'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
THURSDAY, THE 12TH DAY OF JANUARY 2017/22ND POUSHA, 1938
WA.No. 1823 of 2016 () IN WP(C).33709/2015
-------------------------------------------
AGAINST THE ORDER/JUDGMENT IN WP(C) 33709/2015 of HIGH COURT OF KERALA
DATED 06-08-2016
APPELLANT(S)/PETITIONER IN THE WRIT PETITION:
----------------------------------------------------------
ANOOP.M.S
MANELIL HOUSE, VALAYANCHIRANGARA PO, PERUMBAVOOR.
BY ADVS.SRI.S.VINOD BHAT
SRI.LEGITH T.KOTTAKKAL
RESPONDENT(S)/RESPONDENTS IN THE WRIT PETITION:
-----------------------------------------------
1. STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY,
DEPARTMENT OF TAXES, SECRETARIAT,
THIRUVANANTHPAURAM 695 001.
2. KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING)
CORPORATION LTD., P.B.NO.2263, SASTHAKRIPA OFFICE COMPLEX,
SASTHAMANGLAM, THIRUVANANTHPAURAM 695 010,
REPRESENTED BY ITS MANAGING DIRECTOR.
3. KERALA STATE CO-OPERATIVE CONSUMERS
FEDERATION LTD, GANDHINAGAR, ERNAKULAM, KOCHI 20,
REPRESENTED BY ITS MANAGING DIRECTOR
R BY SRI. BIJOY CHANDRAN, GOVERNMENT PLEADER
R BY SRI.NAVEEN.T
R BY SRI.M.SASINDRAN, SC, CONSUMERFED
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29.09.2016,
THE COURT ON 12.01.2017 DELIVERED THE FOLLOWING:
P.R.RAMACHANDRA MENON &
DAMA SESHADRI NAIDU, JJ.
-------------------------------------------
Writ Appeal No.1823 of 2016
--------------------------------------------
Dated this the 12thday of January, 2017
JUDGMENT
Dama Seshadri Naidu, J.
Introduction:
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.
Facts:
2. Anoop M.S., the appellant, has a profession: he taps rubber
trees and extracts latex. He taps about 400 trees a day. For this he
works from 6 in the morning till 2 in the afternoon. Anoop has a
habit: given what he calls it to be his"hectic work schedule",he finds
his solace in "consuming small quantities" of liquor purchased from
W.A.No.1823 of 2016 2
the retail outlets of Kerala State Beverages Corporation (KSBC) and
Kerala State Co-operative Federation; that is, the second and third
respondents. Liquor is his "daily diet." This daily diet makes Anoop
"rejuvenated,relaxed," and even "physically fit,"as if it were the elixir
of his life. Anoop is KSBC's loyal consumer, so to say.
Grievance:
3. Before 2014-15, when the Government introduced a new
Abkari Policy ("the New Policy"), Anoop took his daily diet from the
"bar hotels". Because of the New Policy, now he could not have
access to bar-hotels but is constrained to buy liquor from the
Government outlets. It costs him more!
4. According to the Policy, the Government has decided to shut
down the retail outlets in a phased manner--10% of retail outlets to
be closed annually as per Clause 2 of the Policy. Clause 2, Anoop
accuses, was introduced with no "specific or scientific study." Though
the consumption of liquor is not prohibited in Kerala, the Policy
indirectly prohibits the consumption. The State cannot prohibit a
lawful thing "by introducing a policy." It ought to be effected only by
W.A.No.1823 of 2016 3
a positive legislative enactment. The Policy is bad in law.
5. The Government has monopolized the liquor trade. The
State is "enriched by the sale of liquor." Though KSBC levies
exorbitant taxes and duties on liquor, it provides no quality services
to the customers. The retail outlets closed in a phased-manner, the
remaining outlets struggle to cater to the customers. The queue
lengthening, the consumers must spend over two hours "in
unhealthy and unworthy circumstances" to purchase liquor. The
policy, in fact, is against the KSBC's objectives.
6. Anoop sanctifies liquor: alcohol has "historical and religious
importance" in Kerala. It is used in some temples and rituals of
Hindu Community, so closing outlets will affect the religious
sentiments of the Hindus who follow "Puliyampulli'', a ritual observed
among some sects within the Hindu community in Kerala to worship
Goddesses Shakhty. Remediless, Anoop has filed W.P. No.33709 of
2015 to have the New Policy quashed.
Writ Outcome:
7. Through a judgment, dated 6th August 2016, this Court, per a
W.A.No.1823 of 2016 4
learned Single Judge, dismissed the writ petition: The courts, up to
the apex level, have upheld the policy; so, the policy needs no
interference.
Appeal:
8. Resolute and resilient, Anoop, the rubber-tree tapper, has
filed this Writ Appeal, reiterating the same contentions that earned
rejection earlier.
Submissions:
Appellant's:
9. Sri Legith T. Kottakkal, the learned counsel for the appellant,
has passionately argued that the Government has misused its
dominant position by introducing the policy, though it has no
authority to prohibit a lawful activity, and indirectly at that. According
to him, Abkari Act ("the Act") has no provision to empower the
Government to prohibit liquor. The liquor prohibition, even in a
phased manner, is outside the purview of Abkari Act.
10. State cannot dictate to the individuals what they should eat
and what they should drink, the counsel contends. Reasonable
W.A.No.1823 of 2016 5
restrictions can only be imposed but only by a statute. The New
Policy does not restrict the liquor sale; on the contrary, it prohibits
the liquor. It militates against Article 21 of the Constitution of India.
Clause 2 of the Policy, according to the learned counsel, is irrational
and has no nexus to the objectives sought to be achieved. Clause 2
of the Policy is ultra vires because it offends the distribution of
Legislative Power under Constitution of India and Act 65 of 1951.
11. The learned counsel contends that consumption is a
personal choice, a facet of right to privacy and right to be let alone,
as has been enshrined under the Articles 21 and 19(1)(a) of
Constitution of India. To support his contention, Anoop relies on
Hinsa Virodhak Sangh Vs. Mirzapur Mou Kuresh Jamat1
12. Given the change of Government, the Hon'ble Governor in
his speech under Art.176 on the floor of the Assembly has observed
that the New Policy has "not yielded the desired positive impact."
(para 214 of the Address). Mr. Legith also submitted that, on
30.06.2016, the Government on the floor of the Assembly that the
New Policy is a failure; the policy resulted in the rampant abuse of
1 AIR 2008 SC 1892
W.A.No.1823 of 2016 6
drugs and ganja in the society. Even after admitting that the policy
has failed, the Government, complains, Anoop, is not rolling it back--
officially.
13. Faced with numerous precedents on the same issue,
though concerning liquor trade, Sri Legith asserts that the issue of
right to choose or of privacy is sub silentio in those cases. Sri Legith,
during his submissions, has cited a plethora of precedents, apart
from relying on some international covenants. They will be referred
to by and by if the need arises. Eventually, the learned counsel urges
the Court to quash the New Policy.
The Respondents':
14. The learned Government Pleader, on the other hand, has
submitted that the petitioner has brought a frivolous cause before
the Court; he has no other intention than hogging the limelight by
wasting precious judicial time. According to him, already many
rounds of challenge were laid against the New Policy but were all
successfully repelled, up to the level of the Supreme Court. So the
writ petition, as rightly dismissed, is hit by constructive res judicata,
W.A.No.1823 of 2016 7
asserts the learned Government Pleader.
Issue:
15. A self-proclaimed hardworking individual takes liquor on a
daily-basis and claims that he thus finds his relaxation. The
Government, in 2015, introduced a New Liquor Policy to usher in
prohibition in a phased manner, though. It has decided to close the
liquor retail outlets, a State's monopoly, at 10% annually. Does the
New Policy infringe on the petitioner's right to choose, right to
privacy, or right to life?
Discussion:
Setting the Tone:
16. "Our rulers will best promote the improvement of the
people by strictly confining themselves to their own legitimate duties
--by leaving capital to find its most lucrative course, commodities
their fair price, industry and intelligence their natural reward,
idleness and folly their natural punishment--by maintaining peace,
by defending property, by diminishing the price of law and by
observing strict economy in every department of the State. Let the
W.A.No.1823 of 2016 8
Government do this: The people will assuredly do the rest," hoped
Thomas Babington Macaulay.2 Macaulay visualised a utopian state, a
state of laissez-faire, too. But governance is much more.
17. Governance, according to the United Nations3, is the
exercise of political, economic, and administrative authority to
manage a nation's affairs. It involves complex mechanisms,
processes, relationships, and institutions through which citizens and
groups articulate their interests, exercise their rights and obligations,
and mediate their differences. Governance encompasses every
institution and every organization in the society, from the family to
the State; it embraces all methods--good and bad--that societies
use to distribute power and manage public resources and
problems. Good governance, a subset of governance, manages the
public resources effectively, efficiently to cater to critical needs of
society. True, effective democratic forms of governance rely on
public participation, accountability, and transparency.
18. Article 37 in Part IV on Directive Principles of State Policy
2 (Selections from the Edinburgh Review, 1835, Vol.III, 134)
3 Engendering Economic Governance, United Nations Fund For Women (UNIFEM),
http://www1.aucegypt.edu/src/engendering/good_governance.html
W.A.No.1823 of 2016 9
uses the expression `governance of the country.' But good
governance is writ large and implicit in several provisions of the
Constitution, argues Madhav Godbole, a former civil servant
espousing the cause of administrative reforms. Incidentally, it pays
to note that Madhav Godbole and another former civil servant filed
W.P. (Civil) No.69 of 2004 (PIL) seeking the Supreme Court to
declare a citizen's right to good governance a fundamental right. The
Apex Court, while dismissing the writ petition, observed thus: if there
was a specific case of grievance, the court could consider it, but it
could not rewrite the Constitution or run the administration. To grant
the relief sought, the Court must look into every aspect of
governance. It is impermissible4.
19. There may be jurisprudential justification for viewing the
constitutional commands and statutory stipulations through a moral
prism. But there is little legal justification for conflating morals with
legislation and pontificating the adjudicatory process. Morality may
inspire law and may even result in legislation, but morality by itself is
not law. But the metamorphosis is always from morality to law; that
4 Good Governance, A Distant Dream by Madhav Godbole, EPW, Vol. 39, Issue No. 11, 13 Mar, 2004
W.A.No.1823 of 2016 10
is, rights.
Constitutionally entrenched rights and penumbral rights
20. An inherent dignity of an individual and the inviolable
integrity of his or her personality give rise to the notion that certain
human rights are immutable and not negotiable. The multi-
dimensional morality of human rights transcends the enumerated
fundamental rights; it imperceptibly, inexorably chips away at the
legislative limits of the rights. It sends from its ranks the rights,
initially hazy and nebulous, to stand by the peripherals of the
enumerated rights--to the status of penumbral rights. With the
judicial winds in their sails, they slowly travel towards the core of the
constitutional rights, as we call them `fundamental rights', one day.
The New Policy:
21. The Abkari Act, 1077 was introduced, as noted in Kerala
Bar Hotels Association v State of Kerala5, in the erstwhile State of
Cochin in 1902 and, in 1967, came to be extended throughout the
State of Kerala. The Foreign Liquor Rules were promulgated under
Sections 10 and 24 to 29 of the Abkari Act; they deal with the sale of
5 AIR 2016 SC 163
W.A.No.1823 of 2016 11
Indian Made Foreign Liquor (IMFL). As a matter of policy, the State
has the monopoly. Earlier, the State of Kerala made a "futile foray
into prohibition", but this was withdrawn in 1967.
