P. N. Kaushal Vs. Union of India
[1978] INSC 136 (16 August 1978)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
CITATION: 1978 AIR 1457 1979 SCR (1) 122 1978
SCC (3) 558
CITATOR INFO:
R 1978 SC1476 (3) R 1978 SC1484 (4) RF 1979
SC 321 (9) R 1979 SC1550 (17,18) R 1979 SC1803 (12) RF 1990 SC1927 (45,51,60)
RF 1992 SC1256 (14)
ACT:
Punjab Excise Act 1 of 1914, Section 59(f)(v)
and Punjab Liquor Licence Rules 1956-Rule 37-Constitutional Validity
of-Business in intoxicants- State if has power to prohibit absolutely every
form of activity relating thereto.
Constitution of India. 1950-Part IV of the
Constitution must enter the soul of Part III and the laws made by the
State-Articles 38 and 47-Progressive implementation of the policy of
prohibition.
HEADNOTE:
The Punjab Excise Act 1914 contemplates grant
of licences for trading in (Indian) foreign and country liquor.
Section 59(f) (v) of the Act provides for the
fixing of the days during which any licensed premises may or may not be kept
open for sale of liquor and the closure of such premises on special occasions.
The conditions of the licence includes restrictions of various types including
obligation not to sell liquor on certain days and during certain hours.
Rule 37(a) as it originally stood prohibited
sale of liquor on Tuesdays upto 2 p.m. and also on tho 7th day of every month.
This rule was amended by a notification whereby in place of "Tuesdays upto
2 p.m. plus the 7th of every month" "Tuesday and Friday in every
week", was substituted as the days when liquor vending was prohibited.
"Note" appended to the said rule exempted tourist bungalows and.
rest-houses run by the Department of the State Government from the operation of
the condition regarding closure. Consequent upon the change of days, the .
Licence fee payable by a vendor was reduced from Rs. 12,000/- to Rs. 10,000/-
to compensate for the marginal loss caused by two days' closure.
The petitioners who were licensed vendors of
liquor in the State challenged the constitutionality of section 59(f)(v) and
the vires of Rule 37 on the ground that section 59(f)(v) vested an unguided,
uncanalised, vague and vagarious power in the Financial Commissioner to fix the
days or number of days and hours or number of hours without laying down any
guidelines, indicators or controlling points.
The State on the other hand contended that
the subject- matter of the legislation being a deleterious substance (liquor),
requiring restrictions in the direction of moderation in consumption, regulation
regarding the days and hours of sale and appropriateness in the matter of
location of the places of sale, reasonableness and arbitrariness must be tested
on the touchstone of principled pragmatism and living realism, Dismissing the
writ petitions,
HELD: (a) Section 59(f)(v) of the Punjab
Excise Act 1914 is valid. [158 C] 123 (b) The regulation of the number of days
and the duration of the hours when supply of alcohol by licensees shall be
stopped is quite reasonable whether it be two days in a week or more. [158D]
(c) The exercise of the power to regulate, including to direct closure for some
days every week, being reasonable and calculated to produce temperance and
promote social welfare, cannot be invalidated on the imaginary possibility of misuse.
The test of the reasonableness of a provision is not the theoretical
possibility of tyranny. [158E] (d) There is enough guideline in the scheme and
provisions of the Punjab Excise Act to govern the exercise of the power under
sections 58 and 59. [158E] (1) (a) The Constitutional test of reasonableness,
built into Article IV and of arbitrariness implied in Article 14 has a
relativist touch. The degree of constitutional restriction and the strategy of
meaningful enforcement will naturally depend on the Third World setting, the
ethos of our people, the economic compulsions of today and of human tomorrow.
While scanning the rationale of an Indian temperance measure it would be useful
to remember the universal evil in alcohol and the particularly pernicious consequences
of the drink evil in India. Societal realities shape social justice. [133H,
134A-B] (b) "We, the people of India" have enacted Article 47 and
"we the Justices of India" cannot 'lure it back to cancel half a
life' or 'wash out a word of it especially when progressive implementation of
the policy of prohibition is, by Articles 38 and 47, made fundamental to the
country's governance. [138H] (c) The Constitution is the property of the people
and the court's know-how is to apply the Constitution not to assess it. In the
process of interpretation Part IV of the Constitution must enter the soul of
Part m and the laws.[138H, 139A] State of Kerala & Others v. N. M. Thomas
& Others [1976] 1 S.C.R. 906 referred to.
(d) Even restrictions under Article 19 may,
depending on situations be pushed to the point of prohibition consistently with
reasonableness. While the police power as developed in the American
Jurisprudence and Constitutional law. may not be applicable in terms to the
Indian Constitutional law, there is much that is common between that doctrine
and the reasonableness doctrine under Article 19 of the Indian Constitution.
There is also a close similarity in judicial thinking on the subject. [148F, G]
South Western Law Journal-Annual Survey of Texas Law Vol. 30 No. 1. Survey 1976
pp. 725-26.
Idaho Law Review Vol. 7 1970 p. 131,
Fatehchand Himmatlal v. Maharashtra [1977] 2 SCR 828 at 839-848 referred to.
(e) The statutory scheme of the Act is not
merely fiscal but also designed to regulate and reduce alcoholic habit. While
commodities and situation dictate whether power, in given statutory provisions,
is too plenary to be other than arbitrary or is instinct with inherent
limitations, alcohol is so manifestly deleterious that the nature of the guidelines
is written in invisible ink. [151 G-H] 124 (f) The subject-matter of the
legislation is a deleterious substance (alcohol) requiring restrictions in the
direction of moderation in consumption, regulation regarding the days and hours
of sale and appropriateness in the matter of the location of the places of
sale. If it is coal or mica or cinema, the test of reasonableness will be
strict, but if it is an intoxicant or a killer drug or a fire-arm the
restrictions must be stern. Just as the difference between bread and brandy is
felt in the field of trade control, coal and gold are as apart from whisky and
toddy as cabbages are from kings. Life speaks through law. [ 154D-F] Nashirwar
v. M.P. State [1975] 2 SCR 861 at 869-71 referred to.
(2) Even if section 59 and Rule 37 were
upheld in toto that does not preclude any affected party from challenging a
particular executive act pursuant Thereto on the ground that such an act is
arbitrary, malafide or unrelated to the purposes and the guidelines available
in the statute. To illustrate, if the Financial Commissioner or the Excise
Commissioner as the case may be declares that all liquor shops shall be opened
on his birthday or shall remain closed on his Friend's death anniversary, the
executive order will be invalid. The law may be good, but the executive action
may be corrupt and then it cannot be sustained. [145G-H] (3) The most
significant social welfare aspect of the closure is the prevention of the
ruination of the poor worker by drinking down the little earnings he gets on
the wage day. Any government with worker's weal and their families' survival at
heart will use its 'police power' under Article 19(6) read with. section
59(f)(v) of the Act to forbid alcohol sales on pay days. To save the dependent
women and children of wage-earners the former un amended rule had forbidden
sales on the 7th day of every month the day the monthly pay packet passes into
the employees' pocket.
While bringing in the Tuesday-Friday for
biddance of sales, the ban on sales on the seventh of every month was entirely
deleted. The victims of the change are the weeping wives and crying children of
the workers. All power is a trust and its exercise by governments must be
subject to social audit and Judas exposure. [146E-H] (4) The liquor trade is
instinct with injury to individual and community and has serious side effects
recognised everywhere in every age. Not to control alcohol business is to
abdicate the right to rule for the good of the people. Not to canalize the age
and sex of the consumers and servers, the hours of sale and cash-and-carry
basis, the punctuation and pause in days, to produce partially the 'dry' habit
it to fail functionally as a welfare state. The whole scheme of the statute
proclaims its purpose of control in time and space and otherwise. Section 58
vests in government the power for more serious restrictions and laying down of
principles. Details and lesser constraints have been left to the rule-making
power of the Financial Commissioner. The complex of provisions is purpose-oriented,
considerably reinforced by Article 47. Old statutes get invigorated by the
Paramount Parchment. Interpretation of the text of preconstitution enactments
can legitimately be infused with the concerns and commitments of the
Constitution as an imperative exercise. It is impossible 'to maintain that no
guidelines are found in the Act. [147D-F] (5) While the forensic problem is
constitutional, the Constitution itself is a human document. The Court has
justified the ways of the Constitution and the law to the consumers of social
justice and spirituous potions. [128D, 158G] 125 (6) As between temperance and
prohibition it is a policy decision for the Administration. Hopefully it is
expected of the State to bear true faith and allegiance to that Constitution
orphan, Article 47. [158A, G] The Collected Works of Mahatma Gandhi pp 29-30.
Society and the Criminal by M. J. Sethna 3rd
Edn. P. 165, 166 & 168-69 .
Society, Crime and Criminal Career by Don C.
Gibbars p. 427-428.
Har Shankar & others etc. v. Dy. Excise
& Taxation Commissioner & others [1975] 3 S.C.R. 254 at 266-267
referred to.
Report of the Study Team on Prohibition Vol.
I pp. 344. 346, 347
ORIGINAL JURISDICTION: Writ Petitions Nos.
4021-4022, 4024 4025, 4027-4032, 4037, 4040-4041, 4045-4047, 4049-4075, 4078-
4092, 4099, 4103-4111, 4120-4126, 4129-4140, 4142- 4143, 4155-4157,-4184, 4187,
4188-4190, 4192, 4202, 4203, 4205, 4206, 4212, 4214, 4217, 4223, 4231,
4234-4235, 4245, 4250, 4252, 4300, 4308 of 1978 and 4226 of 1978.
