Alternatives to Incarceration in Case of Drug Abuse:
A Need for Amendment in the Indian Drug Laws
**Taru Jain
Abstract
This paper critiques India’s punitive approach to drug-related offences, especially under the NDPS Act and Gujarat’s Prohibition Act, highlighting its ineffectiveness for users battling addiction. Using Gujarat as a case study, it reveals how stricter state laws create legal inconsistencies and discourage treatment. Drawing on international models like Portugal’s decriminalisation and U.S. drug courts, the paper advocates for reform, urging India to shift from punishment to rehabilitation by amending Section 27 of the NDPS Act and aligning drug policy with public health and human rights principles.
Keywords
Drug abuse, incarceration, NDPS Act, Gujarat Prohibition Act, decriminalisation, rehabilitation, harm reduction
Introduction
Incarceration—essentially, punishing someone for breaking the law—is often seen as a way to deter crime, rehabilitate offenders, and deliver justice. But does it really work that way? Research increasingly suggests otherwise. Countries with high incarceration rates haven’t necessarily seen drops in crime, and prison rarely offers the kind of support needed to truly rehabilitate people.
This becomes especially problematic when we talk about drug-related offences. This is because many users are not conventional criminals but individuals suffering from addiction—a medical condition that requires treatment rather than punishment. Treating it with jail time instead of healthcare not only fails to help the person, but also makes the larger problem harder to solve. What’s really needed is a shift in approach—from punishment to treatment.
According to findings by the UNODC, criminal penalties may deter some individuals from drug use; however, those with serious drug dependence are generally unaffected by the threat of punishment. Moreover, increasing incarceration rates has not been shown to reduce overall drug use within communities. In addition to that, criminalisation harms public health by deterring people from seeking medical assistance, increasing overdose risks, and spreading diseases like HIV. Punitive drug policies also restrict access to essential medications, worsening pain and suffering for patients.
Reformation is, in any case, the ultimate goal of the Indian Criminal Justice system. With that in mind, we seek to examine drug laws in India which need amendment in order to shift focus from incarceration to rehabilitation of individuals.
Drug abuse in India
After an overall understanding of why incarceration is undesirable, we now move on to look at the drug abuse laws in India and what is the kind and severity of punishment Indian laws prescribe for drug users. As per a drug addiction survey in 2023 by Press Information Bureau, Delhi; 3.30% and 2.10% of Indian population between the age group 18-75 years have been using cannabis and opioids respectively.
The legislative and directive principles that oversee drug control in India are the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) and Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS).
In the Narcotic Drugs and Psychotropic Substances Act, 1985 (Sections 31A, 28, 30), there is a provision for the death penalty, and there is punishment for the attempt and preparation of drugs. Additionally, there is presumption of culpable mental state in cases which require such mental state to attract punishment. The provision that this paper most strongly advocates against is Section 27 of the Act, which criminalises drug use. It prescribes punishment for people who use drugs in small quantities for personal consumption. The punishment prescribed is rigorous imprisonment for up to one year, or with a fine which may extend to twenty thousand rupees or both. Thus, it is evident that India chooses incarceration as a method to deter drug abuse.
As per the Global Commission on Drug Policy, the criminalisation of drug use and possession has a minor impact on the levels of substance problems in an open society. Such policies do, however, encourage high-risk behaviours, such as unsafe injecting, and deter people in need of drug treatment from seeking it. Hence, it is of utmost importance that amendment in NDPS is made to strike down section 27 and relax other provisions.
State-wise analysis: The Gujarat Experience
While the NDPS applies to the whole of India, the state governments in India have the authority to make rules related to drug use and traffic in their respective states provided it doesn’t contravene any provision of the NDPS. Consequently, various state laws prescribe punishments that are more severe than the central laws. An amendment in these laws is hence, also necessary to stop the incarceration of addicts.
According to the National Survey of 2018, Gujarat has 17.35 lakh male drug addicts and 1.85 lakh female drug addicts. Over the past four years (2019-2023), substance-induced seizures have been frequent in Gujarat.
Section 66(1)(b) of the Gujarat Prohibition Act, 1949, criminalises both the possession and consumption of narcotics (excluding opium) and often imposes harsher penalties than the NDPS Act. Under this provision, a first-time offence is punishable by imprisonment of up to six months and a fine of up to ₹1,000. For repeat offences, the punishment increases to imprisonment of up to two years and a fine of up to ₹2,000.
While the NDPS Act also prescribes enhanced punishment for repeat offenders under Section 31(1), the enhancement is capped at one and a half times the maximum punishment for a first offence. Since the maximum punishment for consumption under the NDPS Act (Section 27) is six months of rigorous imprisonment, even after enhancement under Section 31(1), a repeat offender would face a maximum of nine months of imprisonment. This highlights that, in practice, the Gujarat Prohibition Act penalizes repeat consumption of narcotics more severely than the NDPS Act.
Disproportionality arises when the punishment for an offence exceeds the actual severity or social harm it causes. Under Section 66(1)(b) of the Gujarat Prohibition Act, repeat drug consumption can attract imprisonment of up to two years along with fines, even though the individual may not be involved in trafficking, violence, or any act endangering public safety. This stands in stark contrast to the NDPS Act, where Section 27 limits the punishment for drug consumption—regardless of whether it is a first or repeat offence—to a maximum of six months. Since drug consumption is largely considered a victimless crime when it does not result in harm to others, the harsher penalties under the Gujarat law raise serious concerns about fairness and proportionality. In some cases, a repeat user under Gujarat law could be jailed for a longer term than someone convicted of financial fraud or certain violent crimes, thereby undermining the foundational principle of justice and equity in criminal law.
