In this blogpost, Priyanka Kansara, Student, National Law University, Jodhpur writes on the validity of the notification which has been issued by the Maharashtra Government, which makes it compulsory for the people attending the New Year parties, to get a FL-4 licence.

Recently Maharashtra State Government has issued a notification[1] to put control and maintain the public order by giving power to the state excise officials to put an eye on the house parties and crack the whip of those organising and serving liquor without permission in their premises[2]. The notification states that the person/group of persons, who want to organise a party to celebrate New Year in their apartment or at a restaurant, will have to get a FL-4 licence of Rs. 13,500 and a group of friends will have to get a licence worth Rs. 5 to liquor themselves up for the New Year celebration on the New Year eve. The logic behind putting different values for the licence is the different populace and in the former one, it would be for private enjoyment and in the latter one partying with a large number of people, it could be for commercial purposes. But the real purpose behind this is more or less the same, that is to recognise those groups consuming liquor so that they can be controlled and can be kept under observation.

Questioning the jurisdiction of excise officials

The question which directly comes into our mind, and is apparent is, that whether the excise officials have the jurisdiction to snoop down all these activities; whether the rule can be held to be sustainable as per the Constitution. It is clear that the powers to deal with the transactions related to liquor, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors comes under the purview of the State List in the Seventh Schedule of the Constitution of India[3]. Moreover, as per section 3 of the Bombay Prohibitions Act, 1949[4], ‘the State Government, may by notification in the Official Gazette appoints an officer to be called the Commissioner of Prohibition or Excise, who subjected to the control of State or special order as the State Government may from time to time issue, shall excise such powers and shall perform such duties and such functions as are conferred upon, by or under the provisions of this Act and shall superintend the administration and carry out generally the provisions of the Act[5]’.

So, the questions regarding the jurisdiction of the excise officials cannot be sustained, as it is clear from the reading of the Seventh Schedule of the Constitution of India, that the powers to make rules regarding regulation of liquor is with the State Government. The Maharashtra State Government, while exercising the powers conferred upon it by Section 3 of Bombay Prohibitions Act, 1949, can delegate such function to any officer as it thinks fit, to exercise the powers given under the Act. So, in short, it will be proper to conclude that the excise officials do very well have the jurisdiction in this regard. The next part is regarding the constitutionality of the notification.

Constitutionality of the Notification-

Another question which needs to be discussed is the Constitutionality of the present notification. Article 13 of the Constitution of India clarifies the way for the State Government to issue a notification, which will come under the aegis of ‘Law’, which can be challenged for the purpose of Part III of the Constitution. Several questions with regard to the Constitutionality of the notification would be arisen such as, whether the notification is infringing right to equality as a reasonable classification[6] should be established; whether Article 21 of the Constitution is being infringed as right to life envisages within itself the right to enjoy; whether the notification puts a restriction on forming association or assembly ensured under Article 19(c) of the Constitution. All these questions need to be answered so as to establish the constitutional validity of the regulation.

In the case of Budhan Choudhary vs. State of Bihar[7], the Supreme Court has put forth two important criteria for the reasonable classification i.e. (i) the classification must be based on an intelligible differentia, which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question[8]. The same was held in the case of Chiranjit Lal Choudhary vs. Union of India[9] that the differential treatment for the different classes or sections of people should be based on their differential needs and necessity[10].

In the present matter, the State Government needs to ensure a reasonable classification between the person/group of persons having a party for the New Year and the person/group of persons having a party on ordinary days. The logic behind putting a notification for the New Year eve party is, to ensure Constitutionality in the transactions regarding production, manufacturing, possession, transport, purchase and sale of intoxicating liquors, which is definitely a matter of concern for the maintenance of ‘Public Order[11]’. Article 19 (2), of the Constitution of India, empowers the Government to put some reasonable restrictions on the Freedom of Speech, Expression and Right to movement as ensured under this constitutional provision for the  interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence[12].

Moreover, Article 21 of the Constitution is governed by the notion of necessity; it prevents encroachment upon personal liberty and deprivation of life except in accordance with the law[13].  In the case of, Francis Coralie Mullin vs. Administrator, Union Territory of Delhi and Ors.[14], Apex Court while interpreting Article 21 of the Constitution has stated that, “the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings”. Hence, it can be said that right to enjoy with friends by way of parties can be a luxury but not a necessity[15].

Author’s views

The above-mentioned points clearly lays down that the notification issued by the Maharashtra Government, which is in being questioned here, isn’t unconstitutional and the State Government is authorised to delegate its powers to any officer as it thinks fit.

In a nutshell, these points can be given to prove its sustainability-

• It is reasonable and non-arbitrary;
• It is at par with the Constitutional values as it under the purview of Part III of the Constitution; and
• It is the duty of the state to put some regulations on the commercialization and consumption of liquor and after all, it is not a ban, it is just to regulate and inspect these activities.

The concerned Notification thus is perfectly valid and constitutional.

[1] Hosting a house party on New Year eve? You can land in jail!, DNA, December 22, 2015, http://www.dnaindia.com/mumbai/report-hosting-a-house-party-on-new-year-eve-you-can-land-in-jail-2158255 (accessed on December 23, 2015).

[2] id.

[3] Seventh Schedule (Article 246), Constitution of India, http://lawmin.nic.in/olwing/coi/coi-english/Const.Pock%202Pg.Rom8Fsss(35).pdf (accessed on December 23, 2015).

[4] The Maharashtra Prohibition Act 1949, Bom. XXV, http://bombayhighcourt.nic.in/libweb/acts/1949.25.PDF (accessed on December 23, 2015).

[5] id, s. 3, pp. 7-8.

[6] Budhan Choudhary vs. State of Bihar, AIR 1955 SC 191.

[7] id.

[8] id; also mentioned in Shri Ram Krishna Dalmia vs. Justice S.R. Tendolkar & Ors., AIR 1958 SC 538.

[9] AIR 1951 SC 41.

[10] id.

[11] Article 19 (2), the Constitution of India, http://india.gov.in/my-government/constitution-india/constitution-india-full-text (accessed on December 23, 2015).

[12] id.

[13] id, Article 21, the Constitution of India.

[14] AIR 1981 SC 746.

[15] id;