Tuesday, 4 October 2016

Bihar’s Prohibition and Excise Act, 2016 - Throwing out the baby and more with the bath water




Bihar’s Prohibition and Excise Act, 2016 – and the ban on liquor and drinking in the state that follows the enforcement of this law – is currently much in the news. Not only is it being pushed by the Government in Bihar, but a number of leading social movements are also supporting it. They are also promoting this as a model law that should be implemented across the entire country. 

At the same time, there are serious issues with the law, with an earlier version having been struck down by the Patna High Court on 30-September-2016 stating that its provisions are draconian and that its implementation would bring in a virtual police-raj in the state.

Given this, it’s critically important to understand the law and its provisions. In this post, I examine some of the provisions of this law, in the context of the broader debate around prohibition. I do this as a woman, and as a practicing social worker. 

Addiction- a social - economic problem or a criminal offence?

As a student of social science and a practicing social worker for nearly three decades, I believe that social awareness, social support and social as well as economic reform measures are required to check socially undesirable behaviour relating to addiction and substance abuse, rather than severe punitive actions aimed at the person who is substance dependent. In fact, I believe that such severe punitive actions in the matters of substance dependence pertaining to alcohol, smoking and other substances can in fact be detrimental to the individual concerned, his/her family and society at large. For such matters, what is required is counselling, social and medical support, de-addiction and rehabilitation centers, support to the family and so on. In a society, to consider substance abuse by an individual as a grievous criminal offence punishable by long imprisonment will be detrimental to both, the individual as well as the society at large. This fact is well established by social work research and studies. 




Bastar Beer prepared from Sulfi. Photo source:
https://en.wikipedia.org/wiki/Bastar_district#/media/File:Bastar_Beer.jpg

The Bihar Prohibition Law 


Given this, I find the punishments  for possession, consumption, storage or transportation of even small quantity of alcohol or such substance under Bihar’s Prohibition and Excise  Act, 2016[1]  to be draconian in nature towards the individual, his/her family and community. This Act leaves no scope whatsoever for warning, correction, mitigation, reformation, rehabilitation and probation of a person who is substance dependent or a person in possession of alcohol or other intoxicating substances. Along with the substance dependents, it criminalizes occasional users/social users as well. Worse still, it has the scope of considering the family of a substance dependent, criminal too, with strict punishments! It has severe provisions like arrest without warrant, confiscation of premises, sealing of premises, etc. where any crime under this act is said to have been committed. Furthermore it has the provision of collective fine for the “wrong doing” of individual/individuals in an area and the whole community living there could be held responsible for repeat offenses under the act. Besides, a lot of powers are given to the collector and even the police.


It is these draconian aspects of the earlier Bihar Excise (Amendment) 2016 which led the High Court to severely criticize the Act, and strike it down. The new law which was notified after this High Court judgement, unfortunately, has similar draconian provisions. 


It would be pertinent here, therefore, to see some of the sections in the judgment passed by the Patna High Court pertaining to the Bihar’s Excise [Amendment] Act, 2016. I highlight some sections from the common judgement here:


1.     Regarding the provision in the  Act[2] that –“  the offense punishable under that section in respect of any intoxicant ... shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that the offence was committed without his knowledge ...” , the court says the following:

This provision reverses the criminal jurisprudence of prosecution having the liability to prove the guilt beyond reasonable doubt. Here, a person is presumed to be guilty unless he proves to the contrary. The presumption of innocence is totally taken away and the burden of proof thereof is put on the accused... For any reason, if he fails to prove his innocence, he would straightway be liable to punishment, which would be of minimum 10 years imprisonment with astronomical fine and would lose his entire property by virtue of confiscation and the Courts are rendered helpless in the matter even though there may be mitigating circumstances...”

2.   About the collective fine that can be imposed under the Act, the Court says the following: “...A plain reading of the aforesaid Sections would show that the punishment is entirely depended upon subjective satisfaction of the Collector. What is the fine is left totally to the discretion of the Collector. How and what would constitute a group and how an area would be identified, in a town or a village, is not known nor defined. No one has to be heard before fine is imposed. There is no provision for appeal. We are dealing with a provision of penalty. It is a piece of substantive law. Substantive law without guidance and without procedural safeguards can only be termed as draconian, it being completely vague, uncertain and unlimited. Even though it may professed to have a social objective to attend, the means to achieve the same      are clearly unconstitutional. The provision is, thus, clearly ultra vires the Constitution being in violation of Articles 14 and 21 of the Constitution”.

