“My government is committed to fulfilling promises made to women during the election campaign,” said Chief Minister Nitish Kumar. "There was a surge of complaints from women about male members of the family resorting to drinking and creating nuisance, which also affected the education of their children. Though the excise department can earn Rs 4,000 crore per year, we have to think in terms of public interest and take this decision."
In spite of its noble intentions, Bihar is on the wrong side of history. It is true that Article 47 of the Indian Constitution obliges the government to prohibit the consumption of alcohol. It is also true that many legal challenges to this constitutional provision have failed. But India's frequent attempts to enforce prohibition have been ineffectual. Indeed, Article 47 has withered away, and little remains of it in practice other than as parental advice to a prodigal child.
If Bihar wants to learn from experience, it should attempt to advocate lower consumption of alcohol and not prohibit drinking completely.
Prohibition after Independence
Independent India's experiments with prohibition started in April 1950, when Bombay Chief Minister Morarji Desai enforced prohibition. Not surprisingly, the Bombay Prohibition Act, 1949, was challenged in court. But any petition seeking individual liberty had to be reconciled with Article 47. Contained in a chapter titled "Directive Principles of State Policy", prohibition was intended by the Constituent Assembly as a social objective in independent India.
In 1951, the Supreme Court analysed the contours of Article 47 at length in The State of Bombay versus FN Balsara. In sum and substance, it found no conflict between the fundamental rights to life and liberty and the power of the state to prohibit the consumption of alcohol. But the petitioner was partly successful: the court held that several provisions of the Bombay Prohibition Act were unconstitutional and allowed alcohol to be used for medicinal purposes and in cleaning agents.
These technical flaws could be easily rectified by amending the statute without abolishing prohibition itself. The Act was amended in 1952 to bring it in conformity with the Supreme Court judgement, and cough syrup could be sold in Bombay state, as it was then known, but prohibition remained.
This case displays a wider pattern, where due to the existence of Article 47, constitutional challenges to prohibition proceed on technicality rather than principle. For instance, petitioners in Bihar would find it impossible to challenge the legal authority of the government to prohibit drinking.
Despite the legal challenges, Morarji Desai's morality law headed beyond Bombay as it spurred a wider movement to enforce prohibition. In December 1954, Jawaharlal Nehru's government appointed a Prohibition Enquiry Committee to suggest a national programme for the implementation of Article 47.
By that time, a third of India's total area and a quarter of its population was under prohibition. The Planning Commission drew up an ambitious plan to extend prohibition to the entire country by 1958.
But in the meanwhile, the unintended consequences of prohibition in Bombay began to appear. It was becoming clear that a prohibition on alcohol is a prohibition on human nature. State law was being challenged not legally but by disobedience.
Bootlegging became rampant, spawning serious organised crime. Human trafficking and drug peddling became a natural extension for criminal syndicates.
Simultaneously, the state legislature routinely moved amendments to the Bombay Prohibition Act, 1949, and it became incrementally more liberal. Finally, in September 1972, the state government amended the Bombay Foreign Liquor Rules, 1953, inserting a chapter allowing people to obtain permits to consume alcohol. This law and this provision are still in the books.
Today, the rules regarding drinking have essentially become a way to tackle the problem of spurious liquor. Within a quarter of a century of being promulgated, the Bombay Prohibition Act was turned on its head. Though it began with an effort to enforce prohibition, it ended by promoting the consumption of quality liquor.
But this did not dissuade legislative adventures by other state governments. In 1978, seeking to assuage religious bodies, Punjab declared Tuesday and Friday to be dry days. When challenged later that year, in the case PN Kaushal versus the Union of India, the Supreme Court called the arguments for personal liberty and autonomy “boloney”.
Quoting Francis Bacon, Mahatma Gandhi and Abraham Lincoln, the bench expressed its political position, gently prefacing the legal analysis by the caveat, “whatever be our personal views…” Expectedly, the court rejected the technical arguments questioning the competence of the legislature and reasonableness of the restrictions.
Still, this legal victory did not impede the natural liberalisation of prohibition in Punjab. With time, it became whisky country, gaining international notoriety for producing its own style of Scotch.
More recently, in 1996, the Haryana Vikas Party enforced strict prohibition only to roll it back after the general election two years later in which it lost eight of the 10 Lok Sabha seats it held.
India's experience is not unique. In the US, too, prohibition spawned organised crime and was eventually abolished. Enforced in the 1910s by the Volstead Act, by 1966 it was fully abolished, as state after state rolled it back.
In India, the notable exception is Gujarat, which enforced prohibition under the Bombay Prohibition Act, 1949, after it became a separate state, in 1960. This forced the rich to turn to bootleggers who peddle expensive Scotch and left the poor to fend for themselves.
Because there is no official quality control, a bottle of Scotch might include a little rum, which is not harmful. But a packet of hooch sometimes has poison, which can kill people. The state has witnessed repeated liquor tragedies: 257 people died in Vadodra in 1989 from drinking spurious liquor and 157 people in Ahmedabad in 2009.
Gujarat responded to these deaths by amending the law. The Bombay Prohibition (Gujarat Amendment) Act, 2009, increased the penalty for making spurious liquor to death from imprisonment for 10 years. In line with judicial precedent, the Gujarat High Court commended this draconian provision. The courts had again donned the role of a moral protector instead of safeguarding individual liberty.
But the drastic increase in punishment has not eliminated deaths from spurious liquor. On May 5, 2014, two people died in Ahmedabad after consuming it. Many more will die. Most of them will be poor.
Apar Gupta is a New Delhi-based advocate. He can be reached on @aparatbar.
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