Tag Archives: prohibition

Uttarakhand High Court “bans” Alcohol Consumption

Last week, the Supreme Court mandated the compulsory playing of the national anthem in cinema halls, without considering whether it had the jurisdiction or power to do so under the Constitution. The disease seems to be infectious. Yesterday, the High Court of Uttarakhand took it upon itself to ban the consumption of alcohol in three districts in the State of Uttarakhand. Like the Supreme Court’s order, the strange thing about the Uttarakhand High Court’s judgment (which runs into 34 pages) is that the public interest petitioner never even made a prayer for banning. The petition was about the alleged fact that the Government had opened a liquor bar in Haridwar, in contravention of its own Government Order, passed in 2002, which imposed prohibition within a 1.6 kilometre radius of Haridwar.

This is a rather narrow and specific prayer. That does not, however, stop the High Court from embarking upon a moralising homily about alcohol consumption and its ill effects. After that, the High Court cites a number of Supreme Court judgments for the proposition that there is no fundamental right to trade or conduct commerce in alcohol. And then comes the zinger:

“The State Government has imposed a ban on sale of liquor at Char Dhams but in order to give more sanctity to the government order and with a view to save the health of people living in the districts where these Char Dhams are located, the State Government should impose complete prohibition. The prohibition in these areas would bring peace and harmony. It is the poor segment of the society which spends more money on liquor than on food leaving their family and children in misery. The loss of revenue would be compensated by restoring the health of the society. The societal interest in every individual is prolonged by ensuring his healthy life. The use of intoxicants, drugs and liquor, in fact, affects the morality. Use of alcohol causes depression. It damages the liver. It may cause Cancer as well. The long-term consumption of liquor/alcohol results in death of brain cells. It may result in cirrhosis including Pancreatics. It also affects the social fabric of the society. Large number of devotees from all over the country visit Chardham in the State of Uttarakhand… The State Government, though, has taken laudable steps for prohibiting the sale of liquor in specified areas but taking into consideration the ever increase consumption of alcohol, more particularly in younger generation, the complete prohibition on possession, distribution, collection, sale, purchase or consumption of liquor/alcohol, including beer and intoxicants, is required, at least, in the districts where Chardhams are situate, to begin with. Similarly, the possession, distribution, collection, sale, purchase or consumption of tobacco is also required to be totally prohibited within a radius of five kilometres from Nanakmatta, Ritha Sahib and Hemkund Gurudwaras.”

This is all very lovely and quaint. It’s also legally irrelevant. All the Supreme Court decisions that the High Court cites are about the constitutional validity of  a complete or partial State-imposed prohibition, not about the Court itself imposing prohibition in the absence of any law. Much like the Supreme Court last week, the High Court seems to suffer from a rather basic confusion between what is desirable, and what is legal. Throughout the 34-page long judgment, the High Court cites exactly one constitutional provision: Article 47, which provides 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 Court goes to the length of quoting the Constituent Assembly Debates for the purpose behind Article 47, but strangely, seems to be unaware of the existence of Article 37, which begins with the words “the provisions contained in this Part shall not be enforceable by any court…”

There is little ambiguity in the phrase “shall not be enforceable by any court“. To convert it from passive to active voice, it means that the Constitution prohibits the Court from enforcing a Directive Principle of State Policy. One would have expected the Uttarakhand High Court to at least invoke Article 21 in order to provide the regulation, customary fig-leaf of legitimacy, but even that is nowhere to be found in the judgment.

Under a Constitution that makes the judiciary the final arbiter of its own powers, the only effective check upon it is self-restraint. The last two weeks have shown that when it comes to directly encroaching upon personal rights and freedoms, that self-restraint is in short supply.

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Filed under Directive Principles of State Policy, Per Incuriam, The Judiciary

The Bihar High Court’s Prohibition Judgment: Key Constitutional Issues – III: Proportionality in Punishment

(This is a guest post by Abhinav Sekhri, cross-posted with permission from his Proof of Guilt blog.)

