On November 7, 2019, the Delhi high court sought the government’s stand on a petition filed by the Great Legalisation Movement India Trust to decriminalise the use of cannabis. The petitioner has challenged the provisions of the Narcotics Drugs and Psychotropic Substances Act, 1985 which criminalise the use of cannabis as violative of various provisions of the constitution of India.

The main psychoactive compound in marijuana that gives a “euphoric” sensation is tetrahydrocannabinol (THC). There is evidence to show that THC is related to psychosis. Marijuana also contains a substance called CBD (cannabidiol), which seems to counteract its effect. CBD is a non-psychoactive compound and that means it doesn’t produce the “high/euphoria” associated with THC.

CBD is even being tested as a treatment against psychosis and anxiety. A 2017 King’s College London study found that participants treated with CBD had fewer psychiatric symptoms than those who received a placebo. Dr. Philip McGuire, lead author of the 2017 study, remarked:

“Although it is still unclear exactly how CBD works, it acts in a different way to antipsychotic medication and thus could represent a new class of treatment. Moreover, CBD was not associated with significant side effects. This is also potentially important, as patients may be reluctant to take antipsychotic medication because of concerns about side effects.”

Since CBD doesn’t give you the “high”, growers have gradually decreased the amount of CBD in marijuana over the last few decades, while simultaneously increasing THC levels. Sample testing showed that THC levels have risen from around 4% in the 1990s to nearly 12% in 2014, shifting the ratio of THC to CBD from 1:14 in 1995 to about 1:80 in 2014.

Though it is unclear as to how precise those tests were, recent findings suggest that the more marijuana you consume, and the stronger it is, the higher your risk of developing psychosis. Again, the question of how high the risk of psychosis is for the general population is unclear.

Also read: How Cannabis Jumped from ‘Colonial Science’ to Western Medicine – in Calcutta

A study from Britain found that while marijuana use has risen significantly between 1996 and 2005, the number of schizophrenia cases – a type of psychosis – remained stable. The risk of marijuana-induced psychosis remains the highest for people who already have a high risk of psychosis, to begin with. For them, it seems more likely that marijuana speeds up the development of their condition, rather than causing it.

So the argument goes, if fewer people have access to marijuana, the lower the risk of marijuana-induced psychosis. Agreed, but one could argue, precisely since marijuana is illegal, there is a greater chance people addicted to marijuana will end up with psychosis.

Past experiences with prohibition

Prohibition makes illegal drugs stronger and more potent. This is what happened during the prohibition of alcohol in the US. Although the consumption of alcohol fell at the beginning of the Prohibition, it subsequently increased. Alcohol became more dangerous to consume; crime increased and became “organised”. No measurable gains were made in productivity or reduced absenteeism.

Prohibition removed a significant source of tax revenue and greatly increased government spending. It led many drinkers to switch to opium, marijuana, patent medicines, cocaine, and other dangerous substances that they would have been unlikely to encounter in the absence of Prohibition.

Prohibition also led many people to drink more “legitimate” alcohol, such as patent medicines (which contained high concentrations of alcohol), medicinal alcohol, and sacramental alcohol. One New Jersey businessman claimed that there were ten times more places one could get a drink during Prohibition than there had been before. Potent marijuana with high levels of THC has gained traction over the years.

The numbers also show that stringent laws don’t deter people from using marijuana. A study by Alex Stevens, professor of Criminal Justice at Kent’s School for Social Policy, Sociology and Social Research found there is no evidence to suggest that teenage cannabis use is lower in countries with tougher policies.

Recently another study, ‘2018 Cannabis Price Index’ conducted by ABCD revealed Delhi to be the third-highest consumer of cannabis in the world, only behind New York and Karachi. Mumbai also featured at sixth position on that list. For perspective, pot – legal in Amsterdam – ranks at a lowly 56th place on the index. We can’t make marijuana go away, but it can be made safer.

If marijuana were legal, there would be more options for consumers, and regulators could, for example, insist on a high level of CBD. Just like most people don’t drink an after-work bottle of vodka, many people might gladly consume the after-work beer version of marijuana.

Also read: Centre to Allow Scientific Research on Cannabis

For instance, in most states that have regulated marijuana in the US, only cannabis extract containing no more than 0.5% THC and no less than 10% CBD, by weight is allowed. States like Kentucky have completely banned THC from their permitted extracts. Legalising marijuana could also open the gates to a ton of new research. In 2018, the FDA approved a drug comprised of an active ingredient derived from marijuana to treat rare, severe forms of epilepsy. Research is difficult when the drug in itself is illegal.

Gateway drug hypotheses

Another argument suggests that marijuana is a ‘gateway drug‘. This hypothesis states that there is a causal sequence through classes of drugs, whereby the use of “less harmful” substances is a risk factor for using “harder drugs”. There are two proposed reasons for this:

Experimentation: Trying a drug like marijuana increases the taste (and perceived pleasure) for other drugs, leading to further experimentation. Social groups: When a person using marijuana associates with other people who use marijuana, then it is likely they will become exposed to other drugs and substances too. This means there’s an increased opportunity and access to “heavier” substances.

