ORIGINAL JURISDICTION: Writ Petitions Nos. 4021-4022, 4024 4025, 4027-4032, 4037, 4040-4041, 4045-4047, 4049-4075, 4078- 4092, 4099, 4103-4111, 4120-4126, 4129-4140, 41424143, 4155-4157,-4184, 4187, 4188-4190, 4192, 4202, 4203, 4205, 4206, 4212, 4214, 4217, 4223, 4231, 4234-4235, 4245, 4250, 4252, 4300, 4308 of 1978 and 4226 of 1978.
(Under article 32 of the Constitution of India.)
AND
Writ Petitions Nos. 966-971, 3643-3650, 3884-3896, 3900-3921, 3965, 3975-3990, 4001-4020, 4034, 4100, 4127 to 4128, 4186, 4193, 4208, 4271, of 1978 and 3968-3971, 4191, 4221 and 4272-4275 of 1978.
(Under article 32 of the Constitution of India.
AND
Writ petitions: 4154, 4209, 4242, 4243, 4247, 4248, 4253, 4254, 4310 and 4314 of 1978.
(Under article 32 of the Constitution of India.)
A. K. Sen and Mrs. Rani Chhabra in W.P. 4021/78 for the Petitioners.
Yogeshwar Parshad and Mrs. Rani Chhabra in W.P. Nos. 4022, 4024, 4025, 4027-4032, 4037, 4040, 4041, 4045, 4047, 4046, 4064-4067, 4078, 4079, 4092, 4142, 4143, 4187, 4090, 4092 and 4231 of 1978.
V. C. Mahajan and Mrs. Urmila Sirur for the Petitioners in W.P. 4049-63, 4080-91, 4108 to 4111/78.
K K. Mohan, S. K. Sabharwal, Pramod Swarup and Shreepal Singh for the Petns. in W.P. Nos. 103, 4140, 4184, 4202 and 4234 of 1978.
O. P. Sharma, N. N. Sharma, A. K. Srivastava, Amlan Ghosh and P. K. Ghosh. in W.P. Nos. 4190-92 and 4226 of 1978.
O. P. Sharma for the Petitioner in W.P. 4226/78. K. B. Rohtgi for the Petitioners in W.P. 3975-76 and 4274-75/ 78.
O. P. Singh in W.P. 966-71 of 1978 for the Petitioners.
A. L. Trehan for the Petitioner in W.P. 4100/78.
S. K. Sabharwal for the Petitioner in W.P. 4214/78.
M. Qamaruddin for the petitioner in W.P. 4193 of 1978.
R. K. Jain, K. K. Mohan and Rajiv Dutt, L. R. Singh for the Petitioners in W.P. 4271-73/78.
S. N. Kacker, Sol. Genl., O. P. Rana for the State of U.P. Soli J. Sorabjee Addl. Sol. Genl. of India and Hardev Singh for the State of Punjab,
J. D. Jain and B. R. Kapoor in W.P. Nos. 4242-4244, 4247 4228, 4209 and 4308 of 1978.
B. R. Kapoor and S. K. Sabharwal for the Petitioners in W.P. 4150-4254/78.
M. P. Jha for the Petitioner in W.P. 4252/78.
S. K. Sabharwal for the Petitioner in W.P. 4245, 4253 and 4310/78.
Shreepal Singh for the Petitioners in W.P. 4235/78.
Hardev Singh on behalf of R. N. Sachthey for the State of Punjab.
The Judgment of the Court was delivered by
What are we about? A raging rain of writ petitions by hundreds of merchants of intoxicants hit by a recently amended rule declaring a break of two ’dry’ days in every ’wet’ week for licensed liquor shops and other institutions of inebriation in the private sector, puts in issue the constitutionality of section 59(f)(v) and Rule 37 of the Punjab Excise Act and Liquor Licence (Second Amendment) Rules, (hereinafter, for short, the Act and the Rules). The tragic irony of the legal plea is that Article 14 and 19 of the very Constitution, which, in Article 47, makes it a fundamental obligation of the State to bring about prohibition of intoxicating drinks, is pressed into service to thwart the State’s half-hearted prohibitionist gesture. Of course, it is on the cards that the end may be good but the means may be bad, constitutionally speaking. And there is a mystique about legalese beyond the layman’s ken !
To set the record straight, we must state, right here, that no frontal attack is made on the power of the State to regulate any trade (even a trade where the turnover turns on tempting the customer to take reeling rolling trips into the realm of the jocose, belliocose, lachrymore and comatose). Resort was made to a flanking strategy of anathematising the statutory regulatory power in S. 59(f)v) and its offspring, the amended rule interdicting sales of tipay ecstasy on Tuesdays and Fridays, as too naked, unguided and arcane and, resultantly, too arbitrary and unreasonable to comport with Arts. 14 and 19.
Our response at the first blush was this. Were such a plea valid, what a large communication exists between lawyer’s law and judicial justice on the one hand and life’s reality and sobriety on the other, unless there be something occultly unconstitutional in the impugned Section and Rule below the visibility zone of men of ordinary comprehension. We here recall the principle declared before the American Bar Association by a distinguished Federal......... JudgeWilliam Howard Taft-in 1895:
"If the law is but the essence of common-sense, the
protests of many average.- men may evidence a defect in
a legal conclusion though based on the nicest legal
reasoning and profoundest learning." The Facts
The Punjab Excise Act, 1914, contemplates grant of licences, inter alia, for trading in (Indian) foreign and country liquor. There are various conditions attached to the licences which are of a regulatory and fiscal character. The petitioners are licence-holders and have, on deposit of heavy licence fee, been permitted by the State to vend liquor. The conditions of the licences include restrictions of various types, including obligation not to sell on certain days and during certain hours. Under the former rule 37 Tuesday upto 2 p.m. was prohibited for sale; so also the seventh day of the month. The licences were granted subject to rules framed under the Act and Section 59 is one of the provisions empowering rule-making. Rule 37 was amended by a notification whereby, in the place of Tuesdays upto 2 p.m. plus the 7th day of every month, Tuesdays and Fridays in every week were substituted, as days when liquor vending was prohibited. Under the modified rules a consequential reduction of the licence fee from Rs. 12,000/- to Rs. 10,000 was also made, probably to compensate for the marginal loss caused by the two-day closure. Aggrieved by this amendment the petitioners moved this Court challenging its vires as well as the constitutionality of S. 59(f)(v) which is the source of power to make rule 37. If the Section fails the rule must fall, since the stream cannot rise higher that the source. Various contentions based on Art. 19(g) and (6) and Art. 14 were urged and stay of operation of the new rule was granted by this Court.
We will presently examine the tenability of the argument and the alleged vice of the provisions; and in doing so we adopt, as counsel desired, a policy of nonalignment on the morality of drinking since law and morals interact and yet are autonomous; but, equally clearly, we inform ourselves of the plural ’pathology’ implicit in untrammelled trading in alcohol. He who would be a sound lawyer, Andrea Alciati, that 16th century Italian humanist, jurist, long ago stressed, should not limit himself to the letter of the text or the narrow study of law but should devote himself also to history, sociology, philology, politics, economics, nostics and other allied sciences, if he is to be a jurist priest in the service of justice or legal engineer of social justice.(1) This is our perspective because, while the forensic problem is constitutional, the Constitution itself is a human document. The integral yoga of law and life once underlined, the stage is set to unfold the relevant facts and focus on the precise contentions. Several counsel have made separate submissions hut the basic note is the same with minor variations in emphasis.
Why drastically regulate the drink trade ?-the Social
rationale-on Brandies brief
Anywhere on our human planet the sober imperative of moderating the consumption of inebriating methane substances and manacling liquor business towards that end, will meet with axiomatic acceptance. Medical, criminological and sociological testimony on a cosmic scale bears out the tragic miscellany of traumatic consequences of, shattered health and broken homes, of crime escalation with alcohol as the hidden villain or aggressively promotional anti-hero, of psychic breakdowns, insane cravings and efficiency impairment, of pathetic descent to doom sans sense, sans shame, sans everything, and host of other disasters individuals, familial, genetic and societal.(2)
We need hot have dilated further on the deleterious impost of unchecked alcohol intake on consumers and communities but Shri Mahajan advocated regulation as valid with the cute rider that even (1) Encyclopaedia of the Social Sciences, Vol. J-ll p. 618. (2) Ibid p. 619-27. water intake, if immoderate, may affect health and so regulation of liquor trade may not be valid, if more drastic than for other edibles. The sequitur he argued for was that the two-day ban on liquor licensees was unreasonable under Art. 19(g) read with Art. 19(6). He also branded the power to restrict the days and hours of sale of liquor without specification of guidelines as arbitrary and scouted the submission of the Addl. Solicitor General that the noxious nature of alcohol and the notorious fall-out from gentle bibbing at the beginning on to deadly addiction at the end was inherent guideline to salvage the provision from constitutional casualty. Innocently the equate alcohol with aqua is an exercise ill intoxication and straining judicial credibility to absurdity. We proceed to explain why alcohol business is dangerous and its very injurious character and mischief potential legitimate active policing of the trade by any welfare State even absent Art. 47.