22. With the State of Kerala accounting for almost 14% of the
national consumption of alcohol, the Executive had felt the liquor
consumption in the state a social malaise. So it formulated a policy to
prohibit liquor in the State in a phased manner. Though since 2010
the policy initiative had been around, on 22.08.2015, the State
issued its New Policy guidelines (Ext.P1), which read as under6:
The Government being convinced the fact that in order to achieve
the goal of "Liquor-Free Kerala", strict and urgent measures are to
be adopted, the Abkari Policy 2014-15 is hereby declared subject to
the following criteria.
1. Hereinafter Bar licenses will be issued only to 5 star hotels. The
licenses of existing bar hotels which are functioning on the basis of
provisional renewal of licenses except the licenses of 5 star hotels
will be cancelled. The Government has decided not to renew the
licenses of 418 nonstandard bar hotels mentioned in the Judgment
of the Supreme Court.
2. 10% of outlets out of 338 FL-1 outlets of Kerala State Beverages
Corporation and 46 outlets of Consumer Fed will be closed each
year from 2nd October, 2014 onwards.
3. The sale of high strength alcoholic liquor through Beverages
6 As quoted in Kerala Bar Hotels Assosn. (supra)
W.A.No.1823 of 2016 12
Corporation will be gradually reduced.
4. In order to rehabilitate the employees who lose their job due to
the closing of bar and to rehabilitate the persons who are
alcoholically addicted a special plan namely "Punarjani 2030" will be
commenced. For that purpose, 5% Cess will be imposed on the
liquor which selling through the K.S.B.C.
5. The Liquor-Free propaganda program will be strengthened in the
society at large and especially in educational institutions.
6. All Sundays will be declared as dry-day. This will implement from
the Sunday of 5th October, 2014.
7. The traditional toddy tapping business will be protected and job
security will be ensured for toddy tappers.
8. In order to rehabilitate the employees of closing bars and
employees engaged in the job of affixing stickers, measures will be
adopted. Kerala Alcohol Education Research, Rehabilitation &
Compensation Fund (KAERCF) Fund will be formed in order to
protect the retrenched employees. The said fund will be utilised for
the following purposes such as making propaganda against drinking
of alcohol, for collection of data regarding this matter, to protect
those who destroyed themselves by alcohol consumption,
rehabilitation of the persons who lost job. The fund for this purpose
will also be found out from public.
9. To implement the order urgently, the Excise Commissioner,
K.S.B.C. Managing Director have to take measures to submit the
recommendations urgently to the Government.
23. Clause 2 of the New Policy is the bone of contention.
Anoop apprehends that its implementation will throw the State into
chaos and anarchy, for fewer and fewer shops by the year lead to
congestion and clamour for more.
W.A.No.1823 of 2016 13
The Liquor Spectre in the State:
24. In Kerala, the land of coconuts as the name very suggests,
neera and toddy have held their place, first, culturally; later,
economically. The nature of social consumption of alcohol in the 19th
century reflected the societal pattern: there was none of the social
stigma attached to alcohol consumption. But 20th century saw
change. Varun Panickar in his article "State-Sponsored Alcoholism in
Kerala"7 has profiled the problem graphically. Here we draw from his
research.
25. The change in societal response to liquor has led to two
distinct trends: the increasing incursion of the Excise Department
into the toddy trade; and the growth of social reform and
temperance campaigns. New taxation policies caused the illicit trade
of alcohol to flourish in rural areas. In the decade from 1915 to
1925, the levels of licit sale of toddy fell to record levels with illicit
sales rising by 25%. The rise of social mores connected with alcohol
abuse resulted in the conception of social reform movements. The
most prominent among these movements was the one started in
7 EPW, Vol. 50, Issue No. 23, 06 Jun, 2015
W.A.No.1823 of 2016 14
southern Kerala by Narayana Guru.
26. The proliferation of arrack shops in Kerala well up to the
early 1980s had given rise to sale of spurious alcohol causing serious
public health concerns. On the recommendation of a judicial inquiry
commission, set up to recommend a mechanism against spurious
alcohol, the Government in 1984 set up Kerala State Beverages
Corporation (KSBC). It has to procure spirit, blend, bottle, and
distribute Indian made foreign liquor (IMFL). KSBC ran 337 liquor
shops across the state till 2010.
27. The availability of liquor at prices much lower than those
offered in other states is said to have induced a drinking culture in
Kerala which has had telling consequences on social behaviour and
institutions. By 2013, Kerala had emerged as the State with the
highest alcohol consumption rate per person: 8.3 litres. It accounted
for 16% of the total national alcohol sales.
28. The 1980s signalled the revival of the Kerala economy by
way of tourism and the KSBC. The most recent estimates place the
share of KSBC close to one-fifth of the state revenues. Between 2006
W.A.No.1823 of 2016 15
and 2010 the revenue from the KSBC showed a phenomenal 100%
rise, year after year.
29. The most prominent outcomes of the intense alcohol
consumption practices in Kerala, it is believed, have been the rise of
mental illnesses, declining economic productivity, and the rise in
divorce rates. In 2011 the State recorded the second highest suicide
rate in the country. A survey conducted in 2010 put alcohol abuse as
the cause for 80% of divorces in the State. In the period 2008 to
2009 nearly 4000 deaths were caused by road accidents where at
least one of the parties involved was driving under the influence of
alcohol.
30. The Alcohol and Drug Information Centre (ADIC) in
Thiruvananthapuram has found that nearly 57% to 69% of crimes in
Kerala were alcohol-induced. The other concern is the increased
hospitalisation of alcohol drinkers, which has hit family incomes and
employee productivity adversely. The ADIC found that nearly 19% to
27% of hospital beds in the State were occupied by patients
suffering from alcohol-related problems.
W.A.No.1823 of 2016 16
The Policy Legitimacy:
31. In Kerala Bar Hotels Assosn., the Hon'ble Supreme Court
has dealt with the issue elaborately. We need not recogitate for it
binds us. The Apex Court, among other things, observes that so far
as the trade in liquor is concerned, Article 47 of the Constitution
places a responsibility on every State Government to at least contain
if not curtail consumption of alcohol. The impugned Policy, therefore,
is to be encouraged and is certainly not to be struck down or
discouraged by the Courts. How this policy is to be implemented,
modified, adapted or restructured is the province of the State
Government and not of the Judiciary. Banning pubic consumption of
this inebriate cannot be constrained as not being connected in any
manner with the effort to control consumption of alcohol.
32. Kerala Bar Hotels Assosn., also observes that vulnerable
persons, either because of age or proclivity towards intoxication or
as a feature of peer pressure, more often than not, succumb to this
temptation. Banning public consumption of alcohol, therefore, cannot
but be seen "as a positive step towards bringing down the
W.A.No.1823 of 2016 17
consumption of alcohol, or as preparatory to prohibition."
33. As to the judicial interference into policy decisions, Kerala
Bar Hotels Assosn., observes that judicial review is justified only if
the policy is arbitrary, unfair, or violative of fundamental rights.
Courts must be loath to venture into an evaluation of State policy;
the policy must be given a reasonable time to pan out. If it proves to
be unwise, oppressive, or mindless, the electorate has been quick to
alert the Government of its folly. The Apex Court has found no
illegality or irrationality with the intention of the State to clamp down
on public consumption of alcohol.
Alcohol - The Evolutionary Essence:
34. Scientists speculate that the human ancestors' ability,
acquired millions of years ago, to break down alcohol likely helped
them make the most out of rotting, fermented fruit that fell onto the
forest floor. One may wonder how innocuously the habit started, as
usual, as part of our evolutionary mission: the survival. Alcohol is at
best an acquired taste. Pernicious as it is, some scholars have
attributed to alcohol the credit of advancing civilization, though we
W.A.No.1823 of 2016 18
cannot be sure what "civilization" they meant. The ripest fruit is the
sweetest, the most calorific; the sweetest fruit is the closest to
getting rotten, fermented. So, the tell-tale scent of fermentation was
the surest way to a food at its most calorific. That is how the journey
began. Man has gone past the calorie count; an evolutionary device
has outlived its utility; and, perhaps, reached a pernicious stage of
futility.
Utility v Futility:
35. One of Anoop's principle contentions is that the liquor trade
is the money-spinner; it generates enormous revenue. Prohibition,
according to him, affects the State's economy.
36. A welfare State is multidimensional. Apart from its regular
sovereign functions, it undertakes economic activities, too--with a
profit motive, at that. It has a corporate persona. It competes, if
necessary, like any other trader, but, of course, standing on ethical
foundations. Sometimes, given the pernicious nature of a particular
profession or trade, it may monopolize it, not that it has the sole
prerogative to distribute evil but to contain the contagion. There are,
W.A.No.1823 of 2016 19
in fact, some necessary evils the State must contend with--liquor
being a case in point. As a sovereign, State taxes and exacts
revenue. With limitless demands on its limited resources, State has
to augment: it carries on trade. Liquor is the foremost trade
undertaken, sometimes exclusively, given its pernicious nature and
its potential, too.
(a) Utilitarian's View:
37. Professor Michael J. Sandel of Harvard University in Justice,
What's The Right Thing To Do8, his popular lecture series, discusses
Bentham's utilitarianism, adding a touch of irony. He observes that
the doctrine of utilitarianism has only limited utility, under limited or
contrived circumstances.
38. Jeremy Bentham, the 19th century English moral
philosopher, who founded the doctrine of utilitarianism, scoffed at
the idea of natural rights that held sway during his time. He called it
"nonsense upon stilts." Conceptually, utilitarianism is a calculus of
pain and pleasure: the highest principle of morality is to maximize
happiness--pleasure over pain. The essence of utilitarianism is its
8 Farrar, Straus and Giroux, New York, 2010
W.A.No.1823 of 2016 20
consequentialism. It therefore looks to the future. Bentham arrives at
his principle by the following line of reasoning: We are all governed
by the feelings of pain and pleasure. They are our "sovereign
masters." They govern us in everything we do and also determine
what we ought to do. The standard of right and wrong is "fastened
to their throne." The doctrine, in fact, exerts a powerful hold on the
thinking of policy-makers, economists, business executives, and
ordinary citizens to this day.9
39. To expose the ugly underbelly of statistical application of
utilitarianism, Prof. Sandel10 cites the economic analysis undertaken
by Philip Morris, the tobacco multinational, on what it barbarously
called `the benefits of lung cancer.' The tobacco company does big
business in the Czech Republic, where cigarette smoking remains
popular and socially acceptable. Worried about the rising health-care
costs of smoking, the Czech government considered raising taxes on
cigarettes. In a hope to fend off the tax increase, Philip Morris
commissioned a cost-benefit analysis of the effects of smoking on
the Czech national budget. The study found that the government
9 Raymond Wacks's Understanding Jurisprudence, 256, 2nd Ed. Oxford.
10 Justice, What's The Right Thing To Do, ----
W.A.No.1823 of 2016 21
actually gains more money than it loses from smoking. The reason:
although smokers impose higher medical costs on the budget while
they are alive, they die early; so they save the government
considerable sums in health care, pensions, and housing for the
elderly. The cost-benefit analysis, of course, proved to be a public
relations disaster for Philip Morris. Faced with public outrage and
ridicule, Philip Morris apologized. The company acknowledged that
the study showed "a complete and unacceptable disregard of basic
human values."11
(b) Revenue is not the Last Word:
40. Prohibition is a policy prerogative; regulation, short of
prohibition, too, is Government's legitimate exercise of its power.
Left to choose between money and menace, the Government of
Kerala, earlier, announced the Abkari Policy on 17.8.2011 for the
year 2012-13. The Government, then too, viewed with serious
concern "the rising trend of alcoholism and the consequential social
issues arising in the Kerala society." It has felt the "strong feelings"
against the rampant alcoholism emanating from the civil society.
