By TIOL News Service

PATNA, OCT 03, 2016: THE issue is - Whether the 'Notification' issued u/s 19(4) of Bihar Excise Act imposing immediate complete ban on liqour, can be sustained, if such notification is in contravention to the objects of the said Excise Act which provides for implementation of the prohibition but in a phased manner. NO IS THE VERDICT.

Facts of the case:

In the year 2015, the State Government of Bihar introduced an Excise Policy, contemplating prohibition on consumption of alcohol, which provided for sale of IMFL/foreign liquor, in restricted areas only, through single source, namely, Bihar State Beverage Corporation Limited. Therefore, the NEP announced that in the first phase, only country liquor and spiced country liquor was banned all over the State and no licence for the same would be granted from 1st April, 2016; whereas, with effect from 1stApril, 2016, foreign liquor/IMFL would be available in urban areas only at the level of Municipal Corporation and Municipal Council. All bars and all restaurants, located in areas other than Municipal Corporation and Municipal Council, would cease to operate and those permitted, within the territorial areas of Municipal Corporation and Municipal Council, shall sell only foreign liquor/IMFL. The Bihar State Beverages Corporation Limited was authorized to operate these vends/shops and Distilleries were permitted to manufacture only ethanol from molasses. Accordingly a bill was passed in exercise of the powers conferred u/s 19(4) of the Bihar Excise Act 1915 (as amended by Bihar Excise (Amendment) Act 2016, imposing absolute ban on the manufacture, bottling, distribution, sale, purchase, possession and consumption of country liquor. In the meanwhile, the BSBCL issued liquor sourcing policy of the year 2016-17, whereunder it invited manufacturers, located not only within the State of Bihar, but also manufacturers, importers and distributors, located outside the State of Bihar, to supply to BSBCL foreign liquor/IMFL for sale through BSBCL’s vends established in urban areas for onward sale to bars and restaurants in urban areas and also to consumers in urban areas. Thereafter, the bars and the restaurants, immediately, purchased stocks for sale or put their indents with the BSBCL on payment of money. The BSBCL issued circulars to the district authorities to take possession of unsold stocks of country liquor and destroy the same. Earlier, the State was authorised u/s 19(4) to prohibit possession, consumption or both, of any intoxicant, in relation to 'persons'. However, validity of Section 19(4) of Bihar Excise Act, 1950, as amended by the State Legislature, issued by the State Government, imposed a complete ban on wholesale, retail trade and consumption of foreign liquor in the whole State of Bihar, with immediate effect, which have been put to challenge under present petition.

The High Court held that:

1. It is seen that in the new Excise policy, there was, admittedly, nothing, which shows or authorizes the State Government to immediately prohibit trade in Indian Made Foreign Liquor/foreign liquor. There is no doubt that New Excise Policy did contemplate implementation of total prohibition, but in a phased manner. The underlying idea of the NEP was that total prohibition would be brought about gradually and in a phased manner so that the society becomes ripe and ready to understand, realize and accept the necessity of having total prohibition in order to ensure that no draconian methods would be required to be adopted for the purpose of making the State free from consumption of alcohol. While summing up the first issue, namely, 'Regarding "any person" as used u/s 19(4) of Bihar Excise Act', the chief justice of this court agrees with the opinon of sitting judge that the rule of ejesdem generis would not apply to interpret the expression 'any person' and, therefore, the expression, 'any person' used, now, would include all persons and, hence, the impugned notification cannot be held to be bad on this count alone. Coming to the second issue, namely, 'Regarding Issue in relation to delegated legislation', it is again agreed that the validity of Section 19(4) of the Act, as amended, and as also the impugned notification dated April 05, 2016 issued u/s 19(4) of the Act, cannot be saved by virtue of Section 92 of the Act inasmuch as that would amount to conferring legislative powers on the delegatee with no legislative control. So far as third issue, namely, 'Notification in conflict with notified policy guidelines', is concerned, which is to the effect that the impugned notification, being clearly in conflict with the notified New Excise Policy (NEP 2015), cannot, in the facts and attending circumstances of the case, be sustained. Similarly, with regard to the fourth issue, namely, 'Notification in conflict with the object of the Act', that the impugned notification, being beyond the object of the Act, could not have been issued u/s 19(4) of the Act and would, thus, be invalid. The only question were the Cheif justice differs from the opinion of the Sitting judge is regarding "what are the constitutional rights of a citizen in respect of liquor". It is the conclusion of the Sitting judge 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 and it is this conclusion, which the cheif justice is in disagreement with. While considering the question posed above, it needs to be pointed out that while the fundamental rights are embodied in Part III of the Constitution of India, the Directive Principles of State Policy, which play pivotal and fundamental role in the governance of all the States, have been incorporated in Part IV of the Constitution of India.