The alcoholics will chime in with A.E. Houseman(1): ’
"And malt does more than Milton can to justify God’s
ways to man... But the wisdom of the ages oozes through Thomas Bacon who wrote:
"For when the wine is in, the wit is out."
Dr. Walter Reckless, a criminologist of international repute who had worked in India for years has in "The Crime Problem" rightly stressed
"Of all the problems in human society, there is
probably none which is as closely related to criminal
behaviour as is drunkenness. It is hard to say whether
this close relation ship is a chemical one, a
psychological one, or a situational one.’ Several
different levels of relationship between ingestion of
alcohol and behaviour apparently exist. A recent
statement by the National Council on Crime and
Delinquency quite succinctly describes the effect of
alcohol on behaviour: Alcohol acts as a depressant; it
inhibits self- control before it curtails the ability
to act; and an individual’s personality and related
social and cultural factors assert themselves during
drunken behaviour .... Although its dangers are not
commonly understood or accepted by the public, ethyl
alcohol can have perhaps the most serious con sequences
of any mind-and-body-altering drug. It causes (1) Makers of Modern world by Louis Untermeyer p. 275. (2) The Crime Problem (Fifth Edition) Walter C. Reckle Page 115, 116 & 117.
addiction in chronic alcoholics, who suffer
consequences just as serious, if not more serious than
opiate addicts. It is by far the most dangerous and the
most widely used of any drug." (emphasis added). The President’s Commission on Law Enforcement and Administration of Justice made the following pertinent observation:
The figures show that crimes of physical violence are
associated with intoxicated persons.. Thus the closest
relationship between intoxication and criminal
behaviour (except for public intoxication) has been
established for criminal categories involving
assaultive behaviour. This relationship is especially
high for lower class Negroes and whites. More than
likely, aggression in these groups is weakly controlled
and the drinking of alcoholic beverages serves as a
triggering mechanism for the external release of
aggression. There are certain types of key situations
located in lower class life in which alcohol is a major
factor in triggering assaultive behaviour. A frequent
locale is the lower class travern which is an important
social institution for the class group. Assaultive
episodes are triggered during the drinking situation by
quarrels that center around defaming personal honor,
threats to masculinity, and questions about one’s birth
legitimacy. Personal quarrels between husband and wife,
especially after the husband’s drinking, frequently
result in assaultive episodes, in the lower-lower class
family.",
The steady flow of drunkenness cases through the hands of the police, into our lower courts, and into our jails and workhouses has been labelled the "revolving" door, because a very large part of this flow of cases consists of chronic drinkers who go through the door and out, time after time. On one occasion when the author was visiting a Saturday morning session of a misdemeanor court, there was a case of an old "bum" who had been in the local workhouse 285 times previously."
An Indian author, Dr. Sethna dealing with society and the criminal, has this to say :(1)
Many crimes are caused under the influence of
alcohol or drugs. The use of alcohol, m course of time,
causes great and irresistible craving for it. To retain
the so-called (1) Society and the Criminal by M. J. Sethna 3rd Edn. P. 164.
’satisfaction’, derived from the use of alcohol or
drugs, the drunkard or the drug-addict has got to go
on increasing the quantities from time to time; such a
state of affairs may lead him even to commit thefts or
frauds to get the same otherwise. If he gets drunk so
heavily that he cannot understand the consequences of
his acts he is quite likely to do some harmful act-even
an act of homicide. Every often, crimes of violence
have been committed in a state of intoxication. Dr.
Hearly is of the opinion that complete elimination of
alcohol and harmful drug habits would cause a reduction
in crime by at least 20 per cent; not only that, but
there would also be cumulative effect on the
generations to come, by diminishing poverty, improving
home conditions and habits of living and environment,
and perhaps even an improvement in heredity itself.
Abstinence campaigns carried out efficiently and in the
proper manner show how crime drops. Dr. Hearly cites
Baer, who says that Father Mathew’s abstinence
compaigns in Ireland, during 1837-1842, reduced the use
of spirits SO per cent, and the crimes dropped from
64,520 to 47,027. According to Evangeline Booth, the
Commander of the Salvation Army, "In New York before
prohibition, the Salvation Army would collect from
1,200 to 1,300 drunkards in a single night and seek to
reclaim them. Prohibition immediately reduced the
gathering to 400 and the proportion of actual drunkards
from 95 per cent to less than 20 per cent". And "a
decrease of two thirds in the number of derelicts,
coupled with a decrease in the number of drunkards
almost to the Vanishing point, certainly lightened
crime and charity bills. It gave many of the erstwhile
drunkards new hope and a new start". So says E. E.
Covert, in an interesting article on Prohibition.
The ubiquity of alcohol in the United States has led to nationwide sample studies and they make startling disclosures from a criminological angle. For instance, in Washington, D.C. 76.5 % of all arrests in 1965 were for drunkenness, disorderly conduct and vagrancy, while 76.7% of the total arrests in Atlanta were for these reasons(1)
Of the 8 million arrests in 1970 almost one-third of these were alcohol-related. Alcohol is said to affect the lives of 9 million persons (1) Society, Crime and Criminal Careers by Don C. Gibbons p. 427-428. and to cost 10 billion in lost work time and an additional 15 billion health and welfare costs.’’(1)
Richard D. Knudten stated "Although more than 35% of all annual arrests in the United States are for drunkenness, additional persons committing more serious crimes while intoxicated are included within the other crime categories like drunken driving, assault, rape and murder.(2)
President Brezhnev bewailed the social maladies of increasing alcoholism. Nikita Krushchev was unsparing:
"Drunks should be ’kicked out of the party’ not moved from one responsible post to another."(3)
Abraham Lincoln, with conviction and felicity said that the use of alcohol beverages had many defenders but no defence and intoned:
"Whereas the use of intoxicating liquor as a
beverage is productive of pauperism, degradation and
crime, and believing it is our duty to discourage that
which produces more evil than good, we, therefore,
pledge ourselves to abstain from the use of
intoxicating liquor as a beverage."(4)
In his famous Washington’s birthday address said:
"Whether or not the world would be vastly
benefited by a total and final banishment from it of
all intoxicating drinks seems to me not now an open
question. Three fourths of mankind confess the
affirmative with their lips, and I believe all the rest
acknowledge it in their hearts."(5)
Jack Hobbs, the great cricketer, held:
"The greatest enemy to success on the cricket
field is the drinking habit."
And Don Bradman, than whom few batsmen better wielded the willow, encored and said:
"Leave drink alone. Abstinence is the thing that
is what made me."(6) (1) Current perspectives on Criminal Behaviour edited by Abraham S Blumberg P.23. (2) crime in a complex society by Richard D. Knudten P.138. (3) Report of the study Team on Prohibition Vol. L. P. 344. (4) Ibid p.34s. (5) Ibid p.345. (6) Report of the Study Team on Prohibition vol. I. P.347.
Sir Andrew Clark, in Lachrymal language spun the lesson from hospital beds:
"As I looked at the hospital wards today and saw that
seven out of ten owed their diseases to alcohol, I
could but lament that the teaching about this question
was not more direct, more decisive, more home-thrusting
than ever it had been."(1)
George Bernard Shaw, a provocative teetotaller, used tart words of trite wisdom.
’If a natural choice between drunkenness and
sobriety were possible, I would leave the people free
to choose. But then I see an enormous capitalistic
organisation pushing drink under people’s noses of
every corner and pocketing the price while leaving me
and others to pay the colossal damages, then I am
prepared to smash that organisation and make it as easy
for a poor man to stay sober, if he wants to as it is
for his dog.
Alcohol robs you of that last inch of efficiency
that makes the difference between first-rate and
second-rate.