(Under article 32 of the Constitution of
India.) AND Writ Petitions Nos. 966-971, 3643-3650, 3884-3896, 3900-3921, 3965,
3975-3990, 4001-4020, 4034, 4100, 4127 to 4128, 4186, 4193, 4208, 4271, of 1978
and 3968-3971, 4191, 4221 and 4272-4275 of 1978.
(Under article 32 of the Constitution of
India.
AND Writ petitions: 4154, 4209, 4242, 4243,
4247, 4248, 4253, 4254, 4310 and 4314 of 1978.
(Under article 32 of the Constitution of
India.) A. K. Sen and Mrs. Rani Chhabra in W.P. 4021/78 for the Petitioners.
Yogeshwar Parshad and Mrs. Rani Chhabra in
W.P. Nos. 4022, 4024, 4025, 4027-4032, 4037, 4040, 4041, 4045, 4047, 4046,
4064-4067, 4078, 4079, 4092, 4142, 4143, 4187, 4090, 4092 and 4231 of 1978.
V. C. Mahajan and Mrs. Urmila Sirur for the
Petitioners in W.P. 4049-63, 4080-91, 4108 to 4111/78.
K K. Mohan, S. K. Sabharwal, Pramod Swarup
and Shreepal Singh for the Petns. in W.P. Nos. 103, 4140, 4184, 4202 and 4234
of 1978.
126 O. P. Sharma, N. N. Sharma, A. K.
Srivastava, Amlan Ghosh and P. K. Ghosh. in W.P. Nos. 4190-92 and 4226 of 1978.
O. P. Sharma for the Petitioner in W.P.
4226/78. K. B.
Rohtgi for the Petitioners in W.P. 3975-76
and 4274-75/ 78.
O. P. Singh in W.P. 966-71 of 1978 for the
Petitioners.
A. L. Trehan for the Petitioner in W.P.
4100/78.
S. K. Sabharwal for the Petitioner in W.P.
4214/78.
M. Qamaruddin for the petitioner in W.P. 4193
of 1978.
R. K. Jain, K. K. Mohan and Rajiv Dutt, L. R.
Singh for the Petitioners in W.P. 4271-73/78.
S. N. Kacker, Sol. Genl., O. P. Rana for the
State of U.P. Soli J. Sorabjee Addl. Sol. Genl. of India and Hardev Singh for
the State of Punjab, J. D. Jain and B. R. Kapoor in W.P. Nos. 4242-4244, 4247
4228, 4209 and 4308 of 1978.
B. R. Kapoor and S. K. Sabharwal for the
Petitioners in W.P. 4150-4254/78.
M. P. Jha for the Petitioner in W.P. 4252/78.
S. K. Sabharwal for the Petitioner in W.P.
4245, 4253 and 4310/78.
Shreepal Singh for the Petitioners in W.P.
4235/78.
Hardev Singh on behalf of R. N. Sachthey for
the State of Punjab.
The Judgment of the Court was delivered by
KRISHNA IYER, J.- What are we about? A raging rain of writ petitions by
hundreds of merchants of intoxicants hit by a recently amended rule declaring a
break of two 'dry' days in every 'wet' week for licensed liquor shops and other
institutions of inebriation in the private sector, puts in issue the
constitutionality of section 59(f)(v) and Rule 37 of the Punjab Excise Act and
Liquor Licence (Second Amendment) Rules, (hereinafter, for short, the Act and
the Rules). The tragic irony of the legal plea is that Article 14 and 19 of the
very Constitution, which, in Article 47, makes it a fundamental obligation of
the State to bring about prohibition of intoxicating drinks, is pressed into
service to thwart the State's half-hearted prohibitionist gesture. Of course,
it is on the cards that the end may be good but the means may be bad,
constitutionally speaking.
And there is a mystique about legalese beyond
the layman's ken ! 127 To set the record straight, we must state, right here,
that no frontal attack is made on the power of the State to regulate any trade
(even a trade where the turnover turns on tempting the customer to take reeling
rolling trips into the realm of the jocose, belliocose, lachrymore and
comatose).
Resort was made to a flanking strategy of
anathematising the statutory regulatory power in S. 59(f)v) and its offspring,
the amended rule interdicting sales of tipay ecstasy on Tuesdays and Fridays,
as too naked, unguided and arcane and, resultantly, too arbitrary and
unreasonable to comport with Arts. 14 and 19.
Our response at the first blush was this.
Were such a plea valid, what a large communication exists between lawyer's law
and judicial justice on the one hand and life's reality and sobriety on the
other, unless there be something occultly unconstitutional in the impugned
Section and Rule below the visibility zone of men of ordinary comprehension.
We here recall the principle declared before
the American Bar Association by a distinguished Federal......... Judge- William
Howard Taft-in 1895:
"If the law is but the essence of
common-sense, the protests of many average.- men may evidence a defect in a
legal conclusion though based on the nicest legal reasoning and profoundest
learning." The Facts The Punjab Excise Act, 1914, contemplates grant of
licences, inter alia, for trading in (Indian) foreign and country liquor. There
are various conditions attached to the licences which are of a regulatory and
fiscal character. The petitioners are licence-holders and have, on deposit of
heavy licence fee, been permitted by the State to vend liquor. The conditions
of the licences include restrictions of various types, including obligation not
to sell on certain days and during certain hours. Under the former rule 37
Tuesday upto 2 p.m. was prohibited for sale; so also the seventh day of the
month. The licences were granted subject to rules framed under the Act and
Section 59 is one of the provisions empowering rule-making. Rule 37 was amended
by a notification whereby, in the place of Tuesdays upto 2 p.m.
plus the 7th day of every month, Tuesdays and
Fridays in every week were substituted, as days when liquor vending was
prohibited. Under the modified rules a consequential reduction of the licence
fee from Rs. 12,000/- to Rs. 10,000 was also made, probably to compensate for
the marginal loss caused by the two-day closure. Aggrieved by this amendment
the petitioners moved this 128 Court challenging its vires as well as the
constitutionality of S. 59(f)(v) which is the source of power to make rule 37.
If the Section fails the rule must fall,
since the stream cannot rise higher that the source. Various contentions based
on Art. 19(g) and (6) and Art. 14 were urged and stay of operation of the new
rule was granted by this Court.
We will presently examine the tenability of
the argument and the alleged vice of the provisions; and in doing so we adopt,
as counsel desired, a policy of non- alignment on the morality of drinking
since law and morals interact and yet are autonomous; but, equally clearly, we
inform ourselves of the plural 'pathology' implicit in untrammelled trading in
alcohol. He who would be a sound lawyer, Andrea Alciati, that 16th century
Italian humanist, jurist, long ago stressed, should not limit himself to the
letter of the text or the narrow study of law but should devote himself also to
history, sociology, philology, politics, economics, nostics and other allied
sciences, if he is to be a jurist priest in the service of justice or legal
engineer of social justice.(1) This is our perspective because, while the
forensic problem is constitutional, the Constitution itself is a human
document. The integral yoga of law and life once underlined, the stage is set
to unfold the relevant facts and focus on the precise contentions.
Several counsel have made separate
submissions hut the basic note is the same with minor variations in emphasis.
Why drastically regulate the drink trade
?-the Social rationale-on Brandies brief Anywhere on our human planet the sober
imperative of moderating the consumption of inebriating methane substances and
manacling liquor business towards that end, will meet with axiomatic
acceptance. Medical, criminological and sociological testimony on a cosmic
scale bears out the tragic miscellany of traumatic consequences of, shattered
health and broken homes, of crime escalation with alcohol as the hidden villain
or aggressively promotional anti-hero, of psychic breakdowns, insane cravings
and efficiency impairment, of pathetic descent to doom sans sense, sans shame,
sans everything, and host of other disasters individuals, familial, genetic and
societal.(2) We need hot have dilated further on the deleterious impost of
unchecked alcohol intake on consumers and communities but Shri Mahajan
advocated regulation as valid with the cute rider that even (1) Encyclopaedia
of the Social Sciences, Vol. J-ll p. 618.
(2) Ibid p. 619-27.
129 water intake, if immoderate, may affect
health and so regulation of liquor trade may not be valid, if more drastic than
for other edibles. The sequitur he argued for was that the two-day ban on
liquor licensees was unreasonable under Art. 19(g) read with Art. 19(6). He
also branded the power to restrict the days and hours of sale of liquor without
specification of guidelines as arbitrary and scouted the submission of the
Addl. Solicitor General that the noxious nature of alcohol and the notorious
fall-out from gentle bibbing at the beginning on to deadly addiction at the end
was inherent guideline to salvage the provision from constitutional casualty.
Innocently the equate alcohol with aqua is an exercise ill intoxication and
straining judicial credibility to absurdity. We proceed to explain why alcohol
business is dangerous and its very injurious character and mischief potential
legitimate active policing of the trade by any welfare State even absent Art.
47.
The alcoholics will chime in with A.E.
Houseman(1): ' "And malt does more than Milton can to justify God's ways
to man...
