By its judgment in Kerala Bar Hotels Association vs. State of Kerala, delivered on December 29, 2015, a two-Judge bench of the Supreme Court upheld the ban on consumption of liquor in public places in Kerala except in five star Hotels.
Section 15C of the Kerala Abkari Act states : “Consumption in public places. – No person shall consume liquor in any public place unless consumption of liquor in any such place is permitted under a license granted by the Commissioner.
Explanation I—For the purpose of this section, “public place” means any street, Court, Police Station [or other public office or any club] or any place of public amusement or resort or on board any passenger boat or vessel or any [“public passenger or goods vehicle”] or dining or refreshment room in a restaurant, hotel, rest-house, travellers bungalow or tourist bungalow where different individuals or groups of persons consume food but shall not include any private residential room.”
Rule 13(3) of the Abkari Rules framed on August 22, 2014, which exempt five star hotels from the ban, is an exception to Section 15C, and was ostensibly for the purpose of not harming tourism.
The bench referred to the Constitution Bench decision of the Supreme Court in Khoday Distilleries vs. State of Karnataka (1995) 1 S.C.C. 574 which held that there is no fundamental right to trade or do business in liquor, and the state can totally prohibit it in view of Article 47 of the Constitution which states: “The State shall regard the improvement of public health as among its primary duties, and in particular, 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.”
With all respect, I am against such bans, and am of the opinion that the matter requires reconsideration of the decision in Khoday’s case (supra) and other decisions, by a larger bench of the Supreme Court. In this particular case, of course, the ban was only against drinking in a public place, and not at one’s residence, but the matter has to be examined from a larger perspective.
Lessons of history
Those who support alcohol prohibition point at the dangers of drinking, the lives it has destroyed and the misery it has caused. They no doubt have a point, but that only indicates that alcohol consumption should be regulated in the public interest, not that it be totally prohibited. Historical experience has shown that liquor bans are ineffective and even counter-productive, and only give rise to crime and deaths by consumers drinking illicit liquor. The Mafia arose in America in the 1920s and 1930s because of such a ban there.
Experience has shown that bans seldom work. They just push the alcohol consumption underground which then brings the criminal element into the picture. In the US alcohol was prohibited by the Volstead Act from 1920 to 1933, an era known as Prohibition, which showed why the banning was never a solution. Instead of drinking legally, people started drinking illegally.
There was the added issue of people drinking contraband alcohol which led to deaths sometimes from methyl alcohol poisoning and the law-enforcement system was stretched thin trying to catch the people who sold contraband liquor.
The Prohibition in USA accelerated the rise of the Italian Mafia (romanticised by the novel The Godfather by Mario Puzo and the subsequent Hollywood film, which made supplying contraband liquor its business and once alcohol was legalised, moved on to a host of other avenues. In Bombay it gave rise to the Bombay underworld, and eventually figures like Haji Mastan and Karim Lala, and later Dawood Ibrahim. It also bred corruption among the police, excise officials and politicians.
Ban hurts the poor
The ban on alcohol usually hurts the lowest strata of society the most. In the last decade, over a thousand people have died due to hooch-related issues in West Bengal (156 people in 2011), Gujarat (136 people in 2009), Karnataka and Tamil Nadu (180 dead in 2008), Odisha ( 200 dead in 1992) and the worst in Karnataka in 1981, when over 300 people died due to methyl alcohol poisoning.
As we can see from the Gujarat example, a state which has had prohibition since its inception, the idea has never worked.
Consider Rahi Gaikwad’s description of the situation in the state:
“Gujarat was the first state to implement total prohibition in 1958, but alcohol consumption has been rampant ever since. So is the thriving business of supplying illicit liquor. Gujarat is surrounded by Rajasthan, Madhya Pradesh, Maharashtra and Daman and Diu, where there is no prohibition.
“Over the years, “thekas,” or roadside shops, in the neighbouring states have developed strong networks with bootleggers who routinely smuggle liquor from these states bypassing the check-posts at their own risk or in connivance with officials. The bootlegging modus operandi has improved in sophistication and creativity. Liquor crates are usually concealed in milk tankers and trucks and under all kinds of cargo. For distribution, they are transferred to smaller vehicles, which keep changing their number plates. Small local suppliers or assistants of bootleggers, also called “folders,” routinely change their cellphone numbers.”
Rajasthan, Haryana, Chandigarh and Daman are the major sources of illicit liquor coming into Gujarat. Prohibition is a populist measure for the middle classes, but for for the Koli population in the coastal districts of Gujarat, liquor is a staple and they brew it locally.
The smuggling cannot take place without the connivance of politicians and the police. The well-oiled system of “haftas” is the cornerstone of bootlegging. Those in the know say every three to six months, the police orchestrate a raid and intimate the supplier, who keeps nearly 500 bottles ready and puts his small-time staff on duty, who later get bail.” In 2009, the State was rocked by one of its worst hooch tragedies, which claimed 136 lives in Ahmedabad. Now, following in the footsteps of Gujarat and Kerala, Bihar is planning total prohibition.
The judgments upholding liquor ban invariably rely on Article 47 of the Constitution. But Article 47 is not enforceable, as expressly stated in Article 37. Moreover, Article 47 states that the state shall ‘endeavour to bring about prohibition’, and not that it must actually prohibit. Interpretations by the Supreme Court of several provisions in the Constitution, e.g. Articles 14 and 21, have changed from time to time, and we should now adopt a new interpretation of Article 47.
My own interpretation of Article 47 is that it means that the state should regulate drinking, and educate people about the dangers of drinking, and not that it should actually prohibit drinking, as that has proved to be counter productive according to historical experience. The word “prohibition” in Article 47 should therefore receive a purposive and not literal interpretation.
Drinking has a culture. One must know when to drink, how much to drink, where to drink, and with whom to drink. If one drinks and goes to his workplace in an inebriated condition, that is of course objectionable But if after a day’s hard work one wishes to relax at home in the evening, has a peg or two, then has dinner and goes to bed, I see nothing wrong in that.
To those who object I would like to say, as Sir Toby Belch said to the puritan Malvolio in Shakespeare’s ‘Twelfth Night : “Dost thou think that because thou art virtuous there shall be no more cakes and ale ? “, or as the Urdu poet Akbar Allahabadi said “Hungama kyon hai barpa, thodi si jo pee li hai ? Daaka to nahin daala, chori to nahin ki hai.”
In my opinion what one eats and drinks is part of one’s right to privacy, which has been held to be a fundamental right by our Supreme Court in R.Rajagopal vs. State of Tamilnadu, AIR 1995 S.C. 264. In paragraph 26 of that decision the Court observed: “The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a “right to be let alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters.”
It may be noted that the liquor ban laws were only challenged before the Supreme Court on the ground that they violated Articles 14 (equality) and 19(1)(g) (freedom of trade) of the Constitution, but never on the ground of violation of Article 21, probably because that Article had not been earlier expanded by the Court. But now that it has, the ban needs to be tested on this ground. Accordingly, I submit that drinking in moderation even at a public place, but without disturbing public order, is one’s fundamental right, being part of one’s right to privacy.
Justice Markandey Katju is a former judge of the Supreme Court
Note: In an earlier version of this article, the paragraphs quoting Rahi Gaikwad were not attributed.