Hira Singh, a missed opportunity
A reflection on the judicial attitude towards drugs in India and Canada
A topic that is all the rage in the Indian media at the moment is “drugs”. Needless to say, the problem is not unique to India but is rather universal. The following are some of my observations and views on the current case law, recent judgements and judicial trends in India and Canada.
A comparative look at other Common Law jurisdictions is perhaps, not only a good idea to gain some outside perspective on the issue but has indeed been relied upon recently in the Supreme Court of India while deciding its watershed decision in Hira Singh and Another Vs Union of India and Another. The Supreme Court of India in this case considered, on espousal by the Additional Solicitor General of India, the US Supreme Court judgment in Chapman v. United States 1991 500 US 453 while considering an extremely vital question of interpretation and law, that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance(s), for the purpose of imposition of punishment should only the content of the narcotic drug or psychotropic substance be taken into consideration or should the whole mixture or “preparation” along with the neutral substance (“street weight” or “carrier” as in the US SC case quoted above) be considered. Reference was also made by the appellants to a judgment by the Supreme Court of Bangladesh which took a view opposite to that of the US Supreme Court in holding that actual and real quantity of the narcotics in question be ascertained accurately and the law interpreted carefully and strictly. (Md. Jaffar Alam v. The State, Criminal Misc. Case №37461 of 2011)
In deciding this question, the Supreme Court of India set aside its own judgment in E Michael Raj, the precedential value of which had been bitterly disputed in the various High Courts of India and held that the entire substance, along with the neutral substance or carrier would be considered while awarding sentences. On the face of it, it seems that this decision would add further severity to drug possession and make the law much stricter, carrying a higher punishment even when the actual drug content may be quite low seen on its own. The same is not quite true, as the Supreme Court of India far from laying down the law was simply deciding on an interpretive issue and that of the validity of a Notification by the Government of India in 2009.
Having said that, this decision takes the Indian judicial thought process quite in the opposite direction to that in another Common Law jurisdiction, Canada, where not only have top officials such as Canadian Association of Chiefs of Police, B.C. Premier John Horgan, Canada’s Chief Public Health Officer Dr. Theresa Tam and many of her provincial counterparts like B.C. Provincial Health Officer Dr. Bonnie Henry and B.C. Mental Health and Addictions Minister Judy Darcy been calling on the Federal Government to decriminalise the possession of drugs, recently the Chief Justice of Ontario Justice George Strathy said in a speech that there is increasing recognition that society needs to reconsider how it defines crime and whether some drug offences should no longer be prosecuted. The reason being that these are more of public health issues rather than simply being crimes. The soaring number of opioid related deaths in Canada in the recent months have prompted all these calls for decriminalisation. It stems from the understanding that by criminalising end users, the only effect is that end users are deterred from seeking any help and end up endangering their lives with unsafe practices and drugs.
The In-site Clinic Case
A Mention may be made here very briefly of British Columbia’s “Insite Clinic” case wherein the Supreme Court of Canada held that the supervised drug consumption facility should be granted exemption by the Minister of Health under Controlled Drugs and Substances Act. “Insite saves lives. Its benefits have been proven. There has been no discernible negative impact on the public safety and health objectives of Canada during its eight years of operation” the Court had stated.
The Controlled Drugs and Substances Act passed in 1996, while lowering maximum sentences for possession of small quantities of Schedule VIII drugs to six months of imprisonment and or a fine of up-to $1000, increased the punishment for illicit trafficking of Schedule I and II drugs to a maximum of life imprisonment.
While Toronto’s “Drug Court” started in 1998 with an aim to rehabilitate convicts from prisons to treatment programs has met with modest success in the past, what has turned Canada’s drug problem around has been the 2018 decriminalisation of Cannabis. The best way to describe the purpose and the goal would be to quote verbatim — The Cannabis Act aims to accomplish 3 goals; keep cannabis out of the hands of youth, keep profits out of the pockets of criminals, and protect public health and safety by allowing adults access to legal cannabis.
