Arun Kumar, Patna: The division bench of chief Justice Iqbal Ahmad Ansari and justice Navneeti Prasad Singh
differed on this count while declaring Bihar’s prohibition law illegal.
While Singh ruled in favour, Ansari differed, though the two judges were unanimous on all other points.
“The 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,” observed justice Ansari.
He dwelt at length on why he differed from his fellow judge on one count. “My learned brother has concluded that the right to bring alcohol within the confines of a person’s house is his fundamental right and any intrusion thereto is violation of the right to privacy. I am in disagreement with it,” observed justice Ansari, adding though justice Singh’s answer was affirmative, it was not the reasons for the writ petitions filed by various parties to be allowed.
Citing Article 37 of the Constitution, which relates to application of the directive principles of the State policy, he observed: “The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”
“It would mean that it is the duty of the State to apply these principles in making laws and taking executive actions in terms of a defined policy or otherwise. Obviously, when the laws are made, they are not meant for being kept in statute books, but to be enforced.
So, when the Legislature of a State makes the Directive Principles applicable in the governance of the State, one cannot be heard to complain that they are violating the fundamental rights”.
What the order says
The division bench of the Patna high court, in its 142-page order dwelt on a whole range of issues while trying to give answers to every argument, before quashing the government’s notifications.
It concluded that section 19(4) (enforcing total prohibition) of the Bihar Excise Act, 1915, as amended with effect from April 1, 2016 (passed by the State Legislatures on March 31, 2016), was ultra vires the Constitution and unenforceable.
“The impugned notification, dated April 5, 2016, issued by the state under section 19(4) of the amended Act is also ultra vires the Constitution and, consequently, unenforceable and the penal provisions of enhanced sentence and provision, with regard to confiscation of property, as introduced by the amendments on March 31, 2016, with effect from April 1, 2016, are also held to be ultra vires the Constitution,” the bench observed.
Arrest on possession
The bench said that mere possession of liquor by an individual was not banned either by the Bihar Excise Act, 1915, or the April 5 notification. “If mere possession were to be so prohibited, it would give rise to serious problems. All persons, having legitimate stocks even for personal consumption, would on the next day ipso facto, become criminals, in violation of law, the Beverages Corporation included,” it added.
The court also found the punishment as prescribed by the recent amendment to the act with effect from April 1, on all three counts, i.e., the personal punishments, both physical and monetary, punishment of confiscation of premises and punishment to the community, were quite unreasonable and draconian and cannot be justified in a civilized society.
“It may be justified in a Police State, which surely we are not. I would, therefore, declare the provisions, as aforesaid, to be ultra vires and violative of Articles 14 and 21 of the Constitution,” the order said.
Arrest during travel
Another aspect of unreasonableness of the effect of the notification is its application to various other aspects. “A person travelling by car or by train and traversing the territory of Bihar, he is caught in a predicament that he is going from a State, where there is no prohibition, and going to State, where there is no prohibition. He may be an army or defence personnel carrying his liquor ration or an ordinary citizen carrying his drink to his destination,” the court said.
The court asked: “ Neither of them consumed the same in this State; still they are to be persecuted and prosecuted. Why? Their only sin is that they chose or perforce traversed the territory of Bihar. Similar would be the case of liquor being transported from one State to another, but crossing through Bihar.”
Right to privacy
It said that 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.
The court dealt with all the arguments given in favour of prohibition. “I may notice one argument by State. It submits no one has a right to eat poison. But, as the courts have held, what one eats is his personal affair and a right under Article 21; but that surely does not include right to eat poison. Liquor is not poison per se, it cannot be disputed. If what one eat is his right surely, what one drinks has to be treated similarly,” the bench observed.
It said that in its opinion, “right to drink alcohol, like a responsible citizen, is a part of right to privacy included under Article 21 of the Constitution. It is not the case of the state nor any material placed on record that drinking alcohol per se as a responsible citizen is bad or injurious to health. It is abuse thereof that is injurious. On the plea of mere possibility of abuse by some persons, the right of others cannot be abrogated.”
Not obligatory upon state
Citing Article 47 of the Constitution, the court said, “it does not mandate, in positive terms, making it obligatory upon the State to impose prohibition. The expression ‘State shall endeavour’ clearly leaves it to the State to decide whether to impose prohibition or not if so, when. If what was argued by the State, that it was a constitutional mandate to impose prohibition, is correct, then, by now, almost after 65 years of the Constitution, the entire country should have imposed prohibition, which has never happened. Can it be said that all the States are in violation of the constitutional mandate?”
Continuing further, the bench said, “The answer is obviously no. The second argument, canvassed by the State, was that once State decides to act pursuant to Article 47 of the Constitution, then, no citizen can claim any right, much less right under Part-III of the Constitution. If I have correctly understood the argument of the State, the submission would be that the directive principles, if sought to be implemented, would override the fundamental rights. The argument is noted only to be rejected.”