But the wisdom of the ages oozes through
Thomas Bacon who wrote:
"For when the wine is in, the wit is
out." Dr. Walter Reckless, a criminologist of international repute who had
worked in India for years has in "The Crime Problem" rightly stressed
"Of all the problems in human society, there is probably none which is as
closely related to criminal behaviour as is drunkenness. It is hard to say
whether this close relationship is a chemical one, a psychological one, or a
situational one.' Several different levels of relationship between ingestion of
alcohol and behaviour apparently exist. A recent statement by the National
Council on Crime and Delinquency quite succinctly describes the effect of
alcohol on behaviour: Alcohol acts as a depressant; it inhibits self- control
before it curtails the ability to act; and an individual's personality and
related social and cultural factors assert themselves during drunken behaviour
.... Although its dangers are not commonly understood or accepted by the
public, ethyl alcohol can have perhaps the most serious con sequences of any
mind-and-body-altering drug. It causes (1) Makers of Modern world by Louis
Untermeyer p. 275.
(2) The Crime Problem (Fifth Edition) Walter
C. Reckle Page 115, 116 & 117.
130 addiction in chronic alcoholics, who
suffer consequences just as serious, if not more serious than opiate addicts.
It is by far the most dangerous and the most widely used of any drug."
(emphasis added).
The President's Commission on Law Enforcement
and Administration of Justice made the following pertinent observation:
The figures show that crimes of physical
violence are associated with intoxicated persons.. Thus the closest
relationship between intoxication and criminal behaviour (except for public
intoxication) has been established for criminal categories involving assaultive
behaviour. This relationship is especially high for lower class Negroes and
whites. More than likely, aggression in these groups is weakly controlled and
the drinking of alcoholic beverages serves as a triggering mechanism for the
external release of aggression. There are certain types of key situations
located in lower class life in which alcohol is a major factor in triggering
assaultive behaviour. A frequent locale is the lower class travern which is an
important social institution for the class group. Assaultive episodes are
triggered during the drinking situation by quarrels that center around defaming
personal honor, threats to masculinity, and questions about one's birth
legitimacy. Personal quarrels between husband and wife, especially after the
husband's drinking, frequently result in assaultive episodes, in the
lower-lower class family.", The steady flow of drunkenness cases through
the hands of the police, into our lower courts, and into our jails and
workhouses has been labelled the "revolving" door, because a very large
part of this flow of cases consists of chronic drinkers who go through the door
and out, time after time.
On one occasion when the author was visiting
a Saturday morning session of a misdemeanor court, there was a case of an old
"bum" who had been in the local workhouse 285 times previously."
An Indian author, Dr. Sethna dealing with society and the criminal, has this to
say :(1) Many crimes are caused under the influence of alcohol or drugs. The
use of alcohol, m course of time, causes great and irresistible craving for it.
To retain the so-called (1) Society and the Criminal by M. J. Sethna 3rd Edn.
P. 164.
131 'satisfaction', derived from the use of
alcohol or drugs, the drunkard or the drug-addict has got to go on increasing
the quantities from time to time; such a state of affairs may lead him even to
commit thefts or frauds to get the same otherwise. If he gets drunk so heavily
that he cannot understand the consequences of his acts he is quite likely to do
some harmful act-even an act of homicide. Every often, crimes of violence have
been committed in a state of intoxication. Dr.
Hearly is of the opinion that complete
elimination of alcohol and harmful drug habits would cause a reduction in crime
by at least 20 per cent; not only that, but there would also be cumulative
effect on the generations to come, by diminishing poverty, improving home
conditions and habits of living and environment, and perhaps even an
improvement in heredity itself.
Abstinence campaigns carried out efficiently
and in the proper manner show how crime drops. Dr. Hearly cites Baer, who says
that Father Mathew's abstinence compaigns in Ireland, during 1837-1842, reduced
the use of spirits SO per cent, and the crimes dropped from 64,520 to 47,027.
According to Evangeline Booth, the Commander of the Salvation Army, "In
New York before prohibition, the Salvation Army would collect from 1,200 to
1,300 drunkards in a single night and seek to reclaim them. Prohibition
immediately reduced the gathering to 400 and the proportion of actual drunkards
from 95 per cent to less than 20 per cent". And "a decrease of two
thirds in the number of derelicts, coupled with a decrease in the number of
drunkards almost to the Vanishing point, certainly lightened crime and charity
bills. It gave many of the erstwhile drunkards new hope and a new start".
So says E. E. Covert, in an interesting article on Prohibition.
The ubiquity of alcohol in the United States
has led to nationwide sample studies and they make startling disclosures from a
criminological angle. For instance, in Washington, D.C. 76.5 % of all arrests
in 1965 were for drunkenness, disorderly conduct and vagrancy, while 76.7% of
the total arrests in Atlanta were for these reasons(1) Of the 8 million arrests
in 1970 almost one-third of these were alcohol-related. Alcohol is said to
affect the lives of 9 million persons (1) Society, Crime and Criminal Careers
by Don C. Gibbons p. 427-428.
132 and to cost 10 billion in lost work time
and an additional 15 billion health and welfare costs.''(1) Richard D. Knudten
stated "Although more than 35% of all annual arrests in the United States
are for drunkenness, additional persons committing more serious crimes while
intoxicated are included within the other crime categories like drunken driving,
assault, rape and murder.(2) President Brezhnev bewailed the social maladies of
increasing alcoholism. Nikita Krushchev was unsparing:
"Drunks should be 'kicked out of the
party' not moved from one responsible post to another."(3) Abraham
Lincoln, with conviction and felicity said that the use of alcohol beverages
had many defenders but no defence and intoned:
"Whereas the use of intoxicating liquor
as a beverage is productive of pauperism, degradation and crime, and believing
it is our duty to discourage that which produces more evil than good, we,
therefore, pledge ourselves to abstain from the use of intoxicating liquor as a
beverage."(4) In his famous Washington's birthday address said:
"Whether or not the world would be
vastly benefited by a total and final banishment from it of all intoxicating
drinks seems to me not now an open question. Three fourths of mankind confess
the affirmative with their lips, and I believe all the rest acknowledge it in
their hearts."(5) Jack Hobbs, the great cricketer, held:
"The greatest enemy to success on the
cricket field is the drinking habit." And Don Bradman, than whom few
batsmen better wielded the willow, encored and said:
"Leave drink alone. Abstinence is the
thing that is what made me."(6) (1) Current perspectives on Criminal
Behaviour edited by Abraham S Blumberg P.23.
(2) crime in a complex society by Richard D.
Knudten P.138.
(3) Report of the study Team on Prohibition
Vol. L. P. 344.
(4) Ibid p.34s.
(5) Ibid p.345.
(6) Report of the Study Team on Prohibition
vol. I. P.347.
133 Sir Andrew Clark, in Lachrymal language
spun the lesson from hospital beds:
"As I looked at the hospital wards today
and saw that seven out of ten owed their diseases to alcohol, I could but
lament that the teaching about this question was not more direct, more
decisive, more home-thrusting than ever it had been."(1) George Bernard
Shaw, a provocative teetotaller, used tart words of trite wisdom.
'If a natural choice between drunkenness and
sobriety were possible, I would leave the people free to choose. But then I see
an enormous capitalistic organisation pushing drink under people's noses of
every corner and pocketing the price while leaving me and others to pay the
colossal damages, then I am prepared to smash that organisation and make it as
easy for a poor man to stay sober, if he wants to as it is for his dog.
Alcohol robs you of that last inch of
efficiency that makes the difference between first-rate and second-rate.
I don't drink beer-first, because I don't
like it;
and second, because my profession is one that
obliges me to keep in critical training, and beer is fatal both to training and
to criticism.
only teetotalers can produce the best and
sanest of which they are capable.
Drinking is the chloroform that enables the
poor to endure the painful operation of living.
It is in the last degree disgraceful that a
man cannot provide his own genuine courage and high spirits without drink.
I should be utterly ashamed if my soul had
shrivelled up to such an extent that I had to go out and drink a whisky. (2)
The constitutional test of reasonableness, built into Art. 19 and of
arbitrariness implicit in Art. 14, has a relativist touch. We have to view the
impact of alcohol and temperance on a given society; and (1) Ibid P. 347.
(2) Report of the study Team on Prohibition
Vol. I P. 346.
134 for us, the degree of constitutional
restriction and the strategy of meaningful enforcement will naturally depend on
the Third World setting, the ethos of our people, the economic compulsions of
today and of human tomorrow.
Societal realities shape social justice.
While the universal evil in alcohol has been indicated the particularly
pernicious consequence of the drink evil in India may be useful to R r remember
while scanning the. rationale of an Indian temperance measure. Nearly four
decades ago, Gandhiji, articulating the inarticulate millions' well- being,
wrote:
"The most that tea and coffee can do is
to cause a little extra expense, but one of the most greatly felt evils of the
British Rule is the importation of alcohol.. that enemy of mankind, that curse
of civilisation-in some form or another. The measure of the evil wrought by
this borrowed habit will be properly gauged by the reader when he is told that
the enemy has spread throughout the length and breadth of India, in spite of
the religious prohibition for even the touch of a bottle containing alcohol
pollutes the Mohammedan, according to his religion, and the religion of the
Hindu strictly prohibits the use of alcohol in any form whatever, and yet alas
! the Government, it seems, instead of stopping, is aiding and abetting the
spread of alcohol. The poor there, as everywhere, are the greatest sufferers.
It is they who spend what little they earn in buying alcohol instead of buying
good food and other necessaries It is that wretched poor man who has to starve
his family, who has to break the sacred trust of looking after his children, if
any, in order to drink himself into misery and premature death. Here be it said
to the credit of Mr. Caine, the ex-Member for Barrow, that, he undaunted, is
still carrying on his admirable crusade against the spread of the evil, but
what can the energy of one man, however, powerful, do against the inaction of
an apathetic and dormant Government."(1) Parenthetically speaking, many of
these thoughts may well be regarded by Gandhians as an indictment of
governmental policy even to-day.
