Alcohol prohibition is a subject of intense debate and public concern in the country. Some states like Haryana and Andhra Pradesh introduced prohibition only to lift the ban even as Gujarat has had prohibition in force for the past seven decades. At present various levels of alcohol prohibition operate in a handful of states – in Gujarat, there is provision for special alcohol licences for hospitality establishments as well as individuals, in Lakshadweep serving liquor is only permitted at the resort on Bangram island, in Mizoram the 2019 prohibition law permits military personnel and those with “medical needs” to consume alcohol, while in Nagaland it is complete prohibition. Bihar too has complete prohibition since December 2015 when the government introduced its New Excise Policy. Towards this end, the law regulating liquor sale and consumption was amended and complete prohibition was declared within the State of Bihar from April 2016 onwards. The Bihar Prohibition and Excise Act, 2016 prohibits the sale, purchase, or possession of liquor in any form (including Indian-made foreign and country-made liquor) and mandates stringent penalties for violators.

Incidentally, the various debates and concerns – for and against prohibition – formed one of the prominent debates at the time of framing of the Constitution in the Constituent Assembly.

Article 47, one of the Directive Principles of State Policy, in addition to securing adequate nutrition, the standard of living and improvement of public health as among its primary duties, mandates that the “State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health”. It is interesting to trace the debates in the Constituent Assembly that led to the adoption of prohibition of “intoxicating drinks”, especially since this did not form a part of the Draft Article in the initial instance.

In November 1948, there effectively prevailed a consensus in the Constituent Assembly on the question of introduction of prohibition of alcohol. The Gandhian school considered  prohibition, along with khadi, as being fundamental to Gandhi’s politics. Unsurprisingly there were only two detractors to this proposal - BH Khardekar and Jaipal Singh. Khardekar countered the arguments presented by the prohibitionists, whether economic or moral, on the basis of experience of other countries and urged to learn from the mistakes of others. He drew a distinction between drinkers and drunkards and emphasised the need to use revenues from the sale of liquor to promote education and social upliftment of the poor and the deprived and find other effective ways of dealing with the problem of alcoholism. Jaipal Singh pointed out how prohibition would go against the customs and rights of Adivasi communities.

At the end of a long debate it was Ambedkar turn to respond. While concluding that the proposal seemed acceptable to the House, he addressed two specific objections that were raised on the issue of prohibition. In response to Khardekar, Ambedkar clarified that prohibition was to be made part of the Directive Principles of State Policy and as such there would be "no compulsion on the State to act on this principle” and “whether to act on this principle and when to do so are left to the State and to public opinion”. Addressing Jaipal Singh, he stated that ample provisions were being made for safeguarding the position of Adivasis with regard to the question of prohibition.

Thereafter the amendment was put to vote and the proposal to include prohibition of consumption of intoxicating drinks, except for medicinal purposes was adopted. Mahavir Tyagi’s proposal for full prohibition without any exception for medicinal purposes was rejected. Sardar Bhopinder Singh’s proposal to insert “tobacco” in the prohibition clause was also rejected.

The Constituent Assembly debates reveal that the considerations around alcohol probation revolved primarily around moral, religious and economic aspects. The moral, as the Constituent Assembly debates reveal, is not as simple as it is made out to be with the questions of differing moral mores, sensibilities and individual liberty remaining unresolved. The economic, on the other hand, has two aspects – firstly, the loss of excise revenue generation, and secondly, the impact on the household finances of the poor. 

The Bihar experience has all but confirmed the general experience around prohibition, and the caution sounded by Khardekar in the Constituent Assembly, that when people are deprived of drink by law, they will resort to “illicit distillation”, “drinking poisonous stuff” or use “bribery and corruption”. In fact, Bihar has witnessed a spate of deaths due to consumption of hooch, a form of illicit liquor. Most recently in December 2022 more than 80 persons in Saran district, 5 persons in Siwan district and two people in Begusarai district have died in hooch tragedies. Indeed, consumption of illicit liquor and drugs has spiked in Bihar over the last 6 years, following its complete prohibition in the State. A large share of the blame for this increase can be attributed to the manner in which liquor has come to be prohibited in the State. While alcoholism is a social menace, and one that has an adverse impact on society, particularly on women who are abused by their alcoholic husbands, treating liquor as a law and order problem rather than a social problem has only driven the practice underground and has allowed illegal practices including manufacture and sale of spurious liquor, under the patronage of politicians and the administration, to fester. 

