“Weed Rather Not” Says Blunt High Court

I am not sure why I’m even writing this, but maybe a higher power that controls us has a plan and, for me, that plan was to put up a fight against an unpardonable prohibition on a plant, i.e. cannabis or ganja, especially when we are all born with an endocannabinoid system and, hence, are fundamentally wired to consume it daily for good health. Yes, there was a time when I would gleefully consume beer, whisky, vodka etc., but I forgive myself for it as I was ignorant of the fact that alcohol only disrupts our endocannabinoid system and does not have many or any benefits as compared to the greatness of non-addictive cannabis, which helps in homeostasis (to build a stable internal environment in our bodies). I am sure many doctors and medical experts would agree with what I say.

My journey as a lawyer to fight prohibition on the plant began in late 2013. I started sending out Right to Information queries to various Ministries, demanding answers as to how the consumption of cannabis is harmful to the human body. And if consumption of Cannabis in any form is not harmful to humans, why is it illegal with such stringent punishment? Sadly, I never got a valid answer. Therefore, I decided to approach the Bombay High Court which, of course, many would know is a Constitutional Court. My petition, in which I appeared as petitioner-in-person, not only contained all the non-replies to my Right to Information queries and findings in the British-era Indian Hemp Commission Report, but was also loaded with science backing the fact that consumption of cannabis in any form is only beneficial to us humans, with no side effects, for example, like the deleterious effects of alcohol. As the petition challenged the inclusion of cannabis in Narcotic Drugs and Psychotropic Substances Act (NDPS) of 1985, I shall stick to the said plant and all its extracts (ganja / bhaang / charas etc). I need not go into the details of the science of cannabis, produced along with the petition.

It’s quite simple: if a law or rule imposes prohibition on something, it must necessarily be backed with either scientific or logical reasons, and if that is not so, then such law or rule cannot be allowed to function. Therefore, any sanction that follows from such a law or rule automatically becomes violative of our constitutional morals, ethics, and code of conduct. Hence, the only question before the High Court was to determine whether the inclusion of cannabis in the NDPS Act was ultra vires (in contravention of) the provisions of our Constitution.

This could easily have been achieved if the High Court would have stuck to the replies to my RTI, taking cognizance of the fact that over 30 years have passed since the NDPS legislation came into effect, and that no one from the Government could justify its illegality or how its consumption is harmful to the human body. Alas, the most unexpected happened and my petition was dismissed. I was asked to raise the issue in Parliament, which has put a serious question mark on the role of Constitutional Courts to step in and correct any wrong.

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In 2015 I approached the Supreme Court under Article 32 of the Constitution, challenging the order of the Bombay HC, but even they refused to entertain me. A court which has previously converted letters into petitions and granted relief refused to entertain me. Especially when I had not only filed my petition online, but had also sent hard copies to the top five judges, including then-Chief Justice T. S. Thakur and present-Chief Justice Jagdish Singh Khehar. One of the grounds for refusal was that my petition was against Supreme Court Rules. I subsequently wrote numerous letters to all the judges of Supreme Court explaining my position, but no cognizance was taken. This plant continues to be illegal for no reason whatsoever.

Be it cannabis, or any other plant, chemical or substance, if naturally occurring, they cannot be made illegal with such stringent punishment, as that in itself would amount to an unconstitutional act on the part of our legislature. And to put anyone in jail when found with any such naturally occurring plant, chemical or substance, which a law makes illegal, would amount to illegal detention.

No doubt the legislature while enacting the law making nature illegal would have had its own reasons, but to put someone in jail because of it is something I am not able to agree with. All the convictions in relation to cannabis must be set aside, and those in prison released forthwith. Criminal proceedings pending in relation to Cannabis must be quashed, and all the under-trials and accused released without any undue delay, unless they are wanted in some other case or proceeding. Inclusion of cannabis in the NDPS Act must be declared ultra vires the provisions of our Constitution.

It is a serious waste of judicial resources and time to deal with cases where, ironically, Mother Nature is made to look like an idiot as her creations are made illegal.


The author, Aditya Barthakur, is an Advocate in the Bombay High Court and Pune District Court. His work focuses on Constitutional Law.

To view a copy of the petition to Supreme Court, click here.

Editor’s Note:

ID Chief Editor Ankur Borwankar was present at the Bombay High Court on the date of dismissal.

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