RECREATIONAL MARIJUANA: AN OVERVIEW
AMITA VASUDEVAN & M.SUBHADRA, B.COM.LLB (HONS) SCHOOL OF LAW, SASTRA DEEMED TO BE UNIVERSITY
Mail: subhav.mlm@gmail.com, amitavasudevan2000@gmail.com
ABSTRACT
The objective of this paper is to understand the patterns of marijuana use. This research article throws light on the implication of the drug laws and policies and the legal status of Recreational Marijuana. Is legalizing recreational marijuana a big step towards a better tomorrow? Despite the widespread experimentation with alternative marijuana policies the implementation of these policies is very less effective. Marijuana holds a prime importance when it comes to legalization. If it is decriminalized, it should be regulated properly. In many cases, it proves very clearly that prohibition of Recreational Marijuana is a futile measure as there are existing and escalating crimes due to its usage despite prohibition. Can the freedom to possess marijuana for recreational purposes can be a guaranteed right? Isn’t the government responsible to make moralistic decisions? Of course it must be up to the individuals themselves to decide what they must be exposed to, but the government has the authority to regulate its usage and protect its consumers. Large doses of its intake might cause delusions, psychosis etc. This paper highlights various aspects such as arguments for legalising marijuana, the legal status of marijuana in and around the world etc. There are reasons which are more than just adequate to prove, why marijuana should stay an illegal substance, but on the other hand its positives simply outweighs the risks and legalizing it is a good sign for the societal growth but must be done with certain restrictions.
RECREATIONAL MARIJUANA
INTRODUCTION
Marijuana derives its name from Cannabis sativa which is a green, flowering hemp plant. It is used to change one’s consciousness as it makes a person psychoactive. It produces a state of happiness in a person. There are more than thousand slang names for marijuana such as Weed, Pot, Ganja etc. It contains higher level of THC i.e., delta 9- tetrahydrocannobinol which acts as a mind altering agent and causes people to get high. It can be used in several forms. While it is often smoked as a cigarette it can also be mixed in food or be brewed into a tea. The Ganja which is removed from the plant is compressed, which often looks like pieces of chocolate. Then it is put into a cigarette and smoked. When it is inserted into the body, it goes into the body, mixes with the blood and leads its way to the brain and other organs.
BIRTH AND EVOLUTION OF MARIJUANA
Hemp is one of the ancient plants to be cultivated. Chinese used this in order to stitch their clothes, their shoes etc. Hemp, named Ganja in Sanskrit was also used in certain religious ceremonies to produce smoke, called qunubu. However it was opined that moderate use of such drug would not affect the consumer. Over usage of the drug may be hazardous to one’s health (Report of the Indian Hemp Drugs Commission, 1894-1895). In the ancient days, cannabis was used for psychoactive recreational purposes, as medicine, as food and also for religious purposes. Right from the 14th century it was restricted in the Islamic world. In the subsequent centuries, it was once again restricted in the colonial countries. In 1798, British government enacted tax on all forms of cannabis. Levying tax on these items was done with an objective to reduce its usage ensuring good health to the natives. All those restrictions were removed in the 20th century. In the year 1925, International opium Convention banned the exportation of “Indian hemp” and the other countries importing the drug were made to produce a certificate declaring that the drug was imported for medical purposes alone. Many countries restricted the sale, purchase and production of Hemp. Ganja Law was passed in Jamaica in the year 1913, in South Africa in the year 1922 and in the United Kingdom and New Zealand in the year 1920. Canada criminalized the production in 1923, through The Opium and Narcotic Act. The Marijuana Act in the Unites States in the year 1937 prohibited the production of Hemp. Bhang is member of Cannabis family which is still popular in India. It is consumed as a milk shake.
In the year 1961, the Single Convention on Narcotic Drugs classified cannabis as a hard drug and the Indian Government was made to promise for limiting the export of Indian hemp.
