Saturday, October 18, 2014

The SAD Act


The Sikkim Anti Drugs Act, when tabled in the State Legislative Assembly in the year 2006, was heralded as a path-breaking initiative to combat substance abuse in the State and was universally lauded for the sensitivity with which it proposed to address the problem – being firm with peddlers and empathizing with addicts. The Act understood the societal challenge posed by addiction at its various facets and was expected to serve the State well for the years to come. However, eight years down the line, SADA, aimed at rescuing addicts and punishing dealers, has lost that very essence of what it was planned as - a strong and humane law and has become the SAD Act headlined here.
SADA which was passed as a “one of its kind initiative” seems to have failed in reducing the number of addicts and has [hopefully inadvertently] driven far too many “addicts” to become peddlers after this Act has left no other door open for them after having once ensnared them. Clearly then, the Act, put together as a means to make Sikkim a “Drug Free state” is proving counterproductive.
SADA was drafted to tackle the problem of drug abuse and of other controlled substances that are being peddled with alacrity in the State in the absence of any strong enough laws to curtail their sale or penalize the traffickers. Most of the common substances of abuse are prescription drugs, which until SADA came about, were not recognized as “drugs” making policing against them impossible to deliver. While SADA brought the peddling of such substances within the ambit of cognizable offences, what it proposed to achieve was even more significant. The original Bill aimed to come to the rescue of addicts and punish dealers who put the substances on the streets. The plan was to reinforce rehabilitation infrastructure and reinvigorate social and governmental involvement in rescuing the young from addiction. When the rules were framed into law, however, the Act was stripped of all such nuances, and what is being implemented is a harsh and insensitive rule which is perpetuating prejudices and stigma, a combo made more dangerous because it comes jacked up with the backing of the law.
It is bad enough that addicts are irresponsibly branded as “antisocial” by a disinterested society at large, but what is worse is that SADA, not the Act but its implementation, is now conspiring to make their rehabilitation into society even more difficult.
Take this disturbing story for instance.
“I was first arrested in possession of seven capsules of Spasmo-Proxyvon and four tablets of Nitrosun-10 in the year 2010 at Rangpo check post when I was a class IX student in a government school,” states a youth now working as a counselor helping other addicts kick the habit. But that is now. In 2010, he was “advised” to plead guilty under SADA and accept a “punishment” of two and a half months in Rongyek Jail. The quantity found on him clearly proved him to be an addict and not a peddler. But whoever advised him to plead guilty without challenging the charges was either ill-informed or clearly perpetuating the prejudice which sees no difference between an addict and a peddler and believes that both need to be “punished”. Be that as it may, the lad pleaded guilty, served his time, and returned to the same environment which had made him an addict and this time with the stigma of also being a convict.
Not very long after his release, he was “caught” in Gangtok in possession of contraband substances. This time, he was in possession of 1,650 capsules of spasmo proxyvon, 33 bottles of a cough syrup and four tablets of N-10. As the haul proves and as he admits himself, this was for “dealing” and not for consumption alone.
Inexplicably, his second tenure at Rongyek was a short one month. “Does the law not differentiate between a dealer and a consumer? The punishment I received for the first offence as an addict was longer and harsher than the term I got for peddling!” shares this now recovering addict who doesn’t want to be named.
“There is no differentiation [between peddlers and addicts] and no real humanity in SADA. The law has given the police the long hand and the act is violating the fundamental rights of a citizen. This first time offender was literally driven into becoming a hardcore addict and a dealer since there is no differentiation between an addict and a dealer or any clause in the act that could get him into recovery when he was first caught by the police in possession of controlled substance,” rues Khituk Tongden Lepcha of Life Living Free Society, an NGO working with detoxification and rehabilitation since 2008.
Senior Advocate and Human Rights Lawyer, Dr. Doma T Bhutia, agrees. She states, “The objective of the Act was to reduce the trafficking of substances of abuse and bring down the number of addicts, but on ground, the effect has been the opposite.”
Instead of the numbers having come down, she states that the courtrooms are flooded with SADA cases and the worst part is that the accused persons are mechanically pleading guilty without understanding the consequences. The young offenders whose future prospects have already been put into jeopardy are the worst affected, she states.
She further argues that as per the Act, “illicit traffic” in relation to controlled substances also means production, possession, sale, purchase, transportation, warehousing, concealment use or consumption, import or export inter-state of controlled substance. “Production is clearly mentioned but still there is no provision in place to regulate pharmaceutical companies producing these very substance of abuse in our very own backyards,” states Dr. Bhutia.