11 Ibid
W.A.No.1823 of 2016 22
Fully realising, the Government formulated a "stringent Abkari
Policy." To Government's credit, in that policy it has declared that "it
did not wish to view the liquor business as a source of revenue."
41. Given the dubious utilitarianism and given the
Government's policy resolve, the issue of revenue getting generated
by liquor should evaporate, as exposed liquor does.
Does the Executive have the power to bring about the policy
of regulating or prohibiting liquor in the State?
42. This issues stands answered, emphatically at that, on more
than one occasion by, of all, the Apex Court. Repetition serves no
purpose. In State of Kerala v. B. Six Hotels Resort Private Ltd.12,
State of Kerala v. Surendra Das13, and Kerala Bar Hotels Assosn.,
(supra), the issue has been elaborately and emphatically answered.
The Government does have the power.
Is the right to consume alcohol is a fundamental right in the
nature of `right to choose', `right to be let alone', `right to
privacy', or of all, `right to life' under Article 21 of the
Constitution?
12 2010 (5) SCC 186,
13 AIR 2014 SC 2762.
W.A.No.1823 of 2016 23
(a) Constitutional Commands:
Article 21:
Protection of life and personal liberty. - No person shall be
deprived of his life or personal liberty except according to
procedure established by law.
Article 37:
"37. Application of the principles contained in this Part.--The
provisions contained in this Part shall not be enforceable by any
court, but the principles therein laid down are nevertheless
fundamental in the governance of the country and it shall be the
duty of the State to apply these principles in making laws."
Article 47
"47. Duty of the State to raise the level of nutrition and the
standard of living and to improve public health.--The State shall
regard the raising of the level of nutrition and the standard of
living of its people and the improvement of public health as
among its primary duties and, in particular, the State shall
endeavour to bring about prohibition of the consumption except
for medicinal purposes of intoxicating drinks and of drugs which
are injurious to health."
The Penumbral Rights:
43. Recently we have an occasion to examine the constitutional
W.A.No.1823 of 2016 24
gamut of penumbral rights. We have observed that a constitution of
any republic, however steeped in antiquity, is not the tyrannical
command of the dead past. It is a live instrument--organic. It is a
collection of ideas and ideals for all times, deliberately designed to
be amorphous and malleable, capable of adopting itself to suit the
crisis it is called upon to address and redress. Thus the adept hand
of the nation's polity adopts it to changing circumstances. We have,
as a truism, acknowledged that the society is complex, diverse, and
changing, so shall its response be to the issues these changes bring
in. What is not a right today may be a penumbral or peripheral right
tomorrow, and it may further get elevated to be an entrenched
central right the next day.
44. So, with strong winds of individual dignity, personal
integrity, and inviolability, privacy may no longer be confined to the
constitutional crevices: it is real and regnant as a right. Its time has
come, perhaps. But can it bulldoze all other constitutional canons if
at all any of those rights, perceivably, conflicts with the right to
privacy? So, to answer it, we need to examine the interplay between
W.A.No.1823 of 2016 25
the Fundamental Rights and the Directive Principles of State Policy.
The Interplay between Article 21 and Article 47:
45. It brooks no contradiction that Article 21 is pregnant with
meaning and, therefore, exponentially expansive in its scope and
content. The constitutional courts have time and time declared that
the provision is the cornerstone of our constitutional edifice. Its
reach extends far beyond the limits the provision is semantically or
syntactically permitted to travel. Almost all other fundamental rights
get vitalized by and imbued with the spirit of this provision. The
provision mocks at interpretational limitations. Nor does it leave any
room for controversy as to its sweep: the provision is never static; as
the society matures and progresses, rights not thought of earlier also
get consecrated as core constitutional rights.
46. Article 37 contextualises the principles which otherwise
remain mere pious wishes: constitutional morals or righteous
exhortations. The provision declares that the principles propagated in
Chapter IV of the Constitution are fundamental in the country's
governance; the State has a positive duty to apply these principles in
W.A.No.1823 of 2016 26
making laws. If Fundamental Rights are the Citizen's Charter;
Directive Principles are Legislative's Charter. In other words, if the
Fundamental Rights are individual-centric, the Directive Principles are
society-centric. It is very rare, if ever, that one can successfully
maintain a claim--as the appellant attempted here--that the directive
principles come in a person's way his enjoying his fundamental
rights.
47. Article 47 ordains the Legislature to regard as its primary
duty raising the people's living standards, nutrition and public health
inclusive. So stating in general, the provision particularises one
solemn obligation: the State will endeavour to prohibit the
consumption--except for medicinal purposes--of intoxicating drinks
and of drugs which are injurious to health.
48. Nutrition and public health are two of the numerous facets
of better living standards. To achieve this objective, the State may
adopt myriad methods. But the constitution pins the State to one
particular method, besides all others. Prohibit the consumption of
intoxicating drinks and also drugs which are harmful to health.
W.A.No.1823 of 2016 27
Categoric is the constitutional mandate that the endeavour is
towards prohibiting consumption of intoxicating drinks. Regulating or
proscribing the manufacture and sale of liquor are intermediary
steps, collateral or contributory, to achieve the main objective:
prohibiting the consumption.
49. Of the two evils, intoxicating drinks, as a whole, face the
axe, while only those drugs harmful to health get outlawed, for
`drugs' is employed generically and followed asyndetically with the
relative qualifier `harmful to health.' The Constitution, therefore,
presumes that any drink intoxicating is harmful. In other words,
`intoxicating drinks' does not get qualified by `harmful to health.' The
canon of construction, we suppose, applicable is that of the last
antecedent.
50. The Rule of the Last Antecedent, as per the Black's Law
Dictionary, is an interpretative principle by which a court determines
that qualifying words or phrases modify the words or phrases
immediately preceding them and not words or phrases more remote,
unless the extension is necessary from the context or the spirit of the
W.A.No.1823 of 2016 28
entire writing. The lexicon exemplifies the canon: in the phrase
"Texas courts, New Mexico courts, and New York courts in the
federal system," the words "in the federal system" might be held to
modify only New York courts and not Texas courts or New Mexico
courts. This canon is variably termed "the doctrine of the last
antecedent"; "the doctrine of the last preceding antecedent."
51. As with any canon of statutory interpretation, the rule of
the last antecedent, of course, "is not an absolute and can assuredly
be overcome by other indicia of meaning. Further, it is a
fundamental canon of statutory construction that the words of a
statute must be read in their context and with a view to their place in
the overall statutory scheme14. True that the last-antecedent rule
"can assuredly be overcome by other indicia of meaning," but none
is present here.
The Interplay of, or Contradiction Between, Fundamental
Rights and Directive Principles:
52. Since the days of constitutional infancy, attempts have
been made to project that the Fundamental Rights and Directive
14 For an erudite exposition of two competing canons--the canons of last antecedent and of series
qualifier--see LOCKHART v.UNITED STATES (US Supreme Court, 3 November 2016)
W.A.No.1823 of 2016 29
Principles, on occasions, take a collision course and that they could
be mutually exclusive, if not destructive. The constitutional courts
have, however, steered clear of this avoidable course. In State of
Madras v. Smt. Champakam Dorairajan15, the Supreme Court has
declared that the Directive Principles of State Policy must conform
and run subsidiary to the Fundamental Rights. Quoting
Champakam Dorarajan with approval, Mohd. Hanif Quareshi v. State
of Bihar16 has held that the directive principles are fundamental in
the governance of the country; they cannot, however, over-ride the
fundamental rights. It has, in fact, advocated a harmonious
interpretation: the State should certainly implement the directive
principles, but it must do so in such a way that its laws do not take
away or abridge the fundamental rights.
53. Another Constitution Bench of the Supreme Court in
Minerva Mills Ltd. vs. Union of India17, has reiterated that the goals
set out in Part IV must be achieved without abrogating the means
provided for by Part III. Both parts forming the constitutional core,
15 AIR 1951 SC 226, 228 (S R Das, J, as his Lordship then was)
16 AIR 1958 SC 731 (para 17) (S R Das, CJ)
17 (1980) 3 SCC 625, 654 (Y.V. Chandrachud, CJ)
W.A.No.1823 of 2016 30
the Apex Court has cautioned that anything that destroys the balance
between the two will ipso facto destroy an essential element of the
basic structure of our Constitution.
Fundamental Rights - Directive Principles: Ambivalent
Approach
54. M. P. Jani in Indian Constitutional Law18 examines the
inter-relationship between Chapters III and IV. The learned author
observes that the question of the relationship between the Directive
Principle and the Fundamental Rights has caused some difficulty, and
the judicial attitude has undergone transformation on this question
over time. The judicial view has veered round from irreconcilability to
integration between the Fundamental Rights and Directive Principles
and, in some of the more recent cases, to giving primacy to the
Directive Principles.
55. Initially, the Courts adopted a strict and literal legal position
in this respect. The Supreme Court adopting the literal interpretative
approach to Art. 37 ruled that a Directive Principle could not override
a Fundamental Right, and, that in case of conflict between the two,
18 1411-12, LexisNexis, 7th Ed.
W.A.No.1823 of 2016 31
the Fundamental Right would prevail over the Directive Principle. In
course of time, a perceptible change came over the judicial attitude
on this question. The Supreme Court came to adopt the view that
although Directive Principles, as such, were legally non-enforceable,
nevertheless, while interpreting a statute, the Courts could look for
light to the `'lodestar'' of the Directive Principles.
56. Without making the Directive Principles justiciable as such,
the Courts began to implement the values underlying these principles
to the extent possible. The Supreme Court to assert that there is "no
conflict on the whole'' between the Fundamental Rights and the
Directive Principles. "They are complementary and supplementary to
each other." In fact, the judicial attitude has become more positive
and more affirmative towards Directive Principles: both Fundamental
Rights and Directive Principles have come to be regarded as coequal.
57. In Ashoka Kumar Thakur v. Union of India19, the Supreme
Court has said that no distinction can be made between the two sets
of rights. The Fundamental Rights represent the civil and political
19 (2008) 6 SCC 1, 515 (Balakrishnan, C.J.)
W.A.No.1823 of 2016 32
rights, and the Directive Principles embody social and economic
rights. Merely because the directive principles are non-justiciable by
the judicial process does not mean that they are of subordinate
importance.
58. The message ofKesavananda Bharati20 is clear. The
interest of a citizen or section of a community, howsoever important,
is secondary to the interest of the country or community as a whole.
For judging the reasonability of restrictions imposed on fundamental
rights the relevant considerations, according to State of Gujarat v.
Mirzapur Moti Kureshi Kassab Jamat21, are not only those as stated
in Article 19 itself or in Part III of the Constitution: the directive
principles stated in Part IV are also relevant. Changing factual
conditions and State policy, including the one reflected in the
impugned enactment, have to be considered and given weightage to
by the courts while deciding the constitutional validity of legislative
enactments. A restriction placed on any fundamental right, aimed at
securing directive principles will be held as reasonable and
henceintra vires subject to two limitations: first, that it does not run
20 (1973) 4 SCC 225
21 (2005) 8 SCC 534, 564
W.A.No.1823 of 2016 33
in clear conflict with the fundamental right, and second, that it has
been enacted within the legislative competence of the enacting
legislature under Part XI Chapter I of the Constitution.
59. From the above discussion, we may safely hold that the
precedential proclivity is towards according the Directive Principles a
pride of place. If conflict is inevitable, the common good takes the
lead and subordinates the individual's inclinations, unless the
fundamental right affected is nothing short of quintessence of the
individual's being, his existence.
