By Pressing Other Countries to Join Its War on Drugs, the U.S. Is Exporting Illiberalism

America should stop pressuring other nations to impose draconian penalties on their people

Aryan Khan is escorted to court for a bail plea hearing in Mumbai on Oct. 7, 2021, after his arrest in connection with a drug case. Image Credit: Sujit Jaiswal/Getty Images

After spending three weeks in an Indian prison on drug-related charges, Aryan Khan, the 23-year-old son of Shah Rukh Khan, a Bollywood superstar with arguably the biggest fan following on the planet, was released 12 days ago on bail. If he is convicted, he could face a year or two behind bars—not for buying, selling, possessing or even consuming drugs, but simply for hanging out with two friends each carrying about six grams of hash on them.

But the truly sad thing is that Aryan, a graduate of the University of Southern California, might not have been in this hot mess had it not been for Presidents Richard Nixon and Ronald Reagan.

As I’ve noted on a few occasions at The UnPopulist, I firmly believe that if liberal democracy’s promise of protecting the individual from an oppressive and tyrannical state is to have a future in the world, America will have to abandon its current flirtation with populist authoritarianism and redouble its commitment to its own principles. As the most successful liberal democracy, its conduct has a powerful impact around the globe.

But, frankly, that’s not all the US has to do. It also must stop being an active agent of illiberalism in the world. Far, far too often, it has used its enormous economic and geopolitical might to coax, cajole and coerce countries to crack down on their own people to advance the US domestic agenda, undercutting their fragile liberal commitments. Nowhere has this been clearer than in America’s half-a-century-long, ill-conceived war on drugs.

Historical Drug Use in India

At this stage, the tragic impact of this war on Black men in American inner cities and on countries in Latin America has been pretty well documented. But Latin America, despite being declared “Ground Zero” in the war on drugs, was hardly alone in being conscripted by the U.S. against its will. Many countries in Asia, including India, were too.

In the 1960s, hippies learned that the mystical East did not share the West’s puritanical attitudes toward recreational drug use and started flocking there. Scenes of drug-addled Western kids splayed on the streets of New Delhi, where I grew up, were hardly uncommon in those days. Cannabis smoking in India has been known since at least 2000 B.C. and was first mentioned in the Atharvaveda, an ancient Hindu text.

In many parts of India, in fact, consumption of soft opiates (afim) and marijuana products (hashish, charas and ganja) was once a way of life regulated by commonsense social rules evolved over millennia. For example, it was acceptable for retired older people, even women, to sniff afim, while the practice was taboo for children whose brains were still developing or young adults shouldering the responsibilities of work and family. Sadhus, Hindu ascetics who renounce worldly pursuits and devote themselves to their spiritual quest, were respected—not ostracized—if they used mild psychotropic drugs to achieve a higher state.

Cannabis cultivation was a big part of India’s agrarian economy, especially since medicinal hemp was widely used in the Unani and Ayurvedic systems of indigenous medicine that a very large portion of the Indian population relies on. The Indian Hemp Drugs Commission, an Indo-British study of cannabis usage in India appointed in 1893, found that the “moderate” use of hemp drugs was “practically attended by no evil results at all,” and it produced “no injurious effects on the mind” and “no moral injury whatever.”

But rising drug use on U.S. college campuses created a moral panic in America—not to mention a lot of junk science that pooh-poohed India’s ancient wisdom. Drugs came to be seen as the “greatest threat to humankind,” according to Shekhar Gupta, one of India’s soberest and most respected journalists.

Moral Panic in the West

So the U.S. in 1961, along with other industrialized Western countries, pushed to update the 1931 Paris Single Convention on Narcotic Drugs and rid the world of the scourge of drugs within 25 years. This treaty for the first time clubbed cannabis with hard drugs and pledged to ban its production and supply, except for strictly regulated medical and research purposes.