The thrust of drink control has to be studied
in a Third World country, developing its; human resources and the haven if
offers to the poor, especially their dependents.
Gandhiji again:
"For me the drink question is one of
dealing with a growing social evil against which the State is bound to (1) The
Collected Works of Mahatma Gandhi pp.29-30 135 provide whilst it has got the
opportunity. The aim is patent. We want to wean the labouring population and
the Harijans from the curse. It is a gigantic problem, and the best resources
of all social workers, especially women, will be taxed to the utmost before the
drink habit goes. The prohibition I have adumbrated is but the beginning
(undoubtedly indispensable) of the reform. We cannot reach the drinker so long
as he has the drink ship near his door to tempt him ''(l) Says Dr. Sethna in
his book already referred to:
"And in India, with the introduction of
prohibition we find a good decline in crime. There are, however, some per sons
who cannot do without liquor.
Such persons even so to the extent of making
illicit liquor and do not mind drinking harmful rums and spirits. The result is
starvation of children at home, assaults and quarrels between husband and wife,
between father and child, desertion, and other evils resulting from the abuse
of alcohol.
The introduction of prohibition in India
actually caused considerable fall in the number of crimes caused by
intoxication. Before prohibition one often had to witness the miserable
spectacle of poor and Ignorant persons-mill- hands. Labourers, and even the
unemployed with starving families at home-frequenting the pithas (liquor and
adulterated toddy shops) drinking burning and harmful spirits, and adulterated
toddy, which really had no vitamin value; these persons spent the little they
earned after a hard day's toil, or what little that had remained with them or
what they had obtained by some theft, trick, fraud or a borrowing they spent
away all that, and then, at home, left wife and children starving and without
proper clothes, education, and other elementary necessaries of life."(2)
(emphasis added) The Labour Welfare Department or the State Governments and of
the Municipalities are rendering valuable service, through their labour welfare
officers who work at the centres assigned to them, impressing upon the people
how the use of alcohol is ruinous and instructing them also how to live
hygienically; there are lectures on the evils of drug and drink habits.
(1) The Collected Works of Mahatma Gandhi,
Vol. 66 P. 47.
(2) Society and the Criminal by M. J. Sethna
3rd Edn. p. 165, 166 & 168-169.
136 Partial prohibition of hot country
liquors was introduced by the Congress Ministries in Bombay, Bihar, Madras (in
Salem, Chittor, Cuddaph and North Arcot Districts) when they first came into
power. In C. P. and Berar, prohibition covered approximately one-fourth of the
area and population of the State. In Assam, prohibition is directed mainly
against opium. In Deccan Hyderabad on 3rd January, 1943, a Firman as issued by
his Exalted Highness the Nizam, supporting the temperance movement. Jammu and
Kashmir came also on the move towards prohibition. Since 1949 State Governments
determined the policy of introduction of total prohibition.
On April 10, 1948, the Central Advisory
Council for Railways, under the Chairmanship of the Hon'ble Dr. John Matthai,
agreed to the proposal to ban the serving of liquor in refreshment rooms at
railway stations and dining cars.
In Madras, prohibition was inaugurated on 2nd
October 1948, by the Premier. the Hon'ble Mr. O. P. Ramaswami Reddiar who
pronounced it a red letter day.
In 1949, West Punjab took steps for the
establishment of prohibition. In 1949, nearly half the area of the Central
Provinces and Berar got dry, and it was proposed to enforce prohibition
throughout the State.
In Bombay the Prohibition Bill was passed and
became Act in 1949, and Bombay got dry by April 1950.
The number of offences; under the Abkari Act
is notoriously high. It shows the craving of some persons for liquor in spite
of all good efforts of legal prohibition.
The remedy lies in making prohibition
successful through education (even at the school stage), suggestion re-
education.
The Tek Chand Committee(1) surveyed the
civilizations from Babylon through China, Greece, Rome and India. X-rayed the
religions of the world and the dharmasastras and concluded from this conspectus
that alcoholism was public enemy. Between innocent first sour sip and nocent
never-stop alcoholism only time is the thin partition and, inevitability the
sure nexus, refined arguments to the contrary notwithstanding(2).
In India, some genteel socialities have
argued for the diplomatic pay-off from drinks and Nehru has negatived it:
(1) Report of the Study Team on Prohibition.
(2) Ibid p. 345. (Vol. l).
137 "Not only does the health of a
nation suffer from this (alcoholism), but there is a tendency to increase
conflicts both in the national and the international sphere." I must say
that I do not agree with the statement that is sometimes made-even by our
ambassadors-that drinks attract people to parties and if there are no drinks
served people will not come. I have quite B: frankly told them that if people
are only attracted by drinks, you had better keep away such people from our
missions...... I do not believe in this kind of diplomacy which depends on
drinking....and, if we have to indulge in that kind of diplomacy, others have
had more training in it and are like to win.(1) Of course, the struggle for
Swaraj went beyond political liberation and demanded social transformation.
Redemption from drink evil was woven into
this militant movement and Gandhiji was the expression of this mission.
"I hold drink to be more damnable than
thieving and perhaps even prostitution. Is it not often the parent to both ? I
ask you to join the country in sweeping out of existence the drink revenue and
abolishing the liquor shops.
Let me, therefore, re-declare my faith in
undiluted prohibition before I land my self in deeper water. If I was appointed
dictator for one hour for all India, the first thing I would do would be to
close without compensation all the liquor shops destroy all the toddy palms
such as I know them in Gujarat, compel factory owners to produce humane
conditions for the workmen and open refreshment and recreation rooms where
these workmen would get innocent drinks and equally innocent amusements. I
would close down the factories if the owners pleaded for want of
funds."(2) It has been a plank in the national programme since 1920. It is
coming, therefore, in due fulfillment of the national will definitely expressed
nearly twenty years ago.(3) Sociological Journey to interpretative Destination.
This long excursion may justly be brought to
a close by an off repeated but constitutionally relevant quotation from Field,
J. irresistible attractive for fine-spun feeling and exquisite expression.
"There is in this position an assumption
of a fact which does not exist, that when the liquors are taken in excess the
injuries are confined to the party offending. The injury, if it is true, first
falls upon (1) Report of the Study Team on prohibition Vol. I P. 345.
(2) Ibid P. 344.
(3) Collected Works of Mahatma Gandhi Vol. 69
P. 83. 10- 520SCI/78 138 him in his health, which the habit undermines; in his
morals, which it weakens; and in the self-abasement which it creates. But as it
leads to neglect of business and waste of property and general demoralization,
it affects those who are immediately connected with or dependent upon him. By
the general concurrence of opinion of every civilised and Christian community,
there are few sources of crime and misery to society equal to the dram shop,
where intoxication liquors, in small quantities, to be drunk at the time, are
sold indiscriminately to all parties applying. The statistics of every State
show a greater amount of crime and misery attributable to the use of ardent
spirits obtained at those retail liquor saloons than to any other source. The
sale of such liquors in this way has therefore, been, at all times, by the
courts of every State, considered as the proper subject of legislative
regulation. Not only may a licence be exacted from the keeper of the saloon
before a glass of his liquors can be thus disposed of. but restrictions may be
imposed as to the class of persons to whom they may be sold, and the hours of
the day, and the days of the week, on which the saloons may be opened. Their
sale in that form may be absolutely prohibited. It is a question of Public
Expediency and public morality, and not of federal law. The police power of the
State fully competent to regulate the business to mitigate its evils or to
suppress it entirely, there is no inherent right in a citizen to thus sell
intoxicating liquors by retail, it is not a privilege of a citizen of the State
or of a citizen of the United States. As it is a business attended with danger
to the community, it may as already said, be entirely prohibited, or be
permitted under such conditions as will limit to the utmost its evils. The
manner and extent of regulation rest in the discretion of the Governing
authority. That authority may vest in such officers as it may deem proper and
power of passing upon applications for permission to carry it on, and to issue
licenses for that purpose. It is a matter of legislative will only."(1)
The Panorama of views, insights and analyses we have tediously. projected
serves the sociological essay on adjudicating the reasonableness and
arbitrariness of the impugned shut down order on Tuesdays and Fridays. Whatever
our personal views and reservations on the philosophy, the politics, the
economics and the pragmatics of prohibition, we are called upon to pass on the
vires of the amended order. "We, the people of India', have enacted Art.
47 and 'we, the Justices of India' cannot 'lure it back to cancel half a life'
or 'wash out a word of it', especially when progressive implementation of the
policy of prohibition is, by Articles 38 and 47 made fundamental to the
country's governance. The Constitution is the property of the people (1)
Crowely v. Christensen, 34, Law Ed. 620, 623.
139 and the courts know-how is to apply the
constitution, not to assess it. In the process of interpretation, Part IV of
the Constitution must enter the soul of Part III and the laws, as held by the
Court in State of Kerala & Anr. v. N. M. Thomas & Ors.(1) and earlier.
The dynamics of statutory construction, in a country like ours, where the pre-
Independence Legislative package has to be adapted to the vital spirit of the
Constitution, may demand that new wine be poured into old bottles, language
permitting. We propound no novel proposition and recall the opinion of Chief Justice
Winslow of Wisconsin upholding as constitutional a Workmen's Compensation Act
of which he said:
"when an eighteenth century constitution
forms the charter of liberty of a twentieth century government, must its
general provisions be construed and interpreted by an eighteenth century mind
surrounded by eighteenth century conditions and ideals ? Clearly not.
