The cultivation, possession, use, or consumption of cannabis is currently prohibited under Indian laws. However, in my recent book Cannabis Indica: Perception v. Potential (2022) (‘Cannabis Indica’) I have briefly documented the use of cannabis for spiritual purposes and in religious ceremonies in India as well as other countries. In this piece, I argue that the criminal prohibition of cannabis under the NDPS Act is overbroad and criminalizes cannabis use for any purpose whatsoever including spiritual and religious use.
However, there is a long history of the entheogenic use of the cannabis plant to obtain spiritual realizations in Indian culture. Such use would seemingly be protected by our Constitution’s Free Exercise Clauses (articles 25 and 26) as well as by the Supreme Court developed doctrine of essential practices if reliable evidence of the essentiality of such practices could be produced. Reliable evidence for the same is now available (some of it is discussed here, for more see Cannabis Indica, pp. 35-39).
A Potential Constitutional Conflict
In light of this, a constitutional conflict between Indian Free Exercise Clauses and the criminal prohibition of cannabis under the NDPS Act clearly arises. A suitable amendment to some provisions of the NDPS Act will easily resolve this conflict. Alternatively, since the matter is one of protection of fundamental rights, our Supreme Court may grant a general spiritual and religious exemption from the NDPS Act.
This remedy saves the NDPS Act from a declaration of unconstitutionality and accommodates the fundamental rights of spiritual and religious users of cannabis. The doctrine of reading down is a part of our jurisprudence under which the courts are duty-bound to make a genuine attempt to save the constitutionality of a law by adequately reinterpreting the law to accommodate constitutional requirements. As will be noted later in this piece, the 8th Lok Sabha that enacted the NDPS Act was invited to study the matter in detail but it could not. 37 years of oversight are enough.
The Narcotic Drug & Psychotropic Substances Act, 1985 (NDPS Act), sec. 2(iv) declares the ‘cannabis plant’ to mean ‘all plants of the genus cannabis.’ Botanically speaking, this may be said to be the most scientifically accurate definition of this plant. Commercially speaking, however, the definition is provided in Sec. 2(iii) which declares ‘cannabis (hemp)’ to mean charas, ganja (excluding the seeds and leaves when not accompanied by ganja), and any mixture or drink prepared from either charas or ganja, makes more sense. For the purpose of this piece, cannabis is perceived from the botanical perspective therefore sec. 2(iv) becomes more important than sec. 2(iii).
NDPS Act imposes a criminal prohibition on cannabis cultivation, possession, and consumption. NDPS Act exposes any cultivator, possessor, or consumer of cannabis to criminal penalties ranging from 6 months or a Rs. 10,000/- fine or both (sec. 27, NDPS Act) to ten years and a Rs. 2,00,000/- fine (sec. 20, NDPS Act). In addition, any act done to cultivate, possess, or consume cannabis, even if that act is unsuccessful, attracts the same penalties as the actual successful commission of that act would have (sec. 29, NDPS Act).
Essentially if X attempts to procure some cannabis (for whatever purposes) and X fails, X is guilty of either abetting or conspiring to commit the same crime that he failed to actually commit. This is a fairly representative sample of the legal position with respect to criminal prohibition of cannabis under the NDPS Act.
The Entheogenic Perspective
The culturally sanctioned use of psychoactive substances (including but not limited to cannabis), also called Entheogens, which induce such altered states of consciousness that make the mind more open to receiving a deep and meaningful spiritual experience, has attracted academic attention rather recently.
The anthropologist Weston La Barre in 1992 noted that ‘the use of powerful botanical hallucinogens has been a real and important vehicle of shamanistic ecstasy, not only in modern ethnographic times, but also in prehistory.’ The mycologist R. Gordon Wasson in 1968 suggested that the mysterious Soma of the Rig Veda ‘was in fact a brew whose active ingredient was the psychedelic amanita musicara (fly agaric) mushroom.’ Some scholars have even suggested that it was highly likely the use of these substances that established in the prehistoric man the very seeds of what would later be known as religion. But because of the criminal prohibitions imposed by the NDPS Act any cultivation, possession, and consumption of cannabis has been declared criminal. This creates a potential constitutional conflict.
Entheogenic use of cannabis has been widely documented online but has not attracted much scholarly attention in India. In Cannabis Indica, I discuss the famous US Supreme Court case Gonzales v. O Centro Espirita Befeficente Uniao de Vegetal, 126 S.Ct. 1211 (2006), famously known as the UDV Case where ‘a small religious group from New Mexico took the US government to the Supreme Court over a ban on the group’s use of a Brazilian imported hallucinogenic tea’ known as hoasca. I also discuss the importance of peyote to the Native American Church (NAC) because ‘peyote, like hoasca, is cultivated primarily for its hallucinogenic properties and considered a vital religious sacrament, particularly by the NAC.’ Much earlier in 1964 the California Supreme Court in People v. Woody, 61 Cal.2d. 714, held that: (i) Peyote serves as a sacramental symbol similar to bread and wine in certain Christian churches; and (ii) Peyote itself constitutes an object of worship – prayers are directed to it much as prayers are directed to the Holy Ghost.
These two cases represent a particular strain of judicial thought extracted from American jurisprudence. According to this strain if the cultivation, possession, or consumption of a plant has been criminally prohibited by a legislation enacted by a competent legislature, the judicial branch may grant a religious exemption from such a criminal prohibition in order to protect the fundamental right of free exercise of religion as provided for in the First Amendment to the US Constitution.
