LESSONS FROM HISTORY
When one tells you ‘no’, do you feel the urge to do what you’ve been told not to, even more? The answer is yes, and there is a reason behind it, It’s called psychological reactance. That is not to say that the mind rebels against any and all imposition of authority, but yes, it does happen. Psychological reactance may or may noy have played a role in making prohibition a failure in the USA, but many other things certainly did. Samuel Freeman, Professor of Philosophy and Law at UPenn called the law which gave rise to prohibition “a failed experiment.” It is no secret that it led to an increase in crime rates, corruption and much more. It did not eliminate drinking, but induced a change, saloons disappeared, drinking among women became more common, who had previously avoided it because of the rowdy environment at these establishments etc.
In Russia, in order to ensure that the soldiers are better prepared as opposed to their position in 1905, in the war against Japan, sale of vodka was banned in 1914, and is generally tallied as a total failure on the part of the government. A similar effort was made by Mikhail Gorbachev to combat the country’s Syria drinking problem. but for having reached similar ends as the prohibition in the USA, this attempt was abandoned in 1987.
On the economic front in the USA, the prohibition ground to a halt an entire industry. For example, 1300 breweries in 1916 became zero in 1926; 318 wineries in 1914 were reduced to a mere 27 by 1925 and so on. Tax Revenue went from $365m to a meagre $13m etc.
THE INDIAN EXPERIMENT
India as an amalgamation of cultures, has had no religious backing to alcohol prohibition, as have countries like Yemen, Afghanistan etc, which are fundamentally Islamic countries, and for them a direct prohibition is found in the Holy Quran. The only direct (which is actually indirect) mention of prohibition, is under Art.47 of the Directive Principles of State Policy.
The first state to ban alcohol was Gujarat, where it remains so to this day. The 1949 law, was challenged in the Supreme Court, where it was upheld. A number of states had such bans in place for nearly two decades post independence, which were subsequently revoked. A 2015 article, in light of discussions of sucha ban being brought in Bihar, by Nidheesh MK explains how other states had fared thus far with the experiment of prohibition. It has since been reintroduced in Mizoram.
There have been numerous reports about the alcohol ban conditions in Gujarat where a former IPS Officer turned lawyer has termed this ban as farcical, or another where the former CM, Shankersinh Vaghela called it a sham. In Bihar, the ban introduced in 2016 is facing a similar reality. A sitting Member of Parliament from Bihar termed this law a failure, and fittingly, a national level survey has found that Bihar as a state consumes more alcohol than Maharashtra, the latter having no such ban in place. Much like the USA and opposite to what the Bihar CM claimed while bringing this law, it has not led to a reduction in crime, and on the other hand has led to a stretched out judiciary, having to deal with an increased number of cases. Mr. Guru Prakash, Assistant Professor, University of Patna suggested, in an article for the Print that the ban should be lifted so as to use the revenue therefrom to compensate for low GST collection.
Kerala had also introduced a near complete ban on alcohol in 2014, but the same had to be revoked by June, 2017 because of the massive losses incurred, which was by some estimates close to 700 billion. A November 2018 CAG report stated that Bihar had suffered a loss of approx. 1400 Cr as a result of this prohibition.
THE RECENT CHALLENGE
Original petitions challenging the prohibition in Gujarat were filed in 2018, followed by five more in 2019. The following year 2 civil applications were filed in support of continued imposition of the ban. The challenge is based on two primary counts- violation of Articles 14 and 21, that is, the law being manifestly arbitrary by allowing temporary permits etc and second, that it violates the Right to Privacy, recognized as a facet of Art. 21 by the Supreme Court in the landmark K.S Puttaswamy judgement.
SCOPE OF THE RIGHT TO PRIVACY
The judgement in K.S Puttaswamy ‘covered expansive terrain’ as Siddharth Narrain put in in an article for The Wire, and it is argued before the Gujarat High Court that prohibition violates this right of privacy. It is not the intention to scrutinize the privacy argument being put before the court, but to suggest in light of the core holdings of the mammoth 540 page judgement, whether an individual’s right to consume alcohol would be covered within it.
Dr. Justice Chandrachud writing for himself, Khehar CJ, Agrawal and Abdul Nazeer JJ., found that there was a negative right against state interference.He wrote that privacy is the constitutional core of human dignity and it protects intimacies like the home, as well as a right to be left alone; Justice Nariman said that such a right must at least cover three aspects, one of them is personal choice. Vast scores of legal literature has been cited from the world over to substantiate this argument. It does therefore seem, that what a person does within their home is protected, may that be consumption of liquor or something else. There is no doubt a positive duty on the state to protect people, and the argument resorted to often, in support of such bans is that people are safer, but there is ample evidence to show that the intended results are not being translated into reality. Such a positive duty, cannot become the basis of denying each and every person within the state the right to do what they wish, within the confines of their home.
OTHER LAWS SUPPORTING THIS CONCLUSION
Prohibition on alcohol consumption in Gujarat and Bihar has not just infringed provisions of liberty and privacy enshrined in our constitution but also numerous international instruments, including but not restricted to, “The International Covenant of of Civil and Political Rights” and particularly its Article 17 which stipulates that an individual’s right to privacy shall not be infringed in a n unlawful manner. Moreover, the law restricting such rights should be backed by a reasonable justification which does not find a place in the aforementioned two states.
An irony behind the prohibition lies in the fact that India, despite having played a significant role in drafting of the Universal Declaration of Human Rights, has violated the very basic tenet of liberty and privacy enshrined in its Articles 3 (Liberty) & 17 (Privacy. The state has not only the responsibility to ensure compliance with the constitution but also ensure that the country is in line with international law.
CONCLUSION
Article 13 of our founding document imposes a twofold obligation on both the Legislature & Executive and the Judiciary to ensure that no law should be enacted and enforced which is in contravention of Fundamental Rights enshrined in Part III of the Indian Constitution. While Our homes are safe havens, away from the hustle and bustle of this fast paced world, and any attempt of the state to interfere with what goes on inside, cannot be accepted. State imposed morality, and especially one that takes such an intrusive stance cannot be held to be in consonance with the principles of democracy. It has been shown, by both history and the examples from within India, that prohibition as an idea doesn’t work- whether as a result of consequent economic loss, or otherwise, by a failure of state machinery, to impose, or control the burgeoning of an alternative, unregulated, illegal market.
We must learn from history as we look to the future.