I don’t drink beer-first, because I don’t like it;
and second, because my profession is one that obliges
me to keep in critical training, and beer is fatal both
to training and to criticism.
only teetotallers can produce the best and sanest
of which they are capable.
Drinking is the chloroform that enables the poor
to endure the painful operation of living.
It is in the last degree disgraceful that a man cannot
pro vide his own genuine courage and high spirits
without drink.
I should be utterly ashamed if my soul had
shrivelled up to such an extent that I had to go out
and drink a whisky. (2)
The constitutional test of reasonableness, built into Art. 19 and of arbitrariness implicit in Art. 14, has a relativist touch. We have to view the impact of alcohol and temperance on a given society; and (1) Ibid P. 347. (2) Report of the study Team on Prohibition Vol. I P. 346. for us, the degree of constitutional restriction and the strategy of meaningful enforcement will naturally depend on the Third World setting, the ethos of our people, the economic compulsions of today and of human tomorrow. Societal realities shape social justice. While the universal evil in alcohol has been indicated the particularly pernicious consequence of the drink evil in India may be useful to R r remember while scanning the. rationale of an Indian temperance measure. Nearly four decades ago, Gandhiji, articulating the inarticulate millions’ wellbeing, wrote:
"The most that tea and coffee can do is to cause a
little extra expense, but one of the most greatly felt
evils of the British Rule is the importation of
alcohol.. that enemy of mankind, that curse of
civilisation-in some form or an other. The measure of
the evil wrought by this borrowed habit will be
properly gauged by the reader when he is told that the
enemy has spread throughout the length and breadth of
India, in spite of the religious prohibition for even
the touch of a bottle containing alcohol pollutes the
Mohammedan, according to his religion, and the religion
of the Hindu strictly prohibits the use of alcohol in
any form whatever, and yet alas ! the Government, it
seems, instead of stopping, is aiding and abetting the
spread of alcohol. The poor there, as everywhere, are
the greatest sufferers. It is they who spend what
little they earn in buying alcohol instead of buying
good food and other necessaries It is that wretched
poor man who has to starve his family, who has to break
the sacred trust of looking after his children, if any,
in order to drink himself into misery and premature
death. Here be it said to the credit of Mr. Caine, the
ex-Member for Barrow, that, he undaunted, is still
carrying on his admirable crusade against the spread of
the evil, but what can the energy of one man, however,
powerful, do against the inaction of an apathetic and
dormant Government."(1)
Parenthetically speaking, many of these thoughts may well be regarded by Gandhians as an indictment of governmental policy even to-day.
The thrust of drink control has to be studied in a Third World country, developing its; human resources and the haven if offers to the poor, especially their dependents. Gandhiji again:
"For me the drink question is one of dealing with a
growing social evil against which the State is bound to (1) The Collected Works of Mahatma Gandhi pp.29-30
provide whilst it has got the opportunity. The aim is
patent. We want to wean the labouring population and
the Harijans from the curse. It is a gigantic problem,
and the best resources of all social workers,
especially women, will be taxed to the utmost before
the drink habit goes. The prohibition I have adumbrated
is but the beginning (undoubtedly indispensable) of the
reform. We cannot reach the drinker so long as he has
the drink ship near his door to tempt him ’’(l)
Says Dr. Sethna in his book already referred to:
"And in India, with the introduction of
prohibition we find a good decline in crime. There are,
however, some per sons who cannot do without liquor.
Such persons even so to the extent of making illicit
liquor and do not mind drinking harmful rums and
spirits. The result is starvation of children at home,
assaults and quarrels between husband and wife, between
father and child, desertion, and other evils resulting
from the abuse of alcohol.
The introduction of prohibition in India actually
caused considerable fall in the number of crimes caused
by intoxication. Before prohibition one often had to
witness the miserable spectacle of poor and Ignorant
persons-mill- hands. Labourers, and even the unemployed
with starving families at home-frequenting the pithas
(liquor and adulterated toddy shops) drinking burning
and harmful spirits, and adulterated toddy, which
really had no vitamin value; these persons spent the
little they earned after a hard day’s toil, or what
little that had remained with them or what they had
obtained by some theft, trick, fraud or a borrowing
they spent away all that, and then, at home, left wife
and children starving and without proper clothes,
education, and other elementary necessaries of
life."(2) (emphasis added)
The Labour Welfare Department or the State Governments and of the Municipalities are rendering valuable service, through their labour welfare officers who work at the centres assigned to them, impressing upon the people how the use of alcohol is ruinous and instructing them also how to live hygienically; there are lectures on the evils of drug and drink habits. (1) The Collected Works of Mahatma Gandhi, Vol. 66 P. 47. (2) Society and the Criminal by M. J. Sethna 3rd Edn. p. 165, 166 & 168-169.
Partial prohibition of hot country liquors was introduced by the Congress Ministries in Bombay, Bihar, Madras (in Salem, Chittor, Cuddaph and North Arcot Districts) when they first came into power. In C. P. and Berar, prohibition covered approximately one-fourth of the area and population of the State. In Assam, prohibition is directed mainly against opium. In Deccan Hyderabad on 3rd January, 1943, a Firman as issued by his Exalted Highness the Nizam, supporting the temperance movement. Jammu and Kashmir came also on the move towards prohibition. Since 1949 State Governments determined the policy of introduction of total prohibition.
On April 10, 1948, the Central Advisory Council for Railways, under the Chairmanship of the Hon’ble Dr. John Matthai, agreed to the proposal to ban the serving of liquor in refreshment rooms at railway stations and dining cars.
In Madras, prohibition was inaugurated on 2nd October 1948, by the Premier. the Hon’ble Mr. O. P. Ramaswami Reddiar who pronounced it a red letter day.
In 1949, West Punjab took steps for the establishment of prohibition. In 1949, nearly half the area of the Central Provinces and Berar got dry, and it was proposed to enforce prohibition throughout the State.
In Bombay the Prohibition Bill was passed and became Act in 1949, and Bombay got dry by April 1950.
The number of offences; under the Abkari Act is notoriously high. It shows the craving of some persons for liquor in spite of all good efforts of legal prohibition. The remedy lies in making prohibition successful through education (even at the school stage), suggestion reeducation.
The Tek Chand Committee(1) surveyed the civilizations from Babylon through China, Greece, Rome and India. X-rayed the religions of the world and the dharmasastras and concluded from this conspectus that alcoholism was public enemy. Between innocent first sour sip and nocent never-stop alcoholism only time is the thin partition and, inevitability the sure nexus, refined arguments to the contrary notwithstanding(2).
In India, some genteel socialities have argued for the diplomatic pay-off from drinks and Nehru has negatived it:
(1) Report of the Study Team on Prohibition. (2) Ibid p. 345. (Vol. l).
"Not only does the health of a nation suffer from
this (alcoholism), but there is a tendency to increase
conflicts both in the national and the international
sphere."
I must say that I do not agree with the statement that is sometimes made-even by our ambassadors-that drinks attract people to parties and if there are no drinks served people will not come. I have quite B: frankly told them that if people are only attracted by drinks, you had better keep away such people from our missions...... I do not believe in this kind of diplomacy which depends on drinking....and, if we have to indulge in that kind of diplomacy, others have had more training in it and are like to win.(1)
Of course, the struggle for Swaraj went beyond political liberation and demanded social transformation. Redemption from drink evil was woven into this militant movement and Gandhiji was the expression of this mission.
"I hold drink to be more damnable than thieving and perhaps even prostitution. Is it not often the parent to both ? I ask you to join the country in sweeping out of existence the drink revenue and abolishing the liquor shops.
Let me, therefore, re-declare my faith in undiluted prohibition before I land my self in deeper water. If I was appointed dictator for one hour for all India, the first thing I would do would be to close without compensation all the liquor shops destroy all the toddy palms such as I know them in Gujarat, compel factory owners to produce humane conditions for the workmen and open refreshment and recreation rooms where these workmen would get innocent drinks and equally innocent amusements. I would close down the factories if the owners pleaded for want of funds."(2)
It has been a plank in the national programme since 1920. It is coming, therefore, in due fulfillment of the national will definitely expressed nearly twenty years ago.(3) Sociological Journey to interpretative Destination.
This long excursion may justly be brought to a close by an off repeated but constitutionally relevant quotation from Field, J. irresistible attractive for fine-spun feeling and exquisite expression.
