DOES PROHIBITION OF SALE OF LIQUOR IN SOME STATES VIOLATE ARTICLE 19(1) (g)?

Following the easing of restriction, India has entered the third phase of nationwide lockdown. Liquor stores opened in all over the country after some long days of lockdown except the States of Bihar, Gujrat, Mizoram and Nagaland as well as union territory of Lakshadweep. The large crowd rush towards buying the liquor from the shops after the lockdown 3.0  which help the state for the high revenue .Some States imposes duties and taxes on liquor and “Special Corona fee” like Delhi which highlight the importance of liquor as far as Excise duty is the main source for the state and the economy activity.  

Some states Government that imposed total prohibition from the sale of liquor in the state is to prevent people from queuing up in front of State-run liquor outlets during the COVID-19 outbreak. But this non availability of liquor leads to suicide and consumption of homemade liquor which is hazardous foe health. It  also violate their fundamental right which is conferred in Part 3 of the constitution under Article 19(1) (g).

Article 19 of the Constitution guarantees to the citizen their fundamental freedoms (a) Freedom of speech and Expression (b)Freedom of Assembly (c)Freedom to form Associations or unions or Co-operative Societies (d)Freedom to movement (e) Freedom to reside and to settle (g) Freedom of profession , occupation , trade or business but it  restricted by the constitution itself by conferring upon the state a power to impose by law reasonable restrictions as may be necessary in the largest interest of the community.

 The term “reasonable restriction” in Article 19 (6) means the limitation imposed on a person in the enjoyment of his right should not be of excessive nature as it implies the intelligent care and deliberation. As it strikes a proper balance between freedom guaranteed in Article 19 and the special control which is mentioned under Article 19 (6).

Article 19(1) (g) which tells about freedom of profession , occupation , Trade or Business. However, the right to carry on a profession, trade or business is not unqualified, it can be restricted and regulated by authority of law and State can impose reasonable restriction in the interest of the public.

Trading of liquor not a fundamental right:  In Khoday Distilleries Ltd. v. State of Karnataka, the Supreme Court held the rights under Article 19 (1) are not absolute but qualified and the State is authorized under clause (2) to (6) to impose reasonable restriction on this right. A citizen has no fundamental right to trade or business in activities which are immoral and criminal in nature i.e. outside the commerce which is also known as res extra commercium.

The restriction on the right to trade in liquor can be imposed not only by law enacted by the legislation but it can be imposed by any subordinate legislation. The State has exclusive right regarding portable liquor It can also be provided by the executive provided it is issued by the governor of the state. Sometime, people confused with the term “Business” and  “trade” as it is more comprehensive than the word “trade” since it includes manufacture while the word “trade” may not ordinary include.

 In the case, State of Tamil Nadu Rep. By Its Secretary Home, Prohibition & Excise Dept. & Ors v K.Balu The Supreme Court of India has ordered that there would be a ban on the sale of liquor within a distance of 500 meters from any national or state highways. The apex court modified its order stating an exemption within 220 meters of any highway for small towns or municipalities where the population of people will be less than 20,000. In the order, the Honorable Court has clearly stated that any hotel, bar or pubs serving alcohol will be included in the ban.

Exceptions of prohibition on sale of liquor  

1.      The State has power to prohibit the manufacture, sale, possession , distribution and consumption both because it is dangerous article of consumption and also because the directive principle contained in Article 47, except when it used for medicine purposes. State can create monopoly in such business either by itself or by any agency. As creation of monopoly rights in a few persons in not unreasonable. Thus in one of the case Cooverji v. Excise Commissioner it is mainly pointed out this exception that law which created monopoly to sell liquor in favour of a few persons was held valid.  Although, in case State of Bombay v. F. N Balsara, Supreme Court held that absolute  prohibition of manufacture or sale of liquor is permissible and the only exception can be for medical preparation  medicines.

2.      Once sale of liquor is permitted by a State Government, every citizen has a fundamental right to apply for permission to trade in liquor. However, “It shall be open for the concerned State Government to consider non-direct sale including on-line sale/home delivery of liquor to facilitate social distancing”,  the Supreme Court ordered in a petition filed by Guruswamy Nataraj to facilitate social distancing .

Conclusion: It is concluded that Liquor is not an ordinary commodity, While it carries connotations of pleasure and sociability in the minds of many, harmful consequences of its use. National monitoring systems need to be developed to keep track of alcohol consumption and its consequences, and to raise awareness amongst the public and policy-makers. It is up to both governments and concerned citizens to curb the situation by proper implementation of laws that minimize the harm caused by liquor. Thus the fundamental rights which is given under Article19 (1) (g) are provided to carry the business which is for benefit of public and which are hazardous for health.