.
Who is a drug user?
Drug users are caught in a strange situation, whereby a drug user is a criminal and diseased person at the same time; this has turned reality for all drug users across the globe as Member States of United Nations put in place national laws and policies that are in line with the United Nations Single Convention 1961. As per the national law of almost all countries, the purchase of drugs, its possession is a sure proof for one to be classified as a criminal worthy of conviction (8). The only variation comes when countries have taken a stand to specify the drug, state the permitted quantity of the drug the user can possess in a given instance, which is often linked to the type of drug in possession and a rough estimate of user’s daily dose and the total amount needed for a few days or a week (ibid).
There are some contradictions inherent in approach:
In no other instance can an individual be considered to be a criminal and a diseased person at the same instance, especially as both classifications base themselves on a single behaviour of consumption of that very same individual’s interaction with drugs.
When a perpetrator is certified as suffering from some form of mental illness by an expert the legal process can and does exonerate the person from criminal charges or imposes a reduced sentence. Where as with the drug users, the system will upon detection of drugs on a person declare him/her to be criminal and then will seek the cooperation of the user to undergo treatment in return for ignoring this crime (either purchasing, possessing, offering or using the drug). The person is assumed, to to be capable of making the decision and to be willing to be classified as a drug user needing treatment for a specified number of days or rather till the treatment centre feels the treatment/rehabilitation has been successfully completed.
In case of discontinuation of treatment service, the user stands at risk of facing punishment the next time he/she is detected as a drug user and of being then re-classified as a criminal. The system can try imposing a punishment for taking discharge against medical advice or for not being cured. This undeclared negative perception as deliberate criminal abuse gets strengthened by shortfalls in the system, as existing scarcity of beds for drug treatment. It provides system grounds for opting for penal sanction against care.
Drug use is classified as a disease with significant percentage of relapse, though unlike a diabetic a drug user can be held personally accountable and upon relapse, his/her re-entry to drug treatment services can be delayed or made conditional. This rarely happens in case of diabetic. As in case of diabetic, timely access to treatment is relevant, with drug users the readiness basis itself individual free personal choice of opting for treatment. As indicated by research into dynamics of drug treatment “...taking advantage of available services the moment people are ready for treatment is critical. Potential patients can be lost if treatment is not immediately available or readily accessible”(9 (pg.4))
This inherent bias comes of non-users not accepting the drug abuser as one ailing with a disease that has a high rate of relapse. This brings into question, what does drug use is a disease, mean to drug professionals, health care system and governance itself?
Central to governance is the Rule of Law, which refers to the ascendency of law as such and of the institution of the legal system in a system of governance (10). It comprises of principles of formal and procedural character with regard to the way a society is governed. Here some of these principles are considered, as they are relevant within the present context:
Crucial to the relevance of rule of law is its accessibility and integrity of legal procedures. Law should be “epistemically accessible whereby the body of norms promulgated is public knowledge, providing scope for people to study it, internalize it, figure out what it requires of them and use it as a framework for their plans and expectations” (ibid, pg.2.). At the same time legal institutions and their procedures should be available to ordinary people to uphold their rights, settle their disputes and protect them against abuse by public or private persons (ibid).
Even prior to existence of law or concept of rule of law, society functioned based on social norms specific to their reality. Its is ethically, conceptually or even realistically impossible for rule of law to be totally in disconnect with social norms of the given society. This has been considered by some philosophers, who stated rule of law is a working political idea, and is as much as property of ordinary citizens, lawyers, activists, and politicians as of jurists and philosophers who study it (ibid)
For the above to be false, would mean that there is an evolving society governed by static norms or that society itself is static. Social norms are dynamic whether it is in terms of its concepts, implementation or relevance, except for certain fundamental norms that have been fine tuned with time.
It is against this background there are some fundamental issues to focus on with regard to drug laws:
By ensuring the state members of UN signed the Single Convention 1961, the UN ignored the basic requirements under rule of law, and stated through its actions and text that accessibility is irrelevant, and procedural requirements can be ignored,
The state members could not ensure accessibility in retrospect, after being a signatory to Single Convention on Narcotics Drugs,1961, what they could do was to create awareness of changed drug laws and provide some reasons for the same. In case of countries that had cultural use and norms in place, such as India, the most convenient option was to ignore the implications of the new norms till such time as grace period was up. The Article 49 of the treaty had transitional reservations permitting traditional quasi-medical use of opium for 15 years, 25 years for discontinuing any form of use for Coca leaf and Cannabis plant products (1 (pg.63)). These state members to UN continued basically as formerly ignoring the total disregard for rule of law to come on delayed implementation.
requirement also ensured total disregard to the rule of law and implemented law after grace period with minimal focus on creating awareness about changes in domestic drug law.
