JUDICIAL ACTIVISM AND THE EVOLUTION OF THE NDPS ACT

Abstract

Judicial activism represents a vital concept in Indian jurisprudence. It has been instrumental in shaping key decisions that influence the interpretation and development of the NDPS Act. This article provides an overview of the NDPS Act as it is the major legislation in India that prohibits certain actions associated with drugs and psychotropic substances. The article contains a historical context regarding the evolution of the NDPS Act and its latest amendments. Judicial activism is briefly defined and its role in shaping various aspects of the provisions of the NDPS Act is also broadly discussed. The article concludes by presenting criticism of the concepts of judicial activism confining its legitimacy only when it upholds constitutional principles.

Keywords

NDPS Act 1985, Narcotics, Psychotropic Substances, Judicial Activism, Indian Judiciary, Fundamental rights.

Introduction

Judicial activism has been a significant force in the Indian legal landscape, playing a critical role in interpreting and shaping various legislations, including the Narcotic Drugs and Psychotropic Substances (NDPS) Act of 1985. This article delves into the intricate relationship between judicial activism and the NDPS Act, highlighting how judicial interventions have influenced the law’s evolution and application. The NDPS Act, which is the cornerstone legislation for controlling narcotic drugs and psychotropic substances in India, has undergone several amendments since its inception, aimed at strengthening its provisions and ensuring more effective enforcement.

The NDPS Act is designed to combat the menace of drug abuse and trafficking, imposing strict penalties on offenders and regulating the legal use of certain substances. However, its stringent provisions and complex procedures have often been subject to judicial scrutiny to ensure they align with constitutional principles and fundamental rights. Judicial activism has emerged as a crucial mechanism in this context, with courts actively interpreting the Act’s provisions to prevent misuse, protect individual liberties, and uphold justice.

This article explores the historical context of the NDPS Act, its key amendments, and the pivotal role of judicial activism in its implementation. By examining landmark cases and judicial interpretations, the discussion provides insights into how the judiciary has addressed legal gaps, ambiguities, and potential injustices within the framework of the NDPS Act. Furthermore, the article presents a balanced view by considering the criticisms of judicial activism, emphasizing the need for judicial interventions to be grounded in constitutional principles and the broader public interest.

Understanding the dynamic interplay between judicial activism and the NDPS Act is essential for legal scholars, policymakers, and society at large to appreciate the nuances of drug law enforcement and the protection of fundamental rights in India. The proactive judicial approach ensures that the law is applied in a manner that balances strict enforcement with compassion and equity, reflecting the evolving landscape of drug policy and legal interpretation in India.

The NDPS Act: An Overview

The Narcotic Drugs and Psychotropic Substances Act, of 1985, commonly known as the NDPS Act, is the legislation that handles narcotic drugs and psychotropic substances prohibition in India. The NDPS Act prohibits a person from the production/manufacturing/cultivation, possession, sale, purchasing, transport, storage, or consumption of any narcotic drug or psychotropic substance. As stated in the Act, narcotic drugs encompass coca leaf, cannabis (hemp), opium, and poppy straw; and psychotropic substances include any natural or synthetic material or any salt or preparation protected by the Psychotropic Substances Convention of 1971[1].

The Act has significantly helped to reduce drug abuse and trafficking by enforcing strict penalties and bolstering law enforcement efforts.

Definition of Judicial Activism

Judicial activism involves judges making decisions influenced by their personal policy preferences rather than adhering strictly to the existing law. This approach is typically contrasted with judicial restraint, which emphasizes respect for precedent (stare decisis) and a cautious approach to reinterpreting legal statutes[2].

In India, Judicial Activism empowers the Supreme Court and High Courts to declare laws unconstitutional and invalid if they conflict with the Constitution’s provisions. The term “Judicial Activism” signifies the judiciary’s active role in safeguarding citizens’ rights. It serves as a crucial mechanism for upholding constitutional values and protecting individuals’ rights when the executive and legislative branches fall short. This concept challenges the perception that the judiciary is merely a passive observer in such matters[3].

This article delves into how judicial activism has played a crucial role in influencing the development and application of the NDPS Act. Appreciating the impact of judicial activism within the framework of the NDPS Act is crucial for legal scholars, policymakers, and society to comprehend its broader implications and effects.

