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 practise any profession or to carry on any occupation, trade or business does not extend to practising a profession or carrying on an occupation, trade or business which is inherently vicious and pernicious, and is condemned by all civilised societies…
Potable liquor as a beverage is an intoxicating and depressant drink which is dangerous and injurious to health and is, therefore, an article which is res extra commerce being inherently harmful. A citizen has, therefore, no fundamental right to do trade or business in liquor. Hence the trade or business in liquor can be completely prohibited."
High Court paves way to Liquor Prohibition in Kerala
The Kerala High Court, in 2014, upheld the vires of the revised Abkari Policy of the State Government, inasmuch as it cancelled liquor licenses of two and three-star hotels as well as unclassified bar hotels. It noted that the decision is conducive to bring liquor prohibition in a phased manner.
The High Court ruled that the policy, limiting the sale of liquor to five-star bar hotels and government-run retail outlets, is sound. It, however, allowed four-star and heritage bar hotels to remain open.
While doing so, the Court opined that, hotels with classification of four star and above are not frequented by the youth, students or the less affluent sections of the society. It further noted that the customers frequenting such hotels are more responsible and orderly in their behaviour and that the ambience in such establishments were also conducive to such orderly conduct. The Kerala High Court order was upheld by the Supreme Court in 2015.
"The consumption of tobacco as well as liquor is now undeniably deleterious to the health of humankind. Vulnerable persons, either because of age or proclivity towards intoxication or as a feature of peer pressure, more often than not succumb to this temptation.
Banning public consumption of alcohol, therefore, in our considered opinion, cannot but be seen as a positive step towards bringing down the consumption of alcohol, or as preparatory to prohibition," a Bench of Justices Vikramjit Sen and Shiva Kirti Singh said.
Do citizens have a fundamental right to consume alcohol?
The Bihar Government had announced a total ban on the sale and consumption of liquor with effect from April 5, 2016. The decision was however scrapped by a Division Bench of the Patna High Court vide order dated September 30, 2016. This is the same day when the Supreme Court had refused to entertain a PIL seeking complete ban on liquor consumption across the country.
The Bench of then Chief Justice IA Ansari and Justice Navaniti Prasad Singh of the Patna High Court held that the policy was perverse on the following grounds:
(i) excessive delegation;
(ii) the prohibition policy was in conflict with the Bihar Government's New Excise Policy, 2015, which contemplated imposing a total prohibition on the sale and consumption of liquor in the state, 'in a phased manner';
(iii) conflict with Section 19(4) of the Bihar Excise Act as also its object.
It is interesting to note however, that the Judges delivered conflicting opinions on the question whether an individual citizen has a right of choice as to how he would live, what he would eat and what he should drink, as a part of right of privacy as contemplated under Article 21 of the Constitution.
Justice Navaniti Prasad Singh had observed,
"in my view, a citizen has a right to enjoy his liquor within the confines of his house in an orderly fashion and that right would be a part of right of privacy, a fundamental right, under Article 21 of the Constitution and, any deprivation thereof would have to withstand the test of Articles 14 and 19 of the Constitution as well."
Justice Singh rejected the argument put forth by the State that Article 47 of the Constitution enjoins the State to eventually impose liquor prohibition. He remarked that if this contention is accepted, it would mean that the entire country should have imposed liquor prohibition by now, and since the same has not happened, all the States are in violation of the constitutional mandate.
He added that the policy may have draconian effect and virtually convert the State into a Police State.
"I may further illustrate that if two neighbours are on inimical terms, one could easily plant liquor in the neighbours premises, the neighbour, being unaware; still, by virtue of the presumption clause, not only he gets convicted but his premises also get confiscated...Citizens would always be living under a threat or, at least, a threat perception of being easily implicated. That surely is not conducive and should not be permitted."
Delivering his conflicting opinion on the issue, Justice Ansari opined 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.
"That the right to privacy is integral and inseverable facet of fundamental right can no longer be in dispute; but the question of all questions is : whether one's desire to consume alcohol is a fundamental right? If consumption of alcohol by one is regarded as a fundamental right, then, infringement thereof would, undoubtedly, amount to intrusion into one's right and would be struck down. When, however, the Constitution obliges the State to make endeavour to bring complete prohibition in respect of consumption of intoxicating drink, consumption of intoxicating drink cannot be treated as a fundamental right."
