Liquor ban: Legal angle

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Today in India, there is a total ban on liquor in the States of Gujarat, Bihar, Nagaland, Mizoram and in the UT of Lakshadweep. Whereas, in the States of Manipur, Kerala, Andhra Pradesh, Meghalaya and Tamil Nadu, the ban has been done away with.

It is pivotal to note the scope of ‘liquor ban’ which is that all the individuals who indulge in any unlawful import, export, transport, manufacture, possession, sale of any kind of intoxicant or liquor, to have criminal liability and hence be punished in accordance with the relevant law. This scope is thereafter tweaked to suit the requirements of a State.

This article deliberates upon the State’s authority and constitutional validity of the laws enforced to bring about the ban on liquor oriented activities.

State’s purpose behind It

Countries such as Saudi Arabia, Afghanistan, Bangladesh, Pakistan, Iran, Libya are the ones who have already enforced a pan-country liquor ban. The reason for these countries to enforce this ban is religious, as Muslims strongly believe that consumption of alcohol is against their religion.

The reason behind enforcing liquor bans by the States in India is socio-economic and can be termed as ‘strong moral intuition’. This can be proved from the fact that States’ believe and reason liquor and intoxication to be a major contributor in violent incidences against women. To reduce crime rates is an obligation upon the State and therefore, the ban.

Apart from crimes against women, other factors contributing to liquor ban are a potential –

  • Decrease in State crime rates of murders, gang robberies, etc.,
  • Decrease in riots, unlawful assemblies,
  • Decrease in traffic related incidents, including, rash driving, drink and drive, hit-and-run, etc.,
  • Decrease in deaths caused from excessive alcohol consumption.

Therefore, the listed States believe that through this one step of Liquor Ban, many social menaces of the society can be decreased and the State shall to a certain extent successfully fulfill its obligation of maintaining a safe and peaceful environment for all members of the society.

Laws used to enforce the ban

The history of liquor ban dates back to 1914, wherein Mahatma Gandhi initiated the Temperance Movement, which resulted in significant decrease in the consumption of imported alcohol, country-wide. It was this national event, which influenced the Constituent Assembly to include the Directive Principles of State Policy (DPSP) within the Constitution embracing the obligation upon State to promote, secure and protect the welfare of the members of the society and further increase the level of nutrition and standard of living of its people. DPSP are mere guidelines for the State and are not enforceable in the court of law.

From the obligations enlisted in the DPSPs, the State Governments are authorized to enforce laws relating to the same. Therefore, the State Governments can by Constitution, enforce a liquor ban.

The first State to enforce a complete liquor ban was Gujarat. Post-independence, when the State of Bombay and Gujarat were one, the State Legislature passed the Bombay Prohibition Act, 1949. However, after 1960, when Maharashtra and Gujarat were designated as two separate States of India, Gujarat retained the total ban via Bombay Prohibition (Gujarat Amendment) Act, 1963. The Gujarat Act incorporates a permit system and the individuals which lack the same can be put to trial for death penalty also.

Nagaland enforced Nagaland Liquor Total Prohibition (NLTP) Act, 1989, to bring about a total ban on liquor production, transportation, possession and consumption in the State.

Mizoram first enforced the total ban on liquor in 1995, which got repealed in 2014. The 2014 ban was enacted only to be repealed in 2019. The State Government then passed the Mizoram Liquor (Prohibition) Act, 2019 to convey the total ban again.

The latest addition to the list is Bihar. State Government of Bihar amended the Bihar Excise Act via Amendment Act, 2016 and enforced a total liquor ban in the State. The Amended Act enshrines mandatory imprisonment and fine as punishment for offenders of the law, which is to be enforced only by Bihar Special Courts.

Constitutional validity of ‘Liquor ban’

Activities relating to liquor have always been under the scanner of the enforcement authorities. The first landmark case on ‘commercialization of alcohol’ was the Khoday case. The Supreme Court held that the liquor trade is unconstitutional as per Article 47 of the Constitution. However, since DPSPs are un-enforceable upon the Governments, they can allow such trade, but, it is upon them to regulate the same.

The above stance of unconstitutionality of liquor trade became irrelevant over the years and therefore, the Apex Court in the Kerala case, held that trade in liquor is constitutional and thus permitted.

The first challenge to the constitutionality of ‘liquor ban’ was brought before the Bihar High Court. The Bihar HC held the ban to be “illegal, impractical and unconstitutional” on September 30, 2016. Aggrieved from the order of the HC, the State Government approached the SC.

The SC not only stayed the HC order, but also mandated that no proceedings shall be initiated against the Bihar Excise (Amendment) Act, 2016 enforced on October 2, 2016, only to finally decide that the said Law is constitutionally valid.

Simultaneous to the Bihar Liquor Ban case, the SC also heard the Highways case so brought forth by the State of Tamil Nadu, after considering the multiple road accidents on the State Highways wherein the liquor shops are owned by the State itself.

The SC held that upon all state and national highways all across the country, the respective governments shall ensure that the liquor shops are located at least 500 m. away from each other, with no exceptions in any case. The said case was brought to review in 2017, wherein the SC upheld the judgment only giving exceptions to the highways of Meghalaya and Sikkim, considering their hilly-uneven terrain.

Therefore, there has been a huge change in the stance from 1995 to 2019. As on today, the commercialization of liquor is constitutional and so is the liquor ban.

Impact of the ban

Upon the judiciary, the impact of the ban seems to be adverse, due to the pendency of multiple cases including the ones challenging liquor ban. The Bihar HC had to seek relief from the State Government upon two lakh pending cases in the HC, only challenging the said ban

Socially, the State Governments have successfully recorded decline in crimes and deaths resulting from liquor.

Economically, these States have also recorded increase in the sales of milk, cheese, 2-wheeled vehicles, electrical appliances, etc. However, the huge effect on the state exchequer cannot be denied. A reason why many states repealed the ban.

Conclusion

Therefore, it is concluded that Liquor Ban enforced by State Governments in India are due to socio-economic reasons. State Laws enforcing criminal liability against liquor production, transportation, possession and consumption are held to be constitutionally valid by the Supreme Court of India.

Author: Harshita Kapoor from Symbiosis Law School, Pune.

Editor: Farsana Sadiq from Faculty of Law, Jamia Millia Islamia.

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