Is There A Fundamental Right To Drink Liquor? What Courts Have Held?

The Gujarat High Court recently reserved its order on the maintainability of a petition against the decades old liquor prohibition in the state. The challenge is made on the ground of emergence of the right to privacy in the year 2017, which the Petitioners argued was unavailable when the ban was first challenged in 1950. It is their primary contention that the right to privacy includes the right to be left alone and the right to consume liquor within the precincts of one's home. "The citizens have a right to eat and drink as per their choice. Otherwise, what is to stop the State from coming into our homes and saying, no non-veg from tomorrow?" the Petitioners had argued before the Court. The development gives an occasion to revisit the stance taken by the Supreme Court and various High Courts over the years while dealing with different enactments, prohibiting/ restricting the sale and consumption of alcohol. In 1951, the Supreme Court discussed the vires of the Bombay Prohibition Act, 1949, in the case of State of Bombay v. FN Balsara. Section 12 and 13 thereof contemplate prohibition on sale, manufacture, consumption. etc. of liquor within the State. The Act was later adopted by the state of Gujarat in 1960, when Bombay was reorganized into the linguistic states of Maharashtra and Gujarat. Did FN Balsara judgment uphold prohibition of intoxicating liquor? In this case, the Top Court primarily considered the definition of 'liquor', which the Petitioner had contended to be extremely wide. Liquor meant— (a) spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol; and (b) any other intoxicating substance which the Provincial Government may notify. The Court held that restrictions imposed by Sections 12 and 13 of the Act, on the possession, sale, use and consumption of liquor, are not reasonable restrictions on the fundamental right (as it then was) to acquire, hold and dispose of property, guaranteed by Article 19 (1)(f) (now omitted) of the Constitution, so far as medicinal and toilet preparations containing alcohol are concerned. However, the provisions were not struck off entirely as other categories mentioned in the definition of liquor, namely— spirits of wine, methylated spirit, wine, beer and toddy were easily severable items. "It will be noticed that the legislature has defined the term "liquor" as including several distinct categories of things followed by a general category. There can be no doubt whatever that the earlier categories of liquor, namely, spirits of wine, methylated spirit, wine, beer, toddy, are distinctly separable items which are easily severable from the last category, namely, all liquids consisting of or containing alcohol. These items being thus treated separately by the legislature itself and being severable, and it not being contended, in view of the directive principles of State policy regarding prohibition, that the restrictions imposed upon the right to possess or sell or buy or consume or use those categories of properties are unreasonable, the impugned sections must be held valid so far as these categories are concerned," the Top Court had held. In simple words, Sections 12 and 13 of the Act were held to be invalid only to the extent medicinal and toilet preparations containing alcohol. The remaining provision was severed and has since held the field.One of the issues that has been raised before the Gujarat High Court is whether the Supreme Court had 'examined and upheld' the provisions insofar as they prohibit consumption of intoxicating liquor or whether the Supreme Court's findings were limited to the aspect of medicinal and toilet preparations discussed above. No right to carry a trade which is injurious to health In the case of Khoday Distilleries Ltd v. State Of Karnataka, a Constitution Bench of the Supreme Court in 1994 dealt with a batch of petitions/ appeals challenging statutory rules that prohibited liquor trade by private players. The question before the Top Court was whether the petitioners/ appellants have a fundamental right under Article 19(1)(g), to carry on trade in liquor. Answering in the negative, the Top Court heavily relied on Article 47 of the Constitution, which enjoins upon the State to raise the level of nutrition and the standard of living and to improve public health. The Court was of the opinion that to achieve the object of Article 47, the State is required to bring about prohibition on the consumption of intoxicating drinks and drugs which are injurious to health. Such a prohibition may be complete or partial and it would also include regulation. It added that certain professions/ occupations/ trades/ businesses which are not in the interests of the general public may be completely prohibited while others may be permitted with reasonable restrictions on them. "The right to...

Is There A Fundamental Right To Drink Liquor? What Courts Have Held?

Akshita Saxena

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