Right to Privacy - a Precedential Perspective:
Precedential Position:
60. The learned counsel for the appellant has cited a plethora
of precedents. Though most may not be relevant, we must,
nevertheless, examine a few decisions which deal with Article 21:
61. In Kharak Singh v. State of UP22 the question was about
surveillance of a suspect and its impact on right to freedom of
movement, as a facet of right to life. On a six-Judge Bench, Subba
Rao J (as his Lordship then was) poignantly observes that if physical
22 AIR 1963 SC 1295
W.A.No.1823 of 2016 34
restraints on a person's movements affect his personal liberty,
physical encroachments on his private life would affect it in a larger
degree. Indeed, nothing is more deleterious to a man's physical
happiness and health than a calculated interference with his privacy.
This interference with a citizen's privacy infringes his right to life
under Article 21 of the Constitution.
62. In Gobind v. State of MP23 a three-judge Bench of the
Supreme Court, in the context of Madhya Pradesh Police Regulations,
has held that provisions relating to domiciliary visits and surveillance
have force of law. Mathew J, speaking for the Bench, approves of the
observations made by Charles Warren and Louis D. Brandeis in
their article, "The Right to Privacy"24: the right to be let alone was an
interest that man should be able to assert directly and not
derivatively from his efforts to protect other interests. This assertion
emanates from the idea of a "private space in which man may
become and remain 'himself'"
63. Gobind, in fact, cautions against too broad a definition of
privacy for it raises serious questions about the propriety of judicial
23 (1975) 2 SCC 148
24 4 Harvard Law Rev. 193
W.A.No.1823 of 2016 35
reliance on a right that is not explicit in the Constitution. It, then,
holds that rights and freedoms of citizens are set forth in the
Constitution in order to guarantee that the individual, his personality,
and those things stamped with his personality shall be free from
official interference unless a reasonable basis for intrusion exists.
64. Definitional freedom, we reckon, does not readily translate
into decisional freedom. Semantics may support but will not invent
an intended meaning. In the end, Gobind aptly acknowledges this
dilemma. It quotes Ely25, who says nothing prevents one from using
the word 'privacy' to mean the freedom to live 'one's life without
governmental interference. But the Court in Gobind obviously does
not so use the term. Nor could it, for such a right always is at stake.
65. In Francis Coralie Mullin v. Administrator, Union Territory of
Delhi26, the matter concerns the detenu's right to meet his legal
adviser and the members of his family. The Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 permits
only one meeting in a month. This restriction was held to be
unreasonable and, so, violative of the constitutional provisions under
25 "The Wages of Crying Wolf : AComment on Roe v. Wade, 82 Yale L.J. 920, 932.
26 1981 (1) SCC 608
W.A.No.1823 of 2016 36
Article 14 and 21 of the Constitution of India. Speaking for a Bench
of Two Judges, P.N. Bhagawati, J (as his Lordship then was) has
held that the fundamental right to life, which is the most precious
human right and which form the arck of all other rights must be
interpreted in a broad and expansive spirit so as to invest it with
significance and vitality which may endure for years to come and
enhance the dignity of an individual and the worth of the human
person.
66. R. Rajagopal v. State of Tamil Nadu27 concerns the freedom
of Press and what could be reasonable restrictions on that freedom.
The Supreme Court acknowledges that the right to privacy is not an
enumerated fundamental right, but has been inferred from Article
21. It has further held that once a matter becomes a matter of public
record, the right to privacy no longer subsists; it becomes a
legitimate subject for comment by press and media. The Court in the
interest of decency carves out an exception: A woman who is the
victim of sexual assault should not be further subjected to indignity
of her name in the name of right to information by publishing her
27 1994(6) SCC 632
W.A.No.1823 of 2016 37
name and the incident.
67. In Peoples Union For Civil Liberties v. Union of India28, the
matter concerns telephone tapping. The Supreme Court has held
that a telephone conversation in the privacy of one's home or office
is an important facet of a man's private life, unless it is permitted
under the procedure established by law. Telephone tapping invades
a person's right to privacy, as is inferable from Article 21 of the
Constitution of India. The Court, on facts, examined Section 5 of the
Indian Telephone Act, 1885 to hold that the Statute prescribed no
procedure for the authorities to tap private telephones.
68. In Hema Mishra v. State of Uttar Pradesh29 the Supreme
Court has interpreted Section 438 of the Cr.PC. The newly added
Section 41A of the Code makes it compulsory for the police to issue a
notice to an accused where arrest does not have to be made under
clause (b) of sub-Section (1) of the amended Section 41 of Cr.P.C.
The Court has observed that the object of the anticipatory bail and
the connected procedural mechanism is to relieve a person from
being disgraced by trumped up charges, so that his liberty is not put
28 (1997) 1 SCC 301
29 (2014) 4 SC 453
W.A.No.1823 of 2016 38
in jeopardy on frivolous grounds at the instance of the unscrupulous
or irresponsible persons, who may be in charge of the prosecution,
for an order of anticipatory bail does not in any way, directly or
indirectly, take away from the police their right to investigate into the
charges made or to be made against the person released on bail.
69. In Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Jamat,30
the facts are that the Municipal Corporation ordered closure of
municipal slaughter houses for a few days during festival. The
disclosure was assailed as an unreasonable restriction under Articles
19(1)(g) and 19(6) of the Constitution of India. The Supreme Court
has held that while considering what could be reasonable restrictions
on the right to freedom of trade and occupation, the Court should
consider not only the facets of restriction, such as the duration and
the extend, but also the circumstances and how the imposition has
been authorised. In para 26 of the judgment, the Apex Court has
acknowledged the fact that many people in Allahabad are non-
vegetarian and they cannot be compelled to become vegetarian for a
long period. In that context, it has further observed that what one
30 AIR 2008 SC 1892
W.A.No.1823 of 2016 39
eats is one's personal affair and it is a part of his right to privacy
included in Article 21 of our Constitution.
70. In Peerless General Finance and Investment Company Ltd.
v. Reserve Bank of India31 the case concerns the residuary non-
banking companies receiving and investing deposits and the manner
of their disclosure in the Books of Accounts. The Supreme Court has
elaborated on how to determine the reasonableness of restrictions
under Article 19(6) of the Constitution of India. It has held that the
subordinate legislation, if validly made, becomes part of the statute
and has the same statutory force and effect. The Court has gone on
to observe that wherever statute is challenged as violative of the
fundamental rights, its real effect or operation on the fundamental
rights is of primary importance. It is the duty of the Court to be
watchful to protect the constitutional rights of a citizen as against
any encroachment gradually or stealthily thereon.
71. Peerless observes that when a law has imposed restrictions
on the fundamental rights, what the Court must examine is the
substance of the legislature without being beguiled by the mere
31 (1992) 2 SCC 343
W.A.No.1823 of 2016 40
appearance of the legislation: the legislature cannot disobey the
constitutional mandate by employing an indirect method. It is,
however, pertinent to observe that this further observation is
resonant that the Court cannot question the wisdom, the need, or
desirability of a regulation. The State can regulate the exercise of the
fundamental right to save the public from a substantive evil.
72. The existence of the evil as well as the means adopted to
check it are the matters for the legislative judgment. But the Court
may consider whether the degree and mode of the regulation is over
the requirement or is imposed in an arbitrary manner. The Court
must lift the veil of the form and appearance to discover the true
character and nature of the legislation, and every endeavour should
be made to have the efficacy of fundamental right maintained. So
the legislature is not invested with unbounded power. Touching on
Article 21, the Court has held that it guarantees the minimum of the
needs of existence including a better tomorrow--perhaps, not a
bibulous one.
73. In all the above decisions relied on by the learned counsel
W.A.No.1823 of 2016 41
for the appellant, we find no proposition that right to privacy is
unfettered and that it brooks no restrictions--even reasonable ones,
at that. We regret that none lays down that privacy, an individual
right, prevails over the social welfare, a collective right.
Does Total Prohibition Offend the Citizen's Fundamental
Right under Article 21?
74. In Khoday Distilleries Ltd. vs. State of
Karnataka,32 another Constitution Bench observes that when the
State neither prohibits nor monopolises the liquor business, it
cannot discriminate among the citizens while granting licences to
them to carry on the business.But emphatic is the assertion that
that equal right cannot be elevated to the status of a fundamental
right. In para 60 of the judgment, the Court has further declared
unambiguously that if the "State decides to impose total prohibition
in terms of Article 47, then, no citizen can make a grievance, for, it
would be a reasonable restriction."
75. In Krishan Kumar Narula v. State of Jammu & Kashmir33,
the Apex Court has dispelled the myth that dealing in liquor would
32 (1995) 1 SCC 574, 607, 608 (P. B. Sawant, J)
33 AIR 1967 SC 1368
W.A.No.1823 of 2016 42
not amount to business; and, therefore, it would not be a
fundamental right under Article 19(1) of the Constitution. The
Constitution Bench, speaking through Subba Rao K, CJ., has held
that unless dealing in liquor is not trade or business, a citizen has a
fundamental right to deal in that commodity. His Lordship has
observed that "standards of morality can afford a guidance to impose
restrictions, but cannot limit the scope of the right. So too, a
legislature can impose restrictions on, or even prohibit the carrying
on of a particular trade or business."
76. In Indian Handicrafts Emporium v. Union of India34 the
Hon'ble Supreme Court, while dealing with the case of a total
prohibition, reiterated that "regulation" includes "prohibition" and in
order to determine whether total prohibition would be reasonable,
the Court has to balance the direct impact on the fundamental right
of the citizens as against the greater public or social interest sought
to be ensured. Implementation of the directive principles in Part IV
is within the expression of "restriction in the interests of the general
public".
34 (2003) 7 SCC 589, as quoted in MMKK Jamat (supra)
W.A.No.1823 of 2016 43
77. In Confederation of Indian Alcoholic Beverage Companies
v. State of Bihar35, the High Court of Patna was called upon to
answer, among others, the question whether the right to consume
alcohol is a fundamental right, and whether any infringement or
intrusion into that putative right, with legislation or otherwise, would
violate a citizen's right to privacy--a constitutionally guaranteed
right. In a judgment of much labour and learning, the two learned
judges differed. As it allowed the writ petitions on other issues, this
decisional cleavage remained in the academic realms.
78. Navaniti Prasad Singh J, who authored the lead judgment
took a view that with "expanding interpretation of the right to
privacy, as contained in Article 21 of the Constitution, a citizen has a
right to choose how he lives, so long as he is not a nuisance to the
society. State cannot dictate what he will eat and what he will drink."
His Lordship has felt that we have to "view this concept in changing
times, where international barriers are vanishing."
79. On the other hand, Iqbal Ahmed Ansari, C.J., has taken a
contrary view: when the Constitution obliges the State to make
35 2016(4) PLJR 369
W.A.No.1823 of 2016 44
endeavour to bring complete prohibition regarding consumption of
intoxicating drink, consumption of intoxicating drink cannot be
treated as a fundamental right.
80. As has been contended by Anoop, the appellant, Article 21
may have received, and still has been receiving, a liberal, progressive
treatment in the hands of constitutional courts. Its content is
capacious, and its scope enormous. But a right, however entrenched
it is, is never unrestrained, much less unregulated. As with all other
rights, right to privacy--if right to take intoxicating drinks were one--
always subject to reasonable restrictions. More compelling is this
conclusion not only because of Clause (6) of Article 19 but also
because of the sweep of Article 47 of the Constitution. The judicial
dictum is emphatic in Indian Handicrafts Emporium, Krishan
Kumar Narula and Khoday Distilleries Ltd. (supra).
81. 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
W.A.No.1823 of 2016 45
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"
Result:
We, therefore, hold that the writ appeal should fail, and it
failed. The appeal is dismissed. No order on costs.
P.R.RAMACHANDRA MENON,
Judge.