Narcotics Law and integrity of legal procedures
Narcotic laws were put in place as a total disjoint to the basic requirement of rule of law in most countries, and especially so in case of state members with social norms that provide space for cultural use or regulated use as against ban on all psychoactive substances.
The state members to UN ignored the relevance of accessibility to details of the law when they agreed to put in place national laws in line with Single Convention 1961, and subsequently ignored the need to ensure the integrity of legal procedures under rule of law. The process made less likely the ensured chances of social participation to facilitate the integrity of legal procedures in upholding the law.
Initial focus of drug laws was to designate drug cultivation, drug production, drug trade and drug possession as a crime. This changed trade dynamics and created scope for many trade routes to evolve as criminalisation made drug trade profitable at all levels. This increased the risk of conflict with law enforcers in the trade, changed the profile of those involved in trade, favouring individuals skilled at avoiding the police and at ease when interacting with individuals and groups involved in crime. This was seen in streets of Mumbai (4 (pg.89), logically this could be natural occurrence anywhere as a result of the new drug laws.
Most countries made the implementation of drug laws a concern of law and order and judiciary, the emphasis on health or concept of drug use as a disease gained footing only after vulnerability to HIV among injecting drug users was detected and the scope for spread into general population was accessed.
India was given specific time period (25 years) to get beyond its cultural sanctioned use that existed for centuries and to ensure scope for new laws to overwrite socio-cultural norms with regard to use of cannabis or opium; aware of the dicey situation the Indian government did nothing about it till the grace period was up.
India put in place Narcotic Drugs and Psychotropics Substances Act, 1985 to address the drug problem; with no participatory involvement of the people a draconian law capable of even ensuring death penalty was made a reality (4). Subsequently, due to concerns about HIV spread, some aspects of harm minimization strategies was implemented in select parts of India, especially in those pockets where injecting drug use was significant (11), but emphasis on decriminalization or legalization of cannabis was never on the table for discussion.
With disease model of addiction gaining ground, many countries focused on treatment programs for drug users, and some added on harm minimization strategies for care of drug users. The general programs for drug treatment is almost standard across the globe except for certain differences in the therapeutic intervention model or chemicals used to facilitate detoxification and length of duration of stay.
The treatment programs have not undergone major changes, and their focus on redefining the profile of the user or ex-user continues to play a significant role, the process may include ensuring adherence to treatment, redefining user or ex-users professional ambitions, and intricate management of day-to-day affairs of ex-users; whether this allows space for freedom and autonomy is highly questionable. The scope for freedom and autonomy is probably disappearing given the emphasis of approaches on the power of drug, powerlessness of human mind, and the manner in which work therapy has evolved.
One common format that evolved with regard to care for drug using population is use of contracts or social contracts to ensure programmatic goals are reached and drug users are able to access different treatment options. Often the first arrangement for contract occurs between treatment/rehab agencies and the government and second arrangement (very informal almost as a safeguard for the centre in case something goes wrong) occurs between drug user and treatment/rehab centres. This process of intervention is not smooth, and use of social contracts also raises issues of concerns, use contracts exists not just for drug use/abuse management but also for many welfare activities and it is becoming common across the world (12). Use of contracts is not uncommon in UK(13) and US (14) Within India for drug addiction treatment formal contractual forms that are standardised are used between drug agencies and government, and between drug agencies and drug users (15).
Management of Drug Abuse and role of Contracts/Agreement:
Prior to international multilateral drug control initiatives, drug control was largely related to trade and the same enforced by domestic laws. In certain instances countries entered into agreements to control drug trade. It is through treatises (Single Convention on Narcotic Drugs of 1961 as amended by the 1971 protocol, Convention on Psychotropic Substances of 1971, and United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988) drug control became a uniform global reality as United Nation got most Member States to become signatories to Single Convention on Narcotic Drugs of 1961 and the other treaties that followed. This set in a three tier approach to control drug trade and use situation at the international, national and community level.
