The Bihar High Court’s Prohibition Judgment: Key Constitutional Issues – II: The Fundamental Right to Privacy

The final, substantive ground of attack upon amended Section 19(4) of the Bihar Excise Act, and its notification of total prohibition, was that of fundamental rights violations. It was on this point that Justice Singh and the Chief Justice differed. Let us first consider the Chief Justice’s reasoning. The Chief Justice pointed to Article 47 of the Constitution, one of the Directive Principles of State Policy, which stated that:

“The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.”

The Chief Justice then observed that, in accordance with well-established precedent, Parts III and IV of the Constitution had to be harmoniously construed. Accordingly, the Chief Justice held:

“When the State has been, asked by the Constitution to make endeavor to bring about prohibition of the consumption except for medicinal purposes of, intoxicating drinks and/or drugs, which are injurious to health, it, undoubtedly, means that making of serious and sincere efforts to take the society to a situation, where it accepts prohibition as a constitutionally declared obligation of the State. When and how it would be done is a question, which needs to be answered by the State depending upon the manner in which the endeavour may be made to bring about prohibition. If it is made in the manner, as has been done in the present case, the endeavour may not survive the test of constitutionality; but if it is done in accordance with law and the constitutional scheme of governance, one cannot be heard to say that his fundamental rights are violated.” (paragraph 39)

In other words, since Article 47 expressly contemplated the State taking legislative measures towards prohibition, the imposition of prohibition (if done in the correct manner) must, by definition, be in conformity with Part III, because any other conclusion would imply a direct clash between fundamental rights and Directive Principles.

What was particularly interesting was how the Chief Justice distinguished Minerva Mills vs Union of India, which had clearly held that the goals under Part IV could not be pursued at the cost of infringing fundamental rights. The Chief Justice held that in Minerva Mills – and in all other similar cases besides – there had already been an existing infringement of a fundamental right, which was sought to be justified by recourse to Part IV (and which was held to be impermissible) (paragraph 52). Here, however, given the text of Article 47, it was clear that the framers had never intended the right to drink alcohol to fall within any of the provisions of Part III, because if they had, they would not have laid out prohibition as a Part IV goal. In other words, the Chief Justice did not undertake an independent analysis of whether or not the right to drink alcohol was part of any fundamental right, but held that as a matter of construction – i.e., harmonising Parts III and IV – it could not be:

That the right to privacy is integral and inseverable facet of fundamental right can no longer be in dispute; but the question of all questions is : whether one’s desire to consume alcohol is a fundamental right? If consumption of alcohol by one is regarded as a fundamental right, then, infringement thereof would, undoubtedly, amount to intrusion into one’s right and would be struck down. When, however, the Constitution obliges the State to make endeavour to bring complete prohibition in respect of consumption of intoxicating drink, consumption of intoxicating drink cannot be treated as a fundamental right.” (paragraph 62)

The Chief Justice finally buttressed this conclusion by citing the Supreme Court judgments in Khoday Distilleries and Kerala Bar Hotels Association, both of which had agreed that the imposition of various stringent controls over the production and sale of alcohol amounted to a reasonable restriction upon Article 19(1)(g), and passed Article 14 scrutiny.

This is a powerful argument, but not entirely persuasive. The relationship between Parts III and IV of the Constitution has had a long and fraught history (one that I have examined in detail elsewhere). It is true that from the mid-1960s, the Supreme Court has consistently held that fundamental rights and directive principles must be interpreted “harmoniously”. For the most part, this harmony has taken three forms: first, directive principles have helped determine the scope of “public interest” under Articles 19(4) – (6); secondly, they have been used to determine whether restrictions upon fundamental rights pass the test of reasonableness; and thirdly, they have been invoked in situations where the abstract wording of a Part III right is open to more than one competing conception. The last one is particularly important for our purposes here, and ought to be understood with an example. In State of Kerala vs N.M. Thomas, the Supreme Court made its famous turn from understanding Article 16(4) as an exception to Article 16(1), to holding it to be a facet of 16(1). This turn was predicated upon a deeper shift: from viewing the equality code under Articles 14-15-16 as espousing formal equality to interpreting it as endorsing substantive equality. In their concurring opinions, Justices Mathew and Krishna Iyer invoked the Directive Principles (in particular, Article 46), to make this shift. The Directive Principles, then, were used to decide which conception of equality was more faithful to the overall constitutional scheme, which included both the abstract text of Articles 14, 15 and 16, as well as Part IV.

