Ila Krishna
On 26th of the last month, 2017, India celebrated its 68th Republic Day. It was in the year 1950 that the Constitution of India came into force. But even 67 years later, Indian courts have continuously interpreted this living document to surprise us with the brilliance of their decisions. The High Court of Bihar at Patna has displayed exceptional nuanced legal reasoning in a decision of 30 November 2016 while striking down the prohibition on liquor across the state. The said decision in Confederation of Indian Alcoholic Beverages v. State of Bihar has been stayed by the Supreme Court, but there is still much pride that has come of the judgement given by this often-overlooked High Court.
A brief narrative of the facts of this case would tell us that there has been a Bihar Prohibition Act, 1938, enacted but not enforced. Instead, the Bihar Excise Act, 1915 has been in force and contemplates absolute prohibition in Section 19(4). The said section empowers the State Government to prohibit the “possession or consumption” of any intoxicant by any “person or class of persons”. An excise policy was introduced by the State Government on 12 December 2015 called the New Excise Policy (NEP) which did not intend on creating an absolute prohibition but regulate the sale of Indian Made Foreign Liquor and Foreign Liquor (IMFL) through the Bihar State Beverage Corporation Limited (BSBCL). The intention of the NEP was not to immediately impose total prohibition but to gradually phase out the use of alcohol as and when the society became ready for it.( One might find this to be a ridiculous government policy in itself. But nothing can really be done about it at this stage because a government’s policy decision is not subject to being challenged before a Court as it does not fall within the meaning of ‘law’ in Article 13 of the Constitution of India (“Constitution”). Assuming there was to be a total prohibition imposed by an executive order or a statute, it could possibly be challenged as being arbitrary and violative of Article 14 and 19(1)(a) to (f) of the Constitution depending upon the provisions of the Statute / Executive Order.) It was noticed that it was the poorer sections of the society which were most vulnerable to alcohol abuse and therefore, the NEP sought to phase out only country liquor and spiced liquor from 1st April 2016. IMFL would be available only urban areas in shops run by the BSBCL.
Soon after the NEP, a Bill was introduced in the Legislative Assembly proposing amendments to the Bihar Excise Act, 1915. The Bill, inter alia, proposed to amend Section 19(4) to provide for a prohibition on “manufacture, bottling, distribution, sale, possession or consumption by any manufactory, bottling plant, license holder or any person”. The said Bill was passed unanimously and the Bihar Government issued a notification imposing absolute ban on the manufacture, bottling, distribution, sale, purchase, possession and consumption of country liquor. However, on 5th April 2016, another notification was issued which imposed a ban on the wholesale or retail trade and consumption of “foreign liquor.”
The key consideration on which the Notifications were struck down by the court were because of excessive delegation of legislative power. The parent Act, i.e. the Bihar Excise Act, 1915 was not intended to be an Act for imposition of prohibition. The court considered the notifications to be an exercise of excessive delegation of legislative power as there was no policy to guide the executive in issuing a notification. The policy or framework could have been found in the NEP but the Court held that the NEP never contemplated an absolute ban on IMFL and foreign liquor. The judgment is worth a read for a reflection on established principles of administrative law. The objective of this post is to analyse the court’s observations regarding fundamental rights, if any, associated with consumption and sale of liquor.
Before looking at the technicalities of the Court’s decision in this case, let’s first consider the different provisions of the Constitution which could come into play. Article 47 provides that the State shall endeavour to bring about prohibition of the consumption of intoxicating drinks that are injurious to health. Article 37, in turn, provides that the enforcement of any Directive Principle would not be called into question before any Court. Regarding the constitutional rights of any citizen in respect of liquor, the Court first analysed whether directive principles override fundamental rights. As has been seen in the cases of Mohd. Hanif Qureshi [AIR 1958 SC 731] and Minerva Mills [(1980) 3 SCC 625], there is no question of fundamental rights being subservient to Directive Principles but the two need to be read harmoniously. The goals set out in Part IV need to be achieved without the abrogation of Fundamental Rights.