She also states that in Chapter II Section 3 subsection 1 states that the government shall take all such measures for the purpose of prevention and controlling abuse of substance of abuse. She adds here that why has the government failed to lay down rules that ensure measures of prevention and why has no rule that facilitates the same have been framed till date.
“No one knows where the funds collected as fine paid by the convicted person under SADA go. How  and where it is being utilized since as per the Act the funds should be utilized for the rehabilitation of the drug users  and their reintegration into mainstream society, as it was supposed to do in the first place,” states the senior advocate. As already mentioned, unfortunately, the humane aspects of the Act have long been subsumed by uninvolved implementation.
But the Act was clearly not envisioned as such and was in fact proposed as an organic process open to tweaking and corrections to be made more effective and more considerate in consultation with the people and in service of the society. Towards this end, the Act mandated that a recommending/ review committee be instituted to keep track of SADA and keep it responsive and its implementation responsible.
In this regard, what is unfortunate is that this committee, chaired ex officio by the Chief Secretary, remains defunct at most times and only token when it has to meet and make the pretense of conferring.
Drishya Foundation’s counselor, KC Nima, who along with the Recovering Users Network, an organization with over 300 recovering addicts as members, has been pursuing ways and means of getting this committee to make some meaningful recommendations and corrections but such efforts have fallen on deaf ears.
It may be informed here that the Bill, when tabled in the SLA in 2006, had a humane side under the section “Authorities and Offences” where it is recorded that the state government will coordinate action with various offices, departments and authorities for “identification, treatment, education, aftercare, rehabilitation and social reintegration of addicts”. However, the state government even after eight years has failed to open even a single counseling centre for addicts, leave aside the rehabilitation centres. Further, the Act also proposed that “controlled substances, flexible to cover for future exigencies will be the substances declared as such by the government by notification published in the official gazette”.
“The Bill clearly states that there has to be a recommending committee but as of now there has been no official intimation received in this front. When there is no review committee present that will look into the reintegration and rehabilitation part, how can we expect the Act to deliver what it was supposed to do when it was first drafted,” questions Mr. Nima.
Further, chapter IV of the Act deals with offences and penalties and its Section 9 (b) points out that if the user is young, unmarried or unemployed higher is the penalty of cost of Rs. 10,000.
“One cannot marginalize anyone in combating drug addiction and how is it important that the act marginalizes anyone as unmarried, unemployed or young. Is the Act targeting young people who are involved in drugs? Section 9 Clause (f) where a person who has been convicted for an offence under the Act and if such person is unemployed in such cases, conviction shall be a disqualification for employment under the State Government and will also be deprived of facilities like driving licenses etc,” informs RUN President, Sachin Subba, pointing out that such an approach defeats any attempts at rehabilitation.
Here, Dr. Bhutia, the Human Rights Advocate, points out that the fore-mentioned section is disturbingly contrary to Section 3 sub section (2) (b) that talks about rehabilitation and reintegration of the addicts into mainstream society. “Such provisions push people further into the offence of trafficking or using substance of abuse,” she states.
Here, she also adds that as of now she as an advocate has observed that the Courts are mostly full of accused under SADA, who are basically from financially poor backgrounds, however, she mentions that till date “no big fish” like owners of vehicles, producers and traders have been brought to trial in any local court. This opens another aspect of the problem. While addiction is admittedly “universal” in its footprint in Sikkim, and since the enforcers of the law remain largely incapable of differentiating between an addict and a peddler, it is indeed surprising that the well heeled and well connected don’t end up in court as SADA accused in as many numbers as they are initially “nabbed” or even proportion to their numbers in the pool of addicts.
Be that as it may, what was originally a humane effort, is now bordering on barbaric.
“Look at Tihar jail today, the accused persons were allowed to pursue their education through distance education courses and further link them to job placements after the period of conviction is over. However, in Sikkim under SADA, once you get caught, your life in the mainstream is over because too many doors are slammed shut with conviction,” the advocate rues. She adds, “To curb any critical issue the approach has to be humane.” Ironically, that is how SADA was conceived and drafted. Unfortunately, that is not how it is being implemented…

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