Justice Ansari also referred to the Khoday Distrilleries Ltd. case (supra) to hold that consumption of liquor is not a fundamental right. He added,
"if the right to consume alcohol is to be treated as a fundamental right, Article 47 of the Constitution of India, whereunder the State owes a duty to make endeavour to bring about prohibition would remain not only a distant dream, but a dead letter. Seen from this angle, it clearly follows that consumption of alcohol by a person can never be regarded as his fundamental right nor can it be said that the right to consume alcohol can be merely regulated and not prohibited.
Right to consume alcohol is not a constitutional right, and reasonable restrictions on consumption of alcohol, or complete prohibition on consumption of alcohol, can be imposed by the State in order to carry forward the goal set by the Constitution in the form of Directive Principles of State Policy, but such implementation of the policy shall be in accordance with law and not in violation thereof."
Significantly, the above conflict did not affect the outcome of the judgment as the challenge succeeded on other issues. This decision of Patna High Court has been stayed by the Supreme Court and the matter is pending.
Right to Alcoholic Drink is not a Fundamental Right: Kerala High Court
"The State can regulate the exercise of the fundamental right to save the public from a substantive evil," the Kerala High Court had observed while dismissing a challenge to the government's liquor policy in January 2017.
A Division Bench of the High Court expressed its disagreement with the Petitioner's suggestion in the case that laws prohibiting alcoholic drinks fall foul of the fundamental rights guaranteed to a citizen.
Rather, it opined,
"Sometimes, given the pernicious nature of a particular profession or trade, it may monopolize it, not that it has the sole prerogative to distribute evil but to contain the contagion. There are, in fact, some necessary evils the State must contend with—liquor being a case in point."
The High Court observed that the prohibition policy was introduced as the State accounted for almost 14% of the national consumption of alcohol, and the same was resulting in a "social malaise".
In this regard, the Court noted that the most prominent outcomes of the intense alcohol consumption practices in Kerala are believed to be rise of mental illnesses, declining economic productivity, increased hospitalisation of alcohol drinkers and the rise in divorce rates.
An issue before the Court was whether right to consume alcohol is a fundamental right in the nature of 'right to choose', 'right to be let alone', 'right to privacy', or of all, 'right to life' under Article 21 of the Constitution?
Answering in the negative, the Court observed,
"we find no proposition that right to privacy is unfettered and that it brooks no restrictions—even reasonable ones, at that. We regret that none lays down that privacy, an individual right, prevails over the social welfare, a collective right."
Right to privacy and reasonable restrictions
On August 24, 2017, a nine-Judge Constitution bench of the Supreme Court held that right to privacy is a Fundamental Right and it is protected under Article 21 of the Constitution.
"Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy…," the Top Court had held (emphasis supplied).
Interestingly, the Attorney General for India, while opposing the recognition of right to privacy as a fundamental right, relied on cases holding that there is no fundamental right to trade in liquor, to submit by analogy that there can be no absolute right to privacy. He argued that the recognition of privacy would create complications for the state in its exercise of its powers.
Rejecting such apprehensions, the Top Court had clarified that the declaration of a right cannot be avoided where there is "good constitutional ground" for doing so.
It had ruled that the State can always legislate a reasonable restriction to protect and effectuate a compelling state interest, like it may while restricting any other fundamental right.
"There is no warrant for the assumption or for the conclusion that the fundamental right to privacy is an absolute right which cannot be reasonably restricted given a sufficiently compelling state interest," the Top Court had held while laying down a three-prong test for restricting the right to privacy.
The Supreme Court had observed,
"The analogy to be drawn from the cases dealing with liquor does not take us further for the simple reason that the fundamental right to privacy once recognized, must yield in given circumstances to legitimate State interests in combating crime. But this arises only after recognition of the right to privacy as a fundamental right and not before.
What must be a reasonable restriction in the interest of a legitimate State interest or in public interest cannot determine whether the intrusion into a person's affairs is or is not a fundamental right. Every State intrusion into privacy interests which deals with the physical body or the dissemination of information personal to an individual or personal choices relating to the individual would be subjected to the balancing test prescribed under the fundamental right that it infringes depending upon where the privacy interest claimed is founded."
The three-fold test is of:
(i) legality, which postulates the existence of law;
(ii) need, defined in terms of a legitimate state aim; and
(iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.