The court went on to consider the decisions regarding Article 19(1)(g) of the Constitution and liquor prohibition. The judgments in Krishan Kumar Narula [AIR 1967 SC 1368], Khoday Distilleries [(1995) 1 SCC 574] and Kerala Bar Hotels Association [AIR 2016 SC 163] have been discussed by the court and it was held that there is no absolute right to trade in liquor and the State can permit any person to undertake the business subject to reasonable restrictions. What is most interesting about this entire analysis is that for the first time any Indian court has considered the rights of an individual citizen vis-à-vis the right to choose drinking habits and whether such a right would be covered under the right to privacy in Article 21. Though the thrust behind the Court’s decision was not on the basis of a fundamental rights analysis, the observations of the Court are quite interesting to note:
“88.15…the right to decide as to what to eat and drink within the confines of once house, by an individual citizen, would come within the matter of right of privacy, within Article 21 of the Constitution. It is not the case of the State nor any material placed on record that drinking alcohol per se as a responsible citizen is bad or injurious to health. It is abuse thereof that is injurious. On the plea of mere possibility of abuse by some persons, the right of others cannot be abrogated. In my view, if the State starts dictating a citizen what to drink or what not to drink, though the same is not per se injurious to health, it would be a direct intrusion on personal liberty affecting meaningful life. It would be violation of personal liberty guaranteed by the Constitution.”
Justice Navaniti Prasad Singh relied on the Supreme Court’s decisions in Hinsa Virodhak Sangh [(2008) 5 SCC 33], Gobind v. State of M.P. [(1975) 2 SCC 148], District Registrar and Collector v. Canara Bank [(2005) 1 SCC 496], Kharak Singh v. State of U.P. [AIR 1963 SC 1295] and In re, Ramlila Maidan Incident [(2012) 5 SCC 1]. The following words by him demand to be noted:
“88.16…Consumption of alcohol in a disciplined and responsible manner is not per se unconstitutional, especially, if we look to the global context, opening of economy and lowering of international frontiers as also the fact that in majority of the States of this country including those where there is extensive controls (partial prohibition), consumption of alcohol by an individual in their house is not banned.88.17. I may notice one argument by State. It submits no one has a right to eat poison. But, as the courts have held [Hinsa Virodhak Sangh (supra)], what one eats is his personal affair and a right under Article 21; but that surely does not include right to eat poison. Liquor is not poison per se, it cannot be disputed. If what one eat is his right surely, what one drinks has to be treated similarly. Thus, in my opinion, right to drink alcohol, like a responsible citizen, is a part of right to privacy included under Article 21 of the Constitution. But, as noted earlier, this may not be necessary to be finally held so, because the writ petition succeeds on other issues.”
Justice Prasad also undertook an analysis of the reasonable restrictions imposed by the impugned notification and provisions, and came to the conclusion that the restrictions were unreasonable. This was because: (i) the NEP never contemplated a complete prohibition on IMFL and foreign liquor but a phased implementation; (ii) the most vulnerable areas to alcohol abuse were rural areas but even then, toddy, which is the cheapest and most easily accessible alcohol in rural areas was not banned; (iii) it was unreasonable to prohibit people from consuming alcohol within the confines of their houses bearing in mind the metropolitan culture and habits (See paragraphs 89.00 to 89.13.).
There was a dissent between the two judges regarding the issue of any fundamental rights associated with liquor. Chief Justice Ansari has laid down his opinion in the following words:
“31. It is the conclusion of my learned brother, while discussing Issue No.5, that the right to bring alcohol within the confines of a person’s house is his fundamental right and any intrusion thereto is violation of the right to privacy and it is this conclusion, as indicated above, which I am in disagreement with. However, my learned brother, having arrived at the said conclusion, has made it clear (which I have no reason to disagree) that we refrain from finally doing so, because the writ petitions succeed on other issues meaning thereby that though the answer to the Issue No.5 is in affirmative according to my learned brother, this answer is not the reason for the writ petitions to be allowed.