Unlike previous efforts at drug control, this approach was able to change all extant controls as the evolved cultural and socio-cultural forms of drug use or drug abuse management. For the Article 33 (Possession of Drugs) of Single Convention on Narcotic Drugs 1961 as amended by 1971 protocol, made possession of drugs itself a crime, irrespective of the quantity involved, by stating “The Parties shall not permit the possession of drugs except under legal authority” (1 (pg.53)). Here Parties are the Member States to Drug Conventions of UN.
By making possession itself a crime, it changed the trade and sale dynamics of drugs, it increased street price of the drugs and at the same time made drug trade, sale, couriering far more risky and lucrative. While earlier countries focused on specific drugs based on local realities, Single Convention 1961 made possession of any form of drug a crime, and the list of drugs kept increasing and at present there are 250 Scheduled Substances. To transfer this new norms to society at large, it ensured countries changed their domestic laws and put in place programmes and interventions to strengthen the new approach to drug use/ abuse management.
There is a tendency to blame domestic laws for non-availability of scheduled drugs for medical purposes (16), but there is more to that than just stocking scheduled substances for legitimate purposes. For creation of scheduled drugs was not just a measure to control drugs at domestic it also offered in roads to control the entire trade of schedule substances, and under which precursors fall and these have varied industrial uses (17 (pg.60)) and not just illicit use for producing illicit drugs the conventions sought to control. Since it is not possible to partially ensure the procedural requirements of the conventions for Scheduled Substances, Member States may have taken their own measures to get over the situation, probably ensuring scarcity of substances that can be abused.
The crux of the shift towards new drug control norms, across member states irrespective of their historical, cultural or socio-cultural use management was through Article 33 (1 (pg.53)) on Drug Possessions, Article 35 (ibid pg.54)on Action against illicit traffic, Article 36 (ibid) on Penal provisions, and Article 38 (ibid pg.57) on Measures against Abuse of drugs.
Treaty and Its Interpretation
According to Vienna Convention on the Law of Treaties 1969, “Treaty means an international agreement conducted between states in written form and governed by International Law, whether embodied in a single instrument or in two or more related instruments...” (9 (pg.3)).
With regard to interpretation of treaty it further states under Section-3 Interpretation of Treaties, Article 31 General Rules of Interpretation, “A treaty shall be interpreted in good faith in accordance with ordinary meaning to be given to the term of the treaty in their context and in light of its object and purpose” (ibid (pg.12))
Here the interpretation of treaty uses textualism as in “good faith” where the meaning of text trump over all else and is considered to be honest and fair without attempt to destroy right of the other party.
We will focus on contextualism, as in the prior knowledge, norms that exist within reality of Member States will be considered along with various articles of the treaties that shape the framework for drug control to ensure use and sale is restricted to scientific and medical requirement.
To remain objective we consider the basic requisite for ensuring procedural compliance is addressed, for which existing policy, procedural process, institutional resources, human resource and administrative limitation of judicial system would be considered.
Towards attaining the overall goal the treaty directs the Member States to set in place domestic law or modify existing domestic law as to carry out or achieve, the general obligations as given under Article 4 of Single Convention on Narcotics Drugs of 1961 as amended by the 1971 Protocol. According to Article 4 (c) “...to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution, trade in, use and possession of drugs” (1 (pg.30)).
Relevant Articles are referred to below :
1. Article 33 – Drug Possession
The Parties shall not permit the possession of drugs except under legal authority
2. Article 36 – Penal Provisions (a)
Subject to its constitutional limitations, each party shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, delivery, dispatch... shall be punishable offences when committed intentionally, and that serious offences shall be liable to adequate punishment particularly by imprisonment or other penalities for deprivation of liberty.
3. Article 38 Measures against abuse of drugs
Article 38 (1) “The Parties shall give special attention to and take all practicable measures for the prevention of abuse of drugs and for the early identification, treatment, education, after-care, rehabilitation, and social reintegration of persons involved and shall coordinate their effects towards these ends”.
Article 38 (2) shall as far as possible promote the training of personnel in the treatment, after-care, rehabilitation, social-integration of abusers of drugs.