Historical Context

Historically, cannabis use was culturally accepted, with references in the Atharva Veda, which originates from a few millennia ago, acknowledging its recreational use alongside alcohol consumption. Cannabis and its derivatives, such as hashish/charas, marijuana, and bhang, were legally marketed and sold until the NDPS Act was passed. Before 1985, there was no legislation regulating drugs and narcotics in India. Nevertheless, Control was mainly managed through three specific acts enacted by the Central Government, namely, the Opium Act, of 1857 (XIII), the Opium Act, of 1878 (I), and the Dangerous Drugs Act, of 1930 (II). This fragmented Legal framework has led to inconsistencies and gaps in enforcement and prosecution[4].

India resisted the initiative by the United States against all drugs. It held firm against American pressure to criminalize cannabis for nearly 25 years after its opposition to the Single Convention on Narcotic Drugs (1961). Due to the political sensitivity surrounding the issue, India found itself bound by international obligations, leading to efforts to curb widespread cannabis use. Consequently, on 14 November 1985, the NDPS Act was enacted, imposing comprehensive prohibitions on all narcotic drugs in India with minimal resistance[5].

To achieve its objectives, the NDPS Act was enacted to:

1. Establish stringent provisions for the control, regulation, and supervision of the illegal possession, sale, transit, and consumption of narcotic drugs and psychotropic substances.

2. Amend and consolidate existing laws governing the use and possession of narcotic drugs.

3. Provide a mechanism for the forfeiture of narcotic drugs, psychotropic substances, and properties derived from or used in illicit drug trafficking.

4. Implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances, along with other related purposes^[6].

Amendments to the Act

1989: Significant amendments to the NDPS Act have introduced more stringent provisions, including the incorporation of Section 27A to address financing of illicit trafficking. The definition of trafficking in illicit substances now encompasses activities such as production, possession, sale, purchase, transportation, and storage, with Section 27A applicable to all offenders involved in these activities.
2001: This amendment standardized sentencing by introducing greater objectivity. The revised law now provides clearer guidance for addicts, with more lenient provisions for bail.
2014: The 2014 amendment to the NDPS Act streamlined drug case handling and treatment rules under Section 71. It increased penalties for serious offenses, criminalized drug consumption, and simplified licensing for narcotics like morphine, ensuring uniform regulation across India. Essential medications became more accessible, but harsh penalties for large-scale trafficking were reduced to a maximum 30-year sentence instead of the death penalty. Minor drug offenses now carry a maximum penalty of 1 year for “small quantity” offenses.
2021: Introduced in December 2021, the Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2021 seeks to replace an earlier ordinance. It addresses a drafting error within the Narcotic Drugs and Psychotropic Substances Act, 1985, which governs the regulation of narcotic and psychotropic substances, covering activities such as manufacturing and transportation. Furthermore, the bill updates penalty provisions concerning illicit activities to align with amendments made in 2014[7].

Role of Judicial Activism in shaping the NDPS Act

Judicial activism in India has been instrumental in shaping the interpretation and enforcement of numerous laws, including the Narcotic Drugs and Psychotropic Substances (NDPS) Act of 1985. The judiciary, especially the Supreme Court of India, has frequently intervened to address legal gaps and ambiguities, ensuring effective and fair implementation of the law.

The NDPS Act was created to streamline and update the laws concerning narcotic drugs and psychotropic substances, aiming to tackle drug trafficking and misuse. However, its implementation has faced multiple obstacles, including rigorous provisions and intricate procedures.

Key Areas of Judicial Activism under the NDPS Act:

Safeguarding rights:

Courts have actively intervened to protect the rights of individuals under the NDPS Act. This includes ensuring due process is followed during arrests and investigations and that accused individuals are not subjected to inhumane treatment. Liberty, equality, and the right to life are fundamental components of Social Democracy. Section 42 of the Act grants designated officers the authority to search, seize, and arrest without a warrant or prior authorization if they have “reason to believe” based on personal knowledge[8]. At first glance, the phrase “reason to believe” appears to bestow extensive powers upon officers, which has led to significant legal controversy. In the case of State of Punjab v. Balbir Singh[9], the Hon’ble Supreme Court held that non-compliance with Section 42 and Section 50 of the Act while arresting a person may lead to an illegal arrest and vitiate the trial. Therefore, an illegal arrest by the designated officer constitutes a violation of the “personal liberty” of the person being arrested, as guaranteed under Article 21 of the Constitution of India. Arrests made in violation of any statutory provision are a violation of Article 21, as illegal arrests could impact legal proceedings and lead to a miscarriage of justice[10].

