Judges differ on liquor rulings

Out Of Court

Laws that prohibit or control trade in liquor, tobacco and lotteries have faced serious constitutional challenges. They are not considered goods worthy of trade like ghee or soap. They are inherently "noxious and pernicious" and have been called res extra commercium (beyond commerce) in legal parlance.

But law-makers and judges have to accept the fact that they cannot banish these social evils altogether. Prohibition in America gave rise to the mafia leading to the 21st amendment to its Constitution.

In India, Gujarat is the only state which has imposed prohibition. The constitutional battle for free trade in liquor is a perennial affair in the Supreme Court and stimulating discussion on the topic took place recently in State of Punjab vs Devans Modern Breweries.

By a thin majority of one vote, the liquor trade lost its battle before a Constitution bench once again. However, it came within sight of success and had a glimpse of legal prejudices against it tumbling down.

The issue was whether a state government could impose duty on liquor imported from other states. The majority of three judges held on to the traditional view that trade in liquor is not a fundamental right of a citizen.

It is a privilege of the state. The state parts with it for revenue. Therefore, the duty was valid. Moreover, such duty does not affect the freedom of trade among the states enshrined in the Constitution.

But the dissenting judges made a serious assault on this established opinion and devoted nearly 100 pages each to shake its foundation, against the 40-page essay by the majority.

They emphasised that the earlier Constitution bench decisions upon which the conventional view was rooted have been misunderstood. Moreover, times have changed and what was unconstitutional once can become constitutional in the new global context.

Justice B N Agrawal, one dissenter, wrote that trade in liquor, lottery and tobacco have not been prohibited under the Constitution. India has entered into trade agreements to deal in liquor with other countries and even allowed foreign investment in the industry.

India, as a signatory to the World Trade Organisation and the General Agreement on Trade and Tariffs, is expected to remove all trade barriers subject to other norms. He emphasised that res extra commercium is a judge-made law and the Constitution does not recognise it.

Unless trade in liquor is excluded from trade or business, a citizen has a fundamental right to deal in that commodity. The judge cited another dissenter in the Constitution bench judgement of 1967 who asked: "If the activity of a dealer, say in ghee is business, how does it cease to be business if it is in liquor?"

Another new dissenter, Justice S B Sinha, went even further. He said that the validity of a law cannot be determined relying on a maxim crafted for another age.

Before deciding whether liquor is a social evil, the history and social perceptions must be considered. "Law is not to be laid down having regard to the perceptions of a judge, but on premises having a solid foundation, both on facts and law," the judge wrote.

His prophecy might tickle the tipplers: "The states are encouraging liberalisation to such an extent that in the near future, alcohol beverages may be allowed to be sold in the small grocery shops.... Society has accepted pub culture in the metros."

Therefore, the law must conform to the current realities and not to "centuries-old maxims". When the Constitution permits a trade, morality takes the back seat, the judge stressed and observed that while interpreting the statute, the one which fosters economic growth should be preferred.

Both the judges have insisted that the earlier Constitution bench decisions on this issue struck different notes. "They at times stand poles apart. Inconsistencies and contradictions are galore," according to them.

The majority judges have not answered the posers raised, merely observing that the law is well-settled. However, with such strong observations from their brother-judges, it is a matter of time when their "brooding wisdom" gains upper hand and the whole issue of regulations on liquor trade is reopened.