Liquor in Constitution and Topics Related to Liquor Prohibition

Right since 1948, many states in India have imposed ban on sale and consumption of liquor. The issue was being debated recently in connection with prohibition in Bihar.

Facts and Fundamentals

Liquor in Indian Constitution

Liquor finds its place in the constitution in seventh schedule (article 246) and Article 47 (DPSP).

Seventh Schedule

The entry 51 in the State List makes “Alcohol for human consumption” a subject matter of states. This provides states the power to make laws and charge duties on alcoholic liquors for human consumption. Thus, each state has its own laws, bylaws and rules towards alcohol. Due to this, legal age of drinking, taxes on liquor and procedure of doing liquor business differ from state to state.

Article 47 – DPSP

Article 47 under directive principles directs the states to take measures to raise the level of nutrition and the standard of living and to improve public health. This article directs that the state shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. Most liquor ban policies are justified on the basis of this article.

History of Liquor Ban in India

Bombay was the first state that imposed liquor ban in 1948. The Bombay Prohibition Act, 1949 was implemented in areas belonging to current Gujarat and Maharashtra states. When Gujarat was created in 1960, it enforced its own law in the light of the old law. Liquor ban was imposed in Bihar during the reign of Karpoori Thakur as the Chief Minister in 1977-78. In 1996, Bansi Lal government in Haryana had imposed liquor ban. In Manipur the RK Ranbir Singh government in 1991 had enforced total prohibition. But in 2002 the Okram Ibobi Singh government had partially lifted this ban vide Manipur Liquor Prohibition (Amendment) Bill. In Mizoram a ban on liquor was imposed vide Mizoram Liquor Total Prohibition Act, 1995.

Current liquor prohibition laws in force

Some states already have their old law in force but to a less extent. Some states have recently imposed this ban and have gone to extreme ends. Some of the laws are:

Bihar

New prohibition law enforced in April 1, 2016 put a total ban on liquor. A violator has been given a jail term of 7 years and a fine ranging from Rs 1 lakh to 10 lakh for alcohol consumption within state boundaries. It provides death sentence, for manufacturers and distributors of illicit liquor in the event of a hooch tragedy.

Gujarat

Manufacturing, storage, sale and consumption of alcohol have always been banned in Gujarat, right since its creation.

Maharashtra

The law here allows sale of liquor only to licensed persons but the licensing regime is quite liberal.

Kerala

Kerala has a strong liquor policy. In 2014, the implementation of the law started in a phased manner. Under this law, the bars are required to renew their licenses every year.

Manipur

Although the old law is in force, an amendment has been brought about to exempt five hill districts—Chandel, Churachandpur, Senapati, Tamenglong and Ukhrul due to their traditional practice.

Nagaland

Nagaland Liquor Total Prohibition Act (NLTP) banned the sale, consumption, possession and manufacturing of alcohol. Only some restricted permits are given.

Lakshadweep

This is the only union territory which puts a ban on liquor. Only in the uninhabited island of Bagaram consumption is permitted.

Questions for Analysis

What has been the political stance on liquor prohibition? What are loopholes in such bans?

The imposition of ban has been seen as a political stance by different state parties. The Nitish Kumar government had come to power with this promise and was able to fulfil the promise although in a negative way. In Haryana too, the Bansi Lal government used it as a poll plank to win in the Assembly elections. In Kerala, witnessing the opposition, Left also started its campaign against liquor ban. They have been playing very wittily by merely calling for abstention of consumption rather than a ban.

While ban seems to be a good option for preventing health and social issues related to consumption of alcohol, they have some negative effects on the state which must not be ignored. The Bihar law is considered to be the most draconian, providing for excessive punishment. A loss of Rs 6000 crore is estimated for the state exchequer. Similarly, Haryana has faced a loss of Rs 1200 on the exchequer.

Even in the state of Kerala where a strong liquor policy is in force, the law brought about a closure of 418 bars in the state. There was a rigorous opposition towards the state policy by the bar owner’s lobby.

Even after imposition of stringent laws, illegal liquor consumption is rampant and especially in Nagaland, the police or the tax excise department has not done anything to prevent it. In Mizoram too the law received a lot of criticism from the Presbyterian Church which organized mass protests against it.