4. Article 39 (1.(pg.57)) Application of stricter national control measures than those required by this convention.
“Not withstanding anything contained in this Convention, a Party shall not be or be deemed to be, precluded from adopting measures of control more strict or severe than those provided by this convention...”
As per Resolution III Social Condition and protection against drug addiction as in Resolutions adopted by the United Nations Conference to consider amendments to the Single Convention on Narcotics Drugs, 1961.
“Recalling that the Preamble of the Single Convention on Narcotic Drugs, 1961, states that the Parties to the Convention are “concerned with the health and welfare of mankind” and are “conscious of their duty to prevent and combat drugs” (1 (pg.20)).
If the treaties for the control of drugs sought to achieve the above goal to prevent and combat drug addiction a social evil then the treaty can be found to be void. A formal agreement can be found to be void if it is illegitimate and unenforceable from the moment it is created. The Single Convention 1961 is not just a legal document, it is a legal document that bases itself on a conceptual framework for carrying out actions that can bring social change for betterment of humanity. In the absence of a possibility of positive change through conceived conceptual framework and related action, the relevance of the document itself comes into question. Documents on social context at the time of conceptualization of the The Single Convention for Narcotic Drugs 1961 and later provide adequate reliable information to indicate that Penal sanctions can not bring about positive change and the impact of treatment initiative on social reality of drug use/abuse at the best is limited.
At the worst it leads to human rights violation in the name of creating a drug free society, this is seen in case of death penalities for repeated arrest under domestic laws (often individuals who are drug user cum petty peddles), creating and strengthening space of marginalization and alienation of drug user in the process changing his/her life totally, condoning violation by drug treatment centres who in their ignorance or otherwise opt for inhumane detoxification methods. The UN is especially culpable to this violation as it recommends penal action for use and possession and further asserts that Member States are free to take stronger action, anything to get to drug free society. This freedom to Member States has been given through Article 39 of the treaty. Besides, in spite of the growing data indicating the irrelevance of the treaty in controlling drug situation, limited effort was made for a critical review of the irrelevance of treaties in managing drug problem.
It is also possible for Member States to invalidate their consent based on Error. According to Vienna Convention on Law of Treaties, as per Section 2- Invalidity of Treaties under Article 48- Error “ A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty” (9 (pg17)).
For as per treaties for drug control, the framework for preventing and combating drug addiction is through Penal Provisions and Treatment for drug addiction. There is either an error in understanding of drug addiction among the signatories or those who drafted the treaty or there could be negligent misrepresentation.
While issues with Single Convention on Narcotics Drugs 1961 was obvious from start and became difficult hide even prior, UN continued to draft treaties and held member states accountable to be signatories by default based on the terms and condition of treaty Single Convention on Narcotic Drugs 1961. Thus the amended to Single Convention on Narcotic Drugs 1961 was done in 1972 and Conventions on Psychotropic Substances in 1971 and Convention against Illicit Traffic in Narcotics Drugs and Psychotropic Substances of 1988, all this was done without any debate on the issues raised in above paragraphs and the relevant literature was available for anyone to critically review provisions of the treaty. Review of literature do indicate error with regard to framing of the treaty there fore could be grounds to invalidate the treaty or consider it void. There also base for considering misrepresentation or negligent misrepresentation as a ground for invalidating the treaty or considering it void.
A treaty is governed by International Law, which needs to be in line with rule of law. But, the drug control treaties do not consider the need to address procedural principles and lack concern about the process by which these norms, as per new drug laws can be administered by the Member States.
There is an error in framing and assessment of procedural requirement or procedural defects or negligent misrepresentation of the requirements to carry out the plan as per the contract. Misrepresentation is a false statement of material fact made by one party which affects the other party’s decision in agreeing to the contract (18). Here it would mean misrepresentation which would be regarding requirement for program completion, which affects the decision of the member state to join the treaty. Within the Indian context, this treaty, agreement, can be considered void because of negligent misrepresentation (19), which is misrepresentation without the intent to commit fraud.
Another instance of considering the treaty void would be “Recession” as there is material error in the treaty.
Error or Misrepresentation that happened?
