Battles over alcohol, specifically whether the State should impose prohibition or not, have raged across India since Independence. The Gandhian abhorrence of alcohol did not completely prevail over the long history of imbibing in India across classes (save for a few exceptions). Even the Constitution does not provide a final resolution to this issue; it splits the difference by urging the State to take steps to impose prohibition on consumption of alcohol but makes it non-binding as a “Directive Principle of State Policy”. Contrast this with the abolition of untouchability which is absolute, legally enforceable, and applies not just to the State, but also to individuals.

The latest front in the battle over the bottle is Bihar. Prohibition was a key election plank which perhaps helped the mahagathbandhan or the grand alliance of Nitish Kumar and Lalu Prasad Yadav's parties along with Congress win the Assembly elections comfortably, and was sought to be implemented once in power. What was unveiled though was a draconian law drafted with no reference to the Constitution, rule of law or even common sense. Prohibition itself was imposed by issuing a notification under the Bihar Excise Act, 1915, and sought to be implemented through the outlandish provisions of the Bihar Excise (Amendment) Act, 2016.

Both these were challenged in the Patna High Court by alcohol manufacturers associations, but most importantly, by individuals who asserted a right to consume alcohol in the confines of their own home, in reasonable quantities. A retired colonel of the Indian Army and two doctors joined the liquor manufacturers but made their claims, perhaps for the first time in any challenge to prohibition, on the basis of individual liberty protected under the Constitution, and it is possible this had a bearing on some findings.

The Patna High Court has found fault in both the manner in which prohibition was imposed in Bihar as also the substance of the Bihar Excise (Amendment) Act, 2016. The main judgment has been authored by Justice Navaniti Prasad Singh, with a partly dissenting judgment by the Chief Justice of the Patna High Court, Justice IA Ansari. What they have said has implications not just for prohibition in Bihar but elsewhere, but also for the rule of law and personal liberty in India, under threat from Governments everywhere.

Both judges agree on the point that the manner in which prohibition was imposed, by issuing a notification under the Bihar Excise Act, was illegal as this law did not give the government the power to issue such a notification. While laws made by a legislature often delegate the power to implement certain aspects or issue notifications to the executive, such laws cannot delegate to the executive the power to repeal or completely do away with the law. This is a power that only the legislature can exercise, and it is curious why the Bihar government chose to issue a notification under the Bihar Excise Act, and not re-introduce the Bihar Prohibition Act, 1938. Additional grounds to strike it down have also been given, though somewhat loosely reasoned, but the main premise of the notification being outside the power of the Bihar government holds.

Fundamental rights

Apart from the manner in which prohibition was imposed, the Patna High Court finds fault with the substance of the prohibition itself. In doing so, Justice Singh finds that prohibition, of the kind which Bihar has tried to impose, by criminalising possession and consumption of alcohol unconstitutional. Justice Singh locates a right to peaceably consume alcohol on one’s own premises in a reasonable manner as a fundamental right to life and liberty. While stray observations have been made to this effect by the Supreme Court in the past, it is perhaps for the first time that a law preventing the consumption of alcohol has been struck down in this manner. The bulk of the Supreme Court’s jurisprudence on prohibition laws have come at the instance of manufacturers and dealers and has been assessed on the right to business and trade, but never on the individual right to consumption of alcohol. Although there are some links and analogies drawn to the constitutional right to privacy (currently disputed by the Government in the Aadhar case) there is no doubt that this judgment locates the right to eat and drink what one wishes, as drawing out straight from the right to life itself and part of the liberty enjoyed by all.

Chief Justice Ansari on the other hand, disagreed on this particular point. Although he completely agreed with Justice Singh on the point of striking down prohibition, he was hesitant to declare the right to consume alcohol in private as a fundamental right. Even if it is a fundamental right, he argued, it can be completely restricted by the government trying to impose prohibition, which is also a constitutionally valid principle of state policy.

Even though the two judges disagreed on this point, it is clear that Justice Singh’s reasoning hews more closely to constitutional intent as far as fundamental rights are concerned, as also to the established precedent laid down by the Supreme Court. What his judgment does, is to tie it all together, and take the next logical leap in reasoning that constitutionally speaking, prohibition may be imposed by the State or cow slaughter banned but they cannot do so in a manner that violates the liberty of an individual to drink and eat as they see fit. CJ Ansari’s reasoning on the other hand, dismisses fundamental rights as a as a set of enforceable rights against the State – that so long as a law can claim to be implementing a directive principle of state policy, it can do so in any manner it choose, individual liberty or rights be damned. This is an extreme view to take, and one which the Supreme Court rejected in the 1980s itself.

Reasoned analysis

Justice Singh’s superbly reasoned analysis can be applied to not just prohibition laws elsewhere (wherever they ban mere possession and consumption of alcohol), but also, to the so-called “beef ban” laws which criminalise mere possession and consumption of beef. These laws have been challenged and are under challenge across the country. The Bombay High Court for instance struck a tentative blow to the Maharashtra Beef Ban law, striking down the criminalisation of possession of beef purchased outside the State, and also that part of the law which shifted burden to accused to prove innocence. Those challenging similar laws in Haryana and elsewhere could take a cue from the legal reasoning in Justice Singh’s judgment and make their case on this basis as well.

The Patna High Court’s judgment makes it even harder for the Bihar government to impose total prohibition legally. It could even be argued that the Bihar government was acting in bad faith given the ham-fisted manner in which it has tried to push prohibition through, and perhaps, a genuine attempt at dealing with the problems of alcoholism will not reduce it to a mere law and order problem, but address the underlying medical or socio-economic reasons. What the Patna High Court has done, is to clearly and in no uncertain terms, show how the Bihar government abandoned constitutionalism, rule of law, and even basic sense in attempting to impose prohibition in this manner. If the Bihar government takes away the right lessons from this case, it will re-assess its prohibition policy and try to reduce alcoholism in a lawful and rational manner.

But the pessimist lawyer would say that they will just file an appeal.

Alok Prasanna Kumar is an advocate and Visiting Fellow, Vidhi Centre for Legal Policy