DAMA SESHADRI NAIDU,
Judge.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
THURSDAY, THE 12TH DAY OF JANUARY 2017/22ND POUSHA, 1938
WA.No. 1823 of 2016 () IN WP(C).33709/2015
-------------------------------------------
AGAINST THE ORDER/JUDGMENT IN WP(C) 33709/2015 of HIGH COURT OF KERALA
DATED 06-08-2016
APPELLANT(S)/PETITIONER IN THE WRIT PETITION:
----------------------------------------------------------
ANOOP.M.S
MANELIL HOUSE, VALAYANCHIRANGARA PO, PERUMBAVOOR.
BY ADVS.SRI.S.VINOD BHAT
SRI.LEGITH T.KOTTAKKAL
RESPONDENT(S)/RESPONDENTS IN THE WRIT PETITION:
-----------------------------------------------
1. STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY,
DEPARTMENT OF TAXES, SECRETARIAT,
THIRUVANANTHPAURAM 695 001.
2. KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING)
CORPORATION LTD., P.B.NO.2263, SASTHAKRIPA OFFICE COMPLEX,
SASTHAMANGLAM, THIRUVANANTHPAURAM 695 010,
REPRESENTED BY ITS MANAGING DIRECTOR.
3. KERALA STATE CO-OPERATIVE CONSUMERS
FEDERATION LTD, GANDHINAGAR, ERNAKULAM, KOCHI 20,
REPRESENTED BY ITS MANAGING DIRECTOR
R BY SRI. BIJOY CHANDRAN, GOVERNMENT PLEADER
R BY SRI.NAVEEN.T
R BY SRI.M.SASINDRAN, SC, CONSUMERFED
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29.09.2016,
THE COURT ON 12.01.2017 DELIVERED THE FOLLOWING:
P.R.RAMACHANDRA MENON &
DAMA SESHADRI NAIDU, JJ.
-------------------------------------------
Writ Appeal No.1823 of 2016
--------------------------------------------
Dated this the 12thday of January, 2017
JUDGMENT
Dama Seshadri Naidu, J.
Introduction:
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.
Facts:
2. Anoop M.S., the appellant, has a profession: he taps rubber
trees and extracts latex. He taps about 400 trees a day. For this he
works from 6 in the morning till 2 in the afternoon. Anoop has a
habit: given what he calls it to be his"hectic work schedule",he finds
his solace in "consuming small quantities" of liquor purchased from
W.A.No.1823 of 2016 2
the retail outlets of Kerala State Beverages Corporation (KSBC) and
Kerala State Co-operative Federation; that is, the second and third
respondents. Liquor is his "daily diet." This daily diet makes Anoop
"rejuvenated,relaxed," and even "physically fit,"as if it were the elixir
of his life. Anoop is KSBC's loyal consumer, so to say.
Grievance:
3. Before 2014-15, when the Government introduced a new
Abkari Policy ("the New Policy"), Anoop took his daily diet from the
"bar hotels". Because of the New Policy, now he could not have
access to bar-hotels but is constrained to buy liquor from the
Government outlets. It costs him more!
4. According to the Policy, the Government has decided to shut
down the retail outlets in a phased manner--10% of retail outlets to
be closed annually as per Clause 2 of the Policy. Clause 2, Anoop
accuses, was introduced with no "specific or scientific study." Though
the consumption of liquor is not prohibited in Kerala, the Policy
indirectly prohibits the consumption. The State cannot prohibit a
lawful thing "by introducing a policy." It ought to be effected only by
W.A.No.1823 of 2016 3
a positive legislative enactment. The Policy is bad in law.
5. The Government has monopolized the liquor trade. The
State is "enriched by the sale of liquor." Though KSBC levies
exorbitant taxes and duties on liquor, it provides no quality services
to the customers. The retail outlets closed in a phased-manner, the
remaining outlets struggle to cater to the customers. The queue
lengthening, the consumers must spend over two hours "in
unhealthy and unworthy circumstances" to purchase liquor. The
policy, in fact, is against the KSBC's objectives.
6. Anoop sanctifies liquor: alcohol has "historical and religious
importance" in Kerala. It is used in some temples and rituals of
Hindu Community, so closing outlets will affect the religious
sentiments of the Hindus who follow "Puliyampulli'', a ritual observed
among some sects within the Hindu community in Kerala to worship
Goddesses Shakhty. Remediless, Anoop has filed W.P. No.33709 of
2015 to have the New Policy quashed.
Writ Outcome:
7. Through a judgment, dated 6th August 2016, this Court, per a
W.A.No.1823 of 2016 4
learned Single Judge, dismissed the writ petition: The courts, up to
the apex level, have upheld the policy; so, the policy needs no
interference.
Appeal:
8. Resolute and resilient, Anoop, the rubber-tree tapper, has
filed this Writ Appeal, reiterating the same contentions that earned
rejection earlier.
Submissions:
Appellant's:
9. Sri Legith T. Kottakkal, the learned counsel for the appellant,
has passionately argued that the Government has misused its
dominant position by introducing the policy, though it has no
authority to prohibit a lawful activity, and indirectly at that. According
to him, Abkari Act ("the Act") has no provision to empower the
Government to prohibit liquor. The liquor prohibition, even in a
phased manner, is outside the purview of Abkari Act.
10. State cannot dictate to the individuals what they should eat
and what they should drink, the counsel contends. Reasonable
W.A.No.1823 of 2016 5
restrictions can only be imposed but only by a statute. The New
Policy does not restrict the liquor sale; on the contrary, it prohibits
the liquor. It militates against Article 21 of the Constitution of India.
Clause 2 of the Policy, according to the learned counsel, is irrational
and has no nexus to the objectives sought to be achieved. Clause 2
of the Policy is ultra vires because it offends the distribution of
Legislative Power under Constitution of India and Act 65 of 1951.
11. The learned counsel contends that consumption is a
personal choice, a facet of right to privacy and right to be let alone,
as has been enshrined under the Articles 21 and 19(1)(a) of
Constitution of India. To support his contention, Anoop relies on
Hinsa Virodhak Sangh Vs. Mirzapur Mou Kuresh Jamat1
12. Given the change of Government, the Hon'ble Governor in
his speech under Art.176 on the floor of the Assembly has observed
that the New Policy has "not yielded the desired positive impact."
(para 214 of the Address). Mr. Legith also submitted that, on
30.06.2016, the Government on the floor of the Assembly that the
New Policy is a failure; the policy resulted in the rampant abuse of
1 AIR 2008 SC 1892
W.A.No.1823 of 2016 6
drugs and ganja in the society. Even after admitting that the policy
has failed, the Government, complains, Anoop, is not rolling it back--
officially.
13. Faced with numerous precedents on the same issue,
though concerning liquor trade, Sri Legith asserts that the issue of
right to choose or of privacy is sub silentio in those cases. Sri Legith,
during his submissions, has cited a plethora of precedents, apart
from relying on some international covenants. They will be referred
to by and by if the need arises. Eventually, the learned counsel urges
the Court to quash the New Policy.
The Respondents':
14. The learned Government Pleader, on the other hand, has
submitted that the petitioner has brought a frivolous cause before
the Court; he has no other intention than hogging the limelight by
wasting precious judicial time. According to him, already many
rounds of challenge were laid against the New Policy but were all
successfully repelled, up to the level of the Supreme Court. So the
writ petition, as rightly dismissed, is hit by constructive res judicata,
W.A.No.1823 of 2016 7
asserts the learned Government Pleader.
Issue:
15. A self-proclaimed hardworking individual takes liquor on a
daily-basis and claims that he thus finds his relaxation. The
Government, in 2015, introduced a New Liquor Policy to usher in
prohibition in a phased manner, though. It has decided to close the
liquor retail outlets, a State's monopoly, at 10% annually. Does the
New Policy infringe on the petitioner's right to choose, right to
privacy, or right to life?
Discussion:
Setting the Tone:
16. "Our rulers will best promote the improvement of the
people by strictly confining themselves to their own legitimate duties
--by leaving capital to find its most lucrative course, commodities
their fair price, industry and intelligence their natural reward,
idleness and folly their natural punishment--by maintaining peace,
by defending property, by diminishing the price of law and by
observing strict economy in every department of the State. Let the
W.A.No.1823 of 2016 8
Government do this: The people will assuredly do the rest," hoped
Thomas Babington Macaulay.2 Macaulay visualised a utopian state, a
state of laissez-faire, too. But governance is much more.
17. Governance, according to the United Nations3, is the
exercise of political, economic, and administrative authority to
manage a nation's affairs. It involves complex mechanisms,
processes, relationships, and institutions through which citizens and
groups articulate their interests, exercise their rights and obligations,
and mediate their differences. Governance encompasses every
institution and every organization in the society, from the family to
the State; it embraces all methods--good and bad--that societies
use to distribute power and manage public resources and
problems. Good governance, a subset of governance, manages the
public resources effectively, efficiently to cater to critical needs of
society. True, effective democratic forms of governance rely on
public participation, accountability, and transparency.
18. Article 37 in Part IV on Directive Principles of State Policy
2 (Selections from the Edinburgh Review, 1835, Vol.III, 134)
3 Engendering Economic Governance, United Nations Fund For Women (UNIFEM),
http://www1.aucegypt.edu/src/engendering/good_governance.html
W.A.No.1823 of 2016 9
uses the expression `governance of the country.' But good
governance is writ large and implicit in several provisions of the
Constitution, argues Madhav Godbole, a former civil servant
espousing the cause of administrative reforms. Incidentally, it pays
to note that Madhav Godbole and another former civil servant filed
W.P. (Civil) No.69 of 2004 (PIL) seeking the Supreme Court to
declare a citizen's right to good governance a fundamental right. The
Apex Court, while dismissing the writ petition, observed thus: if there
was a specific case of grievance, the court could consider it, but it
could not rewrite the Constitution or run the administration. To grant
the relief sought, the Court must look into every aspect of
governance. It is impermissible4.
19. There may be jurisprudential justification for viewing the
constitutional commands and statutory stipulations through a moral
prism. But there is little legal justification for conflating morals with
legislation and pontificating the adjudicatory process. Morality may
inspire law and may even result in legislation, but morality by itself is
not law. But the metamorphosis is always from morality to law; that
4 Good Governance, A Distant Dream by Madhav Godbole, EPW, Vol. 39, Issue No. 11, 13 Mar, 2004
W.A.No.1823 of 2016 10
is, rights.
Constitutionally entrenched rights and penumbral rights
20. An inherent dignity of an individual and the inviolable
integrity of his or her personality give rise to the notion that certain
human rights are immutable and not negotiable. The multi-
dimensional morality of human rights transcends the enumerated
fundamental rights; it imperceptibly, inexorably chips away at the
legislative limits of the rights. It sends from its ranks the rights,
initially hazy and nebulous, to stand by the peripherals of the
enumerated rights--to the status of penumbral rights. With the
judicial winds in their sails, they slowly travel towards the core of the
constitutional rights, as we call them `fundamental rights', one day.
The New Policy:
21. The Abkari Act, 1077 was introduced, as noted in Kerala
Bar Hotels Association v State of Kerala5, in the erstwhile State of
Cochin in 1902 and, in 1967, came to be extended throughout the
State of Kerala. The Foreign Liquor Rules were promulgated under
Sections 10 and 24 to 29 of the Abkari Act; they deal with the sale of
5 AIR 2016 SC 163
W.A.No.1823 of 2016 11
Indian Made Foreign Liquor (IMFL). As a matter of policy, the State
has the monopoly. Earlier, the State of Kerala made a "futile foray
into prohibition", but this was withdrawn in 1967.