There are no similar Indian Supreme Court cases on the issue to compare, but that is only because, as I note in Cannabis Indica, ‘in India no sadhu has ever had to go to court to claim their spiritual right to consume cannabis, which they do and have been known to be doing for the last hundreds, probably thousands of years.’
The Law versus The Constitution
It is interesting, however, to note that cultivation, possession, and consumption of cannabis are all criminal offenses that attract light to heavy criminal penalties, certain jail time as these are all essentially non-bailable offenses, and most certainly loss of reputation on account of being arrested by the police. It might also not be unfair to suggest that there is no so-called taboo associated with cannabis consumption in India. The real taboo is the loss of societal reputation and public humiliation that comes with being arrested by the police in relation to cannabis. Even if a person is later acquitted by the Court, the damage is already done.
Articles 25 and 26 of our Constitution, read together, have been called the Indian Free Exercise Clauses. Article 25 provides to all persons the freedom of conscience and the right freely to profess, practice and propagate religion. This right is subject to public order, morality and health. Even though these rights can’t be taken away, the government is allowed to regulate or restrict any economic, financial, political or other secular activity that may be associated with religion.
Article 26 provides four special rights to every religious denomination viz. (i) the right to establish and maintain institutions for religious and charitable purposes, (ii) to manage its own affairs in the matters of religion, (iii) to own and acquire movable and immovable property, and (iv) to administer such property in accordance with law. Article 26 is also further subject to public order, health and morality. Scholarly analysis of Indian Free Exercise jurisprudence shows that: (i) if an act is done (say use of cannabis for spiritual or religious purposes) in pursuance of a religious belief it would fall into the sphere of protection guaranteed by the Indian Free-Exercise Clause (this later came to be known as the Doctrine of Essential Practices); and (ii) what are or are not essential practices of a religion is a question that is primarily to be decided with reference to that religion itself.
Entheogenic Use and the Supreme Court laid down ‘Doctrine of Essential Practices’
With respect to the essentiality of the practice of cultivation, possession, use, or consumption of cannabis for spiritual or religious purposes reliable historical evidence has now been uncovered. The first is the 1894 British Parliament-appointed Indian Hemp Drugs Commission (IHDC) report. The IHDC Report remains the most authoritative piece of historical evidence whose survey findings were found relevant even in 1969 by the Wooton Report prepared by the sub-committee on Hallucinogens of the UK Home Office advisory committee on Drug Dependence.
The IHDC Report was hailed and cited with wide approval by the Wooton Report. The IHDC Report on p. 160-61 notes: “The special form of worship by the followers of Siva, called Trinath or Tinnath Mela, in which the use of ganja is considered to be essential, is mentioned by many witnesses, and deserves more than a passing notice. … The religious ascetics, who are regarded with great veneration by the people at large, believe that the hemp plant is a special attribute of the god Siva, and this belief is largely shaped by the people. … [O]n almost all occasions where this worship is practiced, there is abundant evidence before the Commission which shows not only that ganja is offered to the god and consumed by these classes of worshippers, but that these customs are so intimately connected with their worship that they may be considered to form in some sense an integral part of it.” Further evidence of use of ganja, and charas in spiritual and religious practice could be found in Cannabis Indica: “The use of cannabis, referred to as ‘Shankar Mahaprasad,’ for instance by the highly revered sect of Naga sadhus (who worship the divine in the form of Lord Shiva), continues to be a part of Indian spiritual tradition even today.’
Resolving the Constitutional Conflict
The criminal prohibition of cannabis by the NDPS Act seems to be an overbroad piece of legislation drafted in a hurry and without the care or concern that this issue required. After analyzing its drafting history and Lok Sabha Debates, I found that the NDPS Bill was never sent to any parliamentary committee or some type of expert committee for further study even though some MPs were at pains to point out that ‘heavens will not fall if it is delayed for a month or two’ and that the Bill should be sent to a select committee. These requests fell on deaf ears and the Bill was rushed through the Lok Sabha. (Cannabis Indica, p. 102).
I do believe that if the matter were referred to a Select Committee the MPs would have realized that the complete criminal prohibition on cannabis that they were about to impose had some serious constitutional implications including but not limited to articles 25 and 26.
I do further believe that faced with this problem they highly likely would have arrived at a legislative solution that would have largely resembled the US position, i.e. grant a spiritual and religious use exemption for all such cannabis consumers from the general criminal prohibition on cannabis and leave the rest to the Courts.
No such suggestion was however made on the floor of Lok Sabha nor was it possible for a Select Committee to craft such a solution. The result is 37 years of a failed legislative policy of criminal prohibition of cannabis, unnecessary wastage of national judicial resources and public time on pointless small-quality prosecution.
It is time to end it. The constitutional issue highlighted in this piece may simply be resolved either by a parliamentary amendment to the NDPS Act whereby a spiritual and religious use exemption is granted, and in the event of any arrest the matter may be left to judicial discretion.
The law may further state that spiritual and religious use is a full and complete defense to any small or medium quantity possession charges under the NDPS Act. A similar result may also be obtained by a judicial opinion i.e. the Supreme Court may judicially grant a spiritual and religious use exemption from the NDPS Act in order to protect the fundamental rights under the Indian Free Exercise Clauses and its own doctrine of essential practices.
