Introduction
This research topic has been undertaken to know and understand the significance of liquor ban and also to analyse the provisions regarding the ban under the Bihar Prohibition and Excise Act of 2016.
Consumption of liquor is an old age habit of human beings and has been present throughout the history of the world. In India, one can find frequent references to drinking in the ancient epics such as the Mahabharata and the Ramayana indicating that the habit was not uncommon. Distilled alcoholic beverages like arrack and toddy were known in India maybe since 800 BC. India is a country of diversity and drinking patterns of alcohol vary according to literacy status, caste, religion, socioeconomic status, region, etc. People from Christian and Sikh communities had higher alcohol intake than other communities.[1]
States like Gujarat, Bihar, Nagaland and Mizoram have put complete prohibition on alcohol and all the other states permit the sale of alcohol. Madras state which included the present Andhra Pradesh and Tamil Nadu was the 1st state to impose a total prohibition when C. Rajagopalachari became Chief Minister in 1952 but since the year 1971 it has been made legal in Tamil Nadu and Andhra Pradesh legalized it in 1997.
There is a need to address this issue because of increasing cases of violence and crime. There have been many instances of drunk driving, domestic violence, rape, financial imprudence and other severe accidents and crimes. Alcohol abuse is harmful and can lead to serious health problems such as brain damage, heart failure, liver disease, cancer, etc. if consumed for a longer time period and in excessive amounts.
When in the year 2016, Bihar introduced the “Bihar Prohibition and Excise Act”, newspapers reported of women taking to the streets in celebration of their “liberation from the curse of alcohol”. The Act prohibits not only the consumption of alcohol within the state, but also its production, sale, storage, transport, etc. It came into effect from 1st April 2016 as a partial prohibition as commerce in IMFL and premium foreign liquor through state-run outlets was still permitted. The day is marked as Prohibition Day. On 5th April a complete prohibition was ordered by the Chief Minister of Bihar Mr. Nitish Kumar.
History of Liquor Ban in India
Mahatma Gandhi considered alcohol consumption a social evil. With this thought, the Directive Principles of the Constitution of India proclaim that the State shall endeavour to prohibit the use of intoxicating drinks and drugs that are injurious to health except for medicinal purposes. This led to the formulation of Article 47 which states that “The state shall undertake rules to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health”.
Prohibition is the legal act of proscribing the manufacture, storage, transportation and trade of alcohol, including alcoholic beverages. The term is also used to relate to ages in the history of nations when they banned alcohol consumption, such as in the US during 1920-33. One-fourth of India’s population was under prohibition by the year 1954 but most states did not persist with the policy. [2]
The temperance movement in India frequently led to the prohibition of alcohol in various states, as with Manipur. In British India, numerous Indian temperance activists agitated for prohibition in the country. Mahatma Gandhi was a champion of the temperance movement and viewed foreign rule as a hindrance to national prohibition. When India gained independence in 1947, “prohibition was included in Article 47 and the governments of several states such as Gujarat introduced it.”[3]
Alcohol is a subject in the State list under the seventh schedule of the Indian Constitution.
The first hint at the prohibition of liquor was through the Bombay Abkari Act, 1878 i.e., in the Province of Bombay. This Act dealt with levying of duties on intoxicants, among other things and aspects of prohibition via amendments made in 1939 and 1947.
There were “many lacunas” in the Bombay Abkari Act, 1878, from the point of view of the government’s decision to apply prohibition. This led to the birth of Bombay Prohibition Act, 1949. The Supreme Court upheld the Act widely barring a few sections in 1951 in the judgment of State of Bombay and another versus FN Balsara.[4]
The Need to Ban Liquor: Pros and Cons
Pros-
Alcohol denudes family resources and reserves and leaves women and children as its most vulnerable victims. A social disgrace at least as far as the family unit is concerned is still attached to the consumption of alcohol.
Strict state regulation is imperative to discourage regular and immoderate consumption of alcohol. As the prohibition is mentioned in the State List under Schedule Seven, it is the duty of the state to make arrangements related to prohibition.
Prohibition of alcohol limits prevents alcohol dependence among youth. This particular dependence can undoubtedly ruin people's lives, including their jobs, their friends, their families, and obviously themselves too.
There is a direct correlation between alcohol consumption and an increase in crime rate. Violent crimes, assault, and unruly conduct are most common with persons who are intoxicated.
