Explained: Narcotic Drugs and Psychotropic Substances (Amendment) Bill 2021

The Narcotic Drugs and Psychotropic Substances (Amendment) Bill has been passed by the Lok Sabha, despite opposition concerns over what they called the "retrospective effect" of the revisions to a criminal statute and misuse of the Act.

The NDPS (Amendment) Bill, 2021, introduced by Finance Minister Nirmala Sitharaman, aims to address a "clerical error" that was corrected by an ordinance issued in September of this year, and the Bill is intended to incorporate that amendment into the Act.

What does the amendment entail?

The bill was submitted to fix a drafting error in the law when it was amended in 2014, and it makes a revision to Section 27A, which deals with the penalties for supporting illicit activities and harbouring offenders.

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As it is now, Section 27A of the law imposes severe penalties for a list of activities enumerated in Section 2 clause (viiia). This list of activities, however, no longer existed under paragraph (viiia) after the statute was amended in 2014, and was instead catalogued under clause (viiib).

As a result, the 2021 Bill changes the Narcotic Drugs and Psychotropic Substances Act of 1985, albeit retroactively, by simply replacing the term "clause (viiia) of section 2" with the more accurate "clause (viiib) of section 2."

The text of Section 27A has not altered, and it does not reflect the reclassification of illegal conduct. As a result, Section 27A has been made ineffective.

Why is there opposition to the amendment?

The controversy about the amendment's retrospectivity derives from the fact that the NDPS Act is governed by criminal law and jurisprudence. As a result, official policies governing drug trafficking and consumption have typically been punitive in nature.

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This approach may be traced back to President Richard Nixon's declaration in the 1970s that the United States would pursue a global "war on drugs." In 1985, India implemented the NDPS Act, influenced by Nixon's policies and in acknowledgement of its international duties to combat drug trafficking and use.

Furthermore, no one can be penalised for an act that was not specified as an offence at the time it was performed, according to Article 20(1) of the Constitution. Furthermore, no one can be punished twice for the same act or offence, and there is a constitutional provision against double jeopardy.

It is because of these constitutional remedies that it is prohibited to make any criminal law effective retrospectively, and also why this amendment has come under heavy criticism.

The government too agrees on the underlying principle relating to retrospectivity but has argued that a clerical or drafting error does not make the cut for this scrutiny. Through the amendment, the government is not looking to introduce a substantive change but is merely looking to make amends to a clerical error so that the true intent of the law can be achieved.

What was the 2014 amendment?

The NDPS Act was significantly amended in 2014 to allow for improved medical access to narcotic drugs. The amendment defined "essential drugs" in Section 2(viiia), and it authorised the manufacturing, possession, transportation, interstate import and export, sale, purchase, consumption, and use of essential narcotic narcotics in Section 9.

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However, prior to the 2014 change, there was a Section 2(viii) that comprised a list of offences for which punishment is stipulated in Section 27A.

What was the error in the 2014 amendment?

In 2014, when defining "essential drugs," the legislature renamed Section 2. The list of offences, which had previously been listed under Section 2(viiia), had been moved to Section 2 (viiib).

Section 2(viiia) of the amendment defined necessary narcotic drugs. However, the drafters failed to convert Section 2(viii)a to Section 2(viii)b in the enabling provision in Section 27A.

The Tripura High Court was alerted to this inaccuracy during a bail hearing. In June of this year, the Supreme Court ordered the government to modify the statute "without further delay" to correct the error. The court considered the law's intent and purpose while doing so, noting that the drafting error has created the question of "how to overcome the difficulty and to operate a very important provision of the NDPS Act."

The high court ruled that until the statute is amended, clause (viiia) of Section 2 should be understood as clause (viiib). The court expressed worry that the protection against double jeopardy provided as a basic right under Article 20 of the Indian Constitution would be "incongruous."

Because the bill was amended after the high court's directive, the retrospectivity of the alteration is extremely likely to be challenged in court.

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