Nonetheless, as the issue No.5 has been raised and needed to be answered and has been answered, though not finally, by my learned brother, in the affirmative, with which I fail to agree to, my views need to be, now, placed on record.”
On this point of dissent, the Chief Justice referred to Article 37 and Article 47 and analysed their impact on Part III of the Constitution as follows:
“36. …when the Legislature of a State makes the Directive Principles applicable in the governance of the State, one cannot be heard to complain that the Directive Principles are violating the fundamental rights. Had the Directive Principles been violating fundamental rights, the Directive Principles could not have been made, and would not have been incorporated, in our Constitution by the Constitution-makers as fundamental principles of governance of the States. When the State has the obligation to apply the principles in making laws and when the State does make a law to apply these principles, no one can be heard to say that his fundamental rights are infringed merely because the Directive Principles of State Policy stand incorporated in the legislation, which relate to governance of the State.
My learned brother’s observations are that a plain reading of Article 47 would show that it does not mandate, in positive term, a State to impose ‘prohibition’, and the expression, “shall endeavor”, clearly leaves it to the State to decide whether to impose prohibition or not and, if so, when to impose prohibition. With great respect, this view, in my considered view, loses sight of the fact that the Directive Principles of the State Policy and the fundamental rights have not been embodied in the Constitution to give rise to a collision course. While, the fundamental right acquires precedence, the Directive Principles of the State Policy are equally necessary to be embedded in the governance of the State. The two, therefore, the fundamental rights and the Directive Principles have to be considered in tandem with each other and not hostile and inimical to each other.
Though what one will eat or what one will drink is his decision, the fact remains that when the Directive Principles of State Policy requires the State to make endeavour to bring about prohibition, it logically follows that merely because the State is making the endeavour to bring about prohibition, one cannot claim that he has a fundamental and indefeasible right to continue to consume liquor or alcohol or intoxicating drinks or intoxicating drugs. When the right to consume intoxicating drink cannot be claimed as a fundamental right, an intrusion into this right, if, otherwise, legally valid, cannot be resisted by saying that it is one’s right to privacy, which is infringed or violated. 42. True it is, as observed by my learned brother, that merely because the Directive Principles of the State Policy is not followed, it does not mean that the State is violating the Constitution. However, no one can have a grievance if the State applies the Directive Principles in the governance or the affairs of the State.…..
In every judicial precedent that has come before us, it is when the fundamental rights are infringed, because of enforcement of the Directive Principles, that the Courts have interfered. No authority has been cited before us to show that the right to consume intoxicating drink is a fundamental right and when it is not a fundamental right, the question of right to privacy does not arise, because the right to privacy will arise only when law permits such a right to be exercised in privacy.”
The observation in paragraph 52 by the Ld. Judge brings us to the question raised by Justice Prasad in the first place in a circular argument. Justice Prasad read Article 21 and right to privacy to include the right to consume alcohol within the confines of one’s house. On the other hand, Chief Justice Ansari took a more textual view in holding that when no right, per se, could be attributed to consuming alcohol, there was no question of an infringement.
There are two interesting points which need to be considered here. First, regarding the right to privacy, its scope and ambit, whether such a right exists under Article 21 and if so, what are the confines of the right. These questions are pending determination by the Supreme Court in the Aadhar reference order. Yet, Justice Prasad’s views represent the most adventurous and widest interpretation of right to privacy under Article 21 and the right to consume alcohol. Second, whether an interpretation of Article 47 should allow an imposition of prohibition on alcohol bearing in mind that it intends to prohibit only those drugs and intoxicating drinks that are injurious to health. While it is true that excessive abuse of alcohol is bad for health, but by that logic, excessive consumption of caffeine is also bad. The courts might need to consider the moderate intake of alcohol and its impact on one’s health, especially when consuming alcohol occasionally is considered to be beneficial, as argued by one of the petitioners. In all the earlier cases involving liquor prohibition, there was never a prohibition on consumption or possession but merely on the trade in liquor. Given these considerations, it should be interesting to see what the Apex Court has to finally say on this matter.