The usage of cannabis, hemp or marijuana precedes official records, and it is one of the oldest crops thought to have been cultivated. 1 A complex plant with over 400 chemical entities, it remains poorly understood to this day due to the restrictions, legal and otherwise, imposed on it, making a rational, scientific appraisal and acceptance of it by the general public, difficult. 2
Hemp and hemp products have been a central theme in the international drug control regime and have been controversial, to say the least. A hemp plant, however, can be much more than just a gateway drug, as is commonly misunderstood, and can have various uses including in manufacturing of vegetable oils, plant-based protein, paper, canvas, rope, lace, linen, building materials, amongst others.
The Indian legislation governing the hemp plant, the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act") defines 'cannabis (hemp)' as the separated resin or the flowering or fruiting tops of the cannabis plant and is considered to be a narcotic drug. 3 However, this definition of cannabis does not include the leaves, stem, roots, or seeds of the hemp plant, within its scope. 4
The NDPS Act imposes a general prohibition on the cultivation, production, manufacture, possession, transport, import, export, sale, consumption or use of hemp. However, the NDPS Act also empowers the state government and the central government to regulate the cultivation, production, manufacture, possession, transport, import, export, sale, consumption or use of hemp. 5
Although hemp and hemp products are, by far, the most widely cultivated, trafficked, and seized 'drugs' in the world, 6 numerous countries are now legalising the usage of hemp products bearing in mind the various inherent benefits (both health and economic) of the plant along with the advantage of creation of jobs, opportunities, and revenues.7 Against this backdrop, we analyse the historical and contemporary regulatory landscape of hemp and hemp products.
2. UNCOVERING THE GENESIS OF HEMP USAGE
The hemp plant has a long history in India and is considered sacred by legends and religions. The ancient ayurvedic system of medicine is also seen to contain various references to hemp for healing and curing diseases such as diarrhoea, epilepsy, and haemorrhoids, amongst others.8
The earliest mention of hemp is said to be in the Vedas, the sacred Hindu texts, and more specifically, in the Atharvaveda, dating back to 4000-3000 B.C. The Vedas contain many references to the use and consumption of hemp for medicinal and religious purposes.9 Lord Shiva (a Hindu deity) is also known for having a strong affinity towards bhang. In this regard, the Indian Hemp Drugs Commission Report in 1894 ("Commission Report 1894"), recorded that "It is chiefly in connection with the worship of Siva, the. great god of the Hindu trinity, that the hemp plant, and more especially perhaps ganja, is associated." 10 In the Zoroastrian scriptures of ancient Iran (that closely resemble the RigVeda), consumption of bhang is said to bring happiness.11
Islam also regards bhang as a holy plant and in the Tibbi (the Islamic system of medicine), the plant is mentioned to have benefits to treat conditions such as asthma, dandruff, and urinary disorders.12 To certain Islamic sects, hemp is an embodiment of the spirit of the Prophet Khizer Elijah, the patron saint of water, and is often referred to as 'warak-al-khiyal' or 'fancy's leaf'.13
The usage of hemp in drinks and offerings is also found during various festivals in India including Durga Puja in West Bengal,14 and Holi.15 Further, hemp offerings are also given as prasad in temples throughout India such as the Mouneshwara temple in Karnataka16 and various temples in Varanasi.17
3. TRACING THE EVOLUTION OF THE REGULATORY FRAMEWORK
3.1. The Early Days
The earliest efforts to control the growth or consumption of hemp can be traced back to the 19 th century. For example, (a) Egypt witnessed its first ever penal law in 1800 that entailed a 3-month punishment for using hemp, (b) in Brazil, the use of hemp was prohibited in 1830, (c) in South Africa, a law was enacted in 1870 prohibiting the use and possession of hemp, and (d) in Greece, the cultivation, use and import of hemp was prohibited in 1890. 18
However, the Commission Report 1894, viewed hemp from a different perspective. After studying the usage of hemp in India, it recommended that (a) the prohibition of cultivation of the hemp plant was not desirable as it was growing all over the country anyway and prohibition would lead people to switch to substances that may be more dangerous than hemp, (b) the usage of hemp should be regulated and taxed through licensed production and sale, and (c) moderate use of hemp should be allowed as opposed to unlimited usage and carrying rights. 19
The Commission Report 1894, however, did not have much impact on the international community as hemp was not only brought under the purview of various national and international drug control measures but was also placed at par with opium and coca bush.20 A complete prohibition on hemp at that point (that is, in the 19th Century) was not feasible because (a) countries such as Egypt were re-considering the ban on hemp, and (b) countries that had prohibited cultivation and usage of hemp saw an immediate rise in trafficking of the plant that led to illegal smoking dens and corruption.