2. A bare reading of Article 37, which relates to application of the Directive Principles of the State Policy, makes it clear that though the Directive Principles of the State Policy is not enforceable by any court, the underlying principles are nonetheless fundamental in the governance of the country and, it, therefore, becomes the duty of the State to apply these principles in governance of the State. 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 the Directive Principles are violating the fundamental rights. Had the Directive Principles been violating fundamental rights, the Directive Principles could not have been made, and would not have been incorporated, in our Constitution by the Constitution-makers as fundamental principles of governance of the States. When the State has the obligation to apply the principles in making laws and when the State does make a law to apply these principles, no one can be heard to say that his fundamental rights are infringed merely because the Directive Principles of State Policy stand incorporated in the legislation, which relate to governance of the State. Coming to Article 47 of the Constitution of India, which is at the centre of controversy in the present set of writ petitions, the Sitting judge has observed that a plain reading of Article 47 would show that it does not mandate, in positive term, a State to impose 'prohibition', and the expression, "shall endeavor", clearly leaves it to the State to decide whether to impose prohibition or not and, if so, when to impose prohibition. However, this view loses sight of the fact 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. While, the fundamental right acquires precedence, the Directive Principles of the State Policy are equally necessary to be embedded in the governance of the State. The two, therefore, the fundamental rights and the Directive Principles have to be considered in tandem with each other and not hostile and inimical to each other. When the State has been, asked by the Constitution to make endeavor to bring about prohibition of the consumption except for medicinal purposes of, intoxicating drinks and/or drugs, which are injurious to health, it, undoubtedly, means that making of serious and sincere efforts to take the society to a situation, where it accepts prohibition as a constitutionally declared obligation of the State. When and how it would be done is a question, which needs to be answered by the State depending upon the manner in which the endeavour may be made to bring about prohibition. If it is made in the manner, as has been done in the present case, the endeavour may not survive the test of constitutionality; but if it is done in accordance with law and the constitutional scheme of governance, one cannot be heard to say that his fundamental rights are violated. The Sitting judge has observed that what one will choose to eat or drink is his decision and cannot be interfered with by the State.

3. Though what one will eat or what one will drink is his decision, the fact remains that when the Directive Principles of State Policy requires the State to make endeavour to bring about prohibition, it logically follows that merely because the State is making the endeavour to bring about prohibition, one cannot claim that he has a fundamental and indefeasible right to continue to consume liquor or alcohol or intoxicating drinks or intoxicating drugs. When the right to consume intoxicating drink cannot be claimed as a fundamental right, an intrusion into this right, if, otherwise, legally valid, cannot be resisted by saying that it is one's right to privacy, which is infringed or violated. True it is, that merely because the Directive Principles of the State Policy is not followed, it does not mean that the State is violating the Constitution. However, no one can have a grievance if the State applies the Directive Principles in the governance or the affairs of the State. The manner and method of applying these principles may become subject of challenge; but the fact that the State has the power, rather, duty, to apply the Directive Principles of the State Policy, in its governance, cannot be disputed. It appears that the argument, in effect, is that drinking of water is same as consumption of an intoxicating drink, such as, alcohol. However, had it been the same, the founding fathers of the Constitution would not have, with the help of Article 47, cast an obligation on the State to bring about prohibition in the governance of the State. If the right to consume intoxicating drink is held to be a fundamental right, one would be justified in saying that this right cannot be taken away or infringed by imposing total prohibition. Underlying in this stand is the presumption that the right to consume intoxicating drink, such as alcohol, is a fundamental right. This court does not find any authority suggesting that the right to consume intoxicating drink, such as, alcohol, is a fundamental right and in the name of enforcement of Directives Principles of State Policy, the right to consume alcohol cannot be infringed. The fundamental rights and Directive Principles, combined together, constitute the core of Indian Constitution and forms constitutional conscience. Anything, which destroys the balance between the two will, ipso facto, destroy the basic structure of the Constitution and cannot, therefore, be sustained. If the State allows consumption of intoxicating drinks, like potable liquor, and if someone consumes the same in the privacy of his own house in terms of the licence, which he may have been given, no intrusion to his right to consume potable liquor can be permitted unless the State alleges violation of the licence itself. 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.

4. While considering the case of Virodhak Sangh, one must bear in mind that the provision for trade or sale was held to be a fundamental right. In clear terms, the Supreme Court observed as: "After all, butchers are practising a trade and it is their fundamental right under Article 19(1)(g) of the Constitution, which is guaranteed to all citizen of India"; whereas, the potable liquor, as rightly pointed out by Dr. Rajiv Dhawan, is res extra commercium and nobody has, therefore, a fundamental right to carry on the trade or business in potable liquor unless the State permits. When the right to trade or business in potable liquor is not a fundamental right, it follows inescapably that the right to demand consumption of alcohol, as a fundamental right, can also not be sustained, because if such a demand has to be fulfilled, then, trade or business in potable liquor cannot be restricted or banned; whereas Khoday Distrilleries Ltd. case makes it clear that the State Government can impose such a ban. Logically, therefore, when one citizen is allowed to carry on trade or business in potable liquor, another citizen cannot be discriminated. When, however, trading in liquor is not permitted or prohibited, demand to permit consumption of alcohol cannot be treated as a fundamental right. To put it a little differently, 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. What crystallizes from the above discussion is that 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.

(See 2016-TIOL-2333-HC-PATNA-MISC)