Some religions such as Islam, Mormonism, and some Pentecostal Christians expressly outlawed the consumption of alcohol. [5]
Cons-
Any irruption by the state in an existent’s right to choice of food and libation quantities to an unreasonable restriction and destroys the existent’s decisional and fleshly autonomy. Right to privacy has been held as a rudimentary right by the Supreme Court in several judgments since 2017.
Tax earnings from alcohol are a major part of any government’s earnings. These enable the government to finance several public welfare schemes. Absence of these earnings may gravely impact the state's power to run public welfare programmes.
The Indian Made Foreign Liquors (IMFL) industry contributes over 1 lakh crore in levies every year. It supports the livelihood of lakhs of farming families and provides direct and indirect employment to lakhs of workers employed in the industry. [6]
The cases of Black Marketing would increase. People may also switch to consumption of hooch liquor, to get satisfaction from their dependence. Also, they may cross borders and go to the neighbouring states or even the neighbouring countries to have the benefit of liquor.
Deaths by consumption of illegitimate, spurious liquor would be perhaps a greatest hitch if the ban is enforced.
Liquor Ban in Bihar
On 26 November 2015, Bihar Chief Minister Nitish Kumar issued a statement that alcohol would be banned in the state from 1 April 2016.
He officially declared the total ban on 5 April 2016. The new prohibition law has a jail term up to seven years and a fine of Rs.1 lakh to Rs.10 lakh for the consumption of alcohol. In addition, the new law has the provision for capital retribution for those who engaged in manufacturing or trading of outlawed liquor if its consumption leads to casualty. Prohibition was a fulfilment of the ballot pledge made by Nitish Kumar ahead of the 2015 Assembly elections. Bihar had also tried to apply prohibition when Karpoori Thakur was the Chief Minister in 1977-78, but failed.
On 30 September 2016, Patna High Court ruled that the ban is "illegal, impractical and unconstitutional". Although even before the High Court order came, the Bihar government had stated that it would apply a new stricter law from 2 October 2016, only to stay adamant on it after the order.
The Government of Bihar introduced a new interpretation of Bihar Prohibition and Excise Act on 2 October 2016, days after the Patna High Court quashed the former bill, deeming it as "illegal". The act brought in stricter measures, with all Sections in the act being non-bailable and the police being allowed to assume that manufacturing of alcohol was on-going if utensils containing a blend of jaggery or grapes are found. Under the law, only special courts constituted under Bihar Special Courts Act can try the cases. It also empowered authorities to expropriate properties upon whose establishments liquor is either consumed or stored. The new policy was challenged in Patna High Court a day later.
Supreme Court of India meanwhile stayed Patna High Court's order on quashing Bihar's ban on alcohol. It stayed proceedings of all challenges to Bihar's new law in the Patna High Court on 2 January 2017, stating that it will itself hear all cases related to the new ban. [7]
Bihar became the fourth state after Gujarat, Nagaland and Mizoram states to put a mask ban on liquor. The Chief Minister of Bihar, Nitish Kumar described the decision of his government as significant. He said, “The government will lose more than Rs.4,000 crore of profit annually but it is not a profit-driven decision as people will now use the amount invested in liquor to add nutrition to their plates, avoid illness and economic ruin that equates to all profit concerns.”
The Bihar Prohibition and Excise Act, 2016
In order to achieve the desired objectives of Prohibition, The Bihar Excise Act, 1915 was amended and Bihar Excise (Amendment) Act, 2016 was promulgated from 01.04.2016. Consequently Bihar Prohibition and Excise Act, 2016 was notified on 2nd of October 2016 which prohibits the manufacture, storage, distribution, transportation, possession, sale, purchase and consumption of any intoxicant or liquor, unless so allowed in terms of the Act (Section 13). In addition to the penalty imposed for committing such an offence, Section 56 of the Act lays down the procedure for confiscation of “things” used for in the commission of such an offence.
Further, under section 58 power to issue an order of confiscation vests with the District Collector/Authorized officer, who upon receipt of the report of the seizing officer detaining such property (“things”) is required to pass an order. [8]
Bihar Excise (Amendment) Act, 2016 is an Act of Bihar Legislative Assembly which prohibits manufacturing, bottling, distribution, transportation, accumulation, possession, purchase, sale or consumption of any type of liquor, intoxicating substance including bhang and medicines with alcoholic substance.