"There is in this position an assumption of a fact which does not exist, that when the liquors are taken in excess the injuries are confined to the party offending. The injury, if it is true, first falls upon (1) Report of the Study Team on prohibition Vol. I P. 345. (2) Ibid P. 344. (3) Collected Works of Mahatma Gandhi Vol. 69 P. 83. 10520SCI/78 him in his health, which the habit undermines; in his morals, which it weakens; and in the self-abasement which it creates. But as it leads to neglect of business and waste of property and general demoralization, it affects those who are immediately connected with or dependent upon him. By the general concurrence of opinion of every civilised and Christian community, there are few sources of crime and misery to society equal to the dram shop, where intoxication liquors, in small quantities, to be drunk at the time, are sold indiscriminately to all parties applying. The statistics of every State show a greater amount of crime and misery attributable to the use of ardent spirits obtained at those retail liquor saloons than to any other source. The sale of such liquors in this way has therefore, been, at all times, by the courts of every State, considered as the proper subject of legislative regulation. Not only may a licence be exacted from the keeper of the saloon before a glass of his liquors can be thus disposed of. but restrictions may be imposed as to the class of persons to whom they may be sold, and the hours of the day, and the days of the week, on which the saloons may be opened. Their sale in that form may be absolutely prohibited. It is a question of Public Expediency and public morality, and not of federal law. The police power of the State fully competent to regulate the business to mitigate its evils or to suppress it entirely, there is no inherent right in a citizen to thus sell intoxicating liquors by retail, it is not a privilege of a citizen of the State or of a citizen of the United States. As it is a business attended with danger to the community, it may as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the Governing authority. That authority may vest in such officers as it may deem proper and power of passing upon applications for permission to carry it on, and to issue licenses for that purpose. It is a matter of legislative will only."(1)
The Panorama of views, insights and analyses we have tediously. projected serves the sociological essay on adjudicating the reasonableness and arbitrariness of the impugned shut down order on Tuesdays and Fridays. Whatever our personal views and reservations on the philosophy, the politics, the economics and the pragmatics of prohibition, we are called upon to pass on the vires of the amended order. "We, the people of India’, have enacted Art. 47 and ’we, the Justices of India’ cannot ’lure it back to cancel half a life’ or ’wash out a word of it’, especially when progressive implementation of the policy of prohibition is, by Articles 38 and 47 made fundamental to the country’s governance. The Constitution is the property of the people (1) Crowely v. Christensen, 34, Law Ed. 620, 623. and the courts know-how is to apply the constitution, not to assess it. In the process of interpretation, Part IV of the Constitution must enter the soul of Part III and the laws, as held by the Court in State of Kerala & Anr. v. N. M. Thomas & Ors.(1) and earlier. The dynamics of statutory construction, in a country like ours, where the preIndependence Legislative package has to be adapted to the vital spirit of the Constitution, may demand that new wine be poured into old bottles, language permitting. We propound no novel proposition and recall the opinion of Chief Justice Winslow of Wisconsin upholding as constitutional a Workmen’s Compensation Act of which he said:
"when an eighteenth century constitution forms the
charter of liberty of a twentieth century government,
must its general provisions be construed and
interpreted by an eighteenth century mind surrounded by
eighteenth century conditions and ideals ? Clearly not.
This were a command of half the race in its progress,
to stretch the state upon a veritable bed of
Procrustes. Where there is no express command or
prohibition, but only general language of policy to be
considered, the conditions prevailing at the time of
its adoption must have their due weight hut the changed
social, economic and governmental conditions of the
time, as well as the problems which the changes have
produced, must also logically enter into the
consideration and become influential factors in the
settlement of problems of construction and
interpretation."(2)
In short, while the imperial masters were concerned about the revenues they could make from the liquor trade they were not indifferent to the social control of this business which, if left unbridled, was fraught with danger to health, morals, public order and the flow of life without stress or distress. Indeed even collection of revenue was intertwined with orderly milieu; and these twin objects are reflected in the scheme and provisions of the Act. Indeed, the history of excise legislation in this country has received judicial attention earlier and the whole position has been neatly summarised by Chandrachud J. (as he then was) if we may say so with great respect, as a scissor-andpaste operation is enough for our purpose: (1) [1976] I S.C.R. 906. (2) Borgnis v. The Falk Co. 147 Wisconsin Reports P. 327 at 348 et See (1911). That this doctrine is to be deemed to apply only to "due process’ and "police - Power" determinations, see especially concurring opinions of Marshalle, and Barness, J.
"Liquor licensing has a long history. Prior to the
passing of the Indian Constitution, the licensees
mostly restricted their challenge to the demand of the
Government as being in excess of the condition of the
licence or on the ground that the rules in pursuance of
which such conditions were framed were themselves
beyond the rule-making power of the authority
concerned.
The provisions of the Punjab Excise Act, 1914,
like the provisions of similar Acts in force in other
States, reflect the nature and the width of the power
in the matter of liquor licensing. We will notice first
the relevant provisions of the Act under consideration.
Section S of the Act empowers the State Government
to regulate the maximum or minimum quantity of any
intoxicant which may be sold by retail or wholesale.
Section 8(a) vests the general superintendence and
administration of all matters relating to excise in the
Financial Commissioner, subject to the control of the
State Government. Section 16 provides that no
intoxicant shall be imported, exported or transported
except after payment of the necessary duty or execution
of a bond for such payment and in compliance with such
conditions as the State Government may impose. Section
17 confers upon the State Government the power to
prohibit the import or export of any intoxicant into or
from Punjab or any part thereof and to prohibit the
transport of any intoxicant. By section 20(1) no
intoxicant can be manufactured or collected, no hemp
plant can be cultivated no tari producing tree can be
tapped, no tari can be drawn from any tree and no
person can possess any material or apparatus for
manufacturing an intoxicant other than tari except
under the authority and subject. to the terms and
conditions of a licence granted by the Collector. By
sub section (2) of section 20 no distillery or brewery
can be constructed or worked except under the authority
and subject to the terms and conditions of a licence
granted by the Financial Commissioner. Section 24
provides that no person shall have in his possession
any intoxicant in excess of such quantity as the State
Government declares to be the limit of retail sale,
except under the authority and in accordance with the
terms and conditions of a licence or permit. Sub-
section (4) of section 24 empowers the State Government
to prohibit the posses
sion of any intoxicant or restrict its possession
by imposing such conditions as it may prescribe.
Section 26 prohibits the sale of liquor except
under the authority and subject to the terms and
conditions of a licence granted in that behalf.
Section 27 of the Act empowers the State
Government to "lease" on such conditions and for
such period as it may deem fit or retail, any
country liquor or intoxicating drug within any
specified local area. On such lease being granted
the Collector, under sub-section (2), has to grant
to the lessee a licence in the form of his lease.
Section 34(1) of the Act provides that every
licence, permit or pass under the Act shall be
granted (a) on payment of such fees, if any, (b)
subject to such restrictions and on such
conditions, (c) in such form and containing such
particulars, and (d) for such period as the
Financial Commissioner may direct. By section
35(2), before any licence is granted for the
retail sale of liquor for consumption on any
premises the Collector has to ascertain local
public opinion in regard to the licensing of such
premises. Section 36 confers power on the
authority granting any licence to cancel or
suspend it if, inter alia; any duty or fee payable
thereon has not been duly paid.
Section 56 of the Act empowers the State
Government to exempt any intoxicant from the
provisions of the Act. By section 58 the State
Government may make rules for the purpose of
carrying out the provisions of this Act. Section
59 empowers the Financial Commissioner by clause
(a) to regulate the manufacture, supply, storage
or sale of any intoxicant.
xxx xxx xx
The Prohibition and Excise Laws in force in
other States contain provisions substantially
similar to those contained in the Punjab Excise
Act. Several Acts passed by State Legislatures
contain provisions rendering it unlawful to
manufacture export, import, transport or sell
intoxicating liquor except in accordance with a
licence, permit or pass granted in that behalf.
