On November 30, the Supreme Court mandated the compulsory playing of the national anthem in cinema halls, without considering whether it had the jurisdiction or power to do so under the Constitution. The disease seems to be infectious.
Like the Supreme Court’s order, the strange thing about the Uttarakhand High Court’s judgment (which runs into 34 pages) is that the public interest petitioner never even made a prayer for banning. The petition was about the alleged fact that the government had opened a liquor bar in Haridwar, in contravention of its own Government Order, passed in 2002, which imposed prohibition within a 1.6 kilometre radius of Haridwar.
This was a rather narrow and specific prayer. That did not, however, stop the High Court from embarking upon a moralising homily about alcohol consumption and its ill effects. After that, the High Court cited a number of Supreme Court judgments for the proposition that there is no fundamental right to trade or conduct commerce in alcohol.
And then comes the zinger:
“The State Government has imposed a ban on sale of liquor at Char Dhams but in order to give more sanctity to the government order and with a view to save the health of people living in the districts where these Char Dhams are located, the State Government should impose complete prohibition.
“The prohibition in these areas would bring peace and harmony. It is the poor segment of the society which spends more money on liquor than on food leaving their family and children in misery. The loss of revenue would be compensated by restoring the health of the society.
“The societal interest in every individual is prolonged by ensuring his healthy life. The use of intoxicants, drugs and liquor, in fact, affects the morality. Use of alcohol causes depression. It damages the liver. It may cause Cancer as well. The long-term consumption of liquor/alcohol results in death of brain cells. It may result in cirrhosis including Pancreatics.
“It also affects the social fabric of the society. Large number of devotees from all over the country visit Chardham in the State of Uttarakhand…
“The State Government, though, has taken laudable steps for prohibiting the sale of liquor in specified areas but taking into consideration the ever increase consumption of alcohol, more particularly in younger generation, the complete prohibition on possession, distribution, collection, sale, purchase or consumption of liquor/alcohol, including beer and intoxicants, is required, at least, in the districts where Chardhams are situate, to begin with.
“Similarly, the possession, distribution, collection, sale, purchase or consumption of tobacco is also required to be totally prohibited within a radius of five kilometres from Nanakmatta, Ritha Sahib and Hemkund Gurudwaras.”
This is all very lovely and quaint. It’s also legally irrelevant.
All the Supreme Court decisions that the High Court cites are about the constitutional validity of a complete or partial State-imposed prohibition, not about the Court itself imposing prohibition in the absence of any law.
Much like the Supreme Court on November 30, the High Court seems to suffer from a rather basic confusion between what is desirable, and what is legal. Throughout the 34-page long judgment, the High Court cites exactly one constitutional provision: Article 47, which provides that:
“the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.”
The Court goes to the length of quoting the Constituent Assembly Debates for the purpose behind Article 47, but strangely, seems to be unaware of the existence of Article 37, which begins with the words:
“the provisions contained in this Part shall not be enforceable by any court…”
There is little ambiguity in the phrase “shall not be enforceable by any court“. To convert it from passive to active voice, it means that the Constitution prohibits the Court from enforcing a Directive Principle of State Policy. One would have expected the Uttarakhand High Court to at least invoke Article 21 in order to provide the regulation, customary fig-leaf of legitimacy, but even that is nowhere to be found in the judgment.
Under a Constitution that makes the judiciary the final arbiter of its own powers, the only effective check upon it is self-restraint. The last two weeks have shown that when it comes to directly encroaching upon personal rights and freedoms, that self-restraint is in short supply.
Gautam Bhatia is a Delhi-based lawyer and author of Offend, Shock, or Disturb: Free Speech under the Indian Constitution. He also blogs at Indian Constitutional Law and Philosophy, where this piece first appeared.