In Zaverbhai Amaidas v. State of Bombay, it was held that a state cannot decriminalise or criminalise drugs differently from the NDPS Act. If a state law contradicts a central law in the same domain, it is rendered inoperative due to repugnancy (Article 254). By this logic, this provision of the Gujarat Act must be struck down.
The Gujarat Prohibition Act imposes stricter punishments than the central NDPS Act, thereby creating legal inconsistencies across jurisdictions. While the NDPS Act follows a relatively less punitive approach focused on rehabilitation and harm reduction, the Gujarat law adopts a punitive stance even for minor offences such as simple possession or personal use. This legal fragmentation undermines the uniform application of India’s drug policy. Consequently, individuals found guilty of the same offence in Gujarat may receive punishments that are two or three times harsher than those imposed in states like Delhi, Mumbai, or Chennai. Such disparities lead to arbitrary and unequal enforcement of the law, where justice depends not on the nature of the offence but on where it is committed, thereby eroding public trust in the fairness of the legal system.
In Peter Nazareth v. State of Gujarat, the Gujarat Prohibition Act has been challenged in the Gujarat High Court for being manifestly arbitrary and infringing on the right to privacy. Public dissatisfaction with the law is widespread, as many view such stringent regulations as excessive and harmful to society.
Alternatives to Incarceration: Global Best Practices
Having established that both central and state laws in India emphasize punitive measures—and that incarceration is often counterproductive in cases of drug use—this paper examines alternative approaches adopted by other countries, offering insights into strategies that India could consider for more effective and humane drug policy reform.
- Decriminalisation in Portugal
Although some alternatives to prohibitionist policies remain untested, existing evidence indicates that decriminalising substance use, possession of substances, and cultivation of substances for personal use does not result in increased drug use. On the contrary, countries that have embraced decriminalisation have experienced positive outcomes for public health, safety, and human rights.
For example, since 2001, Portugal has decriminalised drug use and possession, shifting its focus from punishment to treatment. While drugs remain illegal, individuals found using them are referred to committees of legal, health, and social work professionals who address underlying social or health issues rather than imposing jail time.
This approach has improved public health and human rights, with significant reductions in overall drug use, particularly heroin, and new HIV infections among injecting drug users. Although some arrests for drug consumption still occur, Portugal’s strategy demonstrates that a humane, health-centered approach can effectively reduce harm and improve lives.
This approach can similarly be adopted in India. Decriminalisation is the first essential step to shape a resilient and beneficial drug policy in India.
- Regulation in NYC, USA
Regulation involves creating legal frameworks to control drug availability based on their health risks, ensuring state oversight. It does not mean unrestricted access but establishes rules for controlled use, similar to how alcohol and tobacco are regulated.
For example, in the year 2021, New York City became the first ever city in the United States to establish supervised drug-use sites where individuals may consume illegal substances under the supervision of trained staff without fear of arrest. These safe use sites are expected to benefit surrounding communities by reducing infection rates for diseases such as HIV and hepatitis C. A report commissioned by the city’s administration mentioned that opening four drug-use sites would prevent 130 overdose deaths annually and save up to $7 million in healthcare expenditure.
Other countries like India can adopt supervised drug use sites to tackle unsafe drug consumption and its associated health risks, such as the spread of HIV and hepatitis C through shared needles. By integrating these sites into broader harm reduction policies, including decriminalisation and addiction treatment programmes, countries can save lives, lower healthcare costs, and foster healthier, more compassionate societies.
- Drug courts in the USA and other countries
Drug courts have been shown to reduce reoffence rates, decreasing them from 50% to 38% on average, with effects lasting up to three years. Larger reductions are seen in adult courts with high graduation rates and non-violent offenders, while juvenile courts show smaller impacts. More than 2,000 drug courts are operational in the USA, with equivalent programs in Canada, the UK, New Zealand, and Australia.
Drug courts differ in operations but share the common feature of judicial supervision with regular updates. While evaluations, including a rigorous study in Baltimore, suggest reduced drug use and arrests initially, long-term differences diminish over time. Despite limitations, drug courts are widely regarded as an effective community-based approach.
Conclusion
It can be concluded that states with stricter drug abuse laws are still the ones facing high levels of drug-related problems, highlighting their tendency to rely on harsher legislation to address the issue. However, as evidence suggests, stricter laws alone are not the solution to this sensitive problem. In many cases, overly punitive approaches deter drug users from seeking rehabilitation out of fear of legal repercussions. In India, several state laws on drug abuse are stricter than the NDPS Act, tailored to meet local challenges. While these laws aim to curb the menace, they often fail to address the root causes of addiction or provide avenues for recovery.
To create a more effective response, it is crucial to shift focus from incarceration to alternatives like rehabilitation and reintegration. Amending certain provisions of state drug laws and Section 27 of the NDPS Act would be a vital first step in ensuring justice and support for drug addicts across the country. Such reforms would encourage individuals to seek rehabilitation without fear of harsh penalties, fostering an environment where recovery is prioritized over punishment. By combining legal reforms with comprehensive treatment programme, India can move towards a more humane and effective approach to combating drug abuse.
**Hi, my name is Taru Jain. I am a second-year B.A. LL.B. student at Maharashtra National Law University, Mumbai. I have a strong interest in exploring the intersections of law, policy, and real-world impact. I researched the topic of this article during my internship with the NGO SPYM (Society for Promotion of Youth and Masses) in Delhi, where I had the opportunity to understand grassroots realities and connect them with broader legal frameworks.This article reflects a part of that journey, and I hope it brings some value to ongoing discussions in the field. Thanks for taking the time to read my work!
Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.