Is there a right to dope?
Should the possession of cannabis be legalised ?
My classmate Aditya Wadhwa explored these questions in his project paper titled “Collapse of the Criminal Justice System in Trafficking of Cannabis”. I must say that he raised some really interesting arguments. While a part of it talks of the Indian legal system, the rest is a general argument citing cases from different law systems. The project may also be downloaded here.
There is a simple economic argument supporting the legalization of drugs, which goes as thus: if you legalize it, you can tax it. Though, Milton Friedman has come up with a new line of thought in his article- The Drug War is a Socialist Enterprise- which says that the criminalization of drugs only benefits a few people, like, as he says, under socialism where only a few individuals benefit. He says that these individuals are the people which form lobbies; but, in this case these people instead for asking for the de-criminalization, ask for the criminalization (on moral grounds), which though increases the risk, but gives them more monetary benefit. The researcher though not completely agreeing with the argument agrees with the conclusion, which says that drugs should be dealt with like Tobacco and Alcohol.
Further, it is important to look at the Dissenting opinion given by Justice Levinson, who proposed the “harm to other” approach which mandated the application of strict scrutiny to Mallan’s constitutional claim. It explored Mallan’s claim under the so called “harm to others” theory. The essence of the dissenting argument was that the state’s police power is not unlimited. It is subject to judicial review and must be declared null under the Hawaii Constitution if it is exerted in an oppressive manner. The dissent faulted the majority for ignoring the constitutional prerequisite of the “harm to others” analysis. The dissent cited Territory v. Fritz Kraft to support its proposition that the state’s police power to prohibit certain criminal acts is subject to the following constraints:
“(1) It may not proscribe conduct that is merely ‘innocent,’ ‘innocuous,’ or “‘harmless’;
(2) its reach is limited to the proscription of conduct that imperils ‘the public health, safety or welfare’;
The dissent argued that Mallan’s charge of marijuana possession did not “harm others,” and accordingly, was not subject to the state’s assertion of police power. The core of the dissent’s argument was that the state can only exercise its police powers when the general welfare is affected directly, or where others are likely to be harmed by the proscribed act. Thus, central to the dissent’s argument is that the possession of marijuana for recreational purposes is harmful neither to the user nor to the public at large.