Prohibition, rights, & DPSP

While adjudicating on the Patna High Court order, which quashed the Bihar government’s notification banning consumption and sale of liquor, the Apex Court said the “ban on liquor and fundamental rights do not go together”. On September 30, the Patna High Court had quashed the Bihar government’s prohibition law, saying it was ultra vires to the Constitution. However, two days after the high court quashed the order of prohibition, the Bihar government came out with a new law banning liquor with harsher provisions. Do Indian citizens have the right to drink and eat what they want? The Apex Court’s assertion that the ban on liquor does not amount to violation of fundamental rights presents an interesting conundrum. In his main observation against the Bihar prohibition law, Justice Navaniti Prasad Singh of the Patna High Court writes: “Similarly, with expanding interpretation of the right to privacy, as contained in Article 21 of the Constitution, a citizen has a right to choose how he lives, so long as he is not a nuisance to the society. The state cannot dictate what he will eat and what he will drink.” For the time being, his uncompromising position on prohibition allows Chief Minister Nitish Kumar to change the subject soon after the Bihar government found itself mired on the wrong side of the law and order discourse, particularly when RJD criminal turned politician Mohammad Shahabuddin was briefly out on bail. But the introduction of such a stringent prohibition law is fraught with pitfalls. Some of the draconian provisions of Bihar’s prohibition law that undermine basic civil liberties have been already discussed in these columns (See “Excessive Measures”, dated August 8).

In a recent column for an Indian new website on the Patna High Court’s judgment, Alok Prasanna Kumar, an advocate and Visiting Fellow of the Vidhi Centre for Legal Policy, makes a significant observation on the question of fundamental rights: “Justice Singh locates a right to peaceably consume alcohol on one’s own premises in a reasonable manner as a fundamental right to life and liberty. While stray observations have been made to this effect by the Supreme Court in the past, it is perhaps for the first time that a law preventing the consumption of alcohol has been struck down in this manner. The bulk of the Supreme Court’s jurisprudence on prohibition laws have come at the instance of manufacturers and dealers and has been assessed on the right to business and trade, but never on the individual right to consumption of alcohol. Although there are some links and analogies drawn to the constitutional right to privacy, there is no doubt that this judgment locates the right to eat and drink what one wishes, as drawing out straight from the right to life itself and part of the liberty enjoyed by all.” The politics of alcohol and cow slaughter have ridden roughshod over these Constitutional provisions in the past.    

However, previous judgments on the issue have usually upheld restrictions or an outright ban on the sale and consumption of liquor. The standard argument issued by those in defence of prohibition are based on the directive principles of state policy (DPSP) written into the Constitution. According to Article 47, “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.” Unlike fundamental rights, DPSP is not enforceable in a court of law. These principles are only meant to act as guidelines when legislatures frame laws. In the apparent interest of protecting public health, prohibition seems like a politically prudent move. However, as these columns have argued, prohibition policies have never worked at any point in history.