Right to Liquor: A Fundamental Right?

Introduction

What a person consumes and what he does for a living are both matters of personal choice. Choices, on the other hand, are the fruits of liberty. What if you want to drink alcohol but are unable to do so? What if you want to trade it but can’t? Do you believe you have been treated unfairly?” Don’t I have the freedom to consume and exchange whatever I want?” you might be wondering. Let’s try to figure out what it says about alcohol.

Article 47 of the Constitution

To begin with, Article 47 does not outright prohibit alcohol; rather, it asks the state to make efforts in that direction. “The State shall make every effort to make the intake of intoxicating drinks and pharmaceuticals that are hazardous to one’s health illegal, unless for medical reasons,” reads the relevant paragraph of this Article.

Part IV of the Indian Constitution, which deals with Directive Principles of State Policy, also contains Article 37. It’s worth noting that it states: “The contents of this Part shall not be enforced by any court, but the principles set forth therein are fundamental in the governing of the country, and it shall be the State’s duty to apply these principles in drafting laws.”

As a result of the foregoing, it is evident that, unlike fundamental rights, the Directive Principles cannot be enforced by courts. Furthermore, these Directive Principles are essentially recommendations for the country’s future governance, and the state is expected to make every attempt to implement them. However, it is not needed to compulsorily implement them , and courts are powerless to enforce these principles, as previously indicated.

Article 47 (related to the ban of alcohol) is also not mandatory for these reasons.

The Indian Constitution’s Article 47 (Directive Principles of State Policy) addresses the government’s obligation to improve residents’ nutrition, living standards, and public health. It emphasis that one of the State’s key responsibilities is to improve public health. It declares unequivocally that the government must “attempt to prohibit the intake of intoxicating beverages and pharmaceuticals that are damaging to one’s health, except for medicinal grounds.”

To put it another way, the government should try to make intoxicating drinks illegal as much as feasible. Opponents of the right to consume alcoholic beverages contend that this is precisely what liquor prohibitions seek to achieve. Liquor is commonly acknowledged as being unhealthy for one’s health. By enacting liquor prohibitions, the state tries to fulfil its responsibilities under Article 47 of the Indian Constitution. As a result, there is no such thing as a “right” to consume or trade alcoholic beverages.

It’s also worth noting that alcohol sales bring in a lot of money for governments, which they don’t want to lose. In addition, several states (including Gujarat and, more recently, Bihar) have tried but failed to implement prohibition.

Prohibition in these states has resulted in the sale of counterfeit liquor, which has resulted in police officers and excise officers accepting regular bribes to turn a blind eye to the illegal sale of liquor, and it has also resulted in the state losing a significant amount of revenue from liquor taxes.

Right to Consume Liquor under Article 21

In the landmark case K.S. Puttaswamy And Others v. Union Of India and Ors. [1][2], Supreme Court Of India, the right to privacy was recognised as a fundamental right inherent in Article 21of the Indian Constitution and Article 14. Supporters of the argument that the Indian Constitution’s right to privacy includes the right to consume liquor claim that what a person consumes is a result of his personal choice, and it is an important component of his privacy.

Doe the Right to Liquor Exists ?

Only when there is a right can restrictions be placed. If the limitations on liquor commerce are upheld, it means citizens have the right to trade, because restrictions under Article 19(6)are only applied if citizens have that right.

Right to Liquor under Article 19

According to Article 19(6), the State has the authority to enact any law:

1. Restricting the exercise of the right given by Article 19(1) in the public good (g).
2. Concerning the professional or technical qualifications required for the practice of any profession or the conduct of any trade;
3. Concerning a trade conducted by the state, or by a state-owned or controlled enterprise, to the exclusion of citizens in whole or in part.

Opponents of the freedom to consume alcoholic beverages argue that the government has the authority to place reasonable restrictions on any citizen’s trade, as long as the restrictions are in the public interest. When the government believes that the sale of alcoholic beverages is harmful to the general population, it has the authority to impose limitations. As a result, the liquor laws are constitutional, and there is no such thing as a right to drink or trade booze.

Khoday Distilleries Ltd. v. the State of Karnataka (1994)[3]: In terms of the ability to trade liquor, this case was a watershed moment. This case was mostly about the constitutionality of the following rules:

1. Karnataka Excise (Distillery and Warehouse) (Amendment) Rules, 1989,
2. Karnataka Excise (Manufacture of Wine from Grapes) (Amendment) Rules, 1989,
3. Karnataka Excise (Brewery) (Amendment) Rules, 1989,
4. Karnataka Excise of Sale of Indian and Foreign Liquors, (Amendment) Rules, 1989,
5. Karnataka Excise of Bottling of Liquor, (Amendment) Rules, 1989, 
6. Kerala Foreign Liquor Rules, 1974, and
7. Andhra Pradesh Foreign Liquor and Indian Liquor Rules, 1970.