It is important to distinguish this use of the Directive Principles as structuring values that may be invoked to infuse concrete content into the fundamental rights provisions from what the Chief Justice did, which was to limit the scope of fundamental rights through the Directive Principles. If, on an independent analysis, it was found that the right to personal liberty under Article 21 included the right to choose one’s way of life (including one’s choice of food and drink) independent of State coercion, then Article 47 could not (in accordance with precedent) be invoked to eliminate that right as far as alcohol was concerned (in fact, it is important to note that Article 47 does not provide a carte blanche for prohibition, but is limited to intoxicating drinks and drugs which are “injurious to health).

The flaw in the Chief Justice’s argument is evident from a perusal of Article 31C of the Constitution, which states that:

“Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing  the principles specified in clause (b) or clause (c) of article 39  shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by [article 14 or article 19].”

In other words, Article 31C expressly contemplates the possibility that a law enacted in accordance with Articles 39(b) or (c) may, on its merits, infringe Articles 14 or 19, and provides a constitutional override for situations of that kind. If the Chief Justice’s argument was to be accepted, then this override would be entirely redundant.

Justice Singh, in his opinion, began by addressing the Chief Justice’s argument. He – and in my view, correctly – noted that although the Chief Justice had framed his argument in terms of “harmonising” Parts III and IV, in effect, such an interpretation (which, recall, allowed the scope of rights to be curtailed by the DPSPs) would end up making Part III subordinate to Part IV, which was entirely at odds with Minerva Mills (paragraphs 88.02 – 88.03).

Having dealt with this argument, Justice Singh then moved on to considering the scope of the right itself. After noting that prior precedents upholding prohibition had done so by finding it to be a reasonable restriction upon the freedom of trade and commerce, and had not considered the issue of the individual right of consumption of alcohol, he observed that:

“Similarly, with expanding interpretation of the right to privacy, as contained in Article 21 of the Constitution, a citizen has a right to choose how he lives, so long as he is not a nuisance to the society. State cannot dictate what he will eat and what he will drink. We have to view this concept in changing times, where international barriers are vanishing. Any restriction by a State, on the right to choose what to eat and what to drink, apart from being invasion of right of privacy under Article 21, would prejudicially affect free movement and free residence, in any part of territory of India, for the citizens. Keeping in view these factors, a citizen cannot be prohibited from his choice, within the confines of his house, subject to orderly behaviour, of enjoying his drink, which he can procure from any other part of the country, where prohibition is not in force.” (paragraph 88.04)

There are two distinct arguments here that need to be examined separately. The first is the argument from privacy. Justice Singh went through the now well-known series of judgments on the right to privacy, and focused, in particular, on those aspects of the judgments that endorsed the right to privacy as encompassing a right to decisional autonomy. Consequently, he held, in paragraph 88.15, that:

“Thus seen, in my view, the right to decide as to what to eat and drink within the confines of once house, by an individual citizen, would come within the matter of right of privacy, within Article 21 of the Constitution. It is not the case of the State nor any material placed on record that drinking alcohol per se as a responsible citizen is bad or injurious to health. It is abuse thereof that is injurious. On the plea of mere possibility of abuse by some persons, the right of others cannot be abrogated. In my view, if the State starts dictating a citizen what to drink or what not to drink, though the same is not per se injurious to health, it would be a direct intrusion on personal liberty affecting meaningful life. It would be violation of personal liberty guaranteed by the Constitution.” 

In other words, absent a specific showing of harm (which, indeed, was what Article 47 required), which the government had not undertaken in the present case, the denial of choice in matters of private consumption infringed the fundamental right to privacy.