While Prime Minister Trudeau has stated that he would not back decriminalisation of drug possession as the same is not a silver bullet solution to the problem, he does acknowledge that the opioid issue was much more a health issue than a justice issue and that Ottawa’s efforts are to ensure a safe supply of opioids. This somewhat uniform awareness of drug “consumption” being a public health, rather than a criminal justice issue is what sets apart Canada from India’s current legal and political discourse on the issue.
This is not to say that the idea is wholly absent from India’s legal thought. In 2001 certain amendments were made to the NDPS Act to rationalise punishments for addicts and less serious offenders and increase them for more serious offenders. Section 27 of the NDPS Act (as amended) mandates a lighter punishment for only “consumption”, possession of small quantities having been removed from this section. Furthermore, there is even an exemption from prosecution available under Section 64A for those “addicts” who have been caught with “small quantities” and agree to undergo, and complete drug de-addiction at an authorised facility.
Unfortunately, while this provision forms a part of the rule book, it seems to be almost entirely absent from social and judicial discourse as the emphasis seems to be on witch-hunting and punishing rather than looking at the matter, at least for end users of “small quantities” as a public health issue and addressing the problem from that nuanced position.
Chapman v. United States
Returning to the Hira Singh Judgment of the Supreme Court of India, while the Chapman v. United States decision was approvingly quoted in the said judgment, the subsequent issues created by that decision were neither brought to the attention of the court nor did the court seek to look into the aftermath of decision made as long ago as 1991. The gapping issue of misplaced leniency created by the Chapman decision, wherein those indulging in the trade of thousands of doses of pure LSD, in quantities which could be classified as “small” in India would receive the minimum sentence whereas as someone who conducted even one trade of LSD through blotted paper (mixture) would end up receiving the mandatory 10-year sentence even though the actual quantity of LSD would be miniscule. This misplaced emphasis on “total weight” is what produces this rather absurd outcome.
The issue before the US Supreme Court was one of interpretation. While the Supreme Court of India’s stated purpose too was purely resolving an interpretive issue, the Court India has historically been a champion of people’s rights and most of these progressive judgments are a result of the interpretation of existing statutes. With all the interpretive tools available to the highest Court of the land such as reading in, reading down and reading out, the Court chose to not even refer the glaring issue of a highly impotent mixture or preparation with much less than small quantity of a drug substance getting a punishment set out for a “commercial quantity” while someone caught with just under the “small quantity” limit but much higher than the “pure substance” in the mixture referred above getting off easy.
The law here was an exception to the usual principles of criminal law, with high minimum sentences, reversed onus of proof and very difficult bail conditions. All this required the court to take an approach which would resolve the mess that question before it presented, one of misplaced leniency. Far from that, there is not even an acknowledgement of this possibility. The judges should have cleared the mess when they saw one instead of instead of treating it as a matter for the legislature or someone else to fix.
While the Court discussed principles of judicial interpretation in detail and purportedly simply interpreted the clearest meaning of the legislative stipulations in questions, the entire strength and core judicial basis of the judgments seems to flounder as we reach the culmination of the judgment where, having quoted no scientific, legal or statistical sources for the court’s many observations on the use of “neutral substances”, “street drugs” etcetera, the court in paragraph 8.5 suddenly seems to base its opinion or rather non judicial principles. While speaking of “addicts” in the same breath as the “mafia”, the judgment takes on an almost flag waving tenor in making references to drugs “weakening the nation”. While the court further states that “Therefore, the Courts will have to safeguard the life and liberty of the innocent persons”, it in fact completely evaded answering the obvious question of misplaced severity.
In an attempt to achieve interpretive and linguistic precision, while purporting to take a severely Positivistic approach, the court made the same choices at the US Supreme Court, wherein LSD soaked in paper was considered the “ordinary usage” of “mixture”. Perhaps a look at the aforementioned Bangladesh Case would have offered some guidance wherein the Supreme Court of Bangladesh was extremely cautious in differentiating between the narcotic substance which was to be considered for conviction and sentencing and the neutral-carrier substance which ought not to be lumped together with the actual offending material. While resolving one question, the Supreme Court of India has left many unacknowledged and unanswered.
