Advocate Aditya Barthakur has filed a public interest litigation (PIL) in the Bombay high court challenging the criminalisation of cannabis under Indian law, based on the fact that none of six government organs he queried had any idea about how the herb is harmful to the human body.
The high court has issued notices to the central and state governments, reported the Express.
Barthakur last year filed a Right to Information (RTI) request seeking medical or scientific reasons for how the consumption of Cannabis in any form is harmful to humans.
He filed this request first with the ministry of health and family welfare from where it travelled, through transfer by the departnment, to the department of health research, the Indian Council of Medical Research and finally to the national institute of nutrition which replied to Barthakur with an excerpt, allegedly, copy-pasted from the website of the National Highway Traffic Safety Administration of New Jersey.
Barthakur then filed an RTI with the same query with the legislative department of the law ministry, which transferred it to the department of revenue which replied to Barthakur with the word “NIL”.
Barthakur also filed an RTI on the same query with the Law Commission of India next, which transferred it to the ministry of health and family welfare from where it once again followed the same transfer route as before, until it landed with the home ministry which forwarded it to one of its divisions (an “IS-II division”).
Barthakur also filed the same RTI with the Central Bureau of Narcotics, adding in it the further query that what is the basis of the law prohibiting Cannabis under the NDPS Act 1985 if there are no medical or scientific reasons as were asked for. The Bureau replied to him with a reproduction of the NDPS Act provisions criminalising Cannabis.
He then filed the criminal writ petition making all the queried government organs respondents alongwith the union of India and the state of Maharashtra. In the writ petition Bathakur produces research, such as British Commission reports containing mythological texts which note the medical and other benefits of the Cannabis plant, including curing cancer.
The 34-year-old lawyer, who is appearing in person in the writ petition, concluded it with an Atharvaveda Sloka:
To the ?ve kingdoms of the plants which Soma rules as Lordwe speak.Darbha, hemp, barley, mighty power: may these deliver us from woe
He prayed in his petition:
The Hon’ble Court be pleased to declare, the defining and penal provisions, in relation to Cannabis, of The Narcotic Drugs and Psychotropic Substances Act, 1985, and inclusion of Cannabis in Schedule I, Entry (2) of The Narcotic Drugs and Psychotropic Substances Act, 1985, and inclusion of Cannabis at Sl. No. 23 in Notification Specifying Small Quantity and Commercial Quantity, dated 19.10.2001, published in the Gazette of India, for the purposes of Section 2 (viia) and 2 (xxiiia) of The Narcotic Drugs and Psychotropic Substances Act, 1985, and, inclusion of Cannabis in National Policy on Narcotic Drugs and Psychotropic Substances, as being, unjust, and, ultra vires, the provisions of Constitution of India, 1950, and
The Hon’ble Court be pleased to direct, the defining and penal provisions, in relation to Cannabis, of The Narcotic Drugs and Psychotropic Substances Act, 1985, and inclusion of Cannabis in Schedule I, Entry (2) of The Narcotic Drugs and Psychotropic Substances Act, and 1985, and inclusion of Cannabis at Sl. No. 23 in Notification Specifying Small Quantity and Commercial Quantity, dated 19.10.2001, published in the Gazette of India, for the purposes of Section 2 (viia) and 2 (xxiiia) of The Narcotic Drugs and Psychotropic Substances Act, 1985, and, inclusion of Cannabis in National Policy on Narcotic Drugs and Psychotropic Substances, be suitably amended for being, unjust, and, ultra vires, the provisions of Constitution of India, 1950, and,
That as an interim relief the operation of every provision in relation to Cannabis in The Narcotic Drugs and Psychotropic Substances Act, 1985, and Notification Specifying Small Quantity and Commercial Quantity, dated 19.10.2001, contravention of which is a unjustified penal offence, be suspended until the final hearing and disposal of this Public Interest Litigation
Cannabis currently occupies an uncertain position under Indian criminal law, which allows certain forms of it to be consumed, also during religious festivals such as Holi.
Comments
This deed for the weed gets ma respect indeed.
Rasta....
Did the petitioner also asked if there were relevant studies for?
Cocaine, Heroine or some other drugs?
While he is at it, he should have also asked why certain medicines such as valium / calmpose etc or even the medicine for swine flu not sold strictly without prescription. this, keeping in mind that many other so called "schedule H" drugs are available without prescription.
My point being: just because there is no document with the government, simple does not mean that the "herb"should be not banned.
mathematically
The presence of A, implies B should happen. But the absence of A does not imply B should not happen.
There is plenty of data that shows the ample medical benefits of cannabis. There's hardly any that shows any great risk/ danger.
Even the American experiment (several states legalizing marijuana) shows if anything that the risks of higher crime rates etc believed to be there with legalization are completely hogwash.
Commendable effort by the petitioner.
regret that you don't get it.
On math point ~ Absence of A (in this case no scientific reason for the illegality/ban on cannabis) does not imply B should not happen(the research I produce maybe is true and correct and might help many).
Hence I am before the Hon'ble Court with the PIL.
But I would strongly disagree that your PIL is comprehensive.
un-ban cannabis, because there is no government record is weak.
The ban can remain if the government produces one report stating that these are the reasons its banned in jurisdiction X, Y or Z.
The government can also argue, look give us some time, we will produce the report, if it does not exist, we will examine it and now the ban is legally correct.
do you really think, the court will say: "Well, Cannabis is now legal to consume" ?
times of india would read : Court removes cannabis ban as there was no medical record of its harm.
