REHABILITATION IN THE LAW BUT ENDLESS PUNISHMENT IN REALITY –ANALYSING THE EFFECTIVENESS OF THE REHABILITATIVE INTENT OF THE NDPSACT IN INDIA

One of the few laws in India which provide for a rehabilitative approach is the Narcotics Drugs and Psychotropic Substances (“NDPS”) Act. As an alternative to criminal measures, the NDPS Act supports treatment for people who are addicted to drugs. This means that if a person is not a repeat offender and is found with small amounts of drugs, they have the option of undergoing treatment instead of serving jail time. However, with the lack of any uniform and strict guidelines for the implementation of these treatment programmes, rehabilitation centres have become exploitative and abusive. It is reported that these persons are beaten, made to stand naked for the entire night in winter, kept in isolation for weeks, and not given nutritious food. Not only does this go against their human rights, but it works counter-productive since many people with addiction go back to their addiction when out of the centre. What is the point of undertaking a rehabilitative approach if it is a toothless tiger?

Reasoning behind and Mechanism for Rehabilitation over Deterrence for Persons with a Drug Addiction in India

The NDPS was enacted with two objectives – to deter trafficking through rigorous punishment and to rehabilitate persons with an addiction in a systemic manner. During the parliamentary debates around NDPS, it was noted that drug addiction can stem from the failure of our social system and from not adequately channeling the youth and student community’s energy; it is not a choice. Also, the Committee of Experts on Various Quantities (July, 1994) opined that the law must decriminalize the utilization of small amounts of drugs since incarcerating them would be cruel and counter-gainful. It proposed mandatory treatment as a more practical way of fighting drug misuse and appropriate and exhaustive recovery.

Empirical data also shows that imprisoning persons with an addiction does more harm than good. NIMHANS, in a 2011 study, found that the addiction of many undertrial prisoners and convicts only gets worse during incarceration. Therefore, in order to successfully curb drug addiction, a state must undertake a rehabilitative approach for first-time offenders or those found with small quantities.

In reality, however, for the purposes of punishment, NDPS does not distinguish between persons who use drugs for their personal consumption (first-time users, recreational users and addicts) or possession with the intent to distribute or other serious crimes. Hence, more than 97% of NDPS cases in Maharashtra in 2017 and 2018 involved persons possessing it for personal consumption. This has pushed law enforcement to treat first-time users and addicts on an equal footing, thus meting out very strict punishment to the former. Doing so goes directly against the rehabilitative intent of the Act.

At this juncture, it is important to analyse what a rehabilitative approach for drug de-addiction looks like. The Ministry of Social Justice had stated that IRCAs or Integrated Rehabilitation Centres for Addicts will identify persons with addiction for motivational counselling, provide detoxification and whole person recovery by identifying areas of change, becoming aware of the person’s risk factors and strengthening inter-personal relationships. This detoxification process would be helpful for ethical and safe management of one’s withdrawal symptoms. The centres would also collaborate with various government schools to provide industry-relevant skill training. Therefore, these rehabilitation centres would assist the person during and after their detoxification – providing holistic and sensitized care for their addiction.

Issues with Rehabilitative Drug-Deaddiction Facilities in India

Illegitimate Centres and Lack of Access

Around 122 government hospitals provide drug treatment, and NGOs put up another 346 rehabilitation centres. Some private de-addiction centres exist too. A primary issue which arises is that many centres are established illegally, for instance, there are around 250-300 such centres in Delhi. It has been reported that only 12% of drug users, across India, have access to these facilities. Shockingly, these centres, in Punjab have a very minimal success rate of only 0.4%.

Untrained Care Persons

In Punjab and Haryana, surveys have revealed that the centres do not have specially trained or professional people and lack counsellors, psychologists, and psychiatrists. The importance of using scientific-based methods is supported by organisations such as the WHO and UNODC, which call for certification, evidence-based training and supervision of caregivers and staff. However, there are personal recounts of persons with an addiction reporting that not a single doctor has visited them in months.

Abuse and Torture, including towards Minors

More often than not, male and female people with an addiction are housed in a space together and are at the mercy of rude and untrained staff. There are growing incidents of mental and physical torture, and practices such as keeping them hungry, standing under the sun, digging in the ground for the entire day and beating them up after tying to a chair are increasing. However, these incidents became even more concerning when deaths were reported – in April 2023, a man was beaten to death in a de-addiction centre in Uttarakhand and before that, in Noida and Uttar Pradesh. Again, in June 2023, there was another incident in Ludhiana where a 33-year-old man was brutally tortured and beaten to death on asking for basic amenities. Another study conducted by the Delhi State Legal Services Authority in 2018 revealed that in most of the centres in Delhi, people with an addiction are subjected to physical and emotional torture and even sexual exploitation. Staff often pretend to be specialists and beat persons up, instead of helping them recover. Women have also revealed how staff members sought sexual favours from them. Furthermore, it was discovered that in at least 90% of these centres, minors were held captive and were treated in the same way as others. Children, as young as fourteen-year-olds are beaten up so severely that they often become unconscious.

Unfortunately, neither the Centre nor State Governments have framed rules regarding this matter despite it being such a common occurrence in these de-addiction centres. Even more shocking is that the Governments even deny such incidents by asserting that no such report has been filed. It is a matter of grave human rights violations that no such mechanisms exist to protect such victims. Currently, they can only file cases under hurt (Section 319 – 326) and rape (Section 375, Section 376C) of the Indian Penal Code.

Conclusion

Drug addiction has been viewed as a disease, and not the result of a crime or immoral behaviour. Hence, the author commends the Indian government’s approach to assist persons in recovering from their addiction, rather than incarcerating them. However, when mismanaged, these rehabilitation centres transform from being safe havens to sites of torture and recidivism. Currently, centres rely on abstinence-based approaches, which go against scientific-based therapies and are outdated; use coercion by associating drug addiction with criminality; all of which contributes to increased rates of relapsing by overlooking social and emotional aspects of drug de-addiction. In such cases where persons with an addiction are not given the help they need, but pushed through a barbaric system of punishment through physical and emotional abuse, the author strongly believes that NDPS has lost its rehabilitative intent.

It was noted in Rajiv Boolchand Jain v. Union of India and Ors. in 2023 that the Government has failed to appoint monitoring or regulatory agencies for drug de-addiction and rehabilitation centres in India. Without a watertight regulatory mechanism, persons with an addiction stand at the risk of further victimization and exploitation. A robust legislative mechanism is beneficial from a rehabilitative standpoint as it secures the rights of persons with an addiction and will allow the State to take strict criminal action against those centres which are not compliant with the rules.