The bone of contention in this case was whether the petitioners had the right to trade liquor, notwithstanding the fact that several SLPs, appeals, and writ petitions were lumped together. 

Important Judgments

The Supreme Court of India’s[4] verdict, issued by a three-judge bench led by Justice P.B. Sawant, was similar to that of the F.N Balsara case; but, this time the Court’s insights into the right to liquor were far more deliberate and plain. Relying upon Articles 19(1)(g), 19,(6), and 47 of the Indian Constitution, the Court held that:

• The State has the authority to place reasonable restrictions on any citizen’s trade or business, as long as they are in the public interest;
• No one can be deprived of their property unless it is done in accordance with Article 19(6);  
• The state has the authority to restrict the consumption of alcoholic beverages in order to improve public health;
• The state’s ability to prohibit the sale of alcoholic beverages implies that it has sole authority to do so.
• The government can hold a monopoly on the manufacture and distribution of alcoholic beverages;
• No citizen has the right to trade or consume alcoholic beverages as a matter of right.

Is drinking liquor your fundamental right? [Judgement By Patna High Court]

Is the right to consume alcohol constitutionally protected? While a two-judge bench of the Patna high court unanimously ruled against prohibition in Bihar on other legal grounds on 11^th July 2021, the judges disagreed on the case’s most interesting question.

Justice Navaniti Prasad Singh, who equated alcohol to drinking, remarked, “In my opinion, the freedom to drink alcohol as a responsible citizen is a part of the right to privacy…” water and thus to a basic fundamental right protected by the Constitution, the country’s basic law that no other law can override. However, Iqbal Ahmed Ansari, his brother and Chief Justice of the High Court, disagreed. He pointed out that access to alcohol can only be claimed as a right until the government prohibits it.

His major argument was based on Article 47 of the Indian Constitution, which mandates that the Indian government “must endeavour” to implement prohibition. Because prohibition is enshrined in the Constitution as a guiding principle of state policy, no individual can claim that his fundamental rights have been violated when the government enacts a constitutional requirement.

“It appears to me that the argument was that drinking water is the same as consuming alcohol. If it had been the same, the founding fathers of the Constitution would not have used Article 47 to prohibit the state’s governance,” Chief Justice Iqbal Ahmed Ansari noted. However, Justice Navaniti Prasad Singh believed that it is the abuse of booze, not the consumption of it, that is harmful. “Other people’s rights cannot be taken away simply because certain people may abuse them. In my opinion, if the government begins to tell citizens what they may and cannot drink, even if it is not harmful to their health, it is a clear violation of their rights and personal liberty has a significant impact on meaningful living. In his conclusion, he stated that it would be a violation of the Constitution’s protection of personal liberty. He also pointed out that under the food safety regulations, booze has been classified as “food”.

Chief Justice Ansari challenged the numerous interpretations of past judgements that Justice Singh relied on in his verdict, which he wrote after reading Justice Singh’s judgement. He referenced constitutional precedents and noted that the freedom to trade or consume alcohol exists only until the state authority imposes prohibition. “If the state allows the drinking of intoxicating beverages, and someone consumes them in the privacy of his own home in accordance with the license he may have, then “Unless the State charges a violation of the license itself, no infringement on his right to consume potable liquor can be allowed,” Justice Ansari said.

However, because the government is required by Article 47 of the constitution to enforce prohibition, liquor cannot be likened to water or food. In response to Justice Singh’s statement that few governments have imposed prohibition 65 years after independence, the Chief Justice pointed out that while the Constitution has been amended, the Constitution has not urged the government to implement prohibition; but, the timing is up to the government, and it cannot be contested on the basis of fundamental rights. A bill was adopted earlier this year by Chief Minister Nitish Kumar and included clauses that were deemed Draconian in both language and spirit by some. The Bihar administration is expecting a copy of the High Court judgement and considering its legal options for dealing with it.

Conclusion

No Indian citizen has the basic right to consume or trade alcoholic beverages at this time. The state governments in India regulate the liquor market. It is a multibillion-dollar industry in India, making it a near-inextricably necessary evil. However, if individual governments correctly implement liquor regulations, there may be opportunities to strike a compromise between the interests of advocates and opponents of alcohol freedom.

This article is authored by Muskaan Agarwal, student at Amity University, Mumbai.

[1]WRIT PETITION (CIVIL) NO. 494 OF 2012

[2]CONTEMPT PETITION (CIVIL) NO. 34 OF 2018

[3]1995 SCC (1) 574, JT 1994 (6) 588

[4]Civil appealNos. 4708-12 of 1989

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