This were a command of half the race in its
progress, to stretch the state upon a veritable bed of Procrustes. Where there
is no express command or prohibition, but only general language of policy to be
considered, the conditions prevailing at the time of its adoption must have
their due weight hut the changed social, economic and governmental conditions
of the time, as well as the problems which the changes have produced, must also
logically enter into the consideration and become influential factors in the
settlement of problems of construction and interpretation."(2) In short,
while the imperial masters were concerned about the revenues they could make
from the liquor trade they were not indifferent to the social control of this
business which, if left unbridled, was fraught with danger to health, morals,
public order and the flow of life without stress or distress. Indeed even
collection of revenue was intertwined with orderly milieu; and these twin
objects are reflected in the scheme and provisions of the Act. Indeed, the
history of excise legislation in this country has received judicial attention
earlier and the whole position has been neatly summarised by Chandrachud J. (as
he then was) if we may say so with great respect, as a scissor-and- paste
operation is enough for our purpose:
(1) [1976] I S.C.R. 906.
(2) Borgnis v. The Falk Co. 147 Wisconsin
Reports P. 327 at 348 et See (1911). That this doctrine is to be deemed to
apply only to "due process' and "police - Power" determinations,
see especially concurring opinions of Marshalle, and Barness, J.
140 "Liquor licensing has a long
history. Prior to the passing of the Indian Constitution, the licensees mostly
restricted their challenge to the demand of the Government as being in excess
of the condition of the licence or on the ground that the rules in pursuance of
which such conditions were framed were themselves beyond the rule-making power
of the authority concerned.
The provisions of the Punjab Excise Act,
1914, like the provisions of similar Acts in force in other States, reflect the
nature and the width of the power in the matter of liquor licensing. We will
notice first the relevant provisions of the Act under consideration.
Section S of the Act empowers the State
Government to regulate the maximum or minimum quantity of any intoxicant which
may be sold by retail or wholesale.
Section 8(a) vests the general
superintendence and administration of all matters relating to excise in the
Financial Commissioner, subject to the control of the State Government. Section
16 provides that no intoxicant shall be imported, exported or transported
except after payment of the necessary duty or execution of a bond for such
payment and in compliance with such conditions as the State Government may
impose. Section 17 confers upon the State Government the power to prohibit the
import or export of any intoxicant into or from Punjab or any part thereof and
to prohibit the transport of any intoxicant. By section 20(1) no intoxicant can
be manufactured or collected, no hemp plant can be cultivated no tari producing
tree can be tapped, no tari can be drawn from any tree and no person can
possess any material or apparatus for manufacturing an intoxicant other than
tari except under the authority and subject. to the terms and conditions of a
licence granted by the Collector. By sub section (2) of section 20 no
distillery or brewery can be constructed or worked except under the authority
and subject to the terms and conditions of a licence granted by the Financial
Commissioner. Section 24 provides that no person shall have in his possession
any intoxicant in excess of such quantity as the State Government declares to be
the limit of retail sale, except under the authority and in accordance with the
terms and conditions of a licence or permit. Sub- section (4) of section 24
empowers the State Government to prohibit the possession of any intoxicant or
restrict its possession by imposing such conditions as it may prescribe.
Section 26 prohibits the sale of liquor
except under the authority and subject to the terms and conditions of a licence
granted in that behalf.
Section 27 of the Act empowers the State
Government to "lease" on such conditions and for such period as it
may deem fit or retail, any country liquor or intoxicating drug within any
specified local area. On such lease being granted the Collector, under
sub-section (2), has to grant to the lessee a licence in the form of his lease.
Section 34(1) of the Act provides that every
licence, permit or pass under the Act shall be granted (a) on payment of such
fees, if any, (b) subject to such restrictions and on such conditions, (c) in
such form and containing such particulars, and (d) for such period as the
Financial Commissioner may direct. By section 35(2), before any licence is
granted for the retail sale of liquor for consumption on any premises the
Collector has to ascertain local public opinion in regard to the licensing of
such premises. Section 36 confers power on the authority granting any licence
to cancel or suspend it if, inter alia; any duty or fee payable thereon has not
been duly paid.
Section 56 of the Act empowers the State
Government to exempt any intoxicant from the provisions of the Act. By section
58 the State Government may make rules for the purpose of carrying out the
provisions of this Act. Section 59 empowers the Financial Commissioner by
clause (a) to regulate the manufacture, supply, storage or sale of any
intoxicant.
xxx xxx xx The Prohibition and Excise Laws in
force in other States contain provisions substantially similar to those
contained in the Punjab Excise Act. Several Acts passed by State Legislatures
contain provisions rendering it unlawful to manufacture export, import,
transport or sell intoxicating liquor except in accordance with a licence,
permit or pass granted in that behalf.
The Bombay Abkari Act 1878; the Bombay
Prohibition Act 1949, the Bengal Excise Acts of 1878 and 1909;
the Madras Abkari Act 1886;
142 the Laws and Rules contained in the
Excise Manual United Province, the Eastern Bengal and Assam Excise Act 1910;
the Bihar and orissa Excise Act 1915; the Cochin Abkari Act as amended by the
Kerala Abkari Laws Act 1964; the Madhya Pradesh Excise Act 1915, are instances
of State legislation by which extensive powers are conferred on the State
Government in the matter of liquor licensing. (1) In this background, let us
read S. 59(f)(v) and Rule 37 before and after the impugned amendment:
"59(f)(v). The fixing of the days and
hours during which any licensed premises may or may not be kept open, and the
closure of such premises on special occasions;
Rule 37(9). Conditions dealing with licensed
hours- Every licensee for the sale of liquor shall keep his shop closed on the
seventh day of every month, on all Tuesdays upto 2 p.m. On Republic day (26th
January), on Independence day (15th August), on Mahatma Gandhi's birthday (2nd
October) and on such days not exceeding three in a year as may be declared by
the Government in this behalf. He shall observe the following working hours.
hereinafter called the licensed hours, and
shall not, without the sanction of the Excise Commissioner, Punjab or other
competent authority, keep his shop open outside these hours The licensed hours
shall be as follows:
xx xx xx After amendment 37(9). Conditions
dealing with licensed hours.- Every licensee for the sale of liquor shall keep
his shop closed on every Tuesday and Friday, on Republic Day (26th January), on
Independence day (15th August), on Mahatma Gandhi's birthday (2nd October) and
on such days not exceeding three in a year as may be declared by the Government
in this behalf. He shall observe the following working hours, hereinafter called
the licensed hours, and shall not, without the sanction of the Excise (1) Har
Shankar & Ors. etc. v. Dy. Excise & Taxation Commr..
and ors. [1975 ], 3 S.C.R. 254 at 266-267.
143 Commissioner, Punjab or other competent
authority, keep his shop open outside these hours. The licensed hours shall be
as follows:
* * * Note: The condition regarding closure
of liquor shops on very Tuesday and Friday shall not be applicable in the case
of licenses of tourist bungalows and re sorts being run by the Tourism Department
of the State Government.
Before formulating the contentions pressed
before us by Shri A. K. Sen, Shri Mahajan and Shri Sharma, we may mention that
Shri Seth, one of the Advocates who argued innovatively, did contend that the
Act was beyond the legislative competence of the State and if that tall
contention met with our approval there was nothing more to be done. To
substantiate this daring submission the learned counsel referred us to the
entries in the Seventh Schedule to the Constitution. All that we need say is
that the argument is too abstruse for us to deal with intelligibly.
To mention the plea is necessary but to chase
it further is supererogatory.
The main contention The primary submission
proceeded on the assumption that a citizen had a fundamental right to carry on
trade or business in intoxicants. The learned Addl. Solicitor General urged
that no such fundamental right could be claimed, having regard to noxious
substances and consequences involved and further contended that, notwithstanding
the observations of Subba Rao, C.J. in Krishna Kumar Narula etc.
v. The State of Jammu & Kashmir &
ors.(I) the preponderant view of this Court, precedent and subsequent to the
'amber' observations in the aforesaid decision, has been that no fundamental
right can be claimed by a citizen in seriously obnoxious trades, offensive
businesses or outraging occupations like trade in dangerous commodities,
trafficking in human flesh, horrifying exploitation or ruinous gambling.
Even so, since the question of the
fundamentality of such right is before this Court in other batches of writ
petitions which are not before us, we have chosen to proceed on the footing,
arguendo, that there is a fundamental right in liquor trade for the
petitioners. Not that we agree nor that Shree Sorabjee concedes that there is
such a right but that, (1) [1961] S S.C.R. SO.
144 for the sake of narrowing the scope of
the colossal number of writ petitions now before us, this question may well be
skirted. The Bench and the Bar have, therefore, focussed attention on the vires
of the provision from the standpoint of valid power of regulation of the liquor
trade vis-a-vis unreasonableness, arbitrariness and vacuum of any indicium for
just exercise. Essentially, the point pressed was that S. 59(f)(v) vested an
unguided, uncanalised, vague and vagarious power in the Financial Commissioner
to fix any days or number of days and any hours or number of hours as his fancy
or humour suggested. There were no guidelines, no indicators, no controlling points
whereby the widely-worded power of the Excise Commissioner on whom Government
has vested the power pursuant to Sec. 9) should be geared to a definite goal
embanked by some clear-cut policy and made accountable to some relevant
principle. Such a plenary power carried the pernicious potential for tyrannical
exercise in its womb and would be still born, judged by our constitutional
values. If the power is capable of fantastic playfulness or fanciful misuse it
is unreasonable, being absolute, tested by the canons of the rule of law. And
if, arguendo, it is so unreasonably wide as to imperil the enjoyment of a
fundamental right it is violative of Art.
