There is barely any community on the
planet that does not struggle with the issue of criminality. For a long time,
people have accepted criminal behavior as a natural occurrence. Even if all of
the members of a community possessed ideal characteristics, there would still
be instances of people breaking the rules that govern that society. In terms of
facts, criminal activity is a persistent phenomena that adapts to the shifting
social landscape. Conflicts, which finally lead to the occurrence of criminal
activity, are stoked by the fact that various social groupings in a society
have disparate interests, which are frequently incompatible with one another.
The purpose of the system of criminal justice is to safeguard society from
criminals by enforcing the penal laws that are currently in place against those
who commit crimes.
Therefore, punishment has been
considered a method for reducing the incidence of criminal behaviour, either by
discouraging the potential offenders, by incapacitating the offenders and
preventing them from repeating the offence, or by rehabilitating the offenders
into law-abiding citizens. All of these are possible outcomes of the
application of punishment. Criminalization refers to the practice of applying
punishment strategies to actions that are considered anti-social. The issue of
overcriminalization is currently one of the most significant difficulties that
are faced by the criminal justice systems across the world.
Decriminalization:
Decriminalization is the removal of criminal
penalties for drug law violations (usually possession for personal use). There
has not been a discernible rise in the amount of drug usage, drug-related
damage, or drug-related crime among nations that have implemented less harsh
policies against drug possession in comparison to those that have adopted more
punishing policies. For instance, a study conducted by the World Health Organization discovered that the United States
had the highest lifetime drug usage rates by a significant margin, despite its
severe policies. The researchers came to the conclusion that decriminalization
has little or no influence on the rates of use.
According to the findings of several studies in the USA,
those who are given harsher punishments are more likely to commit other crimes
in the future. As per a review of over fifty studies that began in 1958, the
rate of recidivism was higher for criminals who were
sentenced to terms of more than 30 months on average than it was for convicts
who got terms of less than 12.9 months. In contrast to sentences that are
shorter, those that are longer don't seem to have much of a special deterrence
to them. According to the findings of the research, repeat offenders are more
likely to receive shorter sentences, but they do not become less likely over
longer sentences.
Only when criminals are aware that
they will be caught and punished for breaching the law are they likely to refrain
from committing such offences. To put it another way, there is no connection
between lower crime rates and the severity of punishment, regardless of how
definite it is that the offender will receive that level of punishment. If a
criminal does not anticipate being apprehended, then the severity of the
punishment has no influence on whether or not they will be found guilty of
their crime.
The reality of drug use in the
jurisdiction in which the decriminalization of drug possession using
maximum-quantity thresholds is being implemented should coincide with these
thresholds. For instance, if the threshold limit is set too low, the policy may
not have any effect at all; alternatively, it may result in an increase in the
number of incarcerations or the amount of time spent behind bars. The expansion
of harm reduction and treatment activities, including as medication-assisted
therapy, should be accompanied by decriminalization efforts to ensure the most
positive outcomes.
NDPS and Criminalization
The Indian government initially
passed the Narcotic and
Psychotropic Substances Act (NDPS) in 1985. Since then, the law has
been amended three times: in 1989, 2001, and most recently (2014). In India,
people who trade narcotics will be subject to severe punishments, while drug
users will be offered rehabilitation services. It is prohibited to produce,
cultivate, sell, purchase, import, export, and consume narcotics, psychotropic
substances, and any derivatives of those substances. This is done as part of an
attempt to combat the international trafficking of drugs and the abuse of
drugs.
The NDPS Act, once it became public
knowledge, advocated heavy
punishments
for the trafficking of drugs while also expanding its ability to enforce
international treaties to which India is a signatory and to direct psychoactive
substances. The NDPS is mostly corrective in nature, serving to control the
pharmaceutical industry. Initially, the Act did not prohibit the use of the
death penalty as a form of punishment. As a result of staunch activism, the
death penalty was replaced in the amendment that was passed in 2014 with a
punishment of jail for a period of thirty years.
In order to improve upon the NDPS
Act, which had been in effect since 1977, the Prevention of Illicit Trafficking
in Narcotic Drugs and Psychotropic Substances Act was passed into law in 1988.
A significant component of the legislation mandates the indefinite
incarceration of those who are thought to be involved in or suspected of
engaging in narcotics trafficking.
On one hand, those who advocate for Human Rights contend that the use of the death
penalty is never acceptable, not even in the most exceptional of
situations. The United Nations Human
Rights Commission, requested in 1997 that India restrict the use of the death
penalty to just the gravest of offences, with the ultimate objective of doing
away with the practise altogether.
As a means to reduce illegal drug
sales, the UN Office on Drugs and
Crime (UNODC) employs a variety of medical controls, all of which have
been criticized by the UNODC. Theft of opium by an authorized grower,
unapproved trade in opiates and neuropsychiatric substances, outside management
of opiates and psychotropic substances, funding of unlawful dealing, and
detention of responsible parties are all violations stated in Section 31-A of the
Act.
As a direct consequence of this, a
person in a position of authority is required to effect behavioral adjustments
in the offender. When generally determining the appropriate punishment, it is
customarily necessary to take into account all of the relevant information,
including how the general public feels about the predicament.
Because the minimum mandatory
punishment is ten years in prison, and because courts have been able to secure
a large number of drug sellers on specialized grounds, there has been a practical
reluctance to enforce such harsh regulations. This is due to the fact that the
minimum mandatory punishment is ten years in prison. Despite the lesser degree
of discipline, it was not difficult to get convictions under the Opium Act and the Dangerous Drugs Act in the end. These laws deal with
illegal drugs.
Cannabis and opium have been used
for a very long time, despite the fact that there are conservative and social
segments of the population in this country who are of the opinion that these
narcotics should not be regarded in the same manner as heroin and cocaine.
When law enforcement organizations
operate at lower levels, it might be challenging for them to accept the precise
procedural provisions of the NDPS Act because they do not comprehend them. Due
to that, a significant number of drug offenders are given the opportunity to go
free due to procedural errors.
Review:
It is also required to do a
reexamination of the legal framework that applies to those who use drugs. In
all honesty, this Act does not differentiate between a user and a dealer in any
way. "Controlled
Delivery" is a tactic that has shown to be particularly effective in
the fight against illegal drug use. The United Nations
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances of 1988 does not contain any particular provision with regard to
this matter, despite the fact that the NDPS Act mandates the utilization of a
controlled mode of transportation.
NDPS offenses, along with other
financial offenses, should be reviewed in accordance with international
standards. This will ensure that legal executives are prepared to bring misbehavior
even in frivolous financial offenses, to the scaffold, and will increase the
likelihood that this issue of drug dependency in Indian society will be
discovered and rightly treated.
Conclusion:
As a result of the stringent
limitations imposed by the NDPS Act, opiate drugs such as opium, heroin, and
hashish are extremely difficult to acquire. People who use drugs are looking
for new places to go in order to get their intoxication, while at the same time
attempting to escape authorities.
In conclusion, the nature of
criminalization is such that it warrants a much more nuanced understanding of
its effects on the usage of drugs or even just the possession of drugs. Here,
the approach taken by the NDPS act is far from ideal and needs a review in
light of studies on misguided criminalization as well as recommendations in
alignment with Human Rights jurisprudence.
This Blog is Authored by Shruti Avinash, a third year student of the NALSAR University of Law.