The Bombay Abkari Act 1878; the Bombay Prohibition
Act 1949, the Bengal Excise Acts of 1878 and 1909;
the Madras Abkari Act 1886;
the Laws and Rules contained in the Excise Manual
United Province, the Eastern Bengal and Assam
Excise Act 1910; the Bihar and orissa Excise Act
1915; the Cochin Abkari Act as amended by the
Kerala Abkari Laws Act 1964; the Madhya Pradesh
Excise Act 1915, are instances of State
legislation by which extensive powers are
conferred on the State Government in the matter of
liquor licensing. (1)
In this background, let us read S. 59(f)(v) and Rule 37 before and after the impugned amendment:
"59(f)(v). The fixing of the days and hours
during which any licensed premises may or may not
be kept open, and the closure of such premises on
special occasions;
Rule 37(9). Conditions dealing with licensed hours-
Every licensee for the sale of liquor shall
keep his shop closed on the seventh day of every
month, on all Tuesdays upto 2 p.m. On Republic day
(26th January), on Independence day (15th August),
on Mahatma Gandhi’s birthday (2nd October) and on
such days not exceeding three in a year as may be
declared by the Government in this behalf. He
shall observe the following working hours.
hereinafter called the licensed hours, and shall
not, without the sanction of the Excise
Commissioner, Punjab or other competent authority,
keep his shop open outside these hours The
licensed hours shall be as follows:
xx xx xx After amendment
37(9). Conditions dealing with licensed hours.-
Every licensee for the sale of liquor shall
keep his shop closed on every Tuesday and Friday,
on Republic Day (26th January), on Independence
day (15th August), on Mahatma Gandhi’s birthday
(2nd October) and on such days not exceeding three
in a year as may be declared by the Government in
this behalf. He shall observe the following
working hours, hereinafter called the licensed
hours, and shall not, without the sanction of the
Excise (1) Har Shankar & Ors. etc. v. Dy. Excise & Taxation Commr.. and ors. [1975 ], 3 S.C.R. 254 at 266-267.
Commissioner, Punjab or other competent authority,
keep his shop open outside these hours. The
licensed hours shall be as follows:
* * *
Note: The condition regarding closure of liquor
shops on very Tuesday and Friday shall not be
applicable in the case of licenses of tourist bungalows
and re sorts being run by the Tourism Department of the
State Government.
Before formulating the contentions pressed before us by Shri A. K. Sen, Shri Mahajan and Shri Sharma, we may mention that Shri Seth, one of the Advocates who argued innovatively, did contend that the Act was beyond the legislative competence of the State and if that tall contention met with our approval there was nothing more to be done. To substantiate this daring submission the learned counsel referred us to the entries in the Seventh Schedule to the Constitution. All that we need say is that the argument is too abstruse for us to deal with intelligibly. To mention the plea is necessary but to chase it further is supererogatory. The main contention
The primary submission proceeded on the assumption that a citizen had a fundamental right to carry on trade or business in intoxicants. The learned Addl. Solicitor General urged that no such fundamental right could be claimed, having regard to noxious substances and consequences involved and further contended that, notwithstanding the observations of Subba Rao, C.J. in Krishna Kumar Narula etc. v. The State of Jammu & Kashmir & ors.(I) the preponderant view of this Court, precedent and subsequent to the ’amber’ observations in the aforesaid decision, has been that no fundamental right can be claimed by a citizen in seriously obnoxious trades, offensive businesses or outraging occupations like trade in dangerous commodities, trafficking in human flesh, horrifying exploitation or ruinous gambling. Even so, since the question of the fundamentality of such right is before this Court in other batches of writ petitions which are not before us, we have chosen to proceed on the footing, arguendo, that there is a fundamental right in liquor trade for the petitioners. Not that we agree nor that Shree Sorabjee concedes that there is such a right but that, (1) [1961] S S.C.R. SO. for the sake of narrowing the scope of the colossal number of writ petitions now before us, this question may well be skirted. The Bench and the Bar have, therefore, focussed attention on the vires of the provision from the standpoint of valid power of regulation of the liquor trade vis-a-vis unreasonableness, arbitrariness and vacuum of any indicium for just exercise. Essentially, the point pressed was that S. 59(f)(v) vested an unguided, uncanalised, vague and vagarious power in the Financial Commissioner to fix any days or number of days and any hours or number of hours as his fancy or humour suggested. There were no guidelines, no indicators, no controlling points whereby the widely-worded power of the Excise Commissioner on whom Government has vested the power pursuant to Sec. 9) should be geared to a definite goal embanked by some clear-cut policy and made accountable to some relevant principle. Such a plenary power carried the pernicious potential for tyrannical exercise in its womb and would be still born, judged by our constitutional values. If the power is capable of fantastic playfulness or fanciful misuse it is unreasonable, being absolute, tested by the canons of the rule of law. And if, arguendo, it is so unreasonably wide as to imperil the enjoyment of a fundamental right it is violative of Art. 19(1)(g) and is not saved by Art. 19(6). Another facet of the same submission is that if the provision is an arbitrary armour, the power-wielder can act nepotistically, pick and choose discriminatorily or gambol goodily. Where a law permits discrimination, huff and humour, the guarantee of equality becomes phoney, flimsy or illusory Art. 14 is outraged by such a provision and is liable to be quashed for that reason. . An important undertaking by the State
We must here record an undertaking by the Punjab Government and eliminate a possible confusion. The amended rule partially prohibits liquor sales in the sense that on Tuesdays and Fridays no hotel, restaurant or other institution covered by it shall trade in liquor. But this prohibition is made non-applicable to like institutions run by the Government or its agencies. We, prima face, felt that this was discriminatory on its face. Further, Art. 47 charged the State with promotion of prohibition as a fundamental policy and it is indefensible for Government to enforce prohibitionist restraints on others and itself practise the opposite and betray the constitutional mandate. It suggests dubious dealing by State Power. Such hollow homage to Art. 47 and the Father of the nation gives diminishing credibility mileage in a democratic polity The learned Additional Solicitor General, without going into the correctness of propriety of our initial view-probably he wanted to controvert or clarify-readily agreed that the Tuesday-Friday ban would be equally observed by the State organs also. The undertaking recorded, as part of the proceddings of the Court, runs thus:-
"The Additional Solicitor General appearing for
the State of Punjab states that the Punjab State
undertakes to proceed on the footing that the ’Note’ is
not in force and that they do not propose to rely on
the ’Note’ and will, in regard to tourist bungalows and
resorts run by the Tourism Department of the State
Government observe the same regulatory provision as is
contained in the substantive part of Rule 37 Sub-rule
9. We accept this statement and treat it as an
undertaking by the State. Formal steps for deleting the
’Note’ will be taken in due course."
Although a Note can be law, here the State concedes that it may not be treated as such. Even otherwise, the note is plainly severable and the rule independently viable. Shri A. K. Sen who had raised this point at the beginning allowed it to fade out when the State’s undertaking was brought to his notice. The vice of discrimination, blotted out of the law by this process, may not be sufficient, if the traditional approach were to be made to striking down; but if restructuring is done and the formal process delayed, there is no reason to quash when the correction is done. Courts try to save, not to scuttle, when allegiance to the Constitution is shown.
In short, Tuesdays and Fridays, so long as this rule remains (as modified in the light of the undertaking) shall be a holiday for the liquor trade in the private Or public sector throughout the State. We need hardly state that if Government goes back on this altered law the consequences may be plural and unpleasant. Of course, we do not expect, in the least, that any such apprehension will actualise.
one confusion that we want to clear up is that even if S. 59 and Rule 37 were upheld in toto that does not preclude any affected party from challenging a particular executive act pursuant thereto on the ground that such an act is arbitrary, mala fide or unrelated to the purposes and the guidelines available in the Statute. If, for instance, the Financial Commissioner or the Excise Commissioner, as the case may be declares that all liquor shops shall be opened on his birthday or shall remain closed on his friend’s death anniversary, whatever our pronouncement on the vires of the impugned provisions, the executive order will be sentenced to death. The law may be good, the act may be corrupt and then it cannot be saved.
The only question seriously canvassed before us is as to whether the power under S. 59(f)(v) unguided and the rule framed there under is bad as arbitrary. We will forthwith examine the soundness of that proposition.
An irrelevant controversy consumed some court time viz., that the two-day shut-down rule meant that a substantial portion of the year for which the licence was granted for full consideration would thus be sliced off without compensation. This step was iniquitous and inflicted loss and was therefore ’unreasonable’-therefore void. The Additional Solicitor General refuted this charge on facts and challenged its relevance in law. We must not forget that we are examining the vires of a law, not adjudging a breach of contract and if on account of a legislation a party sustains damages or claims a refund that does not bear upon the vires of the provision but be longs to another province.