DNA would go: " Government could not defend Cannabis Ban, court legalises it"
NDTV would say : :Improper documentation results in legalising cannabis.
Do you really think thats going to happen ?
Filing a PIL is fine. Finding loopholes is fine. whats the end result ?
If you were really serious about cannabis ban being removed, some alter substantial argument(s) would have helped.
in this light, it is imperative that well documented scientific and medical grounds exist to justify the provisions. otherwise the ban would amount to yet another intrusion on part of the state towards exercise of free will. this is a very well thought of and researched provision.
I have been very busy working the past few months and had been ignoring the fine tosh and malana cream in my drawer. Aditya I am rolling one tonight and hope the holy smoke goes up in prayer so that you win this case for the mental reforms that are love overdue in this world. Good Luck.
And please note that even if all the medical research I have produced is discarded/ refuted, the question still remains ~ what is the scientific basis of making cannabis illegal. If you have a answer do let me know, it better be not hearsay though.
Someone took my joint
Though of course additional submissions can be made orally and before the court. But overturning a statute such as this will take a *lot* of different angles of attack, and would also be a very tough position for a judge to take politically...
anyways, young kid. will learn.
on an unrelated note.
Pratibha singh, and another lady judge was rejected by the Chief justice to be elevated to become judges. even when the law minister had recommended.
Pratibha singh was a junior of the finance minister at one time.
No paper has covered this. not even anonymous posts.
wonder why ..........
I am assuming there may have been some kind of study / report to justify enacting the NDPS Act in 1985 (shouldn't every legislation have basis in [b]fact[/b]?). Or, did the legislature come up with this Act and implement it due to pressure from the USA and its war on drugs? I don't know, could be another reason altogether.
In any event, the lack of scientific / legal data coupled with the fact that our legislature will not of its own accord amend the law, it is left for the courts to consider the validity of a 30 year old legislation (or a part thereof) on research which is more updated and in keeping with the times. It is only in this way can old and utterly useless laws can be outmoded (wasn't it legal to smoke the green stuff before 1985?).
I do hope the courts atleast look at, if not rely extensively, on the research presented before the US SC in the 'medical marijuana' case and take note of the 26 odd states in the US who have since permitted use of medical marijuana and 2 states which are looking to allow commercial sales (the numbers may have changed since I last checked). So much for the war on drugs by the US, it is time for our courts and government to think this one through.
We might be bound by treaty obligations, but aren't the other countries that have allowed medical / commercial use bound by similar obligations?
Now International Law only recognizes States as Subjects and Citizens as objects Article 34 (ICJ Statute). The International Court of Justice has no Compulsory Jurisdiction and is open for the consenting parties to invoke its jurisdiction (Article 36) on grounds mentioned therein. NGO's etc are given consultative status by ECOSOC and other organs of UN, but cannot become a part of the decision making process.
Then my question would be why should we citizens of every country on planet earth be even bound by such treaties? Why should liberties of citizens be curtailed when a elected representative signs any treaty? Why would laws that are enacted to give effect to such international conventions or are enacted to give effect to decisions at international conferences, be not declared, ultra vires, as International Law does not recognize us citizens? None of us can approach the ICJ against tour respective Governments. So what is International Law or International Treaty then?
An example of Clumsy piece of drafting apart from the NDPS Act, 1985,(in relation to Cannabis) is the Protection of Women from Domestic Violence Act, 2005, which was enacted to give effect to CEDAW. If you see the preamble of the Act it says "protection of women from domestic violence and matters incidental thereto....." Now see the definition of respondents. After reading the definition my question is can a minor/major daughter file a DV Complaint against her own mother who refuses to maintain her out of the joint family property. The answer is in the negative. What are these incidental matters then, the preamble to the act speaks of. Do see the object of the Act to. In my opinion DV Act, 2005, fails miserably, as does the inclusion of Cannabis in NDPS Act, 1985.
The global war on drug is predicated on the idea that if every country bans the drug, it's possible to stamp out supply completely. This has clearly failed, with demand creating supply in true capitalistic style, and many countries in South America have descended into quasi-civil-wars that are funded by cocaine (e.g. Colombia; many other South American countries' organised crime being nearly entirely funded by cocaine). Heroin, likewise, has been produced like hotcakes in Afghanistan after the fall of the Taliban.
(As an aside, interestingly the coca plant, from which cocaine is derived, and its consumption is legal in many South American countries since it has ancient indigenous religious and cultural significance there. The situation is thus not entirely dissimilar to India, where cannabis leaves are sort of legal, but derivatives like oil (or some parts of the plant) aren't.)
So yeah, tl;dr: international treaties thought they would make controlling drugs easier, but it's backfired.
There's a fantastic documentary by the way on the US' failed war on drugs (I haven't watched it yet) which is apparently amazing: http://www.pbs.org/independentlens/house-i-live-in/film.html
No chauvinists, Sati is not back!
The petitioner has quoted Vedas in his Petition and Lord Shiva but it is as hard to prove mythology as it is hard to cut diamond. No one has seen the Lord consuming Bhang, nor someone can say that he asks someone to consume it, mere mention just does not prove it, i.e fact not proved, neither proved nor disproved. May be the Petitioner will have more stronger social issues at hand and recognise more of his duties towards the society as a legal practitioner, after all he has been tutored by a well known practitioner in Pune . We expect the Petitioner to deliver more on several social issues and catch up with the credit like Mr.M.C.Mehta. All the best Aditya ji. If you've already begun doing for the society as an advocate, we are waiting to see the more human side of yours. All the best.