==

Overview

The separate opinion of Justice Singh covers seven issues and he saves the best for last with his analysis of punishment clauses coming right at the end at Paragraph 89. Effectively, the law criminalised anything one did with alcohol (i.e. acts/omissions associated with its production, possession and consumption) contrary to the Act and rules. Punishments for these offences are neatly summarised into three categories in the judgment: (i) incarceration and fine (Sections 47, 53), (ii) confiscation of property (Sections 68-A, 68-G), and (iii) collective fines (Section 68-I) [There are other provisions on punishments in the Act as well that developed on these basic offences]. These were supplemented by the now-standard provision on reversing the burden of proof and presuming the accused is guilty (Section 48). The High Court unanimously held that these penal clauses were unconstitutional.

The Opinion

Out of these three categories, take categories (i) and (ii) separately from category (iii) which is collective fines. The collective fine provision is set aside for obvious violations of Article 21 of the Constitution as it imposed punishments contrary to a procedure established by law as no right of hearing or right of appeal was provided by the clause. Similar provisions for collective fines are present elsewhere that have these procedural safeguards [See, Section 16 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989].

Which brings me to the more interesting part of the decision concerning categories (i) and (ii). The primary plank on which these penal clauses are set aside is an argument on proportionality, i.e. the sentence imposed for an offence must be proportionate to the harm purportedly caused by the offence. This is a rather crude summation of what is a highly technical concept in sentencing theory [See, Andrew Ashworth Sentencing and Criminal Justice (5th edn., 2010); Andrew Von Hirsch Censure and Sanctions(1993)]. The High Court located the concept of proportionality in criminal statutes in Article 21 of the Constitution by relying upon the Supreme Court decisions in Mithu Singh v. State of Punjab [(1983) 2 SCC 277] and Vikram Singh v. Union of India[(2015) 9 SCC (502)]. The three judges in Vikram Singh framed the proportionality test as follows: “Courts, however, have the jurisdiction to interfere when the punishment prescribed is so outrageously disproportionate to the offence or so inhuman or brutal that the same cannot be accepted by any standard of decency.

In this case, the harm as per the State of Bihar was the various evils associated with excessive alcohol consumption that are afflicting its people. The response was to introduce penal provisions that had these notable features:

  • A presumption of guilt which the accused must rebut without specifying whether the State had any burden to prove objective facts displaying commission of the offence;
  • Broad constructive liability attracting persons whose property was allegedly involved in the commission of offences. These persons would be subjected to the similar presumption of guilt which they must rebut;
  • Mandatory minimum punishments – warranting that a sentence of at least ten years’ imprisonment be awarded for possessing alcohol and at least five years for consuming it in a public place;
  • Sealing of properties allegedly involved in commission of offences and their confiscation upon conviction;

The Court posed to itself a question – was this response proportionate to the harm – and answered it in the negative as it found the penal clauses were notoriously overbroad and unspecific. There was no gradation of punishment to differentiate minor and major violations. Nor did the punishment clauses show any sensitivity to how different acts posed different harms. The NDPS Act was cited as an example of how such clauses can be provided within constitutional limits (to think that the NDPS Act would appear as a measure for principled criminal legislation!). Notably, Justice Singh did not restrict his opinion to the badly drafted punishment provisions for his proportionality analysis. It also looked at the various procedural conveniences incorporated by the 2016 Amendments, i.e. the reversed burdens of proof and coercive procedures of confiscation and sealing of property. Although persons could plead ignorance as a defence, broad constructive liability meant far too many people would be unfairly accused and subjected to these coercive procedures while having to prove their innocence. These dangers were not set aside by the stringent punishments imposed on vexatious actions by overzealous state agents.

Some Comments

The absence of any sentencing policy or guidelines has been a common lament for several criminal law scholars in India over the years. This decision puts the problems starkly into perspective. Imposing a minimum ten-year imprisonment for possessing alcohol and confiscating premises where nobody knew alcohol was present there seems to satisfy the outrageously disproportionate standard of the decision in Vikram Singh. However, the Supreme Court in both Mithu Singh as well Vikram Singh was at pains to stress the different position that the death penalty occupied from a sentence of imprisonment. In Mithu Singh, one may recall, Section 303 IPC was set aside because it only allowed for the death sentence without any alternative. The Supreme Court in Vikram Singh put it bluntly: “there are very few and rare cases of sentences of imprisonment being held disproportionate.” The Patna High Court decision is therefore remarkable, for it places the penal clauses in the Bihar Excise (Amendment) Act 2016 in this category of very few and rare cases. To my knowledge, this is the first decision to use the proportionality doctrine to set aside penal clauses despite no death sentence being involved.