Moreover, the grievance of the petitioners is mere ’boloney’ be cause even their licence fee has been reduced under the amended rule to compensate, as it were, for the extra closure of a day or so. We do not delve into the details nor pronounce on it as it is not pertinent to constitutionality. But a disquieting feature of the rule, in the background of the purpose of the measure, falls to be noticed. Perhaps the most significant social welfare aspect of the closure is the prevention of the ruination of the poor worker by drinking down the little earnings he gets on the wage day. Credit sales are banned and cash sales spurt on wage days. Any Government, with -workers’ weal and their families’ survival at heart, will use its police power’ under Art. 19(6) read with Sec. 59(f)(v) of the Act to forbid alcohol sales on pay days. Wisely to save the dependent women and children of wage-earners the former unamended rule had forbidden sales on the seventh day of every month (when, it is well known, the monthly pay packet passes into the employees’ pocket). To permit the tavern or liquor bar to transact business that tempting days is to abet the dealer who picks the pocket of the vulnerables and betray the Gandhian behest. And yet, while bringing in the Tuesday-Friday forbiddance of sales, the ban on sales on the seventh of every month was entirely deleted-an oblique bonus to the liquor lobby, if we look at it sternly, an unwitting indiscretion, if we view it indulgently. The victims are the weeping wives and crying children of the workers. All power is a trust and its exercise by governments must be subject to social audit and Judas exposure. ’For whom do the constitutional bells toll ?’ this court asked in an earlier judgment relating to Scheduled Castes.(1) We hope Punjab will rectify the error and hearten the poor in the spirit of Art. 47 and not take away by the left hand what the right hand gives. We indicated these thoughts in the course of the hearing so that no one was taken by surprise. Be that as it may, the petitioner can derive no aid and comfort from our criticisms which are meant to alert the parliamentary auditors of subordinate legislation in our welfare 1 State. The Scheme and the subject matter supply the guidelines
We come to the crux of the matter. Is Section 59(f)(v) ’bad for want of guidelines ? Is it over-broad or too bald ? Does it lend itself to naked, unreasonable exercise? We were taken through a few rulings where power without embankments was held bad. They related to ordinary items like coal or restrictions where guidelines were blank. Here, we are in a different street altogether. The trade is instinct with injury to individual and community and has serious sideeffects recognised everywhere in every age. Not to control alcohol business is to abdicate the right to rule for the good of the people. Not to canalise the age and sex of consumers and servers, the hours of sale and cash-and-carry basis, the punctuation and pause in days to produce partially the ’dry’ habit-is to fail functionally as a welfare State. The whole scheme of the statute proclaims its purpose of control in time and space and otherwise. Section 58 vests in Government the power for more serious restrictions and laying down of principles. Details and lesser constraints have been left to the rule-making power of the Financial Commissioner. The complex of provisions is purpose-oriented, considerably reinforced by Art. 47. Old statutes get invigorated by the Paramount Parchment. Interpretation of the text of pre-constitution enactments can legitimately be infused with the concerns and commitments or the Constitution, as an imperative exercise. Thus, it is impossible to maintain that no guidelines are found in the Act.
We wholly agree with the learned Additional Solicitor General that the search for guidelines is not a verbal excursion. The very . subject-matter of the statute intoxicants-eloquently impresses the Act with a clear purpose, a social orientation and a statutory strategy. If bread and brandy are different the point we make argues itself. The goal IS promotion of temperance and, flowing there out, of sobriety, public order, individual health, crime control, medical bills, family welfare, curbing of violence and tension, restoration of the addict’s mental, moral and physical personality and interdict on (1) [1977] 1.S.C.R. 906. impoverishment, in various degrees, compounded. We have extensively quoted supportive literature; and regulation of alcohol per se furnishes a definite guideline. If the Section or the Rule intended to combat an evil is misused for a perverse, ulterior or extraneous object that action, not the law, will be struck down. In this view, discrimination or arbitrariness is also excluded.
A final bid to stigmatize the provision [Sec. 59 (f)(v)] was made by raising a consternation. The power to fix the days and hours is so broad that the authority may fix six out of seven days or 23 out of 24 hours as ’dry’ days or closed hours and thus cripple the purpose of the licence. This is an ersatz apprehension, a caricature of the provision and an assumption of power run amok. An Abkari law, as here unfolded by the scheme (chapters and Sections further amplified by the rules framed thereunder during the last 64 years) is not a Prohibition Act with a mission of total prohibition. The obvious object is a to balance temperance with tax, to condition and curtail consumption without liquidating the liquor business, to experiment with phased and progressive projects of prohibition without total ban on the alcohol trade or individual intake. The temperance movement leaves the door half-closed, not wide, ajar; the prohibition crusade banishes wholly the drinking of intoxicants. So it follows that the limited temperance guideline writ large in the Act will monitor the use of the power. Operation Temperance, leading later to the former, may be a strategy within the scope of the Abkari Act.
Both may be valid but we do not go into it. Suffice it to say that even restrictions under Art. 19 may, depending on situations, be pushed to the point of prohibition consistently with reasonableness. The chimerical fear that ’fix the days’ means even ban the whole week, is either pathological or artificial, not certainly real under the Act. We are not to be understood to say that a complete ban is without the bounds of the law-it turns on a given statutory scheme.
While the police power as developed in the American jurisprudence and constitutional law, may not be applicable in terms to the Indian Constitutional law, there is much that is common between that doctrine and the reasonableness doctrine under Art. 19 of the Indian Constitution. Notes an American Law Journal:
"The police power has often been described as the
"least limitable" of the governmental powers. An
attempt to define its reach or trace its outer limits
is fruitless for each case turns upon its own facts..
The police power must be used to promote the health,
safety, or general welfare of the public, and the
exercise of the power must be
"reasonable". An exercise of the police power going
beyond these basic limits is not constitutionally
permissible.
Noxious Use Theory: . This theory upholds as valid
any regulation of the use of property, even to the
point of total destruction of value, so long as the use
prohibited is harmful to others." (1)
In a Law Review published from the United States ’police power’ with reference to intoxicant liquors has been dealt with and is instructive:
"Government control over intoxicating liquors has
long been recognized as a necessary function to protect
society from the evils attending it. Protection of
society and not the providing of a benefit of the
license holder is the chief end of such laws and
regulations. There is no inherent right in a citizen to
sell intoxicating liquors as retail. It is a business
attended with danger to the community and it is
recognised everywhere as a subject of regulation."
As to the legislative power to regulate liquor, the United States Supreme Court has stated:
"If the public safety or the public morals require
the discontinuance of the manufacture or traffic (of
intoxicating liquors) the hand of the legislature
cannot be stayed from providing for its discontinuance,
by any incidental inconvenience which individuals or
corporations may suffer."
The States have consistently held that the
regulation of intoxicants is a valid exercise of its
police power. The police power stands upon the basic
principle that some rights must be and are surrendered
or modified in entering into the social and political
state as indispensible to the good government and due
regulation and well being of society.
In evaluating the constitutionality of a
regulation within the police power, validity depends on
whether the regulation is designed to accomplish a
purpose within the scope of that power."(2) (1) South Western Law Journal-Annual Survey of Texas Law, vol. 30 No. I, Survey 1976 pp. 725-26. (2) Idaho Law Review, Vol. 7, 1970 p. 131.
It is evident that there is close similarity in judicial thinking on the subject. This has been made further clear from several observations of this Court in its judgments and we may make a reference to a recent case, Himmatlal, and a few observations therein:
"In the United States of America, operators of
gambling sought the protection of the commerce clause.
But the Court upheld the power of the Congress to
regulate and control the same. Likewise, the pure Food
Act which prohibited the importation of adulterated
food was upheld. The prohibition of transportation of
women for immoral purposes from one State to another or
to a foreign land was held valid. Gambling itself was
held in great disfavour by the Supreme Court which
roundly stated that ’there is no constitutional right
to gamble‘.
Das, C.J., after making a survey of judicial
thought, here and abroad, opined that freedom was
unfree when society was exposed to grave risk or held
in ransom by the operation of the impugned activities.