3.   Regarding confiscation of the premises, the court says “...for an offence
          committed by his tenant or anyone in his permissive possession,
          over which he has no control, his premises would be confiscated.
          There may not be a more draconian provision. A house may
          consist of several rooms occupied by different members of the
          family. A particular member violates the law, the family premises
          is up for confiscation. I may further illustrate that if two
          neighbours are on inimical terms, one could easily plant liquor in
          the neighbours premises, the neighbour, being unaware; still, by
          virtue of the presumption clause, not only he gets convicted but his
          premises also get confiscated. These common day illustrations can
          be multiplied to show the draconian effect of the law. The effect of
          these provisions is virtually that we are converting the State into a
          Police State. Citizens would always be living under a threat or, at
          least, a threat perception of being easily implicated. That surely is
          not conducive and should not be permitted.” (Emphasis added)

4. The court further states: “...Similarly, when it comes to the Bihar Prohibition Act, 1938, which deals with liquor, which per se taken in small quantities in a civilized manner is not  injurious, the punishments are balanced with the social needs, but when we come to the amended provisions of the Bihar Excise Act, 2015, the provisions are clearly draconian and in excess of the balance need to be maintained...”
 
And further, that “...the punishment as prescribed by the recent amendment to the Act with effect from 01.04.2016, on all three counts, i.e., the personal punishments, both physical and monetary, punishment of confiscation of premises and punishment to the community, are quite unreasonable and draconian and cannot be justified in a civilized society. It may be justified in a Police State, which surely we are not. I would, therefore, declare the provisions, as aforesaid, to be ultra vires and violative of Articles 14 and 21 of the constitution.” (Emphasis added)

5.  The Court finally concludes as follows: “...To conclude, in my opinion, Section 19(4) of the Bihar Excise Act, 1915, as amended with effect from 01.04.2016 (passed by the State Legislatures on 31.03.2016) is ultra vires the Constitution and unenforceable. The impugned  notification, dated 05.04.2016, issued by the State under Section          19(4) of the said amended Act is also ultra vires the Constitution  and, consequently, unenforceable and the penal provisions of  enhanced sentence and provision, with regard to confiscation of property, as introduced by the amendments on 31.03.2016, with effect from 01.04.2016, are also held to be ultra vires the  Constitution.”

By studying carefully the Act and the judgement of the Bihar High Court on the Act, one feels that a whole community, the whole family including women and children, already aggrieved by a substance dependent in the family could be further punishable under this act. Surely, a wife, a mother, a daughter, a father, a brother, a son does not want to be imprisoned for the actions of a member in the family who may have committed an offence under this Act. Besides, it is normally seen that a family wants an erring member to stop substance abuse and that he/she is rehabilitated and not punished so harshly. For example, I have seen in the course of my work that women normally would wish that their sons/husbands who are given to excessive drinking should be reformed; they would not like them to be put away in prison for 5-10 years! I have often seen that mostly women or the aggrieved party wants liberation from addiction and not the substance dependent. But there is no scope for this in the act.

It is important to note that after the enforcement of this Act, twelve people have died after drinking spurious alcohol in Gopalganj, Bihar. This is a typical outcome of enforcing such a law as drinking goes underground with underhand dealings. Furthermore a very large number of people, around thirteen thousand including women have already been jailed in the State of Bihar since the enforcement of the amendment in April this year! And one must not forget that it was Nitish Kumar himself in the first place who had promoted liquor outlets in every village to boost revenue as the CM of Bihar! [ http://www.thehindu.com/opinion/op-ed/bihar-liquor-ban-and-nitish-kumar-government/article8981995.ece ]


To conclude, such an act will certainly lead to misuse, fear and further turmoil in the society rather than reform and rehabilitate those dependent on intoxicating substances. This act instead of providing relief and rehabilitation could cause further distress to the family of those dependent on intoxicating substances. It is therefore worrisome that this act has already been enforced in Bihar. However what is more disturbing is that some of the leading social workers of the country as part of Nasha Mukt Bharat Andolan are not only backing the Bihar Chief Minister for having enforced such an act but are also calling for enactment of such an act, the provisions of which are clearly termed draconian and unconstitutional by the High Court of Bihar, to be enforced across the country!

I appeal that the implementation of this Act be suspended, and the provisions of the Act studied, reviewed and widely discussed, particularly among the women – urban, rural, tribal, and the penal provisions be suitably amended, in line with the principles that (a) substance dependence  is best tackled through social awareness, social support, social and economic reform, counseling and rehabilitation and not through criminalisation and (b) Having a balance between the nature of the actions and the punishment.

End



[1] Initially the Government of Bihar had made an amendment to Bihar Excise Act, 1915 and a notification was issued by the state on 5th April 2016. This was struck down by the Patna HC on 30-Sep-16. Meanwhile, the Government of Bihar enacted a new law and notified it on 2nd October 2016 retaining most of the harsh features the High Court of Bihar had found unconstitutional and harsh. The Government of Bihar has also challenged the High Court verdict in the Supreme Court now.
[2] Act here means the Bihar’s Excise [Amendment] Act, 2016 unless specified otherwise.


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