The second aspect of the argument in paragraph 88.04 was based upon the freedom of movement, and framed by Justice Singh as an argument from unconstitutional conditions. In paragraph 88.06, he held:

“Just to illustrate the unreasonableness of this, consider a case of a person born and brought to the Metropolis like Bombay or Delhi, educated there and serving there. Consumption of liquor to him is a part of his life and part of his relaxation, he is accustomed to it. If he has to move to this State and has an option, he would not do so, because he would have to give up his life style. That would infringe not only Article 21 but also Article 19 (1) (d) and Article 19 (1) (e) of the Constitution. He would be inhibited from coming to this State. India is one country.”

While I am normally a strong supporter of the doctrine of unconstitutional conditions – i.e., that the State cannot make a benefit or a penalty conditional upon my waiver of a fundamental right (in this case, my freedom of movement), this argument appears to prove too much. Under this logic, it would mean that state amendments to the IPC that provided stricter or heavier punishments were unconstitutional, since the end result would be that a person would be deterred from moving to those states (in violation of his Article 19(1)(d) rights). And taken to its conclusion, this logic would entail that any issue which even peripherally touches upon fundamental rights can only be legislated by the union Parliament. This clearly cannot be correct.*

In any event, even sans the freedom of movement argument, Justice Singh’s privacy argument remained, which he concluded by noting:

“Thus, in my view, a citizen has a right to enjoy his liquor within the confines of his house in an orderly fashion and that right would be a part of right of privacy, a fundamental right, under Article 21 of the Constitution and, any deprivation thereof would have to withstand the test of Articles 14 and 19 of the Constitution as well.”

There are interesting parallels between Justice Singh’s privacy argument, and the Bombay High Court’s invocation of privacy to strike down the possession section (Section 5D) of the Maharashtra beef ban. In that case, I had noted:

“The Court endorses two different (and complementary) conceptions of privacy. The first is a spatial vision: “the State cannot make an intrusion into his home… the citizen has a right to lead a meaningful life within the four corners of his house…” In other words, invasion of an individual’s “private space” in order to discover whether or not he is eating beef violates privacy (readers will not that this argument applies exactly to Section 5C as well). The second is a vision of privacy as decisional autonomy – “what one eats is one’s personal affair, and it is part of privacy… [Section 5D] violates the right to be let alone.” At first glance, it might not seem that dietary choices hardly implicate those kinds of fundamental life decisions that are normally associated with individual autonomy. This is perhaps why it might be more helpful to think of this not in terms of how central dietary choice is to individual autonomy, but in terms of something that Jed Rubenfeld has called the “anti-totalitarian principle” (previously discussed here): State power ought not to be used for “forcing of lives into well-defined and highly confined institutional layers.” Control over diet is one instance of State shaping lives into a rigid pattern (often justified by ideological considerations).”

This twin conception of privacy as decisional autonomy and as the sanctity of the home was at the basis of Justice Singh’s opinion as well. It is interesting to note that, even as the Supreme Court reference continues to remain unanswered, the High Courts appear to be crafting the beginnings of a tradition of constitutional privacy.

Lastly, Justice Singh also held that the Notification violated Article 14. This was because the purpose of the New Excise Policy was primarily to combat alcohol addiction in poor and rural areas (hence, in the Policy (until it was overriden by the Act) the proposed ban was on country liquor, while leaving open sale of foreign liquor in urban areas). However, the Notification, while banning all alcohol (including foreign liquor) said nothing about banning toddy:

“Curious to note that toddy (Tari), which is available in abundance and tapped freely without any licence or permit and sold freely not only in the rural areas but urban areas and which has alcohol content, undisputedly matching or above beer, has not been prohibited. It is freely available even today. There is no notification barring it. Then to say, that on one hand toddy can be freely tapped and sold unchecked, but foreign liquor or IMFL including beer cannot be sold or consumed does not stand to reason, if the true object of the State was to implement Article 47 of the Constitution.” (paragraph 88.10).

This argument, however, is not entirely persuasive. Ever since Ram Prasad Seth vs State of UP, it is settled law that the State can choose to initiate reform in a phased, sector-wise manner, and Article 14 is not attracted if the State has taken the first of many progressive steps towards reform (what reform is, of course, is a matter for the State to determine, subject to the Constitution). Consequently, it was incumbent upon Justice Singh to refute the logic of phased or segmented reform (which, as he himself observed, was the point of the New Excise Policy). However, he did not do so.