22. With the State of Kerala accounting for almost 14% of the
national consumption of alcohol, the Executive had felt the liquor
consumption in the state a social malaise. So it formulated a policy to
prohibit liquor in the State in a phased manner. Though since 2010
the policy initiative had been around, on 22.08.2015, the State
issued its New Policy guidelines (Ext.P1), which read as under6:
The Government being convinced the fact that in order to achieve
the goal of "Liquor-Free Kerala", strict and urgent measures are to
be adopted, the Abkari Policy 2014-15 is hereby declared subject to
the following criteria.
1. Hereinafter Bar licenses will be issued only to 5 star hotels. The
licenses of existing bar hotels which are functioning on the basis of
provisional renewal of licenses except the licenses of 5 star hotels
will be cancelled. The Government has decided not to renew the
licenses of 418 nonstandard bar hotels mentioned in the Judgment
of the Supreme Court.
2. 10% of outlets out of 338 FL-1 outlets of Kerala State Beverages
Corporation and 46 outlets of Consumer Fed will be closed each
year from 2nd October, 2014 onwards.
3. The sale of high strength alcoholic liquor through Beverages
6 As quoted in Kerala Bar Hotels Assosn. (supra)
W.A.No.1823 of 2016 12
Corporation will be gradually reduced.
4. In order to rehabilitate the employees who lose their job due to
the closing of bar and to rehabilitate the persons who are
alcoholically addicted a special plan namely "Punarjani 2030" will be
commenced. For that purpose, 5% Cess will be imposed on the
liquor which selling through the K.S.B.C.
5. The Liquor-Free propaganda program will be strengthened in the
society at large and especially in educational institutions.
6. All Sundays will be declared as dry-day. This will implement from
the Sunday of 5th October, 2014.
7. The traditional toddy tapping business will be protected and job
security will be ensured for toddy tappers.
8. In order to rehabilitate the employees of closing bars and
employees engaged in the job of affixing stickers, measures will be
adopted. Kerala Alcohol Education Research, Rehabilitation &
Compensation Fund (KAERCF) Fund will be formed in order to
protect the retrenched employees. The said fund will be utilised for
the following purposes such as making propaganda against drinking
of alcohol, for collection of data regarding this matter, to protect
those who destroyed themselves by alcohol consumption,
rehabilitation of the persons who lost job. The fund for this purpose
will also be found out from public.
9. To implement the order urgently, the Excise Commissioner,
K.S.B.C. Managing Director have to take measures to submit the
recommendations urgently to the Government.
23. Clause 2 of the New Policy is the bone of contention.
Anoop apprehends that its implementation will throw the State into
chaos and anarchy, for fewer and fewer shops by the year lead to
congestion and clamour for more.
W.A.No.1823 of 2016 13
The Liquor Spectre in the State:
24. In Kerala, the land of coconuts as the name very suggests,
neera and toddy have held their place, first, culturally; later,
economically. The nature of social consumption of alcohol in the 19th
century reflected the societal pattern: there was none of the social
stigma attached to alcohol consumption. But 20th century saw
change. Varun Panickar in his article "State-Sponsored Alcoholism in
Kerala"7 has profiled the problem graphically. Here we draw from his
research.
25. The change in societal response to liquor has led to two
distinct trends: the increasing incursion of the Excise Department
into the toddy trade; and the growth of social reform and
temperance campaigns. New taxation policies caused the illicit trade
of alcohol to flourish in rural areas. In the decade from 1915 to
1925, the levels of licit sale of toddy fell to record levels with illicit
sales rising by 25%. The rise of social mores connected with alcohol
abuse resulted in the conception of social reform movements. The
most prominent among these movements was the one started in
7 EPW, Vol. 50, Issue No. 23, 06 Jun, 2015
W.A.No.1823 of 2016 14
southern Kerala by Narayana Guru.
26. The proliferation of arrack shops in Kerala well up to the
early 1980s had given rise to sale of spurious alcohol causing serious
public health concerns. On the recommendation of a judicial inquiry
commission, set up to recommend a mechanism against spurious
alcohol, the Government in 1984 set up Kerala State Beverages
Corporation (KSBC). It has to procure spirit, blend, bottle, and
distribute Indian made foreign liquor (IMFL). KSBC ran 337 liquor
shops across the state till 2010.
27. The availability of liquor at prices much lower than those
offered in other states is said to have induced a drinking culture in
Kerala which has had telling consequences on social behaviour and
institutions. By 2013, Kerala had emerged as the State with the
highest alcohol consumption rate per person: 8.3 litres. It accounted
for 16% of the total national alcohol sales.
28. The 1980s signalled the revival of the Kerala economy by
way of tourism and the KSBC. The most recent estimates place the
share of KSBC close to one-fifth of the state revenues. Between 2006
W.A.No.1823 of 2016 15
and 2010 the revenue from the KSBC showed a phenomenal 100%
rise, year after year.
29. The most prominent outcomes of the intense alcohol
consumption practices in Kerala, it is believed, have been the rise of
mental illnesses, declining economic productivity, and the rise in
divorce rates. In 2011 the State recorded the second highest suicide
rate in the country. A survey conducted in 2010 put alcohol abuse as
the cause for 80% of divorces in the State. In the period 2008 to
2009 nearly 4000 deaths were caused by road accidents where at
least one of the parties involved was driving under the influence of
alcohol.
30. The Alcohol and Drug Information Centre (ADIC) in
Thiruvananthapuram has found that nearly 57% to 69% of crimes in
Kerala were alcohol-induced. The other concern is the increased
hospitalisation of alcohol drinkers, which has hit family incomes and
employee productivity adversely. The ADIC found that nearly 19% to
27% of hospital beds in the State were occupied by patients
suffering from alcohol-related problems.
W.A.No.1823 of 2016 16
The Policy Legitimacy:
31. In Kerala Bar Hotels Assosn., the Hon'ble Supreme Court
has dealt with the issue elaborately. We need not recogitate for it
binds us. The Apex Court, among other things, observes that so far
as the trade in liquor is concerned, Article 47 of the Constitution
places a responsibility on every State Government to at least contain
if not curtail consumption of alcohol. The impugned Policy, therefore,
is to be encouraged and is certainly not to be struck down or
discouraged by the Courts. How this policy is to be implemented,
modified, adapted or restructured is the province of the State
Government and not of the Judiciary. Banning pubic consumption of
this inebriate cannot be constrained as not being connected in any
manner with the effort to control consumption of alcohol.
32. Kerala Bar Hotels Assosn., also observes that vulnerable
persons, either because of age or proclivity towards intoxication or
as a feature of peer pressure, more often than not, succumb to this
temptation. Banning public consumption of alcohol, therefore, cannot
but be seen "as a positive step towards bringing down the
W.A.No.1823 of 2016 17
consumption of alcohol, or as preparatory to prohibition."
33. As to the judicial interference into policy decisions, Kerala
Bar Hotels Assosn., observes that judicial review is justified only if
the policy is arbitrary, unfair, or violative of fundamental rights.
Courts must be loath to venture into an evaluation of State policy;
the policy must be given a reasonable time to pan out. If it proves to
be unwise, oppressive, or mindless, the electorate has been quick to
alert the Government of its folly. The Apex Court has found no
illegality or irrationality with the intention of the State to clamp down
on public consumption of alcohol.
Alcohol - The Evolutionary Essence:
34. Scientists speculate that the human ancestors' ability,
acquired millions of years ago, to break down alcohol likely helped
them make the most out of rotting, fermented fruit that fell onto the
forest floor. One may wonder how innocuously the habit started, as
usual, as part of our evolutionary mission: the survival. Alcohol is at
best an acquired taste. Pernicious as it is, some scholars have
attributed to alcohol the credit of advancing civilization, though we
W.A.No.1823 of 2016 18
cannot be sure what "civilization" they meant. The ripest fruit is the
sweetest, the most calorific; the sweetest fruit is the closest to
getting rotten, fermented. So, the tell-tale scent of fermentation was
the surest way to a food at its most calorific. That is how the journey
began. Man has gone past the calorie count; an evolutionary device
has outlived its utility; and, perhaps, reached a pernicious stage of
futility.
Utility v Futility:
35. One of Anoop's principle contentions is that the liquor trade
is the money-spinner; it generates enormous revenue. Prohibition,
according to him, affects the State's economy.
36. A welfare State is multidimensional. Apart from its regular
sovereign functions, it undertakes economic activities, too--with a
profit motive, at that. It has a corporate persona. It competes, if
necessary, like any other trader, but, of course, standing on ethical
foundations. Sometimes, given the pernicious nature of a particular
profession or trade, it may monopolize it, not that it has the sole
prerogative to distribute evil but to contain the contagion. There are,
W.A.No.1823 of 2016 19
in fact, some necessary evils the State must contend with--liquor
being a case in point. As a sovereign, State taxes and exacts
revenue. With limitless demands on its limited resources, State has
to augment: it carries on trade. Liquor is the foremost trade
undertaken, sometimes exclusively, given its pernicious nature and
its potential, too.
(a) Utilitarian's View:
37. Professor Michael J. Sandel of Harvard University in Justice,
What's The Right Thing To Do8, his popular lecture series, discusses
Bentham's utilitarianism, adding a touch of irony. He observes that
the doctrine of utilitarianism has only limited utility, under limited or
contrived circumstances.
38. Jeremy Bentham, the 19th century English moral
philosopher, who founded the doctrine of utilitarianism, scoffed at
the idea of natural rights that held sway during his time. He called it
"nonsense upon stilts." Conceptually, utilitarianism is a calculus of
pain and pleasure: the highest principle of morality is to maximize
happiness--pleasure over pain. The essence of utilitarianism is its
8 Farrar, Straus and Giroux, New York, 2010
W.A.No.1823 of 2016 20
consequentialism. It therefore looks to the future. Bentham arrives at
his principle by the following line of reasoning: We are all governed
by the feelings of pain and pleasure. They are our "sovereign
masters." They govern us in everything we do and also determine
what we ought to do. The standard of right and wrong is "fastened
to their throne." The doctrine, in fact, exerts a powerful hold on the
thinking of policy-makers, economists, business executives, and
ordinary citizens to this day.9
39. To expose the ugly underbelly of statistical application of
utilitarianism, Prof. Sandel10 cites the economic analysis undertaken
by Philip Morris, the tobacco multinational, on what it barbarously
called `the benefits of lung cancer.' The tobacco company does big
business in the Czech Republic, where cigarette smoking remains
popular and socially acceptable. Worried about the rising health-care
costs of smoking, the Czech government considered raising taxes on
cigarettes. In a hope to fend off the tax increase, Philip Morris
commissioned a cost-benefit analysis of the effects of smoking on
the Czech national budget. The study found that the government
9 Raymond Wacks's Understanding Jurisprudence, 256, 2nd Ed. Oxford.
10 Justice, What's The Right Thing To Do, ----
W.A.No.1823 of 2016 21
actually gains more money than it loses from smoking. The reason:
although smokers impose higher medical costs on the budget while
they are alive, they die early; so they save the government
considerable sums in health care, pensions, and housing for the
elderly. The cost-benefit analysis, of course, proved to be a public
relations disaster for Philip Morris. Faced with public outrage and
ridicule, Philip Morris apologized. The company acknowledged that
the study showed "a complete and unacceptable disregard of basic
human values."11
(b) Revenue is not the Last Word:
40. Prohibition is a policy prerogative; regulation, short of
prohibition, too, is Government's legitimate exercise of its power.
Left to choose between money and menace, the Government of
Kerala, earlier, announced the Abkari Policy on 17.8.2011 for the
year 2012-13. The Government, then too, viewed with serious
concern "the rising trend of alcoholism and the consequential social
issues arising in the Kerala society." It has felt the "strong feelings"
against the rampant alcoholism emanating from the civil society.
