Bihar liquor ban: Experts say ‘draconian’ new excise bill may face legal test

  • Arun Kumar, Hindustan Times, Patna
  • Updated: Aug 01, 2016 13:17 IST
Bihar chief minister Nitish Kumar has dismissed the argument that the imposition of a total prohibition of liquor impinged on the fundamental right of citizens and pointed to the directive principle to justify the ban on alcohol in the state. (Burhaan Kinu / HT file photo)

A new excise bill in Bihar that will add more teeth to the state’s crackdown on alcohol may have to face a legal test sooner than expected.

A revised bill was introduced on the opening day of the Bihar assembly’s monsoon session on Friday, and MLAs were asked to submit their amendments. However, some MLAs, cutting across party lines, dubbed the proposed act as draconian for its tougher penalties over violating the prohibition.

The proposed bill seeks to punish all adults in a family for liquor consumption by an individual member, or if liquor were recovered from the house. The changes to the bill also include making any movable or immovable premise liable for confiscation if found storing or preparing liquor as well as being used as a place for consumption.

Vinod Kanth, a senior lawyer in the Patna high court, said that any law divorced from logic would not stand for a second in the court of law, as it would amount to “infringement and invasion to right to privacy”.

“If such a law is passed, which is quite possible as Grand Alliance comprising JD(U), RJD and the Congress have the numbers, it will certainly be challenged in the court, as it is against the fundamental right. How can my wife and children be punished for my offence? How do they know if I have or somebody else has hidden a bottle or two somewhere in the house,” he said, adding he himself could challenge it.

Kanth said that the very concept of such a law reminded him of Draco, the 7th-century legislator of Athens in ancient Greece who came up with harsh laws even for minor crimes that later ‘draconian’ become the adjective for unforgiving rules or laws.

Another senior advocate Rajendra Giri said that even after the bill is passed in the House, the governor would have to take a call on it. “He will also have to take a legal view. After all, he would see if it is legally tenable, as there cannot be any punishment under law merely on presumption,” he said.

Giri said that in a civilised society, punishing anyone on the presumption of crime is not allowed. “Besides, the quantum of punishment would also come under judicial scanner if challenged in the court. After all, in modern times, even an 18-20-year-old boy can hide liquor and the prospect of the entire family getting booked seems too harsh,” he added.

Read | Nitish govt may face tough time over revisions to Bihar’s liquor law

Chief minister Nitish Kumar, however, has dismissed the argument that the imposition of a total prohibition impinged on the fundamental right of citizens and pointed to the directive principle to justify the ban on alcohol in the state.

“A few persons in urban areas question prohibition, saying how come the state was concerned what a citizen eats or drinks,” Kumar said at a function in Saharsa recently.

Maintaining that consumption of liquor could not be the fundamental right of a citizen, he said, “Article 47 of the Constitution gives direction that the state should protect health and nutrition of its citizen and strive to achieve total prohibition. Liquor does not come under the purview of Article 19 of the Constitution providing the fundamental right to citizens.”

The government passed the Bihar Excise (Amendment) Act, 2016, during the last assembly session that amended the Bihar and Orissa Act II of 1915 with new stringent penal provisions, including life imprisonment and death sentence.

Thousands of people, including legislators, were arrested under the provisions of the new laws but many of them got bail later.

A single-judge bench of the Patna high court, presided over by the then acting Chief Justice Iqbal Ahmed Ansari, in its order categorically observed that mere possession of foreign liquor was not unlawful as per the government notification, paving the way for the release of Janata Dal(United) MLC Manorama Devi. She was jailed after liquor bottles were recovered from her residence during raids in search of her son, wanted in a road rage case.

Another ruling by the bench of justice Chakradhari Sharan Singh in a bail case stated that mere possession could not be an offence, as per the government notification.

The new bill has plugged the loopholes, making possession of even a bottle of liquor a non-bailable offence. If the new law comes into force, all prohibition-related offences would be non-bailable.

“There is no looking back on the new excise bill beyond lifting the ban on the sale and consumption of toddy in the state. The government is firm on prohibition and is confident of taking the Grand Alliance (GA) along after relaxation for toddy. The BJP was also on board and there is no reason why it should not this time,” JD(U) spokesperson Neeraj Kumar.

“The law has been made more stringent only after studying the positive impact as well as the loopholes that gave unscrupulous elements an opportunity to exploit. The government is prepared to answer for all counter views on the floor of the House,” he added.

Bharatiya Janata Party (BJP) leader Sushil Kumar Modi said that his party would continue to protest against the draconian provisions.

“Nitish Kumar had to take U-turn under pressure from BJP, HAM-S, LJP and RJD. I will urge Lalu Prasad to once again use his pressure for toning down of the provision under which all adult members of the family will be booked if one consumes liquor. After all, it was the fear of losing RJD support that prompted Nitish’s U-turn,” he added.

JD(U) sources said that the CM categorically said during the GA legislature party meeting on Friday that the clause of action against adult members was meant to create psychological pressure on boozers from the family, not to harass innocent people, as the opposition apprehends.

Read | Drunk man’s logic: Bihar’s alcohol ban won’t really empower women

“If any instance of harassment of innocent people comes to light, the erring officials would face four types of action. There will be action against the anti-corruption law as well as departmental proceedings. It may lead to three-year jail and in proven cases sacking from service,” the CM told the leaders.

Besieged by criticism from the opposition over the government’s bid to bring several amendments to tighten the prohibition law, three senior ministers met National Democratic Alliance (NDA) leaders on Sunday and sought their support for the passage of the Bihar Excise and Prohibition Bill 2016 in the assembly.

Senior BJP leader and former deputy chief minister Sushil Kumar Modi said the BJP was never opposed to prohibition, but it did not like the stringent measures the proposed act envisages.

“However, I apprised him about the party’s objections to certain ‘draconian’ provisions and urged the government to amend them suitably,” he said, citing confiscation of property in case of liquor consumption among his other objections.

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