19(1)(g) and is not saved by Art. 19(6).
Another facet of the same submission is that if the provision is an arbitrary
armour, the power-wielder can act nepotistically, pick and choose
discriminatorily or gambol goodily. Where a law permits discrimination, huff
and humour, the guarantee of equality becomes phoney, flimsy or illusory Art.
14 is outraged by such a provision and is liable to be quashed for that reason.
.
An important undertaking by the State We must
here record an undertaking by the Punjab Government and eliminate a possible
confusion. The amended rule partially prohibits liquor sales in the sense that
on Tuesdays and Fridays no hotel, restaurant or other institution covered by it
shall trade in liquor. But this prohibition is made non-applicable to like
institutions run by the Government or its agencies. We, prima face, felt that
this was discriminatory on its face. Further, Art. 47 charged the State with
promotion of prohibition as a fundamental policy and it is indefensible for
Government to enforce prohibitionist restraints on others and itself practise
the opposite and betray the constitutional mandate.
It suggests dubious dealing by State Power.
Such hollow homage to Art. 47 and the Father of the nation gives diminishing
credibility mileage in a democratic polity The learned Additional Solicitor
General, without going into the correctness of propriety of 145 our initial
view-probably he wanted to controvert or clarify-readily agreed that the
Tuesday-Friday ban would be equally observed by the State organs also. The
undertaking recorded, as part of the proceddings of the Court, runs thus:- "The
Additional Solicitor General appearing for the State of Punjab states that the
Punjab State undertakes to proceed on the footing that the 'Note' is not in
force and that they do not propose to rely on the 'Note' and will, in regard to
tourist bungalows and resorts run by the Tourism Department of the State
Government observe the same regulatory provision as is contained in the
substantive part of Rule 37 Sub-rule
9. We accept this statement and treat it as
an undertaking by the State. Formal steps for deleting the 'Note' will be taken
in due course." Although a Note can be law, here the State concedes that
it may not be treated as such. Even otherwise, the note is plainly severable
and the rule independently viable. Shri A. K. Sen who had raised this point at
the beginning allowed it to fade out when the State's undertaking was brought
to his notice. The vice of discrimination, blotted out of the law by this
process, may not be sufficient, if the traditional approach were to be made to
striking down; but if restructuring is done and the formal process delayed,
there is no reason to quash when the correction is done.
Courts try to save, not to scuttle, when
allegiance to the Constitution is shown.
In short, Tuesdays and Fridays, so long as
this rule remains (as modified in the light of the undertaking) shall be a
holiday for the liquor trade in the private Or public sector throughout the
State. We need hardly state that if Government goes back on this altered law
the consequences may be plural and unpleasant. Of course, we do not expect, in
the least, that any such apprehension will actualise.
one confusion that we want to clear up is
that even if S. 59 and Rule 37 were upheld in toto that does not preclude any
affected party from challenging a particular executive act pursuant thereto on
the ground that such an act is arbitrary, mala fide or unrelated to the
purposes and the guidelines available in the Statute. If, for instance, the
Financial Commissioner or the Excise Commissioner, as the case may be declares
that all liquor shops shall be opened on his birthday or shall remain closed on
his friend's death anniversary, whatever our pronouncement on the vires of the
impugned provisions, the executive order will be sentenced to death. The law
may be good, the act may be corrupt and then it cannot be saved.
146 The only question seriously canvassed
before us is as to whether the power under S. 59(f)(v) unguided and the rule
framed there under is bad as arbitrary. We will forthwith examine the soundness
of that proposition.
An irrelevant controversy consumed some court
time viz., that the two-day shut-down rule meant that a substantial portion of
the year for which the licence was granted for full consideration would thus be
sliced off without compensation. This step was iniquitous and inflicted loss
and was therefore 'unreasonable'-therefore void. The Additional Solicitor
General refuted this charge on facts and challenged its relevance in law. We
must not forget that we are examining the vires of a law, not adjudging a
breach of contract and if on account of a legislation a party sustains damages
or claims a refund that does not bear upon the vires of the provision but be
longs to another province.
Moreover, the grievance of the petitioners is
mere 'boloney' be cause even their licence fee has been reduced under the
amended rule to compensate, as it were, for the extra closure of a day or so.
We do not delve into the details nor pronounce on it as it is not pertinent to
constitutionality. But a disquieting feature of the rule, in the background of
the purpose of the measure, falls to be noticed. Perhaps the most significant
social welfare aspect of the closure is the prevention of the ruination of the
poor worker by drinking down the little earnings he gets on the wage day.
Credit sales are banned and cash sales spurt on wage days. Any Government, with
-workers' weal and their families' survival at heart, will use its police
power' under Art. 19(6) read with Sec. 59(f)(v) of the Act to forbid alcohol
sales on pay days. Wisely to save the dependent women and children of
wage-earners the former unamended rule had forbidden sales on the seventh day
of every month (when, it is well known, the monthly pay packet passes into the
employees' pocket). To permit the tavern or liquor bar to transact business
that tempting days is to abet the dealer who picks the pocket of the
vulnerables and betray the Gandhian behest. And yet, while bringing in the
Tuesday-Friday forbiddance of sales, the ban on sales on the seventh of every month
was entirely deleted-an oblique bonus to the liquor lobby, if we look at it
sternly, an unwitting indiscretion, if we view it indulgently. The victims are
the weeping wives and crying children of the workers. All power is a trust and
its exercise by governments must be subject to social audit and Judas exposure.
'For whom do the constitutional bells toll ?' this court asked in an earlier
147 judgment relating to Scheduled Castes.(1) We hope Punjab will rectify the
error and hearten the poor in the spirit of Art. 47 and not take away by the
left hand what the right hand gives. We indicated these thoughts in the course
of the hearing so that no one was taken by surprise. Be that as it may, the
petitioner can derive no aid and comfort from our criticisms which are meant to
alert the parliamentary auditors of subordinate legislation in our welfare 1
State.
The Scheme and the subject matter supply the
guidelines We come to the crux of the matter. Is Section 59(f)(v) 'bad for want
of guidelines ? Is it over-broad or too bald ? Does it lend itself to naked,
unreasonable exercise? We were taken through a few rulings where power without
embankments was held bad. They related to ordinary items like coal or
restrictions where guidelines were blank. Here, we are in a different street
altogether. The trade is instinct with injury to individual and community and
has serious side- effects recognised everywhere in every age. Not to control
alcohol business is to abdicate the right to rule for the good of the people. Not
to canalise the age and sex of consumers and servers, the hours of sale and
cash-and-carry basis, the punctuation and pause in days to produce partially
the 'dry' habit-is to fail functionally as a welfare State. The whole scheme of
the statute proclaims its purpose of control in time and space and otherwise.
Section 58 vests in Government the power for more serious restrictions and
laying down of principles. Details and lesser constraints have been left to the
rule-making power of the Financial Commissioner. The complex of provisions is
purpose-oriented, considerably reinforced by Art. 47. Old statutes get
invigorated by the Paramount Parchment.
Interpretation of the text of
pre-constitution enactments can legitimately be infused with the concerns and
commitments or the Constitution, as an imperative exercise.
Thus, it is impossible to maintain that no
guidelines are found in the Act.
We wholly agree with the learned Additional
Solicitor General that the search for guidelines is not a verbal excursion. The
very . subject-matter of the statute intoxicants-eloquently impresses the Act
with a clear purpose, a social orientation and a statutory strategy. If bread
and brandy are different the point we make argues itself. The goal IS promotion
of temperance and, flowing there out, of sobriety, public order, individual
health, crime control, medical bills, family welfare, curbing of violence and
tension, restoration of the addict's mental, moral and physical personality and
interdict on (1) [1977] 1.S.C.R. 906.
148 impoverishment, in various degrees,
compounded. We have extensively quoted supportive literature; and regulation of
alcohol per se furnishes a definite guideline. If the Section or the Rule
intended to combat an evil is misused for a perverse, ulterior or extraneous
object that action, not the law, will be struck down. In this view,
discrimination or arbitrariness is also excluded.
A final bid to stigmatize the provision [Sec.
59 (f)(v)] was made by raising a consternation. The power to - fix the days and
hours is so broad that the authority may fix six out of seven days or 23 out of
24 hours as 'dry' days or closed hours and thus cripple the purpose of the
licence. This is an ersatz apprehension, a caricature of the provision and an
assumption of power run amok. An Abkari law, as here unfolded by the scheme
(chapters and Sections further amplified by the rules framed there under during
the last 64 years) is not a Prohibition Act with a mission of total
prohibition. The obvious object is a to balance temperance with tax, to
condition and curtail consumption without liquidating the liquor business, to
experiment with phased and progressive projects of prohibition without total
ban on the alcohol trade or individual intake. The temperance movement leaves the
door half-closed, not wide, ajar; the prohibition crusade banishes wholly the
drinking of intoxicants. So it follows that the limited temperance guideline
writ large in the Act will monitor the use of the power. Operation Temperance,
leading later to the former, may be a strategy within the scope of the Abkari
Act.
Both may be valid but we do not go into it.
Suffice it to say that even restrictions under Art. 19 may, depending on
situations, be pushed to the point of prohibition consistently with reasonableness.