Recently, in Mohan Lal v. State of Punjab [11], 2018, the Supreme Court highlighted the importance of a fair investigation as a cornerstone of a just trial. The ruling stated that the individual who files a report about a crime and the investigator must be distinct to avoid any potential bias or predetermined conclusions. The court underscored that justice must not only be administered but also perceived as being administered. This is particularly crucial in cases where the law imposes a reverse burden of proof. If the same police officer who makes the allegations is also responsible for the investigation, it could undermine the fairness and objectivity of the process. The court noted that while actual bias need not be demonstrated, the mere appearance of potential bias is enough to compromise the investigation’s credibility. It would be unreasonable to expect an officer to conduct an unbiased investigation if it might expose the allegations as false. Consequently, such investigations might lead to predetermined outcomes.[12].

Interpreting Provisions:

The judiciary has been pivotal in interpreting the NDPS Act’s provisions to prevent their misuse. For example, courts have closely examined the mandatory death penalty for repeat offenders, stressing the importance of proportional punishment. In the case of Mohammad Arif alias Ashfaq v. The Registrar[13], the Supreme Court, held that the mandatory death penalty for repeat offenders under Section 31A of the NDPS Act was unconstitutional. The Court ruled that the imposition of the death penalty without considering the individual circumstances of the case and the offender was disproportionate and violated the principles of natural justice. The Supreme Court’s ruling in this case profoundly influenced the interpretation and enforcement of the NDPS Act. It upheld the principle that even for severe offenses such as drug trafficking, punishment must be just, fair, and proportionate. This decision affirmed the judiciary’s discretion to evaluate the unique circumstances of each case, fostering a more balanced and humane approach to sentencing. In E. Micheal Raj v. Intelligence Officer, Narcotics Control Bureau 2008[14], the Supreme Court clarified the interpretation of “commercial quantity” under the NDPS Act. It ruled that the quantity of the pure drug, rather than the entire mixture, should be considered for determining the severity of the offense, which had significant implications for sentencing.

Bail Provisions:

The NDPS (Narcotic Drugs and Psychotropic Substances) Act, 1985, has stringent bail provisions, particularly under Section 37. These strict bail conditions are intended to prevent individuals involved in serious drug offenses from easily escaping justice. The judiciary has also addressed the stringent bail provisions under the NDPS Act. In several cases, courts have interpreted the law to grant bail in circumstances where strict application would lead to unjust outcomes, especially in cases involving small quantities of drugs or first-time offenders. In the case of Gurbax Singh v. State of Haryana[15], the Supreme Court held that while the NDPS Act imposes strict conditions for granting bail, courts must not adopt a mechanical approach. They should carefully examine the facts and circumstances of each case, ensuring that the denial of bail is not arbitrary or unjust. This judgment highlighted the judiciary’s role in balancing the need for stringent drug laws with the protection of individual liberty. By advocating for a careful and judicious approach to bail applications, the Court ensured that the rights of the accused are not unduly compromised.

Criticism of Judicial Activism

Critics argue that judicial activism is legitimate only when it actively upholds constitutional principles. However, there have been many instances where judicial activism has resulted in unnecessary interference in political and social issues, excessive dependence on international laws, decisions swayed by individual personalities, and inefficient use of institutional resources. These factors have led to legal uncertainty, delays, backlogs, and a decline in institutional credibility[16]. The judiciary’s assumption of an all-powerful role is detrimental to a healthy democracy. This issue is emphasized by the fact that the judiciary, unlike the legislature and executive, is not directly accountable to the public[17].

Conclusion

Judicial activism has remained a crucial force in shaping and evolving the NDPS Act, with the aim of protecting individual rights, serving the public interest, and interpreting its stringent provisions to deliver the most just, fair, and effective judgments possible. This proactive judicial approach ensures that the law is applied in a manner that balances enforcement with compassion and equity. Despite its drawbacks, judicial activism remains a crucial component of the Indian judiciary. Although it can sometimes lead to judicial overreach or interference in political matters, it plays an essential role in protecting individual rights, ensuring justice, and addressing gaps in legislation.

The landscape of drug policy in India, governed by the NDPS Act, is continually evolving. Potential future developments in judicial interpretations and legislative reforms may focus on achieving a balanced approach that addresses both the stringent control of drug-related offenses and the protection of individual rights.