Towards the overall goal of preventing and restricting drugs use and trade only to scientific and medical purposes the treaty sought to put in place domestic drug laws that are punitive in nature which made drug users vulnerable to punishment for possessing drug, consuming it or offering it. Since the focus of preventing drug trade and use include efforts at early identification of drug users, meant significant number of individuals could be put behind bars with the hope that they would be scared to think twice about using again. Thus the prison population would increase and slowly it would create a positive dent on drug use. But as punitive action has never stopped crime, what was conceived and drafted in good faith as part of treaty was riddled with errors and misrepresentation:
Interesting option of Denunciation- a Provision within the Treaty
According article 46 of Single Convention (1 pg.61) there is a provision as per which “any Party may, on its own behalf or on behalf of territory... , denounce this Convention by an instrument in writing deposited with the Secretary-General”. This has to be done after expiry of two years of enforcing regulations in line with Single Convention. It is interesting that the legal wisdom should consider this provision for:
a) Member States within its various political and governance dynamics, decided to take the tough call to change domestic laws without adequate respect for rule of law.
b) It changes its Judicial system, makes administrative changes in various aspects of governance across the country, often requiring changes made at regional level.
c) Changes funding allocation and prioritisation
d) Changes the political dialogue and makes effort to change ruling party profile based on this changed publicised political dialogue
e) Opting for change would be waste of time, resource, human resource and infrastructure; and can certainly considered to be governance failure by citizens.
f) The question is which political party would be willing to take such a political suicidal call of
changing policy after two years, especially on an issue regarding health policy that has implication beyond health- on moral issues, economics, and has immense emotional weight-age as it affects future generation.
What happened with Punitive Approach to drug control
The prisons got overcrowded and many countries saw their rate of occupancy increase well beyond 100 percent occupancy. As per prison statistics (2021) for around 118 countries occupancy is well over 100 percent and in 11 countries it is beyond 250%. Among the 11 million who are in prison across the globe, 2.5 million are imprisoned for drug related offences, and of which 22 percent (470,000) are sentenced for drug possession for personal use. Besides, of those estimated 1.6 million convicted of drug offences, 54% are convicted for possession for personal use (20 (pg.11 and pg.15)).
Over crowding of prisons is not a new reality it was the state of affairs in US in 1970s when President Nixon was in power, who wanted to portray a tough stand on drugs with the slogan, “War on Drugs”. He wanted to control anti-war and strengthen anti-black sentiments towards this he used drug policy, as part of strategy he temporarily placed marijuana in Schedule One, the most restrictive category of drugs (21).
After President Richard Nixon’s War on Drugs, the number of individuals incarcerated in American jails and prisons escalated from 300,000 to 2.3 million. Half of those in federal prison are incarcerated for a drug offence, and two-thirds of those in prison for drug offences were people of colour (22)
The war on drugs approach found a great supporter in President Ronald Regan, for there was massive increase in incarceration for non-violent drug offences, from 50,000 in 1980’s to 400,000 in 1997 (23)
Things took a different turn under President Ronald Regan who continued the tough stand on drugs and through Comprehensive Crime Control Act 1984, expanded the penalities for possession of cannabis and put in place 29 mandatory minimum sentences for drug offences, a drastic measure considering the fact till then the country had seen only seen 55 minimum sentences in its entire history (24)
Drug laws rarely emerged solely for control of psychoactive substances, but rather proved an interesting tool for assured biased governance for the enforcement of mandatory minimum sentences varied based on type of drug consumed, “possession of five grams of crack led to an automatic five year sentence, while it took the possession of 500 grams of powder cocaine to trigger the five year sentence” (ibid).
Subsequent studies have indicated that there is no link between imprisonment and reduction in drug problems (25). It was found that for three important measures of drug problems -self reported drug use (excluding marijuana), drug arrest and overdose death, had no statistically significant relationship with imprisonment for drugs. Specifically, higher rates of drug imprisonment did not translate into lower rates of drug use, arrests or overdose deaths.
