CONSUMING AND TRADING LIQUOR – A FUNDAMENTAL RIGHT ?

Author: Waniya Javed, 1st Year BA.LLB, Aligarh Muslim University

The author has written this article while pursuing our 10 Days Workshop on Legal Research and Writing

INTRODUCTION 

Right to Life, Liberty and Happiness are the universal rights of individuals recognized by each and every judicial authority. These rights also pave the way for the Right to Choose to every single individual. However, some authorities restrict our very right to choose as to whatever we want. Such as the total ban of Liquor in some states or the imposition of reasonable restrictions on alcoholic drinks. Do these questions often hit your mind ? Then what is the probable answer to this infringement of our Right to Choose ? Let’s have a walk through the history and present scenario of the legal validity of Right to Liquor. 

ALCOHOL CONSUMPTION IN INDIA

As per the reports of a Statistical organisation, the total  consumption of alcohol in India amounted to 5.94 billion liters in 2018 that has risen in 2020, making it 6.53 billion liters of consumption.[1]

Alcohol market of India is flooded with two kinds of liquor, namely;

  1. Indian Made Indian Liquor (IMIL)
  2. Indian Made Foreign Liquor (IMFL). 

As per a survey conducted in 2020 all over India, it has been found out that elders between 45 and 59 years of age consume more alcohol in India. Also, there is an alarming rate of alcohol consumption among the young generation of around 35.23%.[2]

The alcohol market supports the Indian economy heavily and generates enormous amounts of revenue. Uttar Pradesh has made the highest revenue from excise duty on alcohol of around 315 billion rupees. The other high revenue states include Karnataka and Maharashtra. 

ALCOHOL POLICY OF DIFFERENT STATES

Indian states are divided into two on the question of ban of Liquor. Some states have totally prohibited the sale and consumption of Liquor in their respective territorial areas while others have imposed reasonable restrictions on the same. The reasonable restriction on liquor amounts to the imposition of legal age upon attaining which a person can drink alcohol, the area of drinking alcohol, the place where the liquor shop can be situated, the maintenance of licence and the like.

The states where total ban on liquor prevails are;

Gujarat 

In the state of Gujarat, there is prohibition on alcohol manufacture, sale, and consumption. Bombay Prohibition (Gujarat) Amendment Act, 2009[3] provides for the harsh punishment to those who manufacture, sale or consume Liquor within the territorial boundary of the state. It talks about the death penalty or life imprisonment to those who found guilty of manufacturing and selling illicit liquor, in circumstances of death of the person who consumed that Liquor. 

Bombay Prohibition Act, 1949[4] is a decades old law that provides for the prohibition of Liquor in the state. After the separation of Bombay state into Maharashtra and Gujarat in 1960, the state of Maharashtra has adopted liberal outlook towards the sale and consumption of Liquor, especially after 1963 while Gujarat has adopted a rigid liquor ban policy. In the year 2011, the act was renamed as Gujarat Prohibition Act, 1949. Also, in the year 2017, Gujarat Prohibition (Amendment) Act had been passed that made harsh provisions for manufacturing, selling, purchasing and transporting Liquor in the state.

Bihar

Liquor and intoxicants have been totally banned in the state of Bihar after the passing of the Bihar Prohibition and Excise Act, 2016.[5]

Section 13 of the Act says;

“No person shall manufacture, bottle, distribute, transport, collect, store, possess, purchase, sell or consume any intoxicant or liquor”

The sale of Liquor in clubs, hotels, bars and other places has been declared unlawful by the state government and heavy punishments have been imposed to those who violate the restrictions made.

However, after being declared illegal in the state, the cases of Liquor retrieval are high in the country. On a recent account, 51 bottles of illicit Liquor have been found in the Gopalganj area. Also, approximately one-fourth of Excise cases have been left pending in Patna High Court. These accounts evidence that the enforcement of law is necessary but the vigilant implementation of law is the must.

Other states where the manufacture, sale and consumption of Liquor is prohibited include Kerala, Lakshwadeep, Nagaland and Manipur.

The states that have imposed reasonable restrictions on the manufacture, sale and consumption of liquor are;

Uttar Pradesh

The issues related to alcoholic drinks in the state of Uttar Pradesh are dealt under Uttar Pradesh Excise Act, 1910.[6] It contains provisions regarding the legal age, consumption quantity, place of selling and drinking as well as procurement of license in the state.

The legal age of consuming alcoholic drinks in the state is 21 years and any person below that, if found guilty, can be punished for the same. Also, Section 23 of the Act prohibits the employment of any person below the age of 21 years at the place where liquor has been manufactured or consumed, the violation of the same attracts a penalty of ₹ 1000. Section 37A of the Act specifies the ground for the prohibition of  manufacturing, selling, consuming and transporting of liquor.

Madhya Pradesh 

Madhya Pradesh Excise Act of 1915[7] is the authority which controls liquor related issues within the state boundary. The Act provides 21 years as the legal drinking age and prohibits the employment of females and males under the age of 21 years in the places where Liquor has been sold.

Section 23A of the Act prohibits the advertising of liquor in cinemas and other places of entertainment. The commencement of any oral or written announcements pertaining to Liquor have been prohibited in the state, the violation of which may attract imprisonment up to six months or a fine of ₹ 2000 or both.

RIGHT TO PRIVACY AND RIGHT TO LIQUOR 

In the landmark judgement of K.S. Puttaswamy And Another v. Union of India And Others[8], the honorable Supreme Court has recognised the Right to Privacy as a fundamental right under Article 21 of the Constitution. This constitutional validity of Right to Privacy has made the supporters of Right to Liquor challenge the ban of Liquor in some states. Their main argument is that the consumption of alcoholic drinks under one’s home is one’s choice and falls under the ambit of Privacy while the state’s interference against the same has infringed their fundamental right of Privacy. 

