Bihar’s Draconian Prohibition Law Will Only Drive the Liquor Trade Underground

Prohibition has never worked anywhere; ordinary people suffer and only liquor mafias and law enforcement forces benefit.

This article is about the new Bihar prohibition law  but I need to make a disclosure at the outset: I am against all prohibition laws, whether draconian or not.

It is true that Article 47 of the constitution on the directive principles of state policy says that “the state shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and drugs which are injurious to health”, and the Supreme Court has said that there is no fundamental right to trade in liquor. Recently, in fact, in Kerala Bar Hotels Association vs. State of Kerala ( 2015 ), the Supreme Court upheld the Kerala liquor ban.

However, the question is not so much about the legality of such prohibition laws, as about their advisability. These are my reasons why I am against prohibition:

1. Historical experience shows that prohibition laws could never be implemented effectively. The US National Prohibition Act of 1920 – more commonly known as the Volstead Act – which sought to enforce prohibition only led to the rise of the mafia and the illicit manufacture, sale and consumption of liquor on a large scale in the United States. The law had therefore to be repealed in 1933. Prohibition only converts legal drinkers, sellers and manufacturers into illegal ones. Gujarat, which has had a prohibition law for over half a century, has never been able to enforce it effectively. Everyone knows that every night several trucks carrying liquor enter Gujarat illegally from Rajasthan and elsewhere, obviously in connivance with the police.
2. Poor people, who constitute 80% of our population, drink alcohol to get some temporary relief from their miserable lives. Some people say that if prohibition is imposed, such people will give the money they earn to their families, instead of spending it on liquor. This is a fallacious argument. Even if prohibition is imposed, they will drink illegally. To reduce alcoholism, the only way is to raise the standard of living of people, and give them decent lives – not introduce prohibition.
3. Other people say that instead of prohibition, awareness and education should be spread among the masses about the evils of drinking. Again this is a misconceived argument, and overlooks what has been said above. No amount of spreading awareness or education will be to any effect. We have to raise the standard of living of people if we wish to curb excessive drinking.
4. One contention holds that tough prohibition laws are required to deal with the evil of drinking, and the newly proposed Bihar law, which will be the second prohibition law in Bihar of 2016, is a tough law, unlike others. To my mind such tough prohibition laws will only drastically increase corruption and crime. The police, excise officials etc will get a free hand, and the public will be harassed in many ways. The illicit manufacture, import, sale and consumption will be done on a large scale.

Now coming to the specifics of the new prohibition law in Bihar, a prohibition measure had already been enacted in Bihar in March 2016 – the Bihar Excise ( Amendment ) Act, 2016. This law prohibited the manufacture, bottling, distribution, transportation, accumulation, possession, purchase, sale or consumption of any type of liquor, intoxicating substance including bhang and medicines with alcoholic content. The Act prescribes stringent punishment – including capital punishment – to those manufacturing or trading in illicit liquor. Initially from April 1, the ban was only on country liquor, but on April 6, 2016, it was extended to so-called ‘Indian Made Foreign Liquor’.

One would have thought the Bihar political leadership, after enacting this law, would rest content. But now, within four months of enacting the first prohibition law of 2016, a second draconian amendment bill has been passed – though it has not yet received the assent of the governor.

Among other things, the newly proposed law would make the following draconian changes :

• Family members above the age of 18 will be held guilty if the law is violated at a home
• Jail from 10 years to life imprisonment will be awarded for consuming alcohol or a contraband substance.
• The head or in-charge of a company and all responsible persons will be held guilty if any employee flouts prohibition within company premises (exception for companies in which central or state governments hold majority stake).
• Any excise or police official in the rank of sub-inspector or above can enter any premises at any time without warrant to inspect, search and collect samples.
• Any person found violating or trying to violate prohibition can be arrested without warrant.
• District magistrates can impose collective fines on villages, towns or community if repeated violations of prohibition occur.
• Special courts to try prohibition offences.
• Anyone storing utensils or apparatus used for making liquor will be liable for punishment.
• Failure to inform the police about consumption or sale of liquor will attract a 10-year jail term.
• A jail term of 5 to 7 years for anyone found in intoxicated state due to use of liquor, drugs or medicines
• Officials of media houses, movies, social platforms to face prison term of up to five years for directly or indirectly advertising liquor or any intoxicant.
• 10 years’ jail for anyone who obstructs police or excise official from enforcing the law
• House owners who let out premises or buildings in which prohibition is violated will be held guilty and sentenced to prison term of same duration as violator.
• Habitual offenders could be expelled from a district or a part of it

All this reminds one of the Mad Hatter in Alice in Wonderland. How can the authorities punish all adults in the family for breach of the law by a single individual? There is no vicarious liability in criminal law, unless a criminal conspiracy is established.

Moreover, Article 21 of the Constitution states that no one can be deprived of his life or liberty except in accordance with law. And the Supreme Court has said in Maneka Gandhi vs. Union of India (1978 ) that the law seeking to deprive one of his life or liberty must be fair, reasonable and just. How can such a law imposing collective punishment meet this criterion?

Similarly, how can collective fines be imposed on a whole village or town for repeated offences by individuals ? It reminds one of the days of the British Raj, when entire villages were punished for a crime by an individual. But since then, India has become independent, and a constitution has come into force in the country. How can a house owner be punished if his tenant breaks the law?

I am sure a large section of the police force and excise department will be celebrating, as they will now be able to make a lot of money. But the persons who will suffer the most by the prohibition law will be the poorest section of society.

As I said earlier, the poor drink alcohol to get some temporary relief. So despite the prohibition law, they will continue to drink, but now illegally. They will now drink illicit liquor, which is often toxic, and will have to pay more to get it, as that will have to be done surreptitiously.

Makandey Katju is a former judge of the Supreme Court of India