In case of India, it has clear ground to consider the treaty as void, for the grace period given to given was up only in 1986 but India had to put in place national drug laws as per Single Convention on Narcotic Drugs 1961, which it did through Narcotics Drugs and Psychotropic Substances Act 1985. The drug law that subsequently criminalized cultural and socio-cultural norms of control, increased the scope for drug trade through its lucrative value and made possession of drugs, inclusive of cannabis, a crime for all users. In addition there was threat of death penalty in case of repeated offences (4 (pg. )) where arrest could be for very small quantity which could be considered amount for personal use (ibid) and desire to show law and order was working ensured many poor drug users languished in jail as under trail for decades without any legal aid (26)
Treatment seeking an evasive cure
As per the treaties and national laws access to treatment is ensured either as an option in itself or compulsory alternative for avoiding penal sanctions (it varies across countries) or offered along with penal punishment. Like penal sanctions, there is error in framing the treaty as aspects relevant for treatment and rehabilitation of drug users could not be and cannot be ensured by almost all Member States to the UN.
When considering treatment of drugs users, there seem to be a disjoint in considering the health system as based on how it has evolved or what WHO states on the same. Health system includes all activities that focus on promoting, restoring and maintaining health. It is a complex system that contributes to health in homes, educational institutes, workplace, public spaces and communities. Organized at various level, its reach, focus and complexity varies. At the peripheral level the focus is at primary health care (or care at community level), then intermediate (district, regional or provincial level) and central level. As the services move toward central level, the provision is for specialized care for complex cases that can not be addressed by services at the intermediate level. Often provision of services, led to inter-sectoral action where sectors collaborate for achievement of common goal, another initiative that happens is multi-sectoral action where different sectors contribute towards shared goals (27 (pg4))
According to WHO health system comprises of all organizations, institutions, and resources that are directed to producing health activities. Traditional health care services are important part of health system, especially in developing countries and in rural areas, and could be managing around 70% to 90% of all sickness. In addition to traditional health care, there also exists self care which may involve medication whether prescribed by a provider or not. Health care service provided through health system is wholistic focusing on prevention, curative, rehabilitative and palliative care (ibid).
Within in the context of drug use/abuse management, an important aspect to consider from health system is self care or non-professional care. “Self care implies largely unorganized health activities and health related decision making carried out by individuals, families, neighbours, friends and workmates. These includes the maintenance of health, prevention of disease, self-medication and self applied follow up care and social support to the sick and weak members of family before and after contact with health services”(ibid pg.7.).
Health care of drug users within cultural or socio-cultural use had its mechanisms of control at the community or self-care level, was not static or uniform, for it evolved based on the individual or immediate family or social network; and individual did regulate his quantity of consumption, frequency, substance used, potency of the substance, occasions for use, place and setting for consumption. These were done through social norms and informal regulations outside the control of law and it happened in an open manner and on continuous basis (4,5)
With drug laws being passed in line with United Nations Convention meant on detection it was law and order and judiciary that took charge instead of self care and community and the interaction which shifted to either intermediate level or often to separate institutional services that had been created specifically to address concerns of drug using population. It would not be possible for drug treatment to evolve as part of health care system because of scarcity of hospital beds and human resource, added to which the drug users often did not behave as regular users who came on their own initiative to get treated or cured.
According to WHO the no: of bed required per 1000 population is 5, but that is not a reality in many countries. The fact that is not a reality many countries in Europe (at least prior to the pandemic) is an indication of state of affairs of other countries, in United States it is 2.77, in United Kingdom 2.54 and Canada it is 2.52 (28)
When considering other aspects relevant for drug use management, such as prevalence rate of opiate use and the given country population the limitation becomes very stark, Afghanistan with a prevalence rate of 2.65, the no: of beds per 1000 is the 0.4, Iran prevalence rate of 3.31 and 1.6 beds per 1000, and for U.S the prevalence rate is 1.04 (29). When considering the prevalence rate of India and China it is low at 0.4 and 0.2 respectively but when population is consider the number of opiate users is significant. Their hospital bed strength is inadequate to deal with the situation, it stood at 0.53 for India and 4.31 for China (30). This would mean in many countries even if the existing care institutions were capable and willing to admits drug users, the facilities would fall short.
Since drug abuse/use management occurred outside community setting with passing of domestic laws in line with UN treatises, it led to creation of additional institutional settings for specialized care of drug user, the treatment varying from out-patient care, detoxification, treatment (often includes detoxification along with starting of community support care) and rehabilitation. Within each country use/abuse management evolved, with some assuming attaining drug free society required drug users knew what withdrawals meant. Probably done in “good faith” similar to UN’s belief that imprisonment will change the drug users interaction with mind altering substances.