There are deeper problems though. The decision in Vikram Singh provided a neat ‘sum up’ of principles on proportionality at Paragraph 52. It was a summing up of principles drawn from Canadian and American jurisprudence – both have specific constitutional prohibitions on certain kinds of punishment. India does not. In fact, the Supreme Court on an earlier occasion in Jagmohan Singh v. State of U.P. [AIR 1973 SC 947] specifically noted that American jurisprudence on prohibiting cruel and unusual punishment [flowing from the Eighth Amendment to the United States Constitution] could not be imported in India because the Indian Constitution did not have similar clauses. Of course, Maneka Gandhi came after Jagmohan Singh and expanded the boundaries of Article 21 allowing us to possibly incorporate the Eighth Amendment jurisprudence. The problems of having such an indeterminate constitutional jurisprudence have been seen with the tussles over the right to privacy and its scope. Therefore, it should be clear that proportionality analysis of punishment clauses does not have a sure footing in Indian constitutional law and the expansion by the Patna High Court may well be considered beyond its current scope.

Conclusion

 

For now, though, one can only be happy with how proportionality is invoked to set aside statutes inflicting persons with disproportionate terms of imprisonment. This experience is similar to what happened in Maharashtra with the beef ban, where again a proportionality argument was raised to set aside the reverse burden clauses. It shows us that High Courts are stressing on a more principled brand of criminalisation, something that has not been the hallmark of how criminal law developed in India over time. A refusal to budge especially when prohibition was such an integral scheme of the ruling government reflects a commitment to principles that must be lauded. The decision is kind, for it tells the legislature what can be done to fix the law. If the State of Bihar chooses to challenge the decision rather than amend the statute, the Supreme Court will be able to consider these important questions. One hopes it upholds how the Patna High Court applied proportionality to restrain the legislature from abusing its near-plenary powers in sending people away for a decade for having a pint.

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The Bihar High Court’s Prohibition Judgment: Key Constitutional Issues – I: Excessive Delegation and Ultra Vires

In a landmark judgment handed down yesterday (Confederation of Indian Alcoholic Beverage Companies vs State of Bihar, Civil Writ No. 6675/2016), a division bench of the Patna High Court struck down the Bihar government’s notification imposing total prohibition in the state, as well as Section 19(4) of the Bihar Excise Act of 1915, which was the statutory provision under which the notification was passed. Justice Navaniti Prasad Singh wrote a detailed judgment, with which the Chief Justice concurred on all points apart from whether the right to drink alcohol was protected under Article 21 of the Constitution, as a facet of the right to privacy. The case itself threw up a host of fascinating constitutional questions, which merit close scrutiny. In Part I, I will examine the Justice Singh’s reasoning striking down the Act and Notification on grounds of excessive delegation, conflict with policy, and ultra vires. In Part II, I will analyse the disagreement between Justice Singh and the Chief Justice on the question of fundamental rights. Part III will be a guest post on the issue of punishment.

Section 19(4) of the Bihar Excise Act, as it originally stood, read as follows:

“Notwithstanding anything contained in the foregoing Sub-sections, the Local Government may, by notification, prohibit the possession of any person or class of persons, either in the Province of Bihar and Orissa or in any specified local area, of any intoxicant , either absolutely, or subject to such conditions as it may prescribe.”

On 31st March 2016, Section 19(4) was amended to read:

Notwithstanding anything contained in this Act and the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the State Government may by notification, absolutely prohibit the manufacture, bottling, distribution, sale, possession or consumption by any manufactory, bottling plant, license holder or any person in the whole State of Bihar or in any specified local area in respect of all or any of the intoxicant s either totally or subject to such conditions as it may prescribe.”

The same day, the Government issued a notification banning distribution, sale, consumption etc. of country liquor. A few days later, it issued another notification [“the impugned notification”], which extended the ban to foreign liquor (and thus made prohibition absolute):

“Notification No. 11/Nai Utpad Niti-01.03/2016-1485, dated 5th April, 2016. – In exercise of the powers conferred under Section 19(4) of the Bihar Excise Act, 1915 (as amended by Bihar Excise (Amendment) Act, 2016), the State Government hereby imposes ban on wholesale or retail trade and consumption of foreign liquor by any license holder or any person in the whole of the State of Bihar with immediate effect.”

