The Patna High Court terming Bihar’s prohibition law—mostly its prescription of punishments for violations—“illegal” and “draconian” should indicate how poor policy fails even the most desirable ends. To be sure, the Nitish Kumar government’s intent to take on alcoholism was backed by a popular demand, especially among the women of the state. But the way it went about it, cracking down summarily on alcohol consumption instead of abuse, was bound to run afoul of the law. Though the two-judge bench—comprising chief justice IA Ansari and Justice NP Singh—held divergent opinions on whether the prohibition, as a PIL on the matter contended, violated an individual’s fundamental right to life (including the right to eat and drink as per her choice within a space deemed private), it ultimately ruled that the provisions of the law were ultra vires of the Constitution; especially since the punishment provisions that prescribed both fines and jail-terms for not just the alcohol-consuming/possessing individual but also harsh fines for his family and neighbours, were “unreasonable” and could only “be justified in a Police State”.
The legal question aside, the policy was flawed from its very birth, given the long-term fallout of such bans, such as bootlegging, spurt in production of illicit liquor, surge in consumption of alternative intoxicants and the loss of revenue, often outweigh any intended benefit. Total prohibition has had very limited or even detrimental effect wherever it has been implemented—the recently-elected LDF government in Kerala has talked of reversing the ban that had been brought by the preceding government, while states like Odisha that tried restricting alcohol sale or possession ended up with shockingly high number of cases of alcohol poisoning, with the victims mostly belonging to the most vulnerable strata of the society. Bihar, which has very little industry to speak of compared to a Tamil Nadu that has implemented a phased ban, earned a sixth of its overall own-tax revenue of R20,750 crore in FY15 from taxing alcohol. As FE has pointed out before, bootlegging is causing this loss figures to balloon—neighbouring Uttar Pradesh’s frontier districts with Bihar saw sales surge by 64% on the back of the demand from the latter. Even though alcoholism is a social evil, a ban only makes the problem go underground, and makes it that much difficult to curb. Justice Ansari writes in the judgment that the government must be guided by the Directive Principles of State Policy—in this case, Article 47, which talks of ensuring the right nutrition and health for citizens, including endeavouring to bring about prohibition of intoxicants. Given the difference of opinions on whether the right to eat or drink according to one’s choice is a fundamental right, perhaps even the petitioners who have won would like to get a clarification from the Supreme Court. But, more important, legislators will do well to remember policies that take no notice of the ground realities are likely to have unintended consequences.