UN and other agencies did not make strong protests against human rights violation of drug users, based on treatment procedures and imprisonment realities, that’s because they had their hands tied down. For it is the UN that created a direct link between drug use, offering, consumption and imprisonment. Besides through its Article 39 on Application of stricter national control measures than those required by this Convention (9 ), UN has already given the freedom for Member States to opt for stricter or severe measures, and as Article 39 occurs after Article 38 which deals with Measures against abuse of drugs, measures referred to in Article 39 adopted by Member States, could be in the area of penal sanctions or treatment.
While there are recent studies that question the relevance of penal sanction for drug users, even earlier it is clear UN ignored the limitation of drug laws. This is especially true in case of countries like India, which had an evolved cultural mechanism for controlling drug use/abuse within a specific group or community, UN did not mention theses realities to India prior to it having to ratify the Single Convention on Narcotic Drugs 1961 after its grace period was to be completed in 1986. This is an instance of clear Error or continued negligent misrepresentation of reality.
In continuation of dependence on agreement to get tasks done, treatment centres irrespective of their treatment method of choice, get into contractual agreement and these can be considered to be contractual agreement or quasi agreement (given the format), these are often written and signed at a juncture when drug users have limited options be it because of threat of arrest or as the addiction had disturbed his/her life. Use of contractual agreement in drug treatment has been studied by others, and they have pointed how there exists a power dynamics with treatment centre having an upper hand, at the time of entry whether individual was sort of forced into treatment in lieu of avoiding arrest or sought treatment as an independent free choice, users state at the time of entry they are willing to agree to anything, so any document be it rules of conduct or agreement to treatment methods and programs of centre, or consent for drug testing. The research further explored how “ a complex ‘web of control’ combining diverse forms of power and control techniques was used to steer action and shape behaviour outcomes” (31 (pg.403)).
The focus through different strategies, day-to-day activities, control techniques, diversity in interaction with service users based on drug workers discretion or belief and experience about what works and what does not, all aim for a drug free life or one of maintenance. The goal of the staff is that of the centre which is to facilitate drug free or functional existence as per service users desire or often what the system demands of the centre.
This desire for a manageable program that lead to functional and/or drug free individuals slowly influences or water down the goal of the drug users right to treatment. The fact that drug treatments centres are inadequate and relapse rate is high, had the centres in India slowly become choosy about their clients. This is a reality reflected in national data and my personal own experience (across centres as part of research and monitoring and evaluation), drug treatments centres prefer alcoholics (those without health complication), drug users who are functional, or have a family or relatives to vouch for, and who are receptive to being programmed as part of drug program initiatives. The focus is the smooth functioning of the health system and governance from central machinery to the drug treatment centre. In India, this is made blatantly clear through Declaration cum Indemnity form signed by the users, as per drug treatment centre and Central Government requirement. As per the form used at the drug treatment centre and which is standardized according to central government format, the Annex 2.17 (32(pg.66)) Declaration cum indemnity form,
item no :4. I agree to indemnify and absolve the treatment centre from the following situations:
a) Sustaining injury/fatal or otherwise while trying to escape from centre/trying to procure drugs.
b) Attempting to commit suicide
c) During withdrawal, leading to DT and becoming, violent and suicidal
e) Developing unexpected side effects or rare complications while taking medicines for withdrawal/ depression/ psychiatric problems/ opportunistic infections due to HIV.
The basic question regarding the form above is whether the form is legal and how on earth an illiterate, semi-literate, school drop out or even educated individual can know about side effects of medications used and if they are not aware how can they give consent. With such a contract in place how does one collect data on abuse faced but service users for effective action. This is clear illustration of systemic way in which violation against drug users is condoned and sustained, probably for ease of management.
Beyond Penal Sanctions Normalization the only option forward
It time for a reality check and to acknowledge that its impossible to have a drug free world but it is possible to look ways and means of regulating use, while differentiating drugs based on local realities. It is difficult to come up with a uniform solution at the global level but it is possible to provide space within governance through different legal and administrative measures see how new social norms evolve. According to Michel Foucault Normalization is way of attaining high level of control with minimal expenditure, where there is an optimal model (e.g. for human behaviour) and operation of disciplinary normalization consists in trying to get people, movements and actions to confirm to this optimal model (33). Individuals seeking to see a drug free world would want to have a world where normalization works in line with the optimal model -Towards drug free society. But this is difficult within any community setting or anywhere in real world where optimal model is not acceptable to all and where the dynamics of banned products add to live dynamics of other interactive process and together contribute towards making optimal model viable. If space is provided for diversity of goals to exists and drug use and consumption is not criminalized there is scope for evolving a process of normalization to shape a viable optimal model.