The contrary argument that all economic activities were
entitled to freedom as ’trade’ subject to reasonable
restrictions which the Legislature might impose, was
dealt with by the learned Chief Justice in a sharp and
forceful presentation;
"on this argument it will follow that criminal
activities undertaken and carried on with a view to
earning profit will be protected as fundamental rights
until they are restricted by law. Thus there will be a
guaranteed right to carry on a business of hiring out
goodness to commit assault or even murder, of house-
breaking, of selling obscene pictures, of trafficking
in women and so on until the law curbs or stops such
activities. This appears to us to be completely
unrealistic and incongruous. We have no doubt that
there are certain activities which can under no
circumstances be regarded as trade or business or
commerce although the usual forms and instruments are
employed therein. To exclude those activities from the
meaning of those words is not to cut down their meaning
at all but to say only that they are not within the
true meaning of those words. Learned Counsel has to
concede that there can be no ’trade’ or business in
crime but submits that this principle should not be
extended .. " (1) Fatehchand Himmatlal v. Maharashtra [1977] 2 S.C.R. 828 at 839-840.
We have no hesitation, in our hearts and our
heads, to hold that every systematic, profit oriented
activity, how ever sinister, suppressive or socially
diabolic, cannot, ipso facto, exalt itself into a
trade. Incorporation of Directive principles of State
policy casting the high duty upon the State to strive
to promote the welfare of the people by securing and
protecting as effectively as it may a social order in
which justice social, economic and political- shall
inform all the institutions of the national life, is
not idle print but command to action. We can never
forget, except at our peril, that the Constitution
obligates the State to ensure an adequate means of
livelihood to its citizens and to sec that the health
and strength of workers men and women, are not abused,
that exploitation, normal and material, shall be
extradited. In short State action defending the weaker
sections from social injustice and all forms of
exploitation and raising the standard of living of the
people, necessarily imply that economic activities,
attired as trade or business or commerce, can be de-
recognised as trade or business. At this point, the
legal culture and the public morals of a nation may
merge, economic justice and taboo of traumatic trade
may meet and jurisprudence may frown upon day dark and
deadly dealings. The Constitutional refusal to
consecrate exploitation as ’trade’ in a socialist
Republic like ours argues itself."
A precedentral approach to the ultra vires argument.
The single substantive contention has incarnated as triple constitutional infirmities. Counsel argued that the power to make rules fixing the days and hours for closing or keeping open liquor shops was wholly unguided. Three invalidatory vices flowed from this single flaw viz. (i) excessive delegation of legislative power, (ii) unreasonable restriction on the fundamental right to trade in intoxicants under Art. 19(1) (g), and (iii) arbitrary power to pick and choose, inherently violative of Art. 14.
Assuming the legality of the triune lethal blows, the basic charge of uncanalised and naked power must be established. We have already held that the statutory scheme is not merely fiscal but also designed to regulate and reduce alcoholic habit. And, while commodities and situations dictate whether power, in given statutory provisions, is too plenary to be other than arbitrary or is instinct with inherent limitations, alcohol is so manifestly deleterious that the nature of the guidelines is written in invisible ink.
A brief reference to a few rulings cited by counsel may not be inept.
It is true that although the enactment under consideration is more than five decades old, its validity can now be assailed on the score of unconstitutionality:
"When India became a sovereign democratic Republic
on 26th January, 1950, the validity of all laws had to
be tested on the touchstone of the new Constitution and
all laws made before the coming into force of the
Constitution have to stand the test for their validity
on the provisions of Part Ill of the Constitution.’’(1) This is why the principle of excessive delegation, that is to say, the making over by the legislature of the essential principles of legislation to another body, becomes relevant in the present debate. Under our constitutional scheme the legislature must retain in its own ’hands the essential legislative functions. Exactly what constitutes the essential legislative functions is difficult to define.
"The legislature must retain in its own hands the
essential legislative function. Exactly what
constituted "essential legislative function", was
difficult to define in general terms, but this much was
clear that the essential legislative function must at
least consist of the determination of the legislative
policy and its formulation as a binding rule of
conduct. Thus where the law passed by the legislature
declares the legislative policy and lays down the
standard which is enacted into a rule of law, it can
leave the task of subordinate legislation which by its
very nature is ancillary to the statute to subordinate
bodies, i.e., the making of rules, regulations or bye-
laws. The subordinate authority must do so within the
frame-work of the law which makes the delegation. and
such subordinate legislation has to be consistent with
the law under which it is made and cannot go beyond the
limits of the policy and standard laid down in the law.
Provided the legislative policy is enunciated with
sufficient clearness or a standard is laid down, the
courts should not interfere with the discretion that
undoubtedly rests with the legislature itself in
determining the extent of delegation necessary in a
particular case."(2) (1) Suraj Mall Mohta and Co.v.A.V. Visvanatha Sastri and another [1955] 1. S.C.R. 448 at 457. (2) Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills Delhi & Anr. [1968] 3 S.C.R. 251 at 261 In Vasanthlal Maganbhai Sajanwal v. The State of Bombay(1) the same point was made:
"A statute challenged on the ground of excessive
delegation must therefore be subject to two tests, (1)
whether it delegates essential legislative function or
power and (2) WHETHER- the legislature has enunciated
its policy and principle for the guidance of the
delegate."
Likewise, if the State can choose any day or hour for exclusion as it fancies and there are no rules to fix this discretion, plainly the provision [Sec.59(f)(v)] must offend against Art.14 of the Constitution. (See Saghir Ahmed’s case)(2)
Another aspect of unguided power to affect the citizen’s fundamental rights in the province of Art. 19 since imposition of unreasonable restrictions on the right lo carry on business is violative of Art. 19(1)(g). Patanjali Sastri, C.J., in V. G. Row’s case observed(2)
"The test of reasonableness, wherever prescribed
should l) applied to each individual statute impugned
and no abstract standard or general pattern of
reasonableness can be Laid down as applicable to all
cases. The nature of the right alleged to have been
infringed, the underlying purpose of the restriction
imposed, the extent or urgency of the evil sought to be
remedied thereby, the disproportion of imposition, the
prevailing conditions at the time should enter into the
judicial verdict" This Court, in R. M. Seshadri,(4) dealt with unreasonable restrictions on showing of films by theatre owners and struck down the provisions. Similarly, in Harichand(5) an unreasonable restriction on the right to trade was struck down because the regulation concerned provided no principles nor contained any policy and this Court observed:
"A provision which leaves an unbridled power to an authority cannot in any sense be characterised as reasonable. Section 3 of the Regulation is one such provision and is therefore liable to be struck down as violative of Art. 19(1)(g)". (1) [1961] 2 S.C.R. 341. (2) [1955] 1 S.c.R. 707. (3) [1952] S.C.R. 597. (4) [1955]1 S.C.R. 686. (S) LALA Hari Chand Sarda v. Mizo District Council & Anr [1967]1 S.C.R. 1012 11-520 SCI/78 other decisions in the same strain were cited. Indeed an annual shower of decisions on this point issues from this Court. But the essential point made in all these cases is that unchannelled and arbitrary discretion is patently violative of the requirements of reasonableness in Art. 19 and of equality under Art. 14, a proposition with which no one can now quarrel. lt is in the application of these principles that disputes arise as Patanjali Sastri, C.J. clarified early in the day in V. G. Row’s case (cited Supra). Reasonableness and arbitrariness are not abstractions and must be tested on the touchstone of principle pragmatism and living realism.
It is in this context that the observations of this Court in Nashirwar(1) become decisive. While considering the soundness of the propositions advanced by the advocate for the petitioners the Additional Solicitor General rightly shielded the statutory provisions i question by drawing our attention to the crucial factor that the subject matter of the legislation was a deleterious substance requiring restrictions in the direction of moderation in consumption. regulation regarding the days and hours of sale and appropriateness in the matter of the location of the places of sale. If it is coal or mica or cinema, the test of reasonableness will be stricter, but if it is an intoxicant or a killer drug or a fire-arm the restrictions must be stern. When the public purpose is clear and the policing need is manifest from the nature of the business itself, the guidelines are easy to find. Shri Mahajan’s reliance on the Coal Control Case(’) or Shri A. K. Sen’s reliance on the Gold Control case (3)is inept. Coal and gold are as apart from whisky and toddy as cabbages are from kings. Don’t we feel the difference between bread and brandy in the field of trade control ? Life speaks through Law.
Counsel after counsel has pressed that there is no guideline for the exercise of the power of rule-making and the Addl. Solicitor General has turned to the history, sociology and criminology relating to liquor. In support of his contention, Shri Soli Sorabjee for the State has drawn our attention to the following passages in Nashirwar which are quoted is extenso because of the persistence of counsel on the other side in pressing their point about unbounded power:
"In our country the history of excise shows that
the regulations issued between 1790-1800 prohibited
manufacture or sale of liquors without a licence from a
Collector. In 1 808 a regulation was introduced in tile
Madras Presidency (1) [1975] 2 S.C.R. 861. (2) A.I.R. 1954 S.C. 224. (3) A.I.R. 1970 S.C. 1453.