The petitioners’ first prong of attack was that the phrase “any person” under Section 19(4) of the Excise Act did not contemplate “all persons“, and that therefore, the Notification was ultra vires. To substantiate this, they relied upon judgments of the pre-Independence Federal Court, which had interpreted the pre-amended Section 19(4) in this manner. This contention was swiftly rejected by Justice Singh, since those judgments had expressly held that because the term “any person” was immediately qualified by “class of persons“, it was not intended to include “all persons” within its ambit. The 2016 amendment to Section 19(4), however, had removed the term “class of persons” altogether. Consequently, it could no longer be held that on a plain reading, “any person” could not include “all persons“. This aspect of the judgment is self-evidently correct, and needs no comment.

This brought Justice Singh to the second argument: that of excessive delegation. He relied extensively upon the classic judgment of the Supreme Court in Hamdard Dawakhana vs Union of India to draw a distinction between conditional legislation (which left the determination of the time, place, and manner of the legislation to become effective upon the delegated authority), and delegated legislation (in which the legislature provided broad policy guidelines, and allowed the delegated authority to fill in the gaps). The key test for the validity of delegated legislation – as observed by the Court in Hamdard Dawakhana – was that it should not amount to abdication of the legislative function. In Dawakhana, the Court had invalidated Section 3(d) of the Drugs and Magical Remedies Act, which used the term “or any other disease or condition which may be specified in rules made under this Act”, on the basis that there was no legislative guidance on how these “diseases” were to be selected. Armed with this, the Justice Singh was then able to find:

“The first thing to be noticed is that except for Section 19 (4) of the Act, there is no legislative enactment in the Act, which would indicate the circumstances and the conditions, whereunder total prohibition could be notified by the State Government as a delegatee. A reading of Section 19 (4) of the Act would show that it authorizes the State Government to issue notification absolutely prohibiting various activities, either in the whole of the State or in specified local areas, in respect of all or any of the intoxicants, either totally or subject to such conditions as may be prescribed. There is no legislative guideline at all discernible from the Act in relation to the aforesaid delegation.” (paragraph 85.11)

What particularly weighed with Justice Singh was that Section 19(4) belonged to the Bihar Excise Act of 1915, which was primarily about “permitting, facilitating and regulating manufacture, storage and sale of intoxicants and for collection of excise revenue” (paragraph 85.14), and not about imposing prohibition. Indeed, there was a separate Bihar prohibition act of 1937, which had never been used, indicating clearly that prohibition as a subject was meant to be dealt with by a separate law altogether. This allowed the Court to hold that Section 19(4), in its present form, amounted to impermissible delegation, and was therefore void – along with the notification issued under it.

Justice Singh then considered the interaction between Section 19(4), the notification, and the Bihar government’s “New Excise Policy” of 2015. The New Excise Policy, which had been notified on 21.12.2015, had introduced the goal of total prohibition in Bihar, and it was following this that Section 19(4) was amended. The Court’s analysis of the interaction between the three legal instruments is a little curious. After finding that the NEP’s purpose was to achieve prohibition in a phased manner starting with the prohibition only of country liquor, Justice Singh then held that consequently, the notification was ulta vires and arbitrary because it extended the prohibition to foreign liquor as well (paragraph 86.21). In doing so, he followed the judgments of the Supreme Court in State of Bihar vs Suprabhat Steels Ltd and Secretary, Ministry of Chemicals and Fertilisers vs Union of India, both of which had held that a government policy, once approved by the cabinet and notified, acts as a subsequent self-limitation of powers – i.e., it is not open to the government – on the pain of arbitrariness – to entirely disregard an existing policy that it had already committed itself to, via notification.

However, a close reading of both these judgments raises some doubts about their applicability to the present case. The Supreme Court’s judgment in State of Bihar vs Suprabhat Steels is laconic and confusing; however, a perusal of the High Court judgment (which was appealed by the State of Bihar to the SC) reveals that a key issue was never argued. Paragraph 14 of the High Court’s judgment states:

“In course of his submission the learned Advocate General submitted that the Notification of 4th April, 1994 amounted to a change of policy by the Government. This was objected to by the petitioners, and they challenged the State to produce material to show that the Government had consciously changed its policy by incorporating such a condition. However, ultimately the learned Advocate General did not proceed on the basis that the Government had changed its policy, and submitted that the Notification dated 4th April, 1994 was not inconsistent with the policy decision.”