Sweden has opted for strict control over drugs and aims for a drug free society, the greater instances of overdose death among drug user has not deterred them from their punitive approach, they believe in surveillance where by testing body fluids can be enforced and emphasis is on health care (34,35). The focus on detection and legal action against drug users is indicated from data, for in 2017 as per details on drug law offences 91,284 were held for drug offence related to possession and use, where 9163 cases were related to supply. The country’s focus on detection is evident from it participation in Europe -wide annual wastewater campaign under taken by Sewage Analysis Core Group Europe (SCORE). The study provides data on drug use at the municipal level, based on the levels of illicit drugs and their metabolites found in wastewater, the data is used to complement results of population surveys (35(pg.5)).
Under this initiative there is option for harm minimization efforts without any sites being designated for use, as the focus is to restrict spread of HIV and other infections among injecting drug users and from drug users to general population. Focus on drug journey of an individual and pathways for being functional or drug free is not the priority, for the goal to be drug free is already set for the individual and there is no room for diverting from that. There are recent studies that question Swedish drug policy and its emphasis on drug free community at the cost of ignoring collateral harm punitive drug policy impact on drug users directly or indirectly (36).
Sweden, has the advantage of resources allocated for health and support (welfare inclusive of economic activities), support provided as part of intervention include help with housing, social interventions and employment, and this is something very few countries have the privilege to replicate (35). But given the extent of use of amphetamines in Sweden and scope for digital reality making in roads into drug trade, the present penal approach may turn inadequate for it leaves users out of loop or only wants their unquestioning obedience and this may turn restrictive and limiting for positive change.
Presence of community norms that has evolved through the years do set guidelines for use, be it regarding choice of drug, frequency of use, context for use, methods of use, creating links between use and social context of use it could be religious, social, an occasion for celebration, individual use for medical reasons, mixing the drug with number of other every day ingredient to create drink or snacks, having a format for socialising while consuming the drug, making consumption a group activity and in the process regulating it as the focus is rarely just the drug. Basically there evolves a body of knowledge regarding use and its regulation, in variably there would be knowledge about how to address over use or addictive behaviour and based on the individual reality it would vary from regulating quantity of consumption or to using doda pani to get beyond withdrawal and slowly wean self off opium (5 pg).
Within the present context an attempt at normalization would require some basic aspects in place:
locations where use is permitted (with regulations or not), this may involve identifying favourite spots of drug users, as it must have probably happened in case of coffee shops in Netherlands, for it was meant for known contacts or friends.
Logistics would be important as would the need for users to feel comfortable
Decision regarding which drug consumption would be permitted and quantity allowed.
While law and order may be the option for reality check, it would be more in line with process of normalization to have the groups evolve reality check along with individuals they are comfortable with.
Find out ways to ensure drug is not the sole focus, based on profile of users is it possible conceive activities that can be facilitated to evolve.
This form of synthetically evolved community or group setting for use is noted in case of use of hallucinogens, but the point to be remember that when drug use occurs in a cultural context, it has many rituals around it and it would mean the entire group or community becomes part of the journey and this is partly possible because all of them have a shared world view, but that would be absent in synthetically evolved community or group setting as would presence of individuals to regulate use even when outside the setting for use. There is absence of shared symbols which can play is role in regulating use, but these are difficult to synthetically create especially among group members that do not have much in common outside setting of use. There is also need for ethical caution, when one uses the plant wisdom evolved through centuries from another culture, modifying it adapting it for scientific world view that can be marketed. For is it actually possible that community right over knowledge evolved is overlooked, where copy right is ignored, and it is not just money, for suppose the scientific view is marketed and gets more popularity, it is possible it may have an inverse adverse effect on the very cultural belief that gave birth to such a possibility. These are issues of concern.
Probably it is time for UN and Member States to do a reality check, especially before virtual reality begins to have stronger say in substance used, traded, sold, especially if the substance can masque as medicinal product based on physical characteristics and chemical composition.
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