Apart from a rise of liquor mafia and hooch deaths, Bihar is also seeing an excessive rise in bail cases being filed under the prohibition law, leaving courts clogged, and several hundreds of people languishing in jail. These prisoners are not liquor mafia dons or other powerful persons but poor people from marginalised sections including tribal and mahadalit communities who have traditionally been engaged in the liquor business, in this way, the Bihar experience also proves Khardekar right when he said that despite prohibition there will be a “number of people who go on still indulging in drinks and go on filling the innumerable jails”. 45,000 men (of whom a handful may belong to the liquor mafia but the majority are amongst Bihar’s poorest and most oppressed) languish in jails after being arrested under this law. In July 2017, a fast track court in Jehanabad handed the first conviction under the anti-liquor law, in which two extremely poor daily wagers, Mastan Manjhi and Painter Manjhi were sentenced to five years rigorous imprisonment and slapped a fine of Rs 1 lakh on the charge of having drunk toddy.

Here one must point out that the liquor prohibition law suffers from several fatal infirmities, which have a direct consequence on the poor against whom this law is disproportionately used. The Bihar Prohibition and Excise Act, 2016 when enacted faced a huge outcry over its provisions which imposed stringent punishments including death, holding entire families responsible for individual consumption, and expulsion of habitual offenders from the district, and hence the Act came to be amended in 2018, and now again in 2022. The amended Act continues to be a cause of enormous concern however. Under the Act, punishments range from mandatory minimum sentences of 10 years, fines towering up to 10 lakhs to sealing and confiscation of property among other broad brush and draconian provisions. These punishment and penalty provisions raise important legal questions on proportionality.

The Supreme Court has dealt extensively with the legal principle of proportionality in several of its cases.  Any sentence that is imposed must be proportionate to the harm caused by the offence. While determining sentencing under any law, the prime consideration must always be whether the response is proportionate to the harm. It needs to be shown that such high penalties or punishments is the proportionate way of addressing the problem of alcoholism in the State; and there are no other methods which are equally efficacious to combat it. However, with respect to this Act, these factors have not been considered. Prescribing 10 years for activities like storing or transporting alcohol is disproportionately excessive. For comparison, under the NDPS Act, which has a similar objective to curb drug use, the punishment for consumption has a maximum sentence of 1 year. The NDPS Act also has graded punishment depending on the seriousness of the abuse.  In contrast, the Bihar prohibition Act, has disproportionately excessive punishments, which are liable to be struck down by the Courts. The Act also envisages a reversed burden of proof for certain proceedings under the Act. It is a cardinal principle of criminal law that a person is innocent until proven guilty. The reverse onus clause in the Act with no rhyme or justification for its inclusion is irrational, unreasonable and constitutionally invalid. As such there is no doubt that the law is draconian.

The draconian prohibition law has been ushered in on the pretext of alleviating the sufferings of women and families of alcoholics. But the reality is very different. Mastan and Painter Manjhi, the first convicts under the prohibition law in Bihar, earned their livelihood by plying thelas (cycle-carts). Now their families are on the brink of starvation and deep in debt. When the police raided their home, their wives told the police that they had only been drinking toddy – which is exempted from punishment under the prohibition law. But the police and judicial system had no respect for the testimony of the very women in the name of whom the prohibition law has been enacted. The legal fight ahead for the family is going to be very difficult.

It is acknowledged that, alcoholism is a deep rooted problem. It has wrecked families, created health hazards and contributed extensively to domestic abuse of women. However, treating alcoholism as an issue of individual morality and a law and order problem, rather than as a health disorder and a wider societal issue, is contributing to making the problem worse, rather than better.

We must also remember that the right to privacy is inherent in Article 21, and every person has the right to choose how to live, what to eat and drink, what to wear, etc. so long as it does not interfere with the rights of others. Coercive laws that deprive people of their right to life and liberty, and have a disproportionate impact on poor and marginalised sections of people is not how a State should tackle alcoholism. Rather the State must look at other measure to target alcoholism including setting up de-addiction centres, expanding public health services and provision of counselling etc among others.

The State government must, for now, withdraw all prosecutions under the Bihar Prohibition and Excise Act, 2016 and release all persons imprisoned under the Act with immediate effect. The State government must consider other effective and non-criminalising steps to address the problematic issues around alcoholism, particularly gender violence, instead of solely relying upon/pursuing with the Bihar Prohibition and Excise Act, 2016. The same ought to be under consideration in all states where prohibition laws are in force.