References

Narcotic Drugs and Psychotropic Substances Act, 1985, § 42, Acts of Parliament, 1985 (India).
State of Punjab v. Baldev Singh (1999) 6 SCC 172.
Mohan Lal v. State of Punjab AIR 2018 SC 3853, 2019 CRI LJ 420, (2018) 189.
E. Micheal Raj V. Intelligence Officer, Narcotic Control Bureau, (2008) 5 SCC 161.
Gurbax Singh v. State of Haryana (2001) 3 SCC 28.
BYJUS, https://byjus.com/free-ias-prep/narcotic-drugs-and-psychotropic-substances-act-1985/ (last visited July 17, 2024).
CORNELL LAW SCHOOL, https://www.law.cornell.edu/wex/judicial_activism (last visited July 17, 2024).
Nikunj Arora, NDPS Act: Narcotic Drugs and Psychotropic Substances Act 1985, IPLEADERS (July 18, 2024, 03:12 PM), https://blog.ipleaders.in/ndps-act-narcotic-drugs-and-psychotropic-substances-act-1985/
Sarthak Awasthi, A detailed overview of narcotic drugs and psychotropic substances act,1985, THE TIMES OF INDIA ( July 17, 2024, 3:29 PM), https://timesofindia.indiatimes.com/readersblog/legalangle/a-detailed-overview-of-narcotic-drugs-and-psychotropic-substances-act1985-45878/
International Journal of Advanced Legal Research, https://ijalr.in/volume-1/issue-1/judicial-activism-and-controveries-under-sections-of-ndps-act-by-pranay-golchha/ (last visited July 19, 2024).
LINKEDIN, https://www.linkedin.com/pulse/salient-features-narcotic-drugs-psychotropic-act-1985-and-brothers/ (last visited July 20, 2024).
M. Abdul Mujeef, Prof. R. Mamtha, Judicial Activism in India – A Critical Study, Vol 5, no 4, IJRPR, pp 187-191 (2024), https://ijrpr.com/uploads/V5ISSUE4/IJRPR24523.pdf
R Shunmugasundaram, Judicial activism and overreach in India, CORE (July 4, 2007), https://core.ac.uk/download/pdf/112282.pdf

[1] BYJUS, https://byjus.com/free-ias-prep/narcotic-drugs-and-psychotropic-substances-act-1985/ (last visited July 17, 2024).

[2] CORNELL LAW SCHOOL, https://www.law.cornell.edu/wex/judicial_activism (last visited July 17, 2024).

[3] Supra note 1.

[4] Nikunj Arora, NDPS Act: Narcotic Drugs and Psychotropic Substances Act 1985, IPLEADERS (July 18, 2024, 03:12 PM), https://blog.ipleaders.in/ndps-act-narcotic-drugs-and-psychotropic-substances-act-1985/

[5] Id.

[6] Sarthak Awasthi, A detailed overview of narcotic drugs and psychotropic substances act,1985, THE TIMES OF INDIA ( July 17, 2024, 3:29 PM), https://timesofindia.indiatimes.com/readersblog/legalangle/a-detailed-overview-of-narcotic-drugs-and-psychotropic-substances-act1985-45878/

[7] Supra note 4.

[8] Narcotic Drugs and Psychotropic Substances Act, 1985, § 42, Acts of Parliament, 1985 (India).

[9] State of Punjab v. Baldev Singh (1999) 6 SCC 172.

[10] International Journal of Advanced Legal Research, https://ijalr.in/volume-1/issue-1/judicial-activism-and-controveries-under-sections-of-ndps-act-by-pranay-golchha/ (last visited July 19, 2024).

[11]Mohan Lal v. State of Punjab AIR 2018 SC 3853, 2019 CRI LJ 420, (2018) 189.

[12] LINKEDIN, https://www.linkedin.com/pulse/salient-features-narcotic-drugs-psychotropic-act-1985-and-brothers/ (last visited July 20, 2024).

[13] Mohan Lal v. State of Punjab AIR 2018 SC 3853, 2019 CRI LJ 420, (2018) 189.

[14] E. Micheal Raj V. Intelligence Officer, Narcotic Control Bureau, (2008) 5 SCC 161.

[15] Gurbax Singh v. State of Haryana (2001) 3 SCC 28.

[16] M. Abdul Mujeef, Prof. R. Mamtha, Judicial Activism in India – A Critical Study, Vol 5, no 4, IJRPR, pp 187-191 (2024), https://ijrpr.com/uploads/V5ISSUE4/IJRPR24523.pdf

[17] R Shunmugasundaram, Judicial activism and overreach in India, CORE (July 4, 2007), https://core.ac.uk/download/pdf/112282.pdf

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