Prohibitive prohibition

In a strange turn of events, the Bihar government decided on Sunday to introduce yet another law banning liquor with harsher provisions merely two days after the Patna High Court declared the state’s law prohibiting alcohol, the Bihar Excise (Amendment) Act, 2016, illegal. 

“We are enforcing the new law to fulfil the dreams of Mahatma Gandhi on the occasion of his birthday,” said Bihar Chief Minister Nitish Kumar said. All previous excise laws, including the one, struck down by the High Court, will be repealed with the new law. The Bihar government has also decided to challenge the High Court’s decision in the Supreme Court. Besides retaining many provisions of the previous one, the new liquor law has some more stringent ones. These include enhancing the duration of imprisonment, hiking the amount of fine, arrest of all adults in case of recovery of liquor bottle from a house and collective fine on a place in case of habitual violation, reports the Press Trust of India. 

Questions over the constitutionality of prohibition have raged across India since Independence. Bihar is not the first state to embrace the idea. Politicians have sought to move their respective states towards liquor bans. In the apparent interest of protecting public health, prohibition seems like a politically prudent move. 

In Bihar, for example, prohibition was a key promise Chief Minister Nitish Kumar had made to women voters, who were seen to have played an important role in his reelection last year. The massive sale of liquor, especially country-made, and the consequent rise in alcoholism is a major social ill in the state. It is hard to argue against Kumar’s claims that alcoholism particularly affects poor families and women, who often bear the brunt of alcohol-abusing husbands. In its judgment against the previous law prohibiting liquor, the Patna High Court found that the manner in which prohibition was imposed by the executive was faulty.

Of greater significance, however, is the fault the two-judge bench found with the substance of the law. Justice Navaniti Prasad Singh’s argued that the prohibition law introduced by the Bihar government, which criminalises possession and consumption of alcohol, is unconstitutional. The introduction of such a stringent law is fraught with pitfalls. Some of the draconian provisions of Bihar’s prohibition law have been already discussed in these columns (See “Excessive Measures”, dated August 8).

In a recent column for an Indian news 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: “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.”  

In other words, the state can impose prohibition, but it cannot do so in a way that violates the liberty of an individual to drink and eat what they consider proper. Of course, not all legal experts agree with this rationale. But in light of erroneous laws some states have passed like the beef ban, this judgment seeks to protect the right to eat and drink what one wishes. There are other ways of preventing alcoholism such as higher taxes, limiting the construction of outlets and drinking places, and banning the sale of arrack or hooch in plastic pouches. The last state to introduce prohibition was Andhra Pradesh and it was a miserable failure. 

As the saying goes, the road to disaster is paved with good intentions. With no intervention by the state, there will be no official quality control on the sale of alcohol. The results are clear-- hooch-related deaths. Prohibition has never succeeded anywhere in the world and at any point in history.