ARGUMENTS RAISED BY SUPPORTERS OF RIGHT TO LIQUOR 

Apart from Right to Privacy, Article 19(1)(g) is also taken by those who support the existence of Right to Liquor. As per Article 19(1)(g), “All citizens shall have the right to practice any profession, or to carry on any occupation, trade or business.” Hence, the prohibition on the trade of liquor by state authorities is the direct infringement of the Fundamental Rights of an individual and an attack on the Law of the Land.

However, reasonable restrictions can be imposed by the state administration as given under Article 19(6) of the Constitution which says that the state can put reasonable restrictions on trade but total ban is indeed violative.

ARGUMENTS RAISED BY CONDEMNERS OF RIGHT TO LIQUOR

Those who believe in the non-existence of Right to Liquor argue by taking into consideration Article 19(6) and Article 47 of the Indian Constitution. 

Article 19(6) says, the state can impose reasonable restrictions on any law, considering in view the interest of general public, on the rights conferred under Article 19(1)(g) relating to;

  • the necessity of profession or technical qualification needed for the practice of any profession, or carrying out any occupation, trade or business.
  • Relating to any trade carried out by the state or any corporation which is owned and managed by the state, whether to the exclusion of citizens, complete or partial.

Thus, the state has the complete authority to impose restrictions or ban liquor, keeping in view the interest of the general public.

It has been shown in a study done by Gujarat that because of the incessant rise in alcohol consumption in the country, the hospital admission rate has increased from 20% to 30% which is against the interest of the general public.

STAND OF COURTS ON THE LEGAL VALIDITY OF RIGHT TO LIQUOR

In the State of Bombay And Another v. F.S. Balsara (1951)[9], the five-judge bench of honorable Supreme Court headed by Justice Saiyid Fazi Ali put forwarded that the Bombay Prohibition Act, 1949 is unconstitutional till the extent it hinders the ordinary use of liquor for toilet and medicinal preparations and otherwise the total ban of Liquor is valid in the state. The court further alluded to the non-existence of the Right to Liquor as a fundamental right.

In the landmark judgement of Khoday Distilleries Ltd. v. State of Karnataka (1994)[10], the three-judge bench of the Supreme Court headed by Justice P.B. Sawant relied upon the judgement of the State of Bombay And Another v. F.S. Balsara while further delineating the given points, stressing on Article 19(1)(g), 19(6) and 47;

  • The state is at liberty to impose reasonable restrictions on the manufacture, trade and transport pertaining to any business by any citizen considering in view the interests of the general public. 
  • The state also has the authority to restrict the trade and consumption of Liquor within the state boundary.
  • The state can have a monopoly over the alcohol market within the boundaries of the state.
  • And lastly, it stipulated that there is no constitutional validity of Right to Liquor, hence the same cannot be recognized as a fundamental right.

In the judgement of Kerala Bar Association v. State of Kerala (2015)[11], the High Court opined that the Liquor ban by state authorities is not the violation of Right to Privacy. Under Article 47, states have the responsibility to keep in mind the health of its citizens and can impose restrictions or prohibitions on things which meddle with the same.

From different judicial pronouncements, the courts have directly condemned the existence of any such right as Right to Liquor and denied its constitutional validity. 

CONCLUSION

From the above analysis, we can now conclude that there is no such Right to Liquor existing  in our country. The courts have denied its existence through various judgements, some of them even decades ago. However, the fact that the alcohol market is a billion market and India indeed has generated a lot of revenue from the same is true. If there is the implementation of approachable and healthy policies on Liquor consumption and trade, then it will be a lot easier for both, the government and the people to adhere to the same and retrieve benefits on a healthy basis. The debate on Right to Liquor is an omnipresent one. Both the sides are rational in their own ways, but the decision on which side to take refuge, depends on one’s deliberate choice, isn’t it ?

REFERENCES:

  1. Rishabh Srivastava, Alcohol Consumption: When is ‘drinking’ legal and what if you break those laws ?, CITIZEN MATTERS (Apr. 8 2021), https://citizenmatters.in/alcohol-consumption-when-is-drinking-legal-and-what-if-you-break-those-laws-24326.

[1] Statista Research Department, Consumption of alcoholic beverages India 2016-2020, STATISTA (Mar. 24, 2021),  https://www.statista.com/statistics/727026/consumption-of-alcoholic-beverages-india/.

[2] Statista Research Department, Alcohol consumption among Indians 2020, by age, STATISTA (May 17, 2021),https://www.statista.com/statistics/1137432/india-alcohol-consumption-by-age-group/.

[3] Bombay Prohibition (Gujarat Amendment) Act, 2009, No. 29, Acts of Gujarat State Legislature, 2009 (India).

[4] Bombay Prohibition Act, 1949, No. 25, Acts of Bombay State Legislature, 1949 (India).

[5] Bihar Prohibition and Excise Act, 2016, No. 20, Acts of Bihar State Legislature, 2016 (India).

[6] The United Provinces Excise Act, 1910, No. 4, Acts of UP State Legislature, 1910 (India).

[7] Madhya Pradesh Excise Act, 1915, No. 11, Acts of MP State Legislature, 1915 (India).

[8] K.S. Puttaswamy and Another v. Union of India and Others, (2017) 10 SCC 641 (India).

[9] State of Bombay and Another v. F.S. Balsara, A.I.R. 1951 S.C. 318 (India).

[10] Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574 (India).

[11] Kerala Bar Association v. State of Kerala, (2015) 16 SCC 421 (India).

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