Which provided that the exclusive privilege of
manufacturing and selling arrack should be farmed in
each district. In 1820 the law was amended to authorise
the treatment of toddy and other fermented liquors in
the same way as spirits by allowing Collectors to
retain the manufacture and sale under direct management
if deemed preferable to farming. In 1884 a Committee
was appointed to investigate the excise system. The
recommendations of the Committee were adopted. Under
the new system the monopoly of manufacture was let
separately from that of sale. The former was granted on
condition of payment of a fee per shop or a number of
shops, or on payment of a fee determined by auction. In
the Bombay Presidency the monopoly of the retail sale
of spirits and the right to purchase spirits was
formed. In 1857 the Government declared its future
policy to be the letting by auction of each shop, with
its still, separately. In 1870-71 a change was made.
The rule at that time was that the Collector would fix
the number and locality of the different shops and
determine their letting value according to the
advantages possessed by each. It was not intended that
they should, as a rule, be put up to public
competition; but competition might be resorted to by
the Collector and taken into account in determining the
same at which each would be leased. This rule remained
in force for many years. The practice of putting the
shops up to auction was, thereafter followed. The
history of excise administration in our country before
the Independence shows that there was originally the
farming system and thereafter the central distillery
system for manufacture. The retail sale was by auction
of the right and privilege of sale. The Government of
India appointed an Excise Committee in 1905. The
measures recommended by the Committee were the advances
of taxation, the concentration of distillation the
extended adoption of the contract distillery system.
The Committee suggested among other things the
replacement of the then existing excise law by fresh
legislation on the lines of the Madras Abkari Act. (See
Dr. Pramatha Nath Banerjee: History of Indian Taxation
P. 470 seq.).
Reference may be made to the Taxation Enquiry
Commissioner Report 1953-54 Vol. 3. At page 130
following there is a discussion of State excises. Among
the major sources of revenue which are available to the
State Government there is a duty on alcoholic liquors
for human consumption. At page 132 of the Report it is
stated that in addition
to the excise duties, licence fees are charged for
manufacture or sale of liquor or for tapping toddy
trees etc. Similarly, several fees like permit fees,
vend fees, outstill duties are also levied. Manufacture
or sale of liquor is forbidden except under licences
which are generally granted by auction to the highest
bidders. The manufacture of country spirit is done in
Government distilleries or under the direct supervision
of the excise staff. All supplies are drawn from
Government warehouses which ensures that the liquor is
not more than of the prescribed strength. The licensed
sellers have to sell the country spirit between fixed
hours and at fixed selling rates. As in the case of
country spirit, the right of tapping and selling toddy
is also auctioned. In addition to the licence, in some
States the licensee has to pay a tree tax to
Government.
Traditionally tobacco, opium and intoxicating
liquors have been the subject matter of State monopoly.
(See section IV of the Madras Regulation XXV of 1 802
relating to permanent settlement of land revenue).
Section IV states that the Government having reserved
to itself the entire exercise of its discretion in
continuing or abolishing, temporarily or permanently,
the articles of revenue included, according to the
custom and practice of the country, under the several
heads inter alia of the abkary, or tax on the sale of
spirituous liquors and intoxicating drugs, of the
excise on articles of consumption, of taxes personal
and professional, as well as those derived from
markets, fairs, or bazars. of lakhiraj lands (or lands
exempt from the payment of public revenue), and of all
other lands paying only favourable quit rents, the
permanent assessment of the land-tax shall be made
exclusively of the said articles now recited.
The excise revenue arising out of manufacture and
sale of intoxicating liquors is one of the sources of
State revenue as is customs and excise. In England sale
of intoxicating liquors although perfectly lawful at
common law is subject to certain statutory
restrictions. These restrictions are primarily of two
kinds; those designed for the orderly conduct of the
retail trade and those designed to obtain revenue from
the trade r whether wholesale or retail.
Trade in liquor has historically stood on a
different footing from other trades. Restrictions which
are not permissible other trades are lawful and
reasonable so far as the trade
in liquor is concerned. That is why even prohibition of
the trade in liquor is not only permissible but is
also reasonable. The reasons are public morality,
public interest and harmful and dangerous character of
the liquor. The State possesses the right of complete
control over all aspects of intoxicants, viz.,
manufacture, collection, sale and consumption. The
State has sight in order to raise revenue. That is the
view of this Court in Bharucha’s case (supra) and
jaiswal’s case ( supra) . The nature of the trade is
such that the State confers the right to vend liquor by
farming out either in auction or on private treaty.
Rental is the consideration for the privilege granted
by the Government for manufacturing or vending liquor.
Rental is neither a tax nor an excise duty. Rental ii
the consideration for the agreement for grant of
privilege by the Government." (pp. 869-871) The guide-lines.
Now that we have held that the provision [Section 59(f)(v)] is valid on a consideration of the criteria controlling the wide words used therein there is a minor matter remaining to be disposed of. The extract from the Section, as will be noticed, contains a clause which runs: "and the closure of such premises on special occasions". Thus, rules may be made by the Financial Commissioner for fixing the closure of licensed premises on ’special occasion’. Shri Mahajan insisted that ’special occasions’ may mean anything and may cover any occasion dictated by humour, political pressure or other ulterior considerations. It is thus a blanket power which is an unreasonable restriction on the licensee’s trade. Certainly if ’special occasions’ means any occasion which appeals to the mood of the Financial Commissioner or has other casual fascination for him the rule may suffer from arbitrary and unreasonable features. Gandhiji’s birthday and also Vinobaji’s birthday have been included in the licence itself. ’Special occasions’ contemplated by Sec. 59(f) (v) are not stricken by such a vice for the obvious reasons we have elaborately given in the earlier part of our argument. The occasion must be special from the point of view of the bread considerations of national solemnity. public order, homage to national figures, the likelihood of eruption of inebriate violence On certain days on account of meals, festivals or frenzied situations or periods of tension. Bapuji’s birthday, election day, hours of procession by rival communities when tensions prevail or festivals where colossal numbers of people gather and outbreak of violence is on the agenda, are clear illustrations. ’Special occasions’ cannot be equated with fanciful occasions but such as promote the policy of the statute as expounded by us earlier. There is no merit in this argument either and we reject it.
As between temperance and prohibition it is a policy decision for the Administration. Much may be said for and against total prohibition as an American wit has cryptically yet sarcastically summed up(1): "The chief argument against prohibition is that it does not prohibit. This is also the chief argument in favour of it."
This survey of the law-ways of Art. 19 and the
police power is sufficient in our view to clinch the
issue.
our conclusions may now be set out.
(a) Section 59(f)(v) of the Punjab Excise Act, 1914, is perfectly valid;
(b) The regulation of the number of days and the duration of the hours when supply of alcohol by licensees shall be stopped is quite reasonable, whether it be two days in a week or even more. We leave open the question as to whether prohibition of the number of days and the number of hours, if it reaches a point of substantial destruction of the right to vend, will be valid, since that question arises in other writ petitions;
(c) The exercise of the power to regulate, including to direct closure for some days every week, being reasonable and calculated to produce temperance and promote social welfare, cannot be invalidated on the imaginary possibility of misuse. The test of the reasonableness of a provision is not the theoretical possibility of tyranny; and
(d) There is enough guideline in the scheme and provisions of the Punjab Excise Act to govern the exercise of the power under Secs. 58 and 59.
In a few beer bar cases the grievance ventilated is regarding the manipulation of hours of sale. Nothing has been made out to hold that the readjustment of the hour of beer-bidding is unrelated to the statutory guidelines or destructive of the business. We reject the objection.
We have reasoned enough to justify the ways of the Constitution and the law to the consumers of social justice and spirituous potions. The challenge fails and the Writ Petitions Nos. 4108-4109 tc., of 1978 are hereby dismissed with costs (one hearing fee). May we hopefully expect the State to bear true faith and allegiance to that Constitutional orphan, Art. 47 ? N V.K Petitions dismissed. (1) "Reconsiderations H. L. Meneken-Anti All Kinds of Blah by Lila Ray appeared in "Span" Aug. 1978 p. 41.