Constitutional Right to Drink Alcohol :- A distant dream

“To drink or not to drink. That is the Hamletian dilemma of Anoop, the appellant. He has chosen to drink. He rails at the rules that obstruct his passion for the pint, his right to choose, to be let alone, to privacy, and, of all, his right to life. He claims that the laws prohibiting alcoholic drinks fall foul of the fundamental rights guaranteed to a citizen, to him. Do they? Our answer: No.”

Thus begins the recent judgement of the High Court of Kerala in Anoop M.S vs. State of Kerala and others, dealing with right to drink alcohol. The dramatic beginning of the judgement quite well befits the unusualness of its subject matter. Testing the validity of the liquor prohibition from the perspective of a consumer of alcohol is a rare instance. Although there are umpteen number of judgement upholding validity of liquor prohibition/regulation, most of them are rendered in the context of right to trade in liquor and right to vend alcohol referable to Article 19(1)(g) of the Constitution of India. The rights under Article 19(1)(g) carry with them inherent reasonable restrictions, and it is always a difficult task to overwhelm the legislations banning/regulation liquor enacted on the basis of constitutional directive under Article 47 of the Constitution of India. Implicit in the Constitution is the thought that liquor prohibition furthers social welfare, and it is not easy to tide over such legislations/policies using one’s commercial rights. But when a consumer comes before Court, asserting that his right to consume alcohol peacefully and responsibly within the confines of his home forms part of his right to privacy, which is nothing but a facet of right to life and personal liberty under Article 21 of the Constitution of India, and complains that liquor prohibition infringes his right to privacy and individual autonomy, it adds a twist to the narrative throwing up several interesting questions.

The taboo of alcoholism

Alcohol is generally regarded as a social taboo in most cultures. The reasons could primarily be two. First, alcohol intake in large quantities could injuriously affect one’s health. Second, alcohol could affect one’s cognitive abilities and faculties of mind.  In a state of intoxication induced by alcohol, one’s ability for rational judgement and sound discretion would be lowered, and consequently the person tends to indulge in impulsive behaviour, forgetful of personal and social inhibitions. The behaviour and attitude of a person under the influence of alcohol could be drastically different from his otherwise normal and sober behaviour. It is due to this effect of alcohol that it is regarded as corrupting one’s character and hence morally abhorrent. The proneness to act on instinct and impulses, and to indulge in risky behaviour under the influence of alcohol can lead to public order issues, like public brawls, abusive behaviour, drunken driving, etc. Intoxication can also give the impetus to a person to indulge in violence and crimes of passion. The law and order issues attendant to alcoholism is definitely an area of concern for the State and hence the State can wield control over it.

Having said that, it is also pertinent to note that the above said negative effects are not definite and direct outcomes of alcohol consumption. It’s just that alcohol could increase the probabilities for such effects. Not all persons who consume alcohol suffer from health problems. And, not all persons who consume alcohol become a social nuisance and public threat. There are a lot of intervening and subjective factors which determine the negative effects of alcohol, and such factors have correlation with the level of maturity and sense of responsibility a person possesses. Therefore, it is also indisputable that there is a responsible way of drinking alcohol. Alcohol can induce a sense of joy, ecstasy, and euphoria in one’s mind, and can instil a feeling of camaraderie. In a stupefied state, one might delve deep into the unexplored alleys of the sub-conscious, and might toy with thoughts which otherwise might not surface up in sobriety. In short, alcohol could enable a person to endure the tedium and misery of life by instilling a sense of joy, however illusory and short-lived it might be, and can even help one ‘rejuvenate and relax’, as claimed by the petitioner in Anoop vs. State of Kerala. So, the question to be examined is whether such responsible and disciplined intake of alcohol, which is purely done in pursuit of individual happiness and enjoyment, causing no harm or injury to others, has any constitutional protection.

Fundamental right vs Directive Principles of State Policy.