The Act prescribes stringent punishment including capital punishment to those manufacturing or trading illicit liquor. [9]
On 30 September 2016, the Patna High Court struck down the Act, deeming it 'illegal'.
Status Quo of the Liquor Ban in Bihar
In December 2021, Chief Justice of India N.V. Ramana expressed his displeasure at the Bihar Prohibition and Excise Act, 2016 saying that the move had been made with a “lack of foresight”, and led to the state’s court being clogged. He said that at least 14-15 judges of the Patna High Court were kept busy each day with bail hearings in liquor cases.
It’s estimated that 3.5 lakh cases are pending in Bihar’s courts.
On 8 March this year, a bench of Supreme Court Justices Sanjay Kishan Kaul and MM Sundresh, hearing bail pleas in liquor cases, slammed the Bihar government for enforcing the prohibition law without an impact assessment and without upgrading the judicial infrastructure.
Facing criticism from the Supreme Court over its clogged courts, dry state Bihar made a move to give some relief to consumers of illegal liquor and passed the Bihar Prohibition and Excise (Amendment) Bill, 2022 in March.[10]
The Bihar Prohibition and Excise (Amendment) Bill, 2022 seeks to amend the 2016 Act. As per the Statement of Objects and Reasons, the Bill is being brought to expedite trial in the courts and to focus on punishing illegal suppliers and traders of liquor, instead of persons consuming it.
The Bill empowers the state government to prescribe certain penalties for this category of offences. It provides for trial of: (i) consumption of liquor by Executive Magistrates, and (ii) all other cases by Special Courts. It makes all offences compoundable. It reduces the fine amount for the first-time offenders i.e., an amount between the range of Rs.2000-5000 would be sufficient for their release. Also, if they fail to pay the fine they can be imprisoned for 1 month. It removes the provision of separate punishment for persons consuming liquor in a chemist or druggist shop or dispensary. It deletes the chapter externment and internment of notorious or habitual offenders.
It’s been six years since the 2016 law came into force. However, illicit liquor and hooch deaths raise questions about the effectiveness of the law. Alcohol continues to be easily available in the state where bootlegging is rampant.
Conclusion
Liquor prohibition is an imperative step which would indirectly cause saving in the household, and that saving could be better invested into Human Development inputs, such as availing better education facilities, health facilities, consuming protein and vitamin rich food and also towards some other luxury expenditures.
It also empowers women socially to make strong decisions. The Bihar government has complemented the liquor prohibition initiative by boosting up different women empowerment programmes and launching new programmes.
Taking steps to address social problems such as alcoholism are welcome. But prohibition, especially if implemented in bits and pieces, may not serve its purpose.
The Government should endeavour to educate people about the perils of excess alcohol consumption. An outright ban impacts not only people with a drinking problem, but also those who see alcohol as a recreational beverage and social lubricant.
Between issues such as morality, prohibition or freedom of choice, there are also factors like economy, jobs, etc., which cannot be ignored. What is required is an informed and constructive dialogue on the causes and effects.
-- [1] https://www.ijcfm.org/temp/IndianJCommunityFamMed3163-4901519_133655.pdf [2] https://www.thehindubusinessline.com/opinion/columns/all-you-wanted-to-know-about-prohibition/article20865312.ece1 [3]https://en.wikipedia.org/wiki/Alcohol_prohibition_in_India#:~:text=The%20 legislation%20has%20been%20 in,licenses%20to%20 vendors%20and%20 traders. [4] https://www.drishtiias.com/daily-updates/daily-news-analysis/gujarat-prohibition-law [5] https://gradesfixer.com/free-essay-examples/analysis-of-liquor-prohibition-in-bihar-india/ [6] https://www.drishtiias.com/daily-updates/daily-news-analysis/prohibition-laws-and-issues [7]https://en.wikipedia.org/wiki/Alcohol_prohibition_in_India#:~:text=The%20 legislation%20has%20been%20 in,licenses%20to%20 vendors%20and%20 traders. [8] https://www.scconline.com/blog/post/2021/07/27/bihar-prohibition-excise-act/ [9] https://en.wikipedia.org/wiki/Bihar_Excise_(Amendment)_Act,_2016 [10] https://theprint.in/india/governance/bihar-govt-amends-liquor-law-after-sc-rap-drinkers-can-now-pay-fine-to-avoid-jail-time/895303/
This article is written by Aditi Ananya of Chanakya National Law University.