Consequently, while I agree with Justice Singh’s holding that the Notification violated the fundamental right to privacy – and his formulation of the right to privacy – I disagree with him on the issue of Article 14. That said, the substantive part of the judgment, as a whole, is well-crafted, tightly reasoned, and rigorously argued (even though one may disagree with parts of it). It is a judgment that repays close study, and is a worthy addition to our constitutional tradition.

(In the next post, Justice Singh’s analysis of the punishment provisions will be discussed in a guest essay)

* This was pointed out to me in conversation by Jawahar Raja.



Filed under Decisional Autonomy, Directive Principles of State Policy, Privacy

5 responses to “The Bihar High Court’s Prohibition Judgment: Key Constitutional Issues – II: The Fundamental Right to Privacy

  1. If we compare Bihar with a state like Tamilnadu may be we can acknowledge the total prohibition bereft of the issue the violation against right to privacy.The society of Bihar is still backward to a great extent ,a responsible citizens’responsibility,awareness or knowledge everything is missing when we compare to a state like Tamilnadu,contemporary community standard of Bihar is not in a situation to leave the responsibility of a welfare of a state in the hands of ignorant Bihari. Moreover the status of women is still more awkward beyond imagination that a woman can’t have any control over this absolute patriarchal society, Secondly as far as constitutional provisions the letter and spirit is always the justice ,this is the justice towards women in Bihar given by the law making body. A balancing act of this prohibition against the justice for women, well,our constitution always wanted to compensate the injustice done in the past at any cost then why can’t allow prohibition against the violation against the privacy.If the same question arise in any developed state like Tamilnadu we always leave it to the hands of responsible citizens and argue for right of privacy.The last question why not toddy get prohibited ,it is the money involved in consuming alcohol nevertheless this point is also to be checked by the state government if they really looked into the welfare of Bihari women.At last we have to see the larger interest of the people especially the ignorant and backward women folks of Bihar. Finally reading Directive principle of state policy with Fundamental rights for its enforceability is not uncommon and is constitutional.

  2. Dr. Sanjay Jain

    Dr Sanjay Jain, ILS Law College Pune
    Let’s not be judgmental about the progressive levels of State of Bihar and State of TN so as to hold the former in such a bad light and give a clean chit to the latter. Be that as it may. I want to add a new dimension to the issue whether the Bihar legislation is ultra vires article 3 of National treatment obligation under GATT agreement? This ques. is significant because India being member of WTO is under obligation to accord national treatment to both foreign goods and goods manufactured in India. Can Bihar govt. justify immunity to the sale of TADI and complete ban on the sale of Foreign liquor( of course including the other national brands of hard drinks including Beer) in the light of GATT obligation of India? IS it not possible to argue that TADI and other Liquors are substitutables in terms of their effects and reactions, thereby attracting letter and spirit of Article 3 GATT?
    Can we make a larger point, Ratification of WTO membership by India amounts to a fetter on legislative power of Parliament as well as States, thereby transforming in ‘HLA Hartian’ sense the rule of recognition? Should judiciary not take into account this shift in the rule of recognition during adjudication?
    in my opinion, in absence of Branded spirits, people are bound to consume high risk TADI as it may be sometimes poisonous. Bihar already witnessed death of so many people because of the same. It is therefore possible to argue that the policy of prohibition is also ultra vires India’s obligation as WTO member thereby amounting to violation of Article 253 read with Article 14 as classification between TADI and other alcoholic beverages is ultra vires Article 3 of GATT. It is not correct to compare such an outright prohibition with piecemeal reforms particularly because State did not furnish any Brandi’s Brief to justify that Alcoholic consumption per se is injurious to health. Last but not the least I find the verdict problematic for its sweeping assumption that right to privacy is recognized fundamental right.

  3. Pingback: Weekly Roundup- September 27-October 4, 2016 – Centre for Constitutional Law, Policy, and Governance

  4. The reference to freedom of movement and residence based on Art.19 is untenable.

  5. Pingback: The Supreme Court’s Right to Privacy Judgment – V: Privacy and Decisional Autonomy | Indian Constitutional Law and Philosophy

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