In other words, the entire argument before the High Court and Supreme Court in Suprabhat Steels was conducted on the question of whether the impugned Notification was or was not consistent with prior policy. Similarly, in Cipla, the debate was about whether the placement of certain drugs in the Schedule to the Drug Pricing Order was consistent with the government’s own Drug Pricing policy.

In the present case, however, circumstances were different. After the New Excise Policy of 2015, which planned to introduce prohibition in a phased manner, starting with the banning of country liquor, the Bihar assembly amended Section 19(4) of the Excise Act that – as we saw above – allowed for complete prohibition, and drew no distinction between country and foreign liquor. What stronger evidence could there be for a change in policy? Justice Singh attempted to get around this by holding that the amended Section 19(4) was intended to give effect to the New Excise Policy, and that consequently, Notifications issued under it must also conform to the Policy. That argument, however, is simply belied by the text of 19(4), which is substantially broader than the Policy. And when the text is clear, is it open to the Court to go behind the language and to the intent of the framers, in order to derive an implied limitation upon its language?

However, Justice Singh then also held the notification to be void on the much more straightforward ground of ulta vires. Before we consider the argument, it is important to dispel a confusion that might arise on a reading of paragraphs 87 – 87.08. At various points, Justice Singh seems to switch between holding that the Notification is ultra vires, and that Section 19(4) itself is ultra vires. Particularly confusing is paragraph 87.03, where he observes:

“I may also refer to certain judgments, where Courts have held that a legislation has an object and if it is sought to be extended beyond the object, the legislation would be open to challenge. The first decision, I would refer to is the case of M.C.V.S. Arunachala Nadar and others Vs. State of Madras and others, (AIR 1959 Supreme Court 300), wherein in paragraph 5 of the reports, this is what their Lordships have noted, the relevant part whereof is quoted hereunder: “5. ……..In order to be reasonable, a restriction must have a rational relation to the object, which the legislature seeks to achieve and must not go in excess of that object…….””

As a statement of law, the first sentence is plainly incorrect, since the legislative object is to be derived from the text of the legislation itself. Invalidating one provision of an Act because it goes against the legislative object would be tantamount to invalidating a provision of the original Constitution because it violates the basic structure. Arunachala Nadar does nothing to support Justice Singh’s case, since it was on a different issue entirely – that of the reasonableness of restrictions under Article 19.

Eschewing Paragraph 87.03, however, the core of Justice Singh’s argument was that the Notification was ultra vires because it went beyond the legislative object. Going into the history of the Act, it noted that the purpose of the Act had always been to “for regulating the manufacturing, trade and business of intoxicating liquor and for augmenting State revenue”, and never for imposing prohibition. After surveying case law on the point, he then held that:

“Section 19 (4) of the Bihar Excise Act, 1915, could only be used for furtherance of the object of the said Act and not to abrogate the Act itself. In other words, the power, conferred on the executive under Section 19 (4), cannot be used by the executive to be a self destruct switch to kill the legislation itself.”

The problem with this argument, however, is that if the Notification was valid in terms of the amended Section 19(4), then it clearly could not be held to be ultra vires because, in a broader sense, it went beyond the legislative object. In other words, Justice Singh had to make an argument that despite its clear textual wording – allowing the government to prohibit any person from undertaking “manufacture, bottling, distribution, sale, possession or consumption” of intoxicating substances – the amended Section 19(4) – in light of the Act as a whole – was subject to an implied limitation that did not permit the imposition of absolute prohibition. This he did not do; and none of the cases that he cited endorsed the proposition that, in case of a seeming conflict between overall legislative object and a single section of the legislation, delegated action that conformed to the single section could nonetheless be invalidated on the ground of ultra vires. This is, of course, subject to the assumption that there could be a conflict between legislative provisions. I would submit, rather, that provisions like Section 19(4) are better understood as carving out exceptions to the overall legislative object (excise) for certain, specified substances. If the Excise Act was to be understood in this way, then the argument on ultra vires would no longer hold.

Consequently, and with respect, it is my view that while Justice Singh was correct on his reading of the amended Section 19(4), as well as his holding that the Section suffered from the vice of excessive delegation, he was incorrect in holding the Notification void for conflict with the New Excise Policy, as well as for holding it to be ultra vires. The outcome, of course, remains correct.

(In the next post, we shall discuss the Court’s approach towards fundamental rights.)

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