This article has been written by J Jerusha Melanie.
Table of Contents
What a person consumes is a matter subjected to his own choice, and so is what he does for a living. Nevertheless, choices are the products of freedom. What if you want to consume liquor but are prohibited from doing so? Or, what if you like to trade it but are not permitted to do so? Do you feel wronged? Does the question of “Don’t I have the right to consume whatever I wish and trade whatever I like?” rise in your mind? Let’s try and find out its answer concerning liquor.
Liquor consumption in India
In 2016, the total alcohol consumption in India was about 5.4 billion liters. On average, consumption of liquor is higher in rural than urban areas. Andhra Pradesh, Dadar and Nagar Haveli, Andaman and Nicobar Islands, and Arunachal Pradesh are the top alcohol-consuming states in India.
Liquor trade in India
India has two types of liquor-
- Indian Made Indian Liquor (IMIL); and
- Indian Made Foreign Liquor (IMFL).
The revenue from the sales of alcoholic drinks amounted to over $67 billion in 2018; in 2016, Tamil Nadu became the highest liquor revenue-earning state in India with about ₹300 billion. No wonder India has the third-largest alcohol market globally.
Like other commodities, alcohol is also taxable; the share of excise duty on alcohol is 10-15% of Own Tax Revenue in most of the states. States that collect the highest revenue from excise on liquor include Uttar Pradesh, Karnataka, Tamil Nadu, and Maharashtra.
Liquor as a subject of the state list
Entry 8 of List II (State List) of the Seventh Schedule under Article 246 of the Indian Constitution pertains to ‘Intoxicating liquors’. Being a subject under the State List, the production, manufacture, possession, transport, purchase, and sale of liquor is a matter on which the respective state governments have the exclusive power to promulgate laws.
All states have their own rules relating to the trade and consumption of liquor. One can trade liquor only after obtaining the required license from the concerned state excise department. Different liquor licenses are issued for various purposes, like L-1, L-3, L-6, L-9, L-10, L-13, etc.
The battle to recognize the right to consume and trade liquor started way back in 1951 in the case State of Bombay v. F.N.Balsara. The bone of contention of the entire matter is all about whether the ban on liquor trade and consumption in some states is legal or not. Further, it questions the existence of the fundamental right to consume and trade liquor.
Arguments supporting the Right to Liquor
The arguments that support the contention that the Fundamental Rights guaranteed under the Indian Constitution include the right to consume and trade liquor mainly pertain to Articles 21 and 19(1)(g) of the Constitution.
Right to Consume Liquor under Article 21
The right to privacy was recognized as a fundamental right embedded in Article 21 of the Indian Constitution in the landmark case K.S. Puttaswamy And Another v. Union Of India And Others Supreme Court Of India. The supporters of the contention that the right to privacy provided in the Indian Constitution include the right to consume liquor argue that what a person consumes is an outcome of his personal choice; it is an integral part of his privacy.
Ban is not a ‘reasonable restriction’
On the alleged infringement of the fundamental rights of any citizen, in the case of K.S. Puttaswamy And Another v. Union Of India And Others, the nine-judge bench held that the State must prove otherwise by:
- Showing that there is a law, and
- It amounts to a reasonable restriction within the meaning of Article 19(2) of the Constitution”.
Alcohol indeed attributes to various health disorders like high blood pressure, confusion, loss of coordination and critical judgment, etc. Often under the influence of liquor, people tend to engage in violent activities in public areas; under such circumstances prohibiting its consumption in public is understandable. But the complete prohibition on the consumption of liquor even in confined, restricted, and protected space like one’s own house is clearly an infringement of one’s privacy.
By restricting the citizens from drinking what they want, the State curtails their right to privacy, embedded in Article 21 of the Indian Constitution.
The supporters of this contention argue that the complete ban on the consumption of liquor doesn’t fall under the ambit of “reasonable restrictions”. Prohibiting liquor consumption in public spaces may be a reasonable restriction, but a total ban on the same is a violation of one’s fundamental rights.
Right to Trade Liquor under Article 19(1)(g)
The supporters of the contention that the fundamental rights provided under Part III of the Indian Constitution include the right to trade liquor. The argument goes that the right to trade liquor falls under Article 19(1)(g) of the Indian Constitution; Article 19(1)(g) reads, ‘All citizens shall have the right to practice any profession, or to carry on any occupation, trade or business.’
If the fundamental rights guaranteed to the citizens include the right to trade liquor under the mentioned provision, then the complete ban on liquor trade is indeed a violation of the Indian Constitution; this is because Article 19(6) permits the State to put only ‘reasonable restrictions’ and a total ban is definitely not one.
Arguments opposing the Right to Liquor:
The arguments that oppose the fundamental right to consume and trade liquor are supported by Articles 19(6) and 47 of the Constitution of India.
Right to Liquor under Article 19(1)(g)
Article 19(6) provides that the State can make any law:
- Imposing reasonable restrictions, in the interest of the general public, on the exercise of the right conferred under Article 19(1)(g);
- Relating to the professional or technical qualifications necessary for practising any profession or carrying on any trade;
- Relating to a trade carried out by the State, or by a corporation owned or controlled by the State, whether to the complete or partial exclusion of citizens.
The opposers of the right to liquor hold on to the argument that the State has the right to impose reasonable restrictions on the trade carried out by any citizen, provided, such restrictions are in the interests of the general public. When the State believes that the trade of liquor is against the interests of the general public, it can indeed impose restrictions. So, the liquor bans are constitutional, and the right to consume and trade liquor per se doesn’t exist.