The chimerical fear that 'fix the days' means even ban the whole week, is
either pathological or artificial, not certainly real under the Act. We are not
to be understood to say that a complete ban is without the bounds of the law-it
turns on a given statutory scheme.
While the police power as developed in the
American jurisprudence and constitutional law, may not be applicable in terms
to the Indian Constitutional law, there is much that is common between that
doctrine and the reasonableness doctrine under Art. 19 of the Indian
Constitution. Notes an American Law Journal:
"The police power has often been
described as the "least limitable" of the governmental powers. An
attempt to define its reach or trace its outer limits is fruitless for each case
turns upon its own facts..
The police power must be used to promote the
health, safety, or general welfare of the public, and the exercise of the power
must be 149 "reasonable". An exercise of the police power going
beyond these basic limits is not constitutionally permissible.
Noxious Use Theory: . This theory upholds as
valid any regulation of the use of property, even to the point of total
destruction of value, so long as the use prohibited is harmful to others."
(1) In a Law Review published from the United States 'police power' with
reference to intoxicant liquors has been dealt with and is instructive:
"Government control over intoxicating
liquors has long been recognized as a necessary function to protect society
from the evils attending it. Protection of society and not the providing of a
benefit of the license holder is the chief end of such laws and regulations.
There is no inherent right in a citizen to sell intoxicating liquors as retail.
It is a business attended with danger to the community and it is recognised
everywhere as a subject of regulation." As to the legislative power to
regulate liquor, the United States Supreme Court has stated:
"If the public safety or the public
morals require the discontinuance of the manufacture or traffic (of
intoxicating liquors) the hand of the legislature cannot be stayed from
providing for its discontinuance, by any incidental inconvenience which
individuals or corporations may suffer." The States have consistently held
that the regulation of intoxicants is a valid exercise of its police power. The
police power stands upon the basic principle that some rights must be and are
surrendered or modified in entering into the social and political state as
indispensible to the good government and due regulation and well being of
society.
In evaluating the constitutionality of a
regulation within the police power, validity depends on whether the regulation
is designed to accomplish a purpose within the scope of that power."(2)
(1) South Western Law Journal-Annual Survey of Texas Law, vol. 30 No. I, Survey
1976 pp. 725-26.
(2) Idaho Law Review, Vol. 7, 1970 p. 131.
150 It is evident that there is close
similarity in judicial thinking on the subject. This has been made further
clear from several observations of this Court in its judgments and we may make
a reference to a recent case, Himmatlal, and a few observations therein:
"In the United States of America,
operators of gambling sought the protection of the commerce clause.
But the Court upheld the power of the Congress
to regulate and control the same. Likewise, the pure Food Act which prohibited
the importation of adulterated food was upheld. The prohibition of
transportation of women for immoral purposes from one State to another or to a
foreign land was held valid. Gambling itself was held in great disfavour by the
Supreme Court which roundly stated that 'there is no constitutional right to
gamble`.
Das, C.J., after making a survey of judicial
thought, here and abroad, opined that freedom was unfree when society was
exposed to grave risk or held in ransom by the operation of the impugned
activities.
The contrary argument that all economic
activities were entitled to freedom as 'trade' subject to reasonable
restrictions which the Legislature might impose, was dealt with by the learned
Chief Justice in a sharp and forceful presentation;
"on this argument it will follow that
criminal activities undertaken and carried on with a view to earning profit
will be protected as fundamental rights until they are restricted by law. Thus
there will be a guaranteed right to carry on a business of hiring out goodness
to commit assault or even murder, of house- breaking, of selling obscene
pictures, of trafficking in women and so on until the law curbs or stops such
activities. This appears to us to be completely unrealistic and incongruous. We
have no doubt that there are certain activities which can under no
circumstances be regarded as trade or business or commerce although the usual
forms and instruments are employed therein. To exclude those activities from
the meaning of those words is not to cut down their meaning at all but to say
only that they are not within the true meaning of those words. Learned Counsel
has to concede that there can be no 'trade' or business in crime but submits
that this principle should not be extended .. " (1) Fatehchand Himmatlal
v. Maharashtra [1977] 2 S.C.R. 828 at 839-840.
151 We have no hesitation, in our hearts and
our heads, to hold that every systematic, profit oriented activity, how ever
sinister, suppressive or socially diabolic, cannot, ipso facto, exalt itself
into a trade. Incorporation of Directive principles of State policy casting the
high duty upon the State to strive to promote the welfare of the people by
securing and protecting as effectively as it may a social order in which
justice social, economic and political- shall inform all the institutions of
the national life, is not idle print but command to action. We can never
forget, except at our peril, that the Constitution obligates the State to
ensure an adequate means of livelihood to its citizens and to sec that the
health and strength of workers men and women, are not abused, that
exploitation, normal and material, shall be extradited. In short State action
defending the weaker sections from social injustice and all forms of
exploitation and raising the standard of living of the people, necessarily
imply that economic activities, attired as trade or business or commerce, can
be de- recognised as trade or business. At this point, the legal culture and
the public morals of a nation may merge, economic justice and taboo of
traumatic trade may meet and jurisprudence may frown upon day dark and deadly
dealings. The Constitutional refusal to consecrate exploitation as 'trade' in a
socialist Republic like ours argues itself." A precedentral approach to
the ultra vires argument.
The single substantive contention has
incarnated as triple constitutional infirmities. Counsel argued that the power
to make rules fixing the days and hours for closing or keeping open liquor
shops was wholly unguided. Three invalidatory vices flowed from this single
flaw viz. (i) excessive delegation of legislative power, (ii) unreasonable
restriction on the fundamental right to trade in intoxicants under Art. 19(1)
(g), and (iii) arbitrary power to pick and choose, inherently violative of Art.
14.
Assuming the legality of the triune lethal
blows, the basic charge of uncanalised and naked power must be established. We
have already held that the statutory scheme is not merely fiscal but also
designed to regulate and reduce alcoholic habit. And, while commodities and
situations dictate whether power, in given statutory provisions, is too plenary
to be other than arbitrary or is instinct with inherent limitations, alcohol is
so manifestly deleterious that the nature of the guidelines is written in
invisible ink.
152 A brief reference to a few rulings cited
by counsel may not be inept.
It is true that although the enactment under
consideration is more than five decades old, its validity can now be assailed
on the score of unconstitutionality:
"When India became a sovereign
democratic Republic on 26th January, 1950, the validity of all laws had to be
tested on the touchstone of the new Constitution and all laws made before the
coming into force of the Constitution have to stand the test for their validity
on the provisions of Part Ill of the Constitution.''(1) This is why the
principle of excessive delegation, that is to say, the making over by the
legislature of the essential principles of legislation to another body, becomes
relevant in the present debate. Under our constitutional scheme the legislature
must retain in its own 'hands the essential legislative functions. Exactly what
constitutes the essential legislative functions is difficult to define.
"The legislature must retain in its own
hands the essential legislative function. Exactly what constituted
"essential legislative function", was difficult to define in general
terms, but this much was clear that the essential legislative function must at
least consist of the determination of the legislative policy and its
formulation as a binding rule of conduct. Thus where the law passed by the
legislature declares the legislative policy and lays down the standard which is
enacted into a rule of law, it can leave the task of subordinate legislation
which by its very nature is ancillary to the statute to subordinate bodies,
i.e., the making of rules, regulations or bye- laws. The subordinate authority
must do so within the frame-work of the law which makes the delegation. and
such subordinate legislation has to be consistent with the law under which it
is made and cannot go beyond the limits of the policy and standard laid down in
the law.
Provided the legislative policy is enunciated
with sufficient clearness or a standard is laid down, the courts should not
interfere with the discretion that undoubtedly rests with the legislature
itself in determining the extent of delegation necessary in a particular
case."(2) (1) Suraj Mall Mohta and Co.v.A.V. Visvanatha Sastri and another
[1955] 1. S.C.R. 448 at 457.
(2) Municipal Corporation of Delhi v. Birla
Cotton, Spinning and Weaving Mills Delhi & Anr. [1968] 3 S.C.R. 251 at 261
153 In Vasanthlal Maganbhai Sajanwal v. The State of Bombay(1) the same point
was made:
"A statute challenged on the ground of
excessive delegation must therefore be subject to two tests, (1) whether it
delegates essential legislative function or power and (2) WHETHER- the
legislature has enunciated its policy and principle for the guidance of the
delegate." Likewise, if the State can choose any day or hour for exclusion
as it fancies and there are no rules to fix this discretion, plainly the
provision [Sec.59(f)(v)] must offend against Art.14 of the Constitution. (See
Saghir Ahmed's case)(2) Another aspect of unguided power to affect the
citizen's fundamental rights in the province of Art. 19 since imposition of
unreasonable restrictions on the right lo carry on business is violative of
Art. 19(1)(g).
Patanjali Sastri, C.J., in V. G. Row's case
observed(2) "The test of reasonableness, wherever prescribed should l)
applied to each individual statute impugned and no abstract standard or general
pattern of reasonableness can be Laid down as applicable to all cases. The
nature of the right alleged to have been infringed, the underlying purpose of
the restriction imposed, the extent or urgency of the evil sought to be
remedied thereby, the disproportion of imposition, the prevailing conditions at
the time should enter into the judicial verdict" This Court, in R. M.
Seshadri,(4) dealt with unreasonable restrictions on showing of films by
theatre owners and struck down the provisions. Similarly, in Harichand(5) an
unreasonable restriction on the right to trade was struck down because the
regulation concerned provided no principles nor contained any policy and this
Court observed:
"A provision which leaves an unbridled
power to an authority cannot in any sense be characterised as reasonable.
