The Nitish Kumar government’s decision to further tighten its “draconian” prohibition law in Bihar is bound to raise many eyebrows.
Tabled in the state assembly on Friday, the Bihar Excise (Amendment) Bill, 2016 was passed on Monday amid walkout by the BJP-led opposition. The amended law is simply bizarre for it seeks to punish all adult family members, if any one consumes or stores liquor. It also shifts the burden of proof on the accused.
Have a look at some of the provisions.
Bihar’s prohibition law is the most draconian in India as it prescribes even capital punishment for a certain category of cases, a minimum 10-year jail or life imprisonment being the norm as punishment for consumption of liquor.
The Supreme Court has been restricting the use of death penalty even for murders. The Bihar law goes against this judicial trend that has emerged since 1980 when the top court propounded the ‘rarest of rare’ theory to minimise the use of death penalty.
The proposed amendments defy principles of criminal jurisprudence, logic and common sense. Perhaps it’s for this reason that Union minister and Lok Janshakti Party (LJP) leader Ram Vilas Paswan has termed them “an act of madness”.
First, the concept of vicarious liability is alien to criminal law. To say that all adult members of a house can be punished if even one person stores or consumes liquor, is tantamount to turning entire criminal jurisprudence on its head.
One is reminded of justice JS Verma Committee report that recommended that an Indian Army officer should be punished if a soldier under his command committed rape, only to be rejected by the government.
Under the criminal law followed in India, a person, who has not directly committed a crime, can be punished only under three circumstances – if he is part of a criminal conspiracy or has a common intention to commit a crime or he is part of an unlawful assembly that has committed a crime.
The Indian Penal Code does not envisage any other circumstance under which one can be punished for an illegal act done by someone else.
Second, an extremely harsh law can’t be a substitute for a proper enforcement of normal laws. It’s simple case of a government weak on enforcement taking shelter under a harsh law. Ever since the Rashtriya Janata Dal and Janata Dal(United) government took over in November last, law and order, in general, has been on the decline in the state.
A similar argument for prescribing the death penalty for rape cases, in general, has not been accepted by the government.
Third, giving too much power to the police is bound to be abused for falsely implicating innocent people in a state like Bihar where enforcement has been a perennial problem. The populism generated by the prohibition law might prove to be short-lived as its misuse will potentially generate anger and frustration against the state government.
Fourth, any punishment has to be based on the doctrine of proportionality i.e. the punishment has to be commensurate with the gravity of the offence.
Fifth, an accused is presumed to be innocent until proven guilty. It’s for the prosecution to prove the guilt of the accused beyond reasonable doubt and benefit of doubt, if any, goes to the accused. To substitute the presumption of innocence with the presumption of guilt and to shift the burden of proof on the accused is fraught with serious consequences.
While supporting prohibition in general, former deputy chief minister of Bihar and state BJP leader Sushil Kumar Modi has expressed reservations on the proposed amendments.
“Several of these contravene fundamental rights of an individual. How can one be blamed for the mistake of his family member? Will family of murderers and rapists also be arrested? Most proposed amendments are disproportionate to the offence. It is turning out to be a Tughlaqi law,” Modi said.
It was Nitish Kumar who liberalised liquor policy to generate revenue needed for development projects. What’s to be noted is that prohibition has been a failure in many other states, including Gujarat where liquor is available despite a total prohibition in place.
The only difference is that the revenue generated is going to organised gangs and policemen. Bihar is incurring an estimated revenue loss of around Rs 4,000 crore.
The only silver lining appears to be a provision prescribing a maximum three-year jail term or Rs 1 lakh fine or both for policeman/excise officer found guilty of framing any individual on wrong or motivated charges for vengeance or misuse of authority.
One wonders if new law would withstand judicial scrutiny.