11 Ibid
W.A.No.1823 of 2016 22
Fully realising, the Government formulated a "stringent Abkari
Policy." To Government's credit, in that policy it has declared that "it
did not wish to view the liquor business as a source of revenue."
41. Given the dubious utilitarianism and given the
Government's policy resolve, the issue of revenue getting generated
by liquor should evaporate, as exposed liquor does.
Does the Executive have the power to bring about the policy
of regulating or prohibiting liquor in the State?
42. This issues stands answered, emphatically at that, on more
than one occasion by, of all, the Apex Court. Repetition serves no
purpose. In State of Kerala v. B. Six Hotels Resort Private Ltd.12,
State of Kerala v. Surendra Das13, and Kerala Bar Hotels Assosn.,
(supra), the issue has been elaborately and emphatically answered.
The Government does have the power.
Is the right to consume alcohol is a fundamental right in the
nature of `right to choose', `right to be let alone', `right to
privacy', or of all, `right to life' under Article 21 of the
Constitution?
12 2010 (5) SCC 186,
13 AIR 2014 SC 2762.
W.A.No.1823 of 2016 23
(a) Constitutional Commands:
Article 21:
Protection of life and personal liberty. - No person shall be
deprived of his life or personal liberty except according to
procedure established by law.
Article 37:
"37. Application of the principles contained in this Part.--The
provisions contained in this Part shall not be enforceable by any
court, but the principles therein laid down are nevertheless
fundamental in the governance of the country and it shall be the
duty of the State to apply these principles in making laws."
Article 47
"47. Duty of the State to raise the level of nutrition and the
standard of living and to improve public health.--The State shall
regard the raising of the level of nutrition and the standard of
living of its people and the improvement of public health as
among its primary duties and, in particular, the State shall
endeavour to bring about prohibition of the consumption except
for medicinal purposes of intoxicating drinks and of drugs which
are injurious to health."
The Penumbral Rights:
43. Recently we have an occasion to examine the constitutional
W.A.No.1823 of 2016 24
gamut of penumbral rights. We have observed that a constitution of
any republic, however steeped in antiquity, is not the tyrannical
command of the dead past. It is a live instrument--organic. It is a
collection of ideas and ideals for all times, deliberately designed to
be amorphous and malleable, capable of adopting itself to suit the
crisis it is called upon to address and redress. Thus the adept hand
of the nation's polity adopts it to changing circumstances. We have,
as a truism, acknowledged that the society is complex, diverse, and
changing, so shall its response be to the issues these changes bring
in. What is not a right today may be a penumbral or peripheral right
tomorrow, and it may further get elevated to be an entrenched
central right the next day.
44. So, with strong winds of individual dignity, personal
integrity, and inviolability, privacy may no longer be confined to the
constitutional crevices: it is real and regnant as a right. Its time has
come, perhaps. But can it bulldoze all other constitutional canons if
at all any of those rights, perceivably, conflicts with the right to
privacy? So, to answer it, we need to examine the interplay between
W.A.No.1823 of 2016 25
the Fundamental Rights and the Directive Principles of State Policy.
The Interplay between Article 21 and Article 47:
45. It brooks no contradiction that Article 21 is pregnant with
meaning and, therefore, exponentially expansive in its scope and
content. The constitutional courts have time and time declared that
the provision is the cornerstone of our constitutional edifice. Its
reach extends far beyond the limits the provision is semantically or
syntactically permitted to travel. Almost all other fundamental rights
get vitalized by and imbued with the spirit of this provision. The
provision mocks at interpretational limitations. Nor does it leave any
room for controversy as to its sweep: the provision is never static; as
the society matures and progresses, rights not thought of earlier also
get consecrated as core constitutional rights.
46. Article 37 contextualises the principles which otherwise
remain mere pious wishes: constitutional morals or righteous
exhortations. The provision declares that the principles propagated in
Chapter IV of the Constitution are fundamental in the country's
governance; the State has a positive duty to apply these principles in
W.A.No.1823 of 2016 26
making laws. If Fundamental Rights are the Citizen's Charter;
Directive Principles are Legislative's Charter. In other words, if the
Fundamental Rights are individual-centric, the Directive Principles are
society-centric. It is very rare, if ever, that one can successfully
maintain a claim--as the appellant attempted here--that the directive
principles come in a person's way his enjoying his fundamental
rights.
47. Article 47 ordains the Legislature to regard as its primary
duty raising the people's living standards, nutrition and public health
inclusive. So stating in general, the provision particularises one
solemn obligation: the State will endeavour to prohibit the
consumption--except for medicinal purposes--of intoxicating drinks
and of drugs which are injurious to health.
48. Nutrition and public health are two of the numerous facets
of better living standards. To achieve this objective, the State may
adopt myriad methods. But the constitution pins the State to one
particular method, besides all others. Prohibit the consumption of
intoxicating drinks and also drugs which are harmful to health.
W.A.No.1823 of 2016 27
Categoric is the constitutional mandate that the endeavour is
towards prohibiting consumption of intoxicating drinks. Regulating or
proscribing the manufacture and sale of liquor are intermediary
steps, collateral or contributory, to achieve the main objective:
prohibiting the consumption.
49. Of the two evils, intoxicating drinks, as a whole, face the
axe, while only those drugs harmful to health get outlawed, for
`drugs' is employed generically and followed asyndetically with the
relative qualifier `harmful to health.' The Constitution, therefore,
presumes that any drink intoxicating is harmful. In other words,
`intoxicating drinks' does not get qualified by `harmful to health.' The
canon of construction, we suppose, applicable is that of the last
antecedent.
50. The Rule of the Last Antecedent, as per the Black's Law
Dictionary, is an interpretative principle by which a court determines
that qualifying words or phrases modify the words or phrases
immediately preceding them and not words or phrases more remote,
unless the extension is necessary from the context or the spirit of the
W.A.No.1823 of 2016 28
entire writing. The lexicon exemplifies the canon: in the phrase
"Texas courts, New Mexico courts, and New York courts in the
federal system," the words "in the federal system" might be held to
modify only New York courts and not Texas courts or New Mexico
courts. This canon is variably termed "the doctrine of the last
antecedent"; "the doctrine of the last preceding antecedent."
51. As with any canon of statutory interpretation, the rule of
the last antecedent, of course, "is not an absolute and can assuredly
be overcome by other indicia of meaning. Further, it is a
fundamental canon of statutory construction that the words of a
statute must be read in their context and with a view to their place in
the overall statutory scheme14. True that the last-antecedent rule
"can assuredly be overcome by other indicia of meaning," but none
is present here.
The Interplay of, or Contradiction Between, Fundamental
Rights and Directive Principles:
52. Since the days of constitutional infancy, attempts have
been made to project that the Fundamental Rights and Directive
14 For an erudite exposition of two competing canons--the canons of last antecedent and of series
qualifier--see LOCKHART v.UNITED STATES (US Supreme Court, 3 November 2016)
W.A.No.1823 of 2016 29
Principles, on occasions, take a collision course and that they could
be mutually exclusive, if not destructive. The constitutional courts
have, however, steered clear of this avoidable course. In State of
Madras v. Smt. Champakam Dorairajan15, the Supreme Court has
declared that the Directive Principles of State Policy must conform
and run subsidiary to the Fundamental Rights. Quoting
Champakam Dorarajan with approval, Mohd. Hanif Quareshi v. State
of Bihar16 has held that the directive principles are fundamental in
the governance of the country; they cannot, however, over-ride the
fundamental rights. It has, in fact, advocated a harmonious
interpretation: the State should certainly implement the directive
principles, but it must do so in such a way that its laws do not take
away or abridge the fundamental rights.
53. Another Constitution Bench of the Supreme Court in
Minerva Mills Ltd. vs. Union of India17, has reiterated that the goals
set out in Part IV must be achieved without abrogating the means
provided for by Part III. Both parts forming the constitutional core,
15 AIR 1951 SC 226, 228 (S R Das, J, as his Lordship then was)
16 AIR 1958 SC 731 (para 17) (S R Das, CJ)
17 (1980) 3 SCC 625, 654 (Y.V. Chandrachud, CJ)
W.A.No.1823 of 2016 30
the Apex Court has cautioned that anything that destroys the balance
between the two will ipso facto destroy an essential element of the
basic structure of our Constitution.
Fundamental Rights - Directive Principles: Ambivalent
Approach
54. M. P. Jani in Indian Constitutional Law18 examines the
inter-relationship between Chapters III and IV. The learned author
observes that the question of the relationship between the Directive
Principle and the Fundamental Rights has caused some difficulty, and
the judicial attitude has undergone transformation on this question
over time. The judicial view has veered round from irreconcilability to
integration between the Fundamental Rights and Directive Principles
and, in some of the more recent cases, to giving primacy to the
Directive Principles.
55. Initially, the Courts adopted a strict and literal legal position
in this respect. The Supreme Court adopting the literal interpretative
approach to Art. 37 ruled that a Directive Principle could not override
a Fundamental Right, and, that in case of conflict between the two,
18 1411-12, LexisNexis, 7th Ed.
W.A.No.1823 of 2016 31
the Fundamental Right would prevail over the Directive Principle. In
course of time, a perceptible change came over the judicial attitude
on this question. The Supreme Court came to adopt the view that
although Directive Principles, as such, were legally non-enforceable,
nevertheless, while interpreting a statute, the Courts could look for
light to the `'lodestar'' of the Directive Principles.
56. Without making the Directive Principles justiciable as such,
the Courts began to implement the values underlying these principles
to the extent possible. The Supreme Court to assert that there is "no
conflict on the whole'' between the Fundamental Rights and the
Directive Principles. "They are complementary and supplementary to
each other." In fact, the judicial attitude has become more positive
and more affirmative towards Directive Principles: both Fundamental
Rights and Directive Principles have come to be regarded as coequal.
57. In Ashoka Kumar Thakur v. Union of India19, the Supreme
Court has said that no distinction can be made between the two sets
of rights. The Fundamental Rights represent the civil and political
19 (2008) 6 SCC 1, 515 (Balakrishnan, C.J.)
W.A.No.1823 of 2016 32
rights, and the Directive Principles embody social and economic
rights. Merely because the directive principles are non-justiciable by
the judicial process does not mean that they are of subordinate
importance.
58. The message ofKesavananda Bharati20 is clear. The
interest of a citizen or section of a community, howsoever important,
is secondary to the interest of the country or community as a whole.
For judging the reasonability of restrictions imposed on fundamental
rights the relevant considerations, according to State of Gujarat v.
Mirzapur Moti Kureshi Kassab Jamat21, are not only those as stated
in Article 19 itself or in Part III of the Constitution: the directive
principles stated in Part IV are also relevant. Changing factual
conditions and State policy, including the one reflected in the
impugned enactment, have to be considered and given weightage to
by the courts while deciding the constitutional validity of legislative
enactments. A restriction placed on any fundamental right, aimed at
securing directive principles will be held as reasonable and
henceintra vires subject to two limitations: first, that it does not run
20 (1973) 4 SCC 225
21 (2005) 8 SCC 534, 564
W.A.No.1823 of 2016 33
in clear conflict with the fundamental right, and second, that it has
been enacted within the legislative competence of the enacting
legislature under Part XI Chapter I of the Constitution.
59. From the above discussion, we may safely hold that the
precedential proclivity is towards according the Directive Principles a
pride of place. If conflict is inevitable, the common good takes the
lead and subordinates the individual's inclinations, unless the
fundamental right affected is nothing short of quintessence of the
individual's being, his existence.