What militates against the said right is the Constitutional directive under Article 47 that the state shall endeavour to bring about prohibition of the consumption of intoxicating drinks…’. If the State has the Constitutional duty to prohibit alcohol, and acts in furtherance of the same, then obviously a citizen cannot complain that his right to drink alcohol has been violated. However, this issue has been dealt with in an interesting manner by Justice N.P Singh, Judge of Patna High Court in Confederation of Indian Alcoholic Beverage Companies vs. State of Bihar. In the said case dealing with legality of liquor prohibition effected in Bihar, Justice Singh held that a person has the right to drink alcohol within the confines of his privacy so long as it does not cause any harm or injury to others.(However, Chief Justice I.A Ansari dissented on this point, and held that there was no such right to drink alcohol. The liquor prohibition was nonetheless struck down on other reasons).

According to Justice Singh, the expression shall endeavour in Article 47 means that there is no mandate, in positive terms, making it obligatory on the state to impose prohibition. Justice Singh further proceeds to establish that right to privacy forms part of right to life under Article 21 of the Constitution, on the basis of decisions in Gobind vs. State of M.P (1975) 2 SCC 148, Kharak Singh vs. State of UP AIR 1963 SC 1295. Reference was also made to the observations in State of T.N vs. R.Rajagopal that right to privacy under Article 21 is the right to be let alone.

Further, Justice Singh places the right to drink alcohol under the ambit of right to privacy, on the basis of decisions in Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamat (2008) 5 SCC 33, and In Re Ramlila Incident (2012) 5 SCC 1 to hold that what one eats is one’s personal affair and forms part of right to privacy under Article 21.  Having thus established that right to drink alcohol comes under Article 21, the stage was set for the apparent conflict between a  fundamental right and a law enacted in furtherance of a directive principle under Article 47. Based on the decision in Minerva Mills that directive principles cannot override fundamental rights, Justice Singh held that the right to drink under Article 21 must prevail over the constitutional directive under Article 47.

Constitutional courts often strain to uphold the constitutionality of an enactment or policy. However, here Justice Singh has strained to stretch the contours of Article 21 to set aside the liquor policy. In contrast, the Kerala High Court did not attempt any such maverick interpretations, and chose to follow the precedents and conventional interpretations. According to the Kerala High Court, right to drink, and also right to privacy wherefrom the former right emanates, are mere penumbral rights, yet to be elevated as central rights. The gist of the reasoning is that such rights cannot be invoked to trump an executive act done in terms of a clear constitutional directive to effect liquor prohibition.

 Individual autonomy vs State Paternalism

The judgement of the Kerala High Court can be said to be more in accordance with constitutional scheme, and its legal soundness cannot be assailed on the basis of existing principles of law. However, if one analyses the issue without being circumscribed by the constitutional text, one tends to agree more with the conclusions of Justice Singh in Patna High Court decision, though their constitutional soundness is suspect. The classical concept of liberty is that one is free to do whatever within his confines and powers so long as it causes no harm or injury to others. This concept of liberty supports right to consume alcohol in a responsible manner without being a social nuisance or threat. An individual should possess the autonomy to fashion his life and to choose his habits. The dictates of the State in that regard reeks of paternalism, which is not desirable in a democratic republic state constituted by ‘We the People’.

It is tough to discern on which side of the issue our Constitution is. Our Constitution abounds in grand paradoxes; it leaves the door open for state paternalism as much as it tries to protect individual autonomy.

The Division Bench of Kerala High Court must have been caught up in this dilemma of whether to be formally right in the constitutional sense or really right in the philosophical sense. And the Bench chose to be formally right within the constitutionally imposed limitations. The Court was primarily enamoured by the sweep of Article 47.  But it chose to sympathise with the cause of the petitioner, probably to get over the guilt of not being able to be ‘really right’. The parting words of Justice Naidu, extracted below, are an indication of that.:-

But, before parting with the matter, we acknowledge that “the times they are a-changing.” What is today morally reprehensible and socially unacceptable may not be so tomorrow. Anoop, the appellant, may still have hope, but he seems to have raised his voice rather prematurely. We conclude with the lines of Bob Dylan, the Nobel laureate:

“[A]nd don't speak too soon

 For the wheel's still in spin

And there's no telling who that it's naming

For the loser now will be later to win

 Cause the times they are a-changing”

So till the times change to cause a radical change in constitutional scheme to protect individual autonomy without any moral hangover, the tipplers will have to reconcile with the moral injunctions of the State. 

References :-
Kerala High Court Judgement in Anoop vs. State of Kerala.
Patna High Court Judgement in Confederation of Indian Alcoholic Beverage Companies vs. State of Bihar.