TMI Blog1978 (8) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... lier 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. Appeal dismissed. - W.P.(C) 4021 OF 1978 - - - Dated:- 16-8-1978 - V.R. KRISHNAIYER, D.A. DESAI AND O. CHINNAPPA REDDY, JJ. JUDGMENT The Judgment of the Court was delivered by KRISHNA IYER, J.- 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, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ours 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(Makers of Modern world by Louis Untermeyer p. 275.): "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge 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 :( Society and the Criminal by M. J. Sethna 3rd Edn. P. 164) 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icked out of the party not moved from one responsible post to another."( Report of the study Team on Prohibition Vol. L. P. 344) 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."( Ibid p.34s) 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."( Ibid p.345) 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."( Report of the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... narticulate 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. Cai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pent away all that, and then, at home, left wife and children starving and without proper clothes, education, and other elementary necessaries of life."( Society and the Criminal by M. J. Sethna 3rd Edn. p.165, 166 168-169.) (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. 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 3 rd 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 dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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."( Ibid P. 344.) 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.( Collected W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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) Crowely v. Christensen, 34, Law Ed. 620, 623. 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 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 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. [1961] S S.C.R. SO 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, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therwise. 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 interd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." South Western Law Journal-Annual Survey of Texas Law, vol. 30 No. I, Survey 1976 pp. 725-26. 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 intoxic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal 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 housebreaking, 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 .. " 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 Directiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 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. Suraj Mall Mohta and Co.v.A.V. Visvanatha Sastri and another [1955] 1. S.C.R. 448 at 457. 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, the prevailing conditions at the time should enter into the judicial verdict" This Court, in R. M. Seshadri, [1955]1 S.C.R. 686 dealt with unreasonable restrictions on showing of films by theatre owners and struck down the provisions. Similarly, in LALA Hari Chand Sarda v. Mizo District Council Anr [1967]1 S.C.R. 1012 11-520 SCI/78 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)". 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivals 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 ) "Reconsiderations H. L. Meneken-Anti All Kinds of Blah by Lila Ray appeared in "Span" Aug. 1978 p. 41.: "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 prohibi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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