1 ERNEST L. ABEL, MARIJUANA - THE FIRST TWELVE THOUSAND YEARS (Springer Science+Business Media LLC 1980).
2 Zerrin Atakan, Cannabis, a complex plant: different compounds and different effects on individuals, (Mar. 20, 2021, 12:58 AM), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3736954/
3 NDPS Act, 1985, §2(iii), No. 61, Acts of Parliament, 1985.
4 Madhukar S/O Pandurang Kanthale v. the State of Maharashtra, (2002) 104 BOMLR 908; Arjun Singh v. State of Haryana, 2005 CriLJ 253; Sevaram v. State of Rajasthan, 1993 CriLJ 2503; K.V. Ramaswamy v. The Superintendent of Police, MANU/TN/2626/2009.
5 NDPS Act, 1985, §10 and §14, No. 61, Acts of Parliament, 1985.
6 WHO, Cannabis, (Mar. 20, 2021, 12:58 AM), https://www.who.int/teams/mental-health-and-substance-use/alcohol-drugs-and-addictive-behaviours/drugs-psychoactive/cannabis.
7 Deloitte, A Society in Transition, an industry ready, to bloom, (Mar. 20, 2021, 12:58 AM), https://www2.deloitte.com/content/dam/Deloitte/ca/Documents/consulting/ca-cannabis-2018-report-en.PDF.
8 ROWAN ROBINSON, THE GREAT BOOK OF HEMP (Park Street Press 1996); Chris Bennet, The Ganja Culture of India, Cannabis Culture, (Mar. 20, 2021, 12:58 AM), https://www.cannabisculture.com/content/2019/12/09/the-ganja-culture-of-india.
9 IC Chopra, RN Chopra, The Use of Cannabis in India, UN Office on Drugs and Crime, (Mar. 20, 2021, 12:58 AM), https://www.unodc.org/unodc/en/data-and-analysis/bulletin/bulletin_1957-01-01_1_page003.html.
10 Report of the Indian Hemp Drugs Commission 1883-94, Indian Culture, (Mar. 20, 2021, 12:58 AM), https://indianculture.gov.in/report-indian-hemp-drugs-commission-1883-94.
11 G.K. SHARMA, CANNABIS FOLKLORE IN THE HIMALAYAS, (Harvard University Herbaria 1977).
12 Maziyar Ghiabi, Masoomeh Maarefvand, Hamed Bahari, Zohreh Alavi, Islam and cannabis: Legalisation and religious debate in Iran, 56 Int J Drug Policy, 121 (2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6153265/
13 IC Chopra, RN Chopra, The Use of Cannabis in India, UN Office on Drugs and Crime, (Mar. 20, 2021, 12:58 AM), https://www.unodc.org/unodc/en/data-and-analysis/bulletin/bulletin_1957-01-01_1_page003.html.
14 Yatan Pal Singh Balhara, Arpit Parmar, Tamonud Modak, Virendra Vikram, From "Bhang Shops" to "Cannabis in Coffee Shops": Time to Debate the Option?, Sage Journals, (Mar. 21, 2021, 7:58 PM), https://journals.sagepub.com/doi/full/10.1177/0253717620957501.
15 Shubhangi Mishra, How bhang become such an integral part of Holi, (Mar. 21, 2021, 7:58 PM), The Print, https://theprint.in/features/how-bhang-became-such-an-integral-part-of-holi/378324.
16 DH Web Desk, Highly Spiritual: Some temples in Karnataka offer ganja as prasada, Deccan Herald, (Mar. 21, 2021, 7:58 PM), https://www.deccanherald.com/state/top-karnataka-stories/highly-spiritual-some-temples-in-karnataka-offer-ganja-weed-as-prasada-886918.html.
17 Naveen Pandey, Did you know 'bhang' is served as prasad in Varanasi on Maha Shivratri?, Zee News India (Mar. 21, 2021, 7:58 PM), https://zeenews.india.com/culture/did-you-know-bhang-is-served-as-prasad-in-varanasi-on-maha-shivratri-2264972.html
18 Dave Bewley-Taylor, Tom Blickman, Martin Jelsma, The Rise and Decline of Cannabis Prohibition, Transnational Institute, (Mar. 20, 2020, 12:58 AM), https://tni.org/en/publication/the-rise-and-decline-of-cannabis-prohibition.
19 Report of the Indian Hemp Drugs Commission 1883-94, Indian Culture, (Mar. 20, 2021, 12:58 AM), https://indianculture.gov.in/report-indian-hemp-drugs-commission-1883-94.
20 BALLOTTA, DANILO & BERGERON, HENRI & HUGHES, BRENDAN., CANNABIS CONTROL IN EUROPE A CANNABIS READER: GLOBAL ISSUES AND LOCAL EXPERIENCES, (European Monitoring Centre for Drugs and Drug Addiction 2008), https://www.emcdda.europa.eu/system/files/publications/497/emcdda-cannabis-mon-vol1-web_103716.pdf.
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