"Cannabis" means the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin has not been extracted, by whatever name they may be designated (The final draft of the international treaty, Commentary on the Single Convention on Narcotic Drugs, 1961: Paragraph I, subparagraph (b)). In the year 1985, Narcotic Drugs and Psychotropic Substances Act were passed. The NDPS maintained the same definition excluding Bhang from it. This led to an increase in consumption of bhang as a tradition. According to NDPS Act Section 2(iii) runs as:
“cannabis (hemp)” means—
(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared there from;
(iv) “Cannabis plant” means any plant of the genus cannabis;
Cultivation of Cannabis for industrial purposes is legal in India, as it is recognized as a source of biomass and fuel.
WHAT HAPPENS WHEN MARIJUANA IS USED?
It creates a feeling of joy and a sense of relaxation but not everyone’s experience with it is pleasant. It can cloud a person’s senses and judgement. The person who is into the use of this cannot make out the difference between himself and others. It can even lead simple things to a dangerous activity such as driving a car, climbing up the stairs etc. It makes a person hard in remembering things which just happened. It makes a person loose his control and his body does not coordinate. It makes the user dizzy which might lead to oversleeping. Long term users may have uncontrollable and repeated vomiting. It affects the short term - memory. It might be a hindrance for students as it may affect their ability to focus and learn. It may lead a person to hallucination, kidney failure and even may be a cause of his death. On the whole, it affects timing, movements and coordination of a person.
PROS AND CONS OF LEGALIZING RECREATIONAL MARIJUANA
POSITIVES
1) REVENUE GENERATOR:
It is one of the biggest revenue generating sectors in many countries. Marijuana is not harmful compared to alcohol and tobacco. It is also used for industrial and medical purposes. It brings more tax than alcohol, thus helps to boost the economy.
2) TRAFFIC DEATH:
It leads to a decrease in traffic deaths. Public safety improves. People under the influence of marijuana tend to drive properly and carefully and they become more cautious compared to an alcoholic.
3) Legalizing Marijuana helps in reducing street gangs and organized crimes. It helps in annihilating black markets.
4) Black people are considered to be more influenced to the usage of Marijuana. Hence putting a ban on its usage might become an act of Racial discrimination.
5) HELPS THE ECONOMY:
When marijuana is consumed in a place where it is illegal, cops play a crucial role in arresting users of Marijuana. Once it becomes legal, it helps the cops in a way where they need not spend time in arresting the users; instead they can concentrate on heinous crimes caused due the use of Marijuana.
6) PUBLIC PROGRAMMES:
Taxes collected from Marijuana help in funding the public, the police department, mental health centres etc.
7) EMPLOYMENT:
It can generate employment opportunities. Legalizing Marijuana might employ people for work in various fields of the same sector.
8) RIGHT TO LIVE:
Being a grown up citizen of a country they cannot be imposed with values. The government cannot direct a person as what is to be inserted into their bodies. Holding people without giving them freedom to choose, might create a negative impact on the economy as they tend to do the crime without the knowledge of the other. Freedom should be granted with restrictions.
NEGATIVES
1) MORE THAN MONEY:
It is opined by many of us that it causes serious health problems. It increases the crime rates, driving accidents. More than money it harms the life of the people which is more valuable than anything in this world.
2) EFFECT ON TEENS
Legalizing Marijuana tends to increase it usage among teens as they start using it without any fear in public places. Usage of Marijuana is harmful among teens as brain is not fully grown until 25 years. Excessive usage might cause short term memory loss and it may impair concentration of young minds.
3) ADDICTION AND WITHDRAWAL
Users of Marijuana get addicted to it very easily and withdrawal from it is not easy as it may lead the user to suffer from depression, insomnia, anxiety, stomach pain.
4) INCREASE IN USAGE
Legalizing Marijuana might lead to an increase in its usage. It harms the brain and it might lead to mental health problems.
5) US AND AROUND US
It might harm not only the smokers of Marijuana but also people around them. Users might get affected with respiratory problems. One Marijuana smoke is considered to be equal to five tobacco cigarettes.