Section 3 of the Regulation is one such provision and is therefore liable to be
struck down as violative of Art. 19(1)(g)".
(1) [1961] 2 S.C.R. 341.
(2) [1955] 1 S.c.R. 707.
(3) [1952] S.C.R. 597.
(4) [1955]1 S.C.R. 686.
(S) LALA Hari Chand Sarda v. Mizo District
Council & Anr [1967]1 S.C.R. 1012 11-520 SCI/78 154 other decisions in the
same strain were cited. Indeed an annual shower of decisions on this point
issues from this Court. But the essential point made in all these cases is that
unchannelled and arbitrary discretion is patently violative of the requirements
of reasonableness in Art. 19 and of equality under Art. 14, a proposition with
which no one can now quarrel. lt is in the application of these principles that
disputes arise as Patanjali Sastri, C.J.
clarified early in the day in V. G. Row's
case (cited Supra). Reasonableness and arbitrariness are not abstractions and
must be tested on the touchstone of principle pragmatism and living realism.
It is in this context that the observations
of this Court in Nashirwar(1) become decisive. While considering the soundness
of the propositions advanced by the advocate for the petitioners the Additional
Solicitor General rightly shielded the statutory provisions i question by
drawing our attention to the crucial factor that the subject matter of the
legislation was a deleterious substance requiring restrictions in the direction
of moderation in consumption.
regulation regarding the days and hours of
sale and appropriateness in the matter of the location of the places of sale.
If it is coal or mica or cinema, the test of reasonableness will be stricter,
but if it is an intoxicant or a killer drug or a fire-arm the restrictions must
be stern. When the public purpose is clear and the policing need is manifest
from the nature of the business itself, the guidelines are easy to find. Shri
Mahajan's reliance on the Coal Control Case(') or Shri A. K. Sen's reliance on
the Gold Control case (3)is inept. Coal and gold are as apart from whisky and
toddy as cabbages are from kings. Don't we feel the difference between bread
and brandy in the field of trade control ? Life speaks through Law.
Counsel after counsel has pressed that there
is no guideline for the exercise of the power of rule-making and the Addl.
Solicitor General has turned to the history, sociology and criminology relating
to liquor. In support of his contention, Shri Soli Sorabjee for the State has
drawn our attention to the following passages in Nashirwar which are quoted is
extenso because of the persistence of counsel on the other side in pressing
their point about unbounded power:
"In our country the history of excise
shows that the regulations issued between 1790-1800 prohibited manufacture or
sale of liquors without a licence from a Collector. In 1 808 a regulation was
introduced in tile Madras Presidency (1) [1975] 2 S.C.R. 861.
(2) A.I.R. 1954 S.C. 224.
(3) A.I.R. 1970 S.C. 1453.
155 Which provided that the exclusive
privilege of manufacturing and selling arrack should be farmed in each
district. In 1820 the law was amended to authorise the treatment of toddy and
other fermented liquors in the same way as spirits by allowing Collectors to
retain the manufacture and sale under direct management if deemed preferable to
farming. In 1884 a Committee was appointed to investigate the excise system.
The recommendations of the Committee were adopted. Under the new system the
monopoly of manufacture was let separately from that of sale. The former was
granted on condition of payment of a fee per shop or a number of shops, or on
payment of a fee determined by auction. In the Bombay Presidency the monopoly
of the retail sale of spirits and the right to purchase spirits was formed. In
1857 the Government declared its future policy to be the letting by auction of
each shop, with its still, separately. In 1870-71 a change was made.
The rule at that time was that the Collector
would fix the number and locality of the different shops and determine their
letting value according to the advantages possessed by each. It was not intended
that they should, as a rule, be put up to public competition; but competition
might be resorted to by the Collector and taken into account in determining the
same at which each would be leased. This rule remained in force for many years.
The practice of putting the shops up to auction was, thereafter followed. The
history of excise administration in our country before the Independence shows
that there was originally the farming system and thereafter the central
distillery system for manufacture. The retail sale was by auction of the right
and privilege of sale. The Government of India appointed an Excise Committee in
1905. The measures recommended by the Committee were the advances of taxation,
the concentration of distillation the extended adoption of the contract
distillery system.
The Committee suggested among other things
the replacement of the then existing excise law by fresh legislation on the
lines of the Madras Abkari Act. (See Dr. Pramatha Nath Banerjee: History of
Indian Taxation P. 470 seq.).
Reference may be made to the Taxation Enquiry
Commissioner Report 1953-54 Vol. 3. At page 130 following there is a discussion
of State excises. Among the major sources of revenue which are available to the
State Government there is a duty on alcoholic liquors for human consumption. At
page 132 of the Report it is stated that in addition 156 to the excise duties,
licence fees are charged for manufacture or sale of liquor or for tapping toddy
trees etc. Similarly, several fees like permit fees, vend fees, outstill duties
are also levied. Manufacture or sale of liquor is forbidden except under
licences which are generally granted by auction to the highest bidders. The
manufacture of country spirit is done in Government distilleries or under the
direct supervision of the excise staff. All supplies are drawn from Government
warehouses which ensures that the liquor is not more than of the prescribed
strength. The licensed sellers have to sell the country spirit between fixed
hours and at fixed selling rates. As in the case of country spirit, the right
of tapping and selling toddy is also auctioned. In addition to the licence, in
some States the licensee has to pay a tree tax to Government.
Traditionally tobacco, opium and intoxicating
liquors have been the subject matter of State monopoly.
(See section IV of the Madras Regulation XXV
of 1 802 relating to permanent settlement of land revenue).
Section IV states that the Government having
reserved to itself the entire exercise of its discretion in continuing or abolishing,
temporarily or permanently, the articles of revenue included, according to the
custom and practice of the country, under the several heads inter alia of the
abkary, or tax on the sale of spirituous liquors and intoxicating drugs, of the
excise on articles of consumption, of taxes personal and professional, as well
as those derived from markets, fairs, or bazars. of lakhiraj lands (or lands
exempt from the payment of public revenue), and of all other lands paying only
favourable quit rents, the permanent assessment of the land-tax shall be made
exclusively of the said articles now recited.
The excise revenue arising out of manufacture
and sale of intoxicating liquors is one of the sources of State revenue as is
customs and excise. In England sale of intoxicating liquors although perfectly
lawful at common law is subject to certain statutory restrictions. These
restrictions are primarily of two kinds; those designed for the orderly conduct
of the retail trade and those designed to obtain revenue from the trade r
whether wholesale or retail.
Trade in liquor has historically stood on a
different footing from other trades. Restrictions which are not permissible
other trades are lawful and reasonable so far as the trade 157 in liquor is
concerned. That is why even prohibition of the trade in liquor is not only
permissible but is also reasonable. The reasons are public morality, public
interest and harmful and dangerous character of the liquor. The State possesses
the right of complete control over all aspects of intoxicants, viz.,
manufacture, collection, sale and consumption. The State has sight in order to
raise revenue. That is the view of this Court in Bharucha's case (supra) and
jaiswal's case ( supra) . The nature of the trade is such that the State confers
the right to vend liquor by farming out either in auction or on private treaty.
Rental is the consideration for the privilege
granted by the Government for manufacturing or vending liquor.
Rental is neither a tax nor an excise duty.
Rental ii the consideration for the agreement for grant of privilege by the
Government." (pp. 869-871) The guide-lines.
Now that we have held that the provision
[Section 59(f)(v)] is valid on a consideration of the criteria controlling the
wide words used therein there is a minor matter remaining to be disposed of.
The extract from the Section, as will be noticed, contains a clause which runs:
"and the closure of such premises on
special occasions".
Thus, rules may be made by the Financial
Commissioner for fixing the closure of licensed premises on 'special occasion'.
Shri Mahajan insisted that 'special occasions' may mean anything and may cover
any occasion dictated by humour, political pressure or other ulterior
considerations.
It is thus a blanket power which is an unreasonable
restriction on the licensee's trade. Certainly if 'special occasions' means any
occasion which appeals to the mood of the Financial Commissioner or has other
casual fascination for him the rule may suffer from arbitrary and unreasonable
features. Gandhiji's birthday and also Vinobaji's birthday have been included
in the licence itself. 'Special occasions' contemplated by Sec. 59(f) (v) are
not stricken by such a vice for the obvious reasons we have elaborately given
in the earlier part of our argument. The occasion must be special from the
point of view of the bread considerations of national solemnity. public order,
homage to national figures, the likelihood of eruption of inebriate violence On
certain days on account of meals, festivals or frenzied situations or periods
of tension. Bapuji's birthday, election day, hours of procession by rival
communities when tensions prevail or festivals where colossal numbers of people
gather and outbreak of violence is on the agenda, are clear illustrations.
'Special occasions' cannot be equated with fanciful occasions but such as
promote the policy of the statute as expounded by us earlier. There is no merit
in this argument either and we reject it.
158 As between temperance and prohibition it
is a policy decision for the Administration. Much may be said for and against
total prohibition as an American wit has cryptically yet sarcastically summed
up(1): "The chief argument against prohibition is that it does not
prohibit. This is also the chief argument in favour of it." This survey of
the law-ways of Art. 19 and the police power is sufficient in our view to
clinch the issue.
our conclusions may now be set out.
(a) Section 59(f)(v) of the Punjab Excise
Act, 1914, is perfectly valid;
(b) The regulation of the number of days and
the duration of the hours when supply of alcohol