Is Liquor Ban justified? Isn’t it an act of taking away democratic freedom?

What is democratic freedom is subject to different interpretations. A democratically elected government is empowered to make laws and such laws may include restrictions on people for the greater good. Democratic rights also allow us to challenge such laws in court if they infringe our rights. The prohibition laws are as per Article 47 and are legally justified.

What happened in Bihar?

In November, 2015, the Nitish Kumar government announced a complete liquor ban in Bihar from April 1, 2016. The state assembly later unanimously passed Bihar Excise (Amendment) Bill 2016 on March 31, 2016 and amended the existing provisions to make them stricter. This amendment also enabled ban on country made liquor in the state from April 1.  Four days later, the government extended ban on India Made Foreign Liquor (IMFL) also, thus putting in place a blanket ban in all towns and cities. At that time, Nitish government was in coalition with RJD. Under pressure from RJD, the government announced in July, 2016 that ban on the sale of toddy will be lifted. In August, 2016, the government made still stricter provisions such as punishment for all family members and making the offenses non-bailable. In August, 2016, a hooch tragedy in Gopalganj took lives of 18 people who had consumed country made illegal liquor. Within six months of prohibition bill coming into force, the Patna High Court struck down the Bihar government’s decision because the court found this ultra vires to fundamental rights. The state government approached Supreme Court challenging the High Court’s order. Supreme Court gave an urgent hearing and stayed the High Court order. The bench headed by Chief Justice T S Thakur said that the ban on liquor and fundamental rights don’t go together.

What is the current status of Bihar Liquor Ban? Was it successful? To what extent?

Currently, the ban is being implemented in state strictly but it is also under sub-judice. In October, 2016 the Bihar government decided to renew liquor licences of canteens in cantonment areas, military and air force stations for 2016-2017 in the “interest of soldiers”. After that, the state government, particularly chief minister has tried to keep the ban intact and implemented it strictly.

As far as success of this ban is concerned, it is yet to be seen – so far it has mixed response. By November 2017, more than 40,000 cases were registered and more than 7.25 lakh litre of country made liquor and 8.70 Lakh litre of IMFL / FL was ceased. The government has also ceased the vehicles used in illegal transport of liquor and auctioned them. The crime of dealing / using / consuming liquor was made non-bailable crime, so it was challenged again. In first week of November 2017, the Patna High Court ruled that those made accused in a case should be granted anticipatory bail. It held the section 76(2) of the Bihar Prohibition and Excise Act unconstitutional.

Is right to drink a fundamental right? What are different views on this?

In 2016, a Patna high court bench had unanimously ruled against the prohibition in Bihar on several legal grounds but the two judges of this bench themselves had different views. One judge said that right to drink alcohol like a responsible citizen is a part of right to privacy. However, another judge was of the view that access to liquor was only till government decides to ban it. His argument was again based on article 47.

What happened when Supreme Court banned the Liquor shops on highways? What is current status?

SC said “the human life is precious” while banning the liquor shops along highways to reduce road accidents. As the government statistics shows one road accident taking place every four minutes and it is the number one killer of young men and women who are very important for country’s growth. The decision is in contravention of Article 19 (1) (g) but it can be done according to Article 47 on the grounds of improving public health. The court also gave some recommendations such as – (1) Formulation of road safety policy as there are serious lapses by states in implementing safety laws. (2) Setting up separate agencies for road safety to eliminate difficulties in enforcing judicial orders. (3) Use of seat belts and helmets. (4) Bringing uninsured vehicles under insurance cover by enabling vehicle data sharing with insurance companies.

In a report, Law Commission stated that 50% of the road fatalities could have been avoided if the victims would have got medical care within an hour. Though in India road infrastructure is getting better for example Yamuna Expressway, but in winters due to fog many accidents occur. Infrastructure should be coupled with the technology for better implementation of safety laws. Recently the Good Samaritan law campaign has gained momentum and ordered centre to make guidelines for giving legal protection, rights and empower citizens who helps the accident victims. Many states are working on that law and Karnataka is the first state to promulgate it.