6) The industry to grow well might target the children and younger generation for its commercial purposes. Once the Industry grows, it makes profit, introduces new advertising techniques, which may attract and pull young and small children.
7) It is considered to create a harmful effect on the environment. To grow cannabis, the requirement of water is twice more than the water required for growing any other edibles such as grapes, tomatoes etc.
LEGALITY OF RECREATIONAL MARIJUANA
The legal status of recreational marijuana varies from a continent to other. In most of the countries, use of Marijuana for recreational purposes in prohibited. However it can be used for other industrial and medical purposes. Many countries have adopted the concept of Decriminalization of Recreational Marijuana. Countries which have legalized recreational Marijuana are Canada, Georgia, South Africa, and Uruguay, plus eleven states and the District of Columbia in the United States and the Australian Capital Territory in Australia.
STATUS OF MARIJUANA IN VARIOUS COUNTRIES OF THE WORLD:
North America:
1) Canada:
Canada legalised recreational marijuana in the year 2018, becoming the second country in the world to do so.
The Canadian Cannabis Act provides that ‘A person may possess, sell or distribute cannabis if the person is authorized to sell cannabis under a provincial Act that contains the legislative measures referred to in subsection (3).’ (S.69 (1) of Cannabis Act S.C.2018, c.16).
As of October 17, 2018 following has been legalised:
Subject to provincial or territorial restrictions, adults of the age of 18 or above can
• Legally posses up to 30g of legal cannabis in public.
The possession limits in this Act are based on dried cannabis. Thus a person can posses 30g of dried cannabis or equivalent non dried cannabis.1 gram of dried cannabis is equal to 5 grams of fresh cannabis (or)15 grams of edible product (or)70 grams of liquid product (or) 0.25 grams of concentrates (solid or liquid) (or)1 cannabis plant seed.
• Share legal cannabis up to 30g with other adults.
• Grow up to 4 cannabis plants per household from licensed seeds for personal use.
• Buy from provincially licensed retailer.
• Make cannabis products at home, such as food and drinks, as long as organic solvents are not used to create concentrated products.
And cannabis edible products and concentrates have been legalised for sale from October 17, 2019.
2) Jamaica:
Possession of up to 2 ounces for personal use has been decriminalised and made a petty offence punishable with a maximum fine of about $5.
3) Mexico:
Similarly in Mexico 5g or less marijuana for private or personal use has been decriminalised.
4) United States of America (USA):
11 states of USA has legalised the recreational use of marijuana which includes Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington, another 16 states have decriminalised and 33 states have legalised medical use of cannabis.
Both medical and recreational cannabis are illegal in countries like El Salvador, Guatemala, Nicaragua, Honduras, Dominican Republic, Cuba, Haiti, Panama and Bahamas of North America.
South America:
South America comprises of 12 countries namely Brazil, Chile, Peru, Argentina, Uruguay, Suriname, Bolivia, Columbia, Ecuador, Paraguay, Guyana and Venezuela.
• Uruguay was the first country in the world to legalise adult-use and possession of cannabis in 2013.
• Brazil legalised medial cannabis and in 2006 decriminalized personal growth and usage of marijuana, however the sale and purchase of cannabis still remains illegal.
• Argentina decriminalised cannabis for personal use in 2009 and unanimously legalised medical cannabis in 2017.
• Chile, Bolivia and Peru decriminalised recreational cannabis and legalised medical cannabis.
• Whereas in Guyana, Ecuador, Suriname, Venezuela; both medical and recreational cannabis is illegal.
• In Paraguay recreational marijuana is decriminalised up to 10g while medical cannabis is illegal.
Africa: the second largest continent in the world which houses 54 countries.
• Landmark judgement passed by the constitutional court (Concourt) of South Africa held criminalisation of home use and cultivation of cannabis by adults, unconstitutional (Minister of Justice and Constitutional Development and Others v Prince; National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others.). Recreational use of Marijuana (locally known as dagga) no longer constituted a criminal offence under Medicine Controls Act in South Africa as it was held that prohibition of possession, purchase, or cultivation of cannabis for personal consumption by an adult in his private dwelling was a violation of the right to privacy.
