Bihar's lure of prohibition

The Patna high court judgment quashing the amendments to the Bihar Excise Act that made the consumption, possession and sale of all forms of liquor illegal is hardly surprising. In his newfound zeal to impose total prohibition, Bihar chief minister Nitish Kumar had clearly gone overboard with some of the new provisions in the Act. The Act now allows a district collector to impose a collective fine on an area where liquor was repeatedly seized. Moreover, all persons in a house from where liquor is recovered can be held culpable unless they are able to prove their innocence, and imprisonment ranging between five and ten years, and fines up to Rs. 10 lakh can be imposed under the amended provisions. It must be remembered that the mere recovery of a liquor bottle or being caught with a glass of whisky or arrack can invite such punishments. Nitish believed that these laws would give the community and the womenfolk the much needed clout to end alcoholism. But the danger of foul play by neighbours and police overreach cannot be ruled out in such poorly drafted laws. 

No wonder then that the high court has termed these provisions unreasonable, arbitrary, and draconian and unjustifiable in a civilised society. The court also pointed out to the Bihar government that these laws could have been justified in “a police state, which we are not”. The irony in the state’s zeal to impose prohibition is that it was during Nitish’s earlier tenures that the liquor trade proliferated in the state. Licences were liberally granted to liquor vends and sops were offered to distilleries to set up shop in the state. But after parting ways with longtime ally, the BJP, Nitish has come to fancy women voters as his natural constituency. Because alcoholism among men hits them the hardest, prohibition has been more popular among women. Nitish has argued that the revenue foregone by the exchequer will be offset by the savings accruing to households due to men abjuring liquor. This is certainly true but the evidence from places where prohibition have been imposed reveal that a parallel economy soon flourishes because of increased smuggling and illicit brewing. 

Where the judgment runs into rough weather is where the judges differ on prohibition violating the fundamental right to personal liberty and privacy. One judge notes that a people who drink within the confines of their own house in an orderly fashion cannot be deprived of their fundamental rights, while the other judge notes that prohibition is one of the goals of the State as delineated in Article 47 of the Constitution. The latter argues that because it is a directive principle of state policy and is enshrined in the Constitution, a citizen cannot claim the right to drink as a fundamental right. Considering that the Supreme Court has subsequent to the framing of the Constitution interpreted the right to privacy as a fundamental right, prohibition certainly stands on a weak wicket. 

Perhaps, the only reasonable exercise for the state would be the ban on drinking in public places. Last year, Bihar announced a New Liquor Policy with the aim of bringing in phased prohibition, but Nitish, who harbours prime ministerial ambitions in 2019, was not content with gradual measures. On April 30, he decided to ban country liquor and a few days later had another change of heart and introduced total prohibition. Nitish could have taken a leaf out of Kerala’s prohibition exercise, which focuses on choking the supply rather than use coercive measures on the demand side.