Right to Privacy - a Precedential Perspective:
Precedential Position:
60. The learned counsel for the appellant has cited a plethora
of precedents. Though most may not be relevant, we must,
nevertheless, examine a few decisions which deal with Article 21:
61. In Kharak Singh v. State of UP22 the question was about
surveillance of a suspect and its impact on right to freedom of
movement, as a facet of right to life. On a six-Judge Bench, Subba
Rao J (as his Lordship then was) poignantly observes that if physical
22 AIR 1963 SC 1295
W.A.No.1823 of 2016 34
restraints on a person's movements affect his personal liberty,
physical encroachments on his private life would affect it in a larger
degree. Indeed, nothing is more deleterious to a man's physical
happiness and health than a calculated interference with his privacy.
This interference with a citizen's privacy infringes his right to life
under Article 21 of the Constitution.
62. In Gobind v. State of MP23 a three-judge Bench of the
Supreme Court, in the context of Madhya Pradesh Police Regulations,
has held that provisions relating to domiciliary visits and surveillance
have force of law. Mathew J, speaking for the Bench, approves of the
observations made by Charles Warren and Louis D. Brandeis in
their article, "The Right to Privacy"24: the right to be let alone was an
interest that man should be able to assert directly and not
derivatively from his efforts to protect other interests. This assertion
emanates from the idea of a "private space in which man may
become and remain 'himself'"
63. Gobind, in fact, cautions against too broad a definition of
privacy for it raises serious questions about the propriety of judicial
23 (1975) 2 SCC 148
24 4 Harvard Law Rev. 193
W.A.No.1823 of 2016 35
reliance on a right that is not explicit in the Constitution. It, then,
holds that rights and freedoms of citizens are set forth in the
Constitution in order to guarantee that the individual, his personality,
and those things stamped with his personality shall be free from
official interference unless a reasonable basis for intrusion exists.
64. Definitional freedom, we reckon, does not readily translate
into decisional freedom. Semantics may support but will not invent
an intended meaning. In the end, Gobind aptly acknowledges this
dilemma. It quotes Ely25, who says nothing prevents one from using
the word 'privacy' to mean the freedom to live 'one's life without
governmental interference. But the Court in Gobind obviously does
not so use the term. Nor could it, for such a right always is at stake.
65. In Francis Coralie Mullin v. Administrator, Union Territory of
Delhi26, the matter concerns the detenu's right to meet his legal
adviser and the members of his family. The Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 permits
only one meeting in a month. This restriction was held to be
unreasonable and, so, violative of the constitutional provisions under
25 "The Wages of Crying Wolf : AComment on Roe v. Wade, 82 Yale L.J. 920, 932.
26 1981 (1) SCC 608
W.A.No.1823 of 2016 36
Article 14 and 21 of the Constitution of India. Speaking for a Bench
of Two Judges, P.N. Bhagawati, J (as his Lordship then was) has
held that the fundamental right to life, which is the most precious
human right and which form the arck of all other rights must be
interpreted in a broad and expansive spirit so as to invest it with
significance and vitality which may endure for years to come and
enhance the dignity of an individual and the worth of the human
person.
66. R. Rajagopal v. State of Tamil Nadu27 concerns the freedom
of Press and what could be reasonable restrictions on that freedom.
The Supreme Court acknowledges that the right to privacy is not an
enumerated fundamental right, but has been inferred from Article
21. It has further held that once a matter becomes a matter of public
record, the right to privacy no longer subsists; it becomes a
legitimate subject for comment by press and media. The Court in the
interest of decency carves out an exception: A woman who is the
victim of sexual assault should not be further subjected to indignity
of her name in the name of right to information by publishing her
27 1994(6) SCC 632
W.A.No.1823 of 2016 37
name and the incident.
67. In Peoples Union For Civil Liberties v. Union of India28, the
matter concerns telephone tapping. The Supreme Court has held
that a telephone conversation in the privacy of one's home or office
is an important facet of a man's private life, unless it is permitted
under the procedure established by law. Telephone tapping invades
a person's right to privacy, as is inferable from Article 21 of the
Constitution of India. The Court, on facts, examined Section 5 of the
Indian Telephone Act, 1885 to hold that the Statute prescribed no
procedure for the authorities to tap private telephones.
68. In Hema Mishra v. State of Uttar Pradesh29 the Supreme
Court has interpreted Section 438 of the Cr.PC. The newly added
Section 41A of the Code makes it compulsory for the police to issue a
notice to an accused where arrest does not have to be made under
clause (b) of sub-Section (1) of the amended Section 41 of Cr.P.C.
The Court has observed that the object of the anticipatory bail and
the connected procedural mechanism is to relieve a person from
being disgraced by trumped up charges, so that his liberty is not put
28 (1997) 1 SCC 301
29 (2014) 4 SC 453
W.A.No.1823 of 2016 38
in jeopardy on frivolous grounds at the instance of the unscrupulous
or irresponsible persons, who may be in charge of the prosecution,
for an order of anticipatory bail does not in any way, directly or
indirectly, take away from the police their right to investigate into the
charges made or to be made against the person released on bail.
69. In Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Jamat,30
the facts are that the Municipal Corporation ordered closure of
municipal slaughter houses for a few days during festival. The
disclosure was assailed as an unreasonable restriction under Articles
19(1)(g) and 19(6) of the Constitution of India. The Supreme Court
has held that while considering what could be reasonable restrictions
on the right to freedom of trade and occupation, the Court should
consider not only the facets of restriction, such as the duration and
the extend, but also the circumstances and how the imposition has
been authorised. In para 26 of the judgment, the Apex Court has
acknowledged the fact that many people in Allahabad are non-
vegetarian and they cannot be compelled to become vegetarian for a
long period. In that context, it has further observed that what one
30 AIR 2008 SC 1892
W.A.No.1823 of 2016 39
eats is one's personal affair and it is a part of his right to privacy
included in Article 21 of our Constitution.
70. In Peerless General Finance and Investment Company Ltd.
v. Reserve Bank of India31 the case concerns the residuary non-
banking companies receiving and investing deposits and the manner
of their disclosure in the Books of Accounts. The Supreme Court has
elaborated on how to determine the reasonableness of restrictions
under Article 19(6) of the Constitution of India. It has held that the
subordinate legislation, if validly made, becomes part of the statute
and has the same statutory force and effect. The Court has gone on
to observe that wherever statute is challenged as violative of the
fundamental rights, its real effect or operation on the fundamental
rights is of primary importance. It is the duty of the Court to be
watchful to protect the constitutional rights of a citizen as against
any encroachment gradually or stealthily thereon.
71. Peerless observes that when a law has imposed restrictions
on the fundamental rights, what the Court must examine is the
substance of the legislature without being beguiled by the mere
31 (1992) 2 SCC 343
W.A.No.1823 of 2016 40
appearance of the legislation: the legislature cannot disobey the
constitutional mandate by employing an indirect method. It is,
however, pertinent to observe that this further observation is
resonant that the Court cannot question the wisdom, the need, or
desirability of a regulation. The State can regulate the exercise of the
fundamental right to save the public from a substantive evil.
72. The existence of the evil as well as the means adopted to
check it are the matters for the legislative judgment. But the Court
may consider whether the degree and mode of the regulation is over
the requirement or is imposed in an arbitrary manner. The Court
must lift the veil of the form and appearance to discover the true
character and nature of the legislation, and every endeavour should
be made to have the efficacy of fundamental right maintained. So
the legislature is not invested with unbounded power. Touching on
Article 21, the Court has held that it guarantees the minimum of the
needs of existence including a better tomorrow--perhaps, not a
bibulous one.
73. In all the above decisions relied on by the learned counsel
W.A.No.1823 of 2016 41
for the appellant, we find no proposition that right to privacy is
unfettered and that it brooks no restrictions--even reasonable ones,
at that. We regret that none lays down that privacy, an individual
right, prevails over the social welfare, a collective right.
Does Total Prohibition Offend the Citizen's Fundamental
Right under Article 21?
74. In Khoday Distilleries Ltd. vs. State of
Karnataka,32 another Constitution Bench observes that when the
State neither prohibits nor monopolises the liquor business, it
cannot discriminate among the citizens while granting licences to
them to carry on the business.But emphatic is the assertion that
that equal right cannot be elevated to the status of a fundamental
right. In para 60 of the judgment, the Court has further declared
unambiguously that if the "State decides to impose total prohibition
in terms of Article 47, then, no citizen can make a grievance, for, it
would be a reasonable restriction."
75. In Krishan Kumar Narula v. State of Jammu & Kashmir33,
the Apex Court has dispelled the myth that dealing in liquor would
32 (1995) 1 SCC 574, 607, 608 (P. B. Sawant, J)
33 AIR 1967 SC 1368
W.A.No.1823 of 2016 42
not amount to business; and, therefore, it would not be a
fundamental right under Article 19(1) of the Constitution. The
Constitution Bench, speaking through Subba Rao K, CJ., has held
that unless dealing in liquor is not trade or business, a citizen has a
fundamental right to deal in that commodity. His Lordship has
observed that "standards of morality can afford a guidance to impose
restrictions, but cannot limit the scope of the right. So too, a
legislature can impose restrictions on, or even prohibit the carrying
on of a particular trade or business."
76. In Indian Handicrafts Emporium v. Union of India34 the
Hon'ble Supreme Court, while dealing with the case of a total
prohibition, reiterated that "regulation" includes "prohibition" and in
order to determine whether total prohibition would be reasonable,
the Court has to balance the direct impact on the fundamental right
of the citizens as against the greater public or social interest sought
to be ensured. Implementation of the directive principles in Part IV
is within the expression of "restriction in the interests of the general
public".
34 (2003) 7 SCC 589, as quoted in MMKK Jamat (supra)
W.A.No.1823 of 2016 43
77. In Confederation of Indian Alcoholic Beverage Companies
v. State of Bihar35, the High Court of Patna was called upon to
answer, among others, the question whether the right to consume
alcohol is a fundamental right, and whether any infringement or
intrusion into that putative right, with legislation or otherwise, would
violate a citizen's right to privacy--a constitutionally guaranteed
right. In a judgment of much labour and learning, the two learned
judges differed. As it allowed the writ petitions on other issues, this
decisional cleavage remained in the academic realms.
78. Navaniti Prasad Singh J, who authored the lead judgment
took a view that with "expanding interpretation of the right to
privacy, as contained in Article 21 of the Constitution, a citizen has a
right to choose how he lives, so long as he is not a nuisance to the
society. State cannot dictate what he will eat and what he will drink."
His Lordship has felt that we have to "view this concept in changing
times, where international barriers are vanishing."
79. On the other hand, Iqbal Ahmed Ansari, C.J., has taken a
contrary view: when the Constitution obliges the State to make
35 2016(4) PLJR 369
W.A.No.1823 of 2016 44
endeavour to bring complete prohibition regarding consumption of
intoxicating drink, consumption of intoxicating drink cannot be
treated as a fundamental right.
80. As has been contended by Anoop, the appellant, Article 21
may have received, and still has been receiving, a liberal, progressive
treatment in the hands of constitutional courts. Its content is
capacious, and its scope enormous. But a right, however entrenched
it is, is never unrestrained, much less unregulated. As with all other
rights, right to privacy--if right to take intoxicating drinks were one--
always subject to reasonable restrictions. More compelling is this
conclusion not only because of Clause (6) of Article 19 but also
because of the sweep of Article 47 of the Constitution. The judicial
dictum is emphatic in Indian Handicrafts Emporium, Krishan
Kumar Narula and Khoday Distilleries Ltd. (supra).
81. 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
W.A.No.1823 of 2016 45
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"
Result:
We, therefore, hold that the writ appeal should fail, and it
failed. The appeal is dismissed. No order on costs.
P.R.RAMACHANDRA MENON,
Judge.
DAMA SESHADRI NAIDU,
Judge.
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