• Various countries like Lesotho, Zimbabwe, Uganda legalised the cultivation of cannabis for export, medicinal and or research (scientific) purposes to facilitate economic growth. But recreational marijuana still remains illegal in these countries.
• Though in various other African countries like Malawi, Ghana, Morocco etc. cannabis is illegal, it is tolerated.
Europe:
Countries like Italy, Germany, Czech Republic etc have legalised medical marijuana and some European countries have decriminalised recreational use of cannabis. At large recreational marijuana still remains illegal in various European countries.
It is legal to posses and consume in Georgia but not for sale as per ruling of Constitutional court of Georgia on 30 July 2018.
Asia:
The largest continent in this world; accommodates 48 countries.
In spite of the fact that medical marijuana is gaining importance in the current scenario and has been legalised in many countries of various other continents, it is illegal in many countries of Asia. Both recreational and medical marijuana remains illegal in majority of Asian countries.
Thailand is one among the very few countries in Asia wherein medicinal marijuana is legalised. It is the 1st country in south Asia to have legalised medicinal cannabis.
South Korea became the first East Asian nation to legalize medical marijuana. Japan approved clinical trials for the cannabis compound Epidiolex, a CBD oral solution used in treating epileptic patients.
In some countries recreational marijuana is illegal, but often unenforced.
Australia:
The Australian Capital Territory (ACT) which envelops the capital city of Australia, becomes the first jurisdiction in the country to legalise the recreational use of Marijuana i.e. possession and cultivation of marijuana for personal use. The new legislation with effect from January.31.2020 permits residents over and above the age of 18 to legally posses up to 50 gram (1.76 ounces) of dried marijuana on their person, and cultivate 2 plants per person or 4 per household with a 150 gram limit of wet cannabis. In short adults in the ACT will be able to personally posses and grow small amount of cannabis (possession of up to 50 grams of dry cannabis, or 150 grams of wet cannabis). But the legislation makes it an offence to smoke near minor, supplying the drug to others, and its cultivation is restricted to private property and users should ensure that such drugs aren’t easily accessible to public or minors. Prior to the new law, possession of small amounts of marijuana was decriminalised while in other jurisdictions it still remained a crime. In 2016 Australia has approved the use of marijuana for medicinal purposes but not for recreational purposes. Hence this new legislation is in direct conflict with the Federal laws. This new law does not imply that a user cannot be prosecuted under the federal law. ACT Attorney-General Gordon Ramsay stated that "The ACT's legislation attempts to provide a clear and specific legal defence to an adult who possesses small amounts of cannabis in the ACT, but is prosecuted under Commonwealth law. But unfortunately it cannot stop someone being arrested and charged if the Commonwealth officials were minded to do so, or prosecuted if the Commonwealth Director of Public Prosecutions thought it were appropriate to do so." Chief Police Officer Ray Johnson stated they would continue to focus less on consumers of cannabis, and more on organised crime pushing large volumes of the drug.
LEGAL STATUS OF MARIJUANA IN INDIA:
The NDPS Act which is the central act that deals with narcotics and drugs defines cannabis in S.2(iii) ("cannabis (hemp)" as-
(a) charas, i.e. the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated Preparation and resin known as hashish oil or liquid hashish;
(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom;) of NDPS Act.
The definition is silent about leaves and seeds of the cannabis plant. The powers to regulate and form rules on the use of seeds and leaves rest with the respective state governments. Bhang, an edible preparation of cannabis is widely used in India especially in the north during festivals like Holi. Bhang has been in existence in India for ages and has become an integral part of Indian culture and tradition. Thus bhang was omitted from the NDPS Act and the power to regulate it was handed over to the State Government.
Various states State Government has taken different stands for example:
In Assam: The Assam Ganja and Bhang Prohibition Act, 1958, prohibits sale, purchase, possession and consumption of ganja and bhang.