India, along with a group of cannabis- and opium-producing countries called the “organic states group,” vociferously opposed the West’s prohibitionist mentality that had started to take shape in the 1950s. These countries could see the devastating impact that export and use restrictions would have on their domestic population and industry. Wary of control by international bodies such as the United Nations and the World Health Organization, which were forcefully pushing strict restrictions, they asked for more leeway to set their own drug consumption and production policies based on local conditions.

After much pleading and imploring, India managed to convince the powerful Western bloc to let India postpone implementation until it was strong enough to reduce its production without serious economic damage. That reprieve lasted until President Richard Nixon arrived on the scene, raging against the anti-war left that had forced him to beat an ignominious retreat from Vietnam and against Black civil rights activists protesting his racist “Southern strategy” for winning white votes. He launched the war on drugs to go after both groups, as his counsel John Ehrlichman admitted five years ago. “We knew we couldn’t make it illegal to be either against the war or blacks, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing them both heavily, we could disrupt those communities,” he revealed.

As the American Enterprise Institute’s Mark Perry points out, Nixon succeeded spectacularly. Black incarceration rates had been stable at 200 men per 100,000 population for 50 years prior to this war. In the 50 years after, they shot up almost five times to 956 men.

Although Nixon had started arm-twisting countries to recruit them for his anti-drug crusade, his focus was mostly domestic. That focused changed later, when President Reagan declared drugs a national security threat, reversing the policy of his predecessor, Jimmy Carter, who in fact wanted to decriminalize low-level drug use! Drugs became a wedge issue between tough-on-crime, hawkish conservatives and alleged bleeding-heart liberals.

Reagan found the perfect excuse for doubling down on his crusade when a “hit list” by the Medellin cartel surfaced; the list included U.S. businessmen, journalists and embassy personnel. At that point, he basically divided the world into two camps: those countries that were for America’s anti-drug efforts and those that weren’t. And the latter faced sanctions, marginalization on the world stage and worse. (President George W. Bush embraced the same mentality when he launched his war on terror after 9/11 and passed the Patriot Act and encouraged other countries to do likewise. Many countries, including India, adopted even more extreme anti-terrorism measures with more disastrous consequences for civil liberties.)

The Indian Response

Meanwhile, in India, Rajiv Gandhi became prime minister after his mother, Indira Gandhi, was assassinated in 1984. Indira, like her father, Jawaharlal Nehru, pretended to be neutral—“non-aligned” was the term of art in those days—between the U.S. and the Soviet Union during the Cold War. In reality, she tilted toward Russia (partly because America tilted toward Pakistan, India’s mortal enemy). Rajiv, however, a British-educated, urbane commercial pilot, became determined to create a new modern India with close ties to the West, especially the U.S.

So he went on a charm offensive to court America. Reagan responded in kind, rolling out the red carpet during a state visit by Rajiv. No doubt the Reagan administration conveyed to the young prime minister the utmost priority that America placed on controlling the drug epidemic that was allegedly frying the brains of America’s youth. (Remember Nancy Reagan’s “Just Say No” campaign and the public service “your brain on drugs” ad?)

Shortly after that visit, Rajiv succumbed and passed the 1985 Narcotic Drugs and Psychotropic Substances (NDPS) Act, a sweeping and vague law that transformed India overnight from a country that had no law regarding narcotics to one sporting one of the harshest in the world. The statute’s worst feature is that it effectively overturns the presumption of innocence, requiring those accused to prove their innocence rather than the state to prove their guilt. This is one reason why bail, which Aryan was repeatedly denied, is so hard to obtain under this law: The judge has little discretion, despite the facts of the case, without the assent of law enforcement.

Indeed, a law that overturns such an elementary feature of criminal justice would have had a very hard time passing constitutional muster in America, not that the U.S. has been any slouch in coming up with creative ways of eviscerating civil liberties to prosecute this war. But India’s constitutional guardrails, in place for less than 40 years then, weren’t strong enough to withstand American pressure and the desire of its own power-hungry rulers to control the citizenry.

