Lessons of history

Excerpts  from a recent article by  Justice Markandey Katju ,

 former judge of the Supreme Court

Those who support alcohol prohibition point at the dangers of drinking, the lives it has destroyed and the misery it has caused. They no doubt have a point, but that only indicates that alcohol consumption should be regulated in the public interest, not that it be totally prohibited. Historical experience has shown that liquor bans are ineffective and even counter-productive, and only give rise to crime and deaths by consumers drinking illicit liquor. The Mafia arose in America in the 1920s and 1930s because of such a ban there.

Experience has shown that bans seldom work. They just push the alcohol consumption underground which then brings the criminal element into the picture. Going to the history of liquor prohibition, in the US ,alcohol was prohibited from 1920 to 1933, which showed why the banning was never a solution. Instead of drinking legally, people started drinking illegally.

There was the added issue of people drinking contraband alcohol which led to deaths sometimes from methyl alcohol poisoning and the law-enforcement system was stretched thin trying to catch the people who sold contraband liquor.

The Prohibition in USA accelerated the rise of the Italian Mafia, which made supplying contraband liquor its business and once alcohol was legalised, moved on to a host of other avenues.

In Bombay it gave rise to the Bombay underworld, and eventually figures like Haji Mastan and Karim Lala, and later Dawood Ibrahim. It also bred corruption among the police, excise officials and politicians.

Ban hurts the poor

The ban on alcohol usually hurts the lowest strata of society the most. In the last decade, over a thousand people have died due to hooch-related issues .

As we can see from the Gujarat example, a state which has had prohibition since its inception, the idea has never worked.

Gujarat was the first state to implement total prohibition in 1958, but alcohol consumption has been rampant ever since. So is the thriving business of supplying illicit liquor. Gujarat is surrounded by Rajasthan, Madhya Pradesh, Maharashtra and Daman and Diu, where there is no prohibition.

The smuggling cannot take place without the connivance of politicians and the police. The well-oiled system is the cornerstone of bootlegging.

The judgments upholding liquor ban invariably rely on Article 47 of the Constitution.  But Article 47 is not enforceable, as expressly stated in Article 37. Moreover, Article 47 states that the state shall ‘endeavour to bring about prohibition’, and not that it must actually prohibit. Interpretations by the Supreme Court of several provisions in the Constitution, e.g. Articles 14 and 21, have changed from time to time, and a new interpretation of Article 47 should be adopted.

Interpretation of Article 47 is that it means that the state should regulate drinking, and educate people about the dangers of drinking, and not that it should actually prohibit drinking, as that has proved to be counter productive according to historical experience. The word “prohibition” in Article 47 should therefore receive a purposive and not literal interpretation.

Drinking culture

Drinking has a culture. One must know when to drink, how much to drink, where to drink, and with whom to drink. If one drinks and goes to his workplace in an inebriated condition, that is of course objectionable . But if after a day’s hard work one wishes to relax at home in the evening, has a peg or two, then has dinner and goes to bed, there is  nothing wrong in that.

To those who object there is a quote from  Sir Toby Belch saying to the puritan Malvolio in Shakespeare’s ‘Twelfth Night :“Dost thou think that because thou art virtuous there shall be no more cakes and ale ? .

What one eats and drinks is part of one’s right to privacy, which has been held to be a fundamental right by our Supreme Court in R.Rajagopal vs. State of Tamilnadu, AIR 1995 S.C. 264. In paragraph 26 of that decision the Court observed: “The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a “right to be let alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters.”

It may be noted that the liquor ban laws were only challenged before the Supreme Court on the ground that they violated Articles 14 (equality) and 19(1)(g) (freedom of trade) of the Constitution, but never on the ground of violation of Article 21, probably because that Article had not been earlier expanded by the Court. But now that it has, the ban needs to be tested on this ground. Accordingly, it can be argued that drinking in moderation even at a public place, but without disturbing public order, is one’s fundamental right, being part of one’s right to privacy.