Maharashtra: the Bombay Prohibition (BP) Act, 1949, bans manufacture, possession and consumption of bhang and bhang-containing substances without a license (Section 66(1)(b)).
Gujarat: Gujarat legalized bhang On 21 February 2017, by removing it from the list of "intoxicating drugs" covered by section 23 of the Gujarat Prohibition Act.
In Arjun Singh v State of Haryana (2005 CriLJ 253) 2004 the HC of Chandigarh held that bhang does not constitute a part of cannabis(hemp) under the definition but comes under the purview of cannabis plant under S.2 (iv) ("cannabis plant" nreans any plant of the genus cannabis). Thus it isn’t illegal to consume the leaves but is illegal to cultivate the plant i.e. the plant cannot be grown but leaves of plants that grow in wild can be harvested.
Though there is no central law that prohibits the use of bhang there are various sections that prohibit the cultivation and usage of cannabis mentioned in Section .2.(iii)
S.8 (Prohibition of certain operations states No person shall
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made there under and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation: Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:) (b) prohibits cultivation of any cannabis plant and 8 (c) prohibits the production, manufacture, possession, sale, purchase, transport, consume, use etc. of narcotic drug or psychotropic substances with some exceptions.
But Section 14 (Notwithstanding anything contained in section 8, Government may, by general or special order and subject to such conditions as may be specified in such order, allow cultivation of any cannabis plant for industrial purposes only of obtaining fibre or seed or for horticultural purposes.) states Special provision relating to cannabis wherein Government may allow cultivation of cannabis plant for industrial purposes i.e. only for obtaining fibre, seed or for horticulture purposes.
Only bhang does not come under the purview of NDPS Act but ganja and other forms of cannabis are well within its purview. Possession, cultivation, medicinal and recreational use cannabis is illegal in India.
Punishment for the same has been specified in S.20 (20. Punishment for contravention in relation to cannabis plant and cannabis.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,—
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,—
(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and
(ii) where such contravention relates to sub-clause (b),
(A) and involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;
(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.) of the Act. The section states that whoever in contravention of any section of this Act, cultivates any cannabis plant is punishable with rigorous imprisonment for a term which may extend up to 10 years and fine which may extend up to one lakh rupees. Or whoever in contravention with this Act produces, possesses, sells, uses cannabis etc is punishable with
If small quantity is involved: rigorous imprisonment for a term which may extend up to one year or fine up to ten-thousand rupees or with both.
If quantity that is involved is lesser than commercial quantity but greater than small quantity: rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees.
If commercial quantity is involved: rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and liable for fine which shall not be less than one lakh rupees but which may extend up to two lakh rupees.
CONCLUSION
Legalization of Recreational Marijuana involves a lot of complexity. Although it might be helpful in reducing the controversy among the public, it does not turn out to be destructive to the health and performance of the individuals. The question of Legalizing Recreational Marijuana is relevant nowadays. Recognition of people’s right and freedom is necessary, but they cannot be expected to be always absolute. There must be legitimate restrictions on the freedom granted. If Legalization is granted, it must be done with appropriate programmes in order to reduce the adverse effect on communities. User sanctions provided must be limited. The motive which different stakeholder carries differs and all those have to be taken into consideration. Some growers and entrepreneurs of Cannabis tend to support legalization so that they can get financially benefitted and others don’t as their service may be eliminated. Legalization is an important activity which not only involves educational challenges but also the situation on the road. The government should limit the drug that is being distributed. The criminal justice system should experience a vast and sweeping change in this process and it should take stringent action against offenders and law breakers to help the society at large. It’s better to not legalise recreational marijuana but if the pros of legalising marijuana exceeds its cons, then it can be legalised but with restrictions. The government must ensure that the reason for which it is legalised is achieved and doesn’t have adverse effects on the society. If India strives to achieve legalisation of recreational marijuana, some factors mustn’t be forgotten and overlooked i.e. youth form the major part of Indian population and if legalised without proper measures and restrictions it can easily get out of control as India has the second largest population.