Right to Liquor under Article 47
Article 47 (Directive Principles of State Policy) of the Indian Constitution deals with the State’s duty to raise the nutrition level, standard of living, and public health of citizens.
It states that improving public health is one of the primary duties of the State. It specifically points out that the State must “endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.”
Meaning, as much as possible, the State must strive to prohibit the consumption of intoxicating drinks.
The opposers of the right to liquor argue that this is exactly what the liquor bans try to uphold. It is common knowledge that liquor is injurious to health.
By imposing liquor bans, the State tries to fulfil its duty prescribed under Article 47 of the Indian Constitution. So, the right to consume and trade liquor per se doesn’t exist.
The conflict of contentions
In the case of Khodhay Distilleries Ltd. v. State of Karnataka, an interesting conflict of contradictory contentions was observed as to whether or not to recognize the right to trade liquor.
If Right to Liquor exists
Restrictions can be imposed only when a right exists. Validating the restrictions on liquor trade would mean that citizens indeed possess the right to trade because restrictions under Article 19(6) are imposed only if the citizens possess such a right.
If Right to Liquor is non-existent
On the other hand, if citizens do not have the right to trade liquor, the state governments will have a monopoly over the liquor market. But by doing it, the State violates Article 47 (Directive Principles of State Policy), which provides that the State shall endeavour to prohibit the consumption of intoxicating drinks and drugs.
Nevertheless, it is vital to analyze the insights of the courts on this matter.
The perspective of courts
After scrutinizing the diverse arguments of both the supporters and opposers, the perspective of the courts on the existence of the right to liquor is so far unchanged.
State Of Bombay And Another v. F.N Balsara (1951)
The constitutionality of the Bombay Prohibition Act, 1949, was challenged in this case. The said Act prohibited the following:
- Transport, and
- Possession of liquor within the state.
Challenging some sections like Sections 12, 13, 23, and 24 of the said Act, the petitioner contended that it infringed his rights to:
- Possess, consume and use medicated wine, whisky, beer, eau-de- cologne, etc.;
- Import and export liquor;
- Purchase, consume, possess or use any stock of foreign liquor, medicinal preparations containing alcohol, etc.
The petitioner also argued that the said Act violated Article 19(1)(f) that provided citizens the right to property (omitted by the Forty-Fourth Constitutional Amendment, 1978), that is, to acquire, hold, and dispose of the property.
In the appeals that reached the Supreme Court of India, a five-judge bench headed by Hon’ble Justice Saiyid Fazi Ali unanimously held the impugned Act as unconstitutional only to the extent of the “ordinary use of liquor for toilet and medicinal preparations”. The total prohibition on potable liquor is valid.
Ultimately, the right to consume and trade liquor as a fundamental right per se does not exist.
Khoday Distilleries Ltd. v. State of Karnataka (1994)
This case provided one of the landmarks judgments as far as the right to trade liquor is concerned.
Primarily, this case challenged the constitutional validity of the following Rules:
- Karnataka Excise (Distillery and Warehouse) (Amendment) Rules, 1989,
- Karnataka Excise (Manufacture of Wine from Grapes) (Amendment) Rules, 1989,
- Karnataka Excise (Brewery) (Amendment) Rules, 1989,
- Karnataka Excise (Sale of Indian and Foreign Liquors) (Amendment) Rules, 1989,
- Karnataka Excise (Bottling of Liquor) (Amendment) Rules, 1989,
- Kerala Foreign Liquor Rules, 1974, and
- Andhra Pradesh Foreign Liquor and Indian Liquor Rules, 1970.
Though various SLPs, appeals, and writ petitions were clubbed together in this case, the bone of contention was whether or not the petitioners had the right to trade liquor.
The judgment was delivered of a three-judge bench of the Supreme Court of India, headed by Justice P.B. Sawant, was similar to that of the F.N Balsara case; but, this time the Court’s insights upon the right to liquor was far thoughtful and straightforward.
Relying upon Articles 19(1)(g), 19,(6), and 47 of the Indian Constitution, the Court held that:
- The State has the power to impose reasonable restrictions on the trade or business run by any citizen, provided, they are in the interests of the general public;
- No one can be deprived of his property unless the deprivation is following Article 19(6);
- The State has the power to prohibit the consumption of liquor, to improve public health;
- The State’s power to prohibit liquor trade implies that it has the exclusive power to carry on that trade.
- The State can have a monopoly on the production and supply of liquor;
- No citizen has the fundamental right to trade and consume liquor.
Ugar Sugar Works Ltd. v. Delhi Administration And Others (2001)
Specific policies dictating liquor trade within the National Capital Territory of Delhi made under Punjab Excise Act, 1914, were challenged in this case. The petitioner, a liquor manufacturing company, contended that the restrictions imposed under the said Act violate his right to trade guaranteed under Article 19(1)(g) of the Indian Constitution.
Again, a three-judge bench of the Supreme Court of India rejected all the arguments that support the fundamental right to liquor. It vigorously held that “there is no fundamental right to trade in intoxicants, like liquor”, and cited various precedents like State Of Bombay And Another v. F.N Balsara, the Khoday Distilleries Ltd. v. State of Karnataka, etc. to support the judgment.
Presently, no Indian citizen has the fundamental right to consume and trade liquor. Respective state governments have a monopoly over the liquor market in India. It is a billion-dollar industry in India, and hence, an almost inseparably necessary evil.
Nevertheless, if the respective governments implement the liquor rules well, then there may be chances to balance the interests of both the people who favour and condemn the right to liquor.
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