Here is how Gupta describes this law:

We say the law is an ass. Even so, this particular law, the Narcotic Drugs and Psychotropic Substances (NDPS) Act, first promulgated in 1985, is a species by itself. It is so unique, draconian, impractical, ineffective, exploitative and prone to misuse that to use the familiar description for laws would be an insult to the ass.

When it was initially passed, the NDPS included the possibility of a death sentence for anyone in possession of large quantities of drugs. Personal use, meanwhile, could carry long prison sentences and drug trafficking a 10-year mandatory minimum in jail. These penalties generated national outrage, and in 1988 the law was amended to reduce prison time to one to two years for personal use. But Gupta notes that Reagan objected to this dilution of the law, and Rajiv scurried to oblige by making more offenses non-bailable, inserting forfeiture of property and including a mandatory death penalty for repeat drug traffickers. Meanwhile in America, Reagan signed a bill allowing capital punishment for certain drug offenses.

Just ponder this for a second: The leader of the free world—and a self-avowed champion of freedom—pushed another country’s government to execute, on a compulsory basis ,not murderers but drug peddlers. If president of the Philippines Rodrigo Duterte is now killing drug dealers and hurling insults at human rights activists protesting his policies, he isn’t just following in the footsteps of harsh autocratic regimes but emulating the world’s premier liberal democracy.

Unjust Consequences

India finally scrapped the mandatory death penalty in 2014. But other horrific provisions of the law remain and were used against Aryan.

Under the NDPS Act, someone can be booked if the circumstances suggest a “culpable mental state” or an intention to commit a crime, even if there is no actual evidence of having committed one. The law also contains a “conscious possession” provision that allows authorities to go after someone who doesn’t possess marijuana if that person appears to be “conscious” that those around him or her did.

This provision allowed cops who raided the cruise ship off the coast of Mumbai where Aryan was partying to take him into custody, even though he was not smoking a joint at the time nor in possession of one, but just because two of his closest friends had some weed on them. The authorities claim that they discovered WhatsApp messages showing that Aryan had in the past tried to score some drugs. What kind and how much, they aren’t yet saying. But apart from the few grams of marijuana on his friends, the cruise ship raid yielded merely 3 grams of cocaine, 22 pills of MDMA (ecstasy) and 5 grams of MD (mephedone), hardly the stuff of a major drug smuggling operation.

Nor is Aryan the only one to experience harsh consequences for relatively minor infractions. According to a study by Vidhi Legal, a legal think tank, 99.9% of the 82,000 people charged under the NDPS Act in 2018 were ordinary users, not drug kingpins (who can probably buy off politicos and police).

One factor that might have contributed to Aryan’s plight is that his dad, Shah Rukh, is a prominent Muslim who crossed Prime Minister Narendra Modi, an avowed Hindu nationalist, by speaking out once against a Hindu mob that lynched a Muslim man allegedly for consuming beef.

That is not implausible. But the larger point is that the NDPS Act, as Gupta notes, has handed authorities “Gestapo-style” powers to summon and question anyone on drug-related suspicions. And the authorities have been using these powers with gusto in recent years to go after many prominent Bollywood actors, to show ordinary Indians that even the most powerful and well connected cannot escape the arm of the law. In other words, India’s idea of equal treatment under the law is to harass everyone equally.

It remains to be seen whether Aryan can escape more time in jail. Either way, it is a great shame that America played such a pivotal role in pushing such an ill-advised and illiberal law on his country. The U.S. should humbly issue a mea culpa for promoting such freedom-busting drug policies around the world and start including a “civil liberties impact” assessment when making similar policy requests to other countries.

Shikha Dalmia, a visiting fellow at the Mercatus Center’s Program on Pluralism and Civil Exchange, is the editor of The UnPopulist, a newsletter devoted to defending liberal and open societies from the threat of rising populist authoritarianism. Go here to subscribe.

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