Research shows that 45% of lifelong marijuana users have taken some other illegal drugs at some point. It can be argued that legalising marijuana could reinforce this trend as if more young people try legal marijuana, they might end up trying harder drugs.

But, the real gateway to drugs come in much earlier. A study showed that tobacco products could act as gateway drugs, opening the door to use of illicit drugs. The likelihood of initiating the use of tobacco or other licit drugs before using illicit drugs is much greater than the opposite process. A report suggests that only 2% of those using both tobacco and cannabis reported having used cannabis before tobacco.

Notwithstanding the same, the issue of cannabis being a gateway drug is much more complex, as multiple confounding factors suggest that a person’s drug usage trajectory might not be linked to previous exposure to cannabis. Instead, subsequent drug choice might be due to the independent characteristics that led the individual to be at risk for using illicit drugs in the first place.

Studies show that certain conditions make people especially vulnerable to drugs and addiction. A troubled childhood, trauma, low social status, depression, loneliness, and even genetics could be factors. To escape these issues, people turn to drugs. Only, drugs don’t solve any of the problems and instead, becomes a new problem. The underlying causes have to be addressed and punishing addicts is not helpful.

Portugal has shown us the lead in tackling this issue. Portugal had one of the worst drug epidemics in the world. This prompted the government to take a novel step. In 2001, it decriminalised all drugs (including heroin). Possession and use of drugs were treated as health issues and not crimes. Anyone caught with less than a ten-day supply of any drug — including heroin — received mandatory medical treatment. With no judge, no courtroom and no jail, the number of drug addicts, the usage of hard drugs and diseases due to overdoes decreased.

Also read: The Juul Comes to School – But Also to the Aid of Adult Smokers in India

On December 11, 2018, Norman Lamb, a former liberal democrat MP moved a bill to legalise possession and consumption of cannabis in England. He raised four major points:

“I want to make four key points. First, nowhere across the world has prohibition worked—cannabis is available everywhere. Secondly, people have no idea what they are buying. We know that leaving supply in the hands of criminals puts teenagers in particular at risk. They are most susceptible to suffering mental health consequences, including psychosis, from regular use of potent strains available on the street.

The widespread use of those dangerous strains is the result of our failure to regulate. A regulated market would allow the Government to control the safety and potency of cannabis sold by legal vendors. Through a misplaced desire to be “tough on drugs”, we leave teenagers vulnerable to exploitation from sellers who have no interest at all in their welfare. Through inaction, Government and Parliament are culpable. If something is potentially dangerous to children and young people, we must control it and regulate it, not leave it freely available from those keen to make a fast buck.

Thirdly, we know that the illegal market for drugs generates extreme violence in many communities, and particularly the most disadvantaged. If a supplier faces competition, they do not resort to the courts to protect their market; they use extreme violence. Thousands of people have lost their lives as a result of illegal trade in drugs in countries such as Mexico, but on the streets of our poorest communities, violence is meted out regularly. Young vulnerable teenagers get caught up in this violent trade and cannot escape. It does not have to be like this.

Fourthly, we still criminalise thousands of people every year, taking up precious police time that could be used to fight serious crime. Careers are blighted for using a substance that no doubt many Members on the Government Benches have used at some stage of their lives. Meanwhile, the most harmful drug of all is consumed in large quantities right here in this building.

Alcohol leads to violence on our streets and behind closed doors in people’s homes. It destroys families up and down our country, yet we tax it, and the Exchequer benefits enormously from it. Is there not dreadful hypocrisy in the fact that we allow our drug of choice while criminalising people who use another, less dangerous drug, many for the relief of pain?”

In response to the above, former Conservative MP Steve Double responded stating:

“My concern is that, by liberalising cannabis use, we would send precisely the wrong message to our young people. We would be giving them the message that cannabis is safe and okay to use. We need to make very clear that cannabis is a dangerous drug and that there is no safe consumption of cannabis in an uncontrolled, unregulated way. We are clearly in the midst of a war on drugs, but we will not win the war by raising the white flag, giving up and surrendering. No war has ever been won by surrendering”

In jurisprudence, the theory of expressive law sees the policy as a device for signalling a moral position or social norm, which may influence behaviour either directly by inducing individuals to internalise that norm and effecting a change in preferences, or, indirectly, by highlighting a particular social equilibrium and influence equilibrium selection.

Also read: Scrutinizing the Future of UK’s Nascent Cannabis Industry

The problem though is Prohibition as expressive law may strengthen adherence to the non-consumption social norm among the ‘establishment’ group, while simultaneously strengthening the dissident identity of the counter-culture group who are at highest risk starting cannabis use. Around 3 million people die every year due to alcohol abuse each year, while smoking kills more than 8 million people. Though legal, alcohol and tobacco are still portrayed as hazardous substances.

Governance would aid curbing the upsurge in drug abuse. Regulation allows cannabis buyers to moderate their intake. As seen in the case of the US, a patient roster, a list of licensed vendors, substance control (CBD percentage, etc) could be maintained to prevent abuse. Legality creates incentives that drug dealers can’t exploit. Contrary to Steve Double’s view, legalising marijuana does not mean endorsing it. It means taking responsibility for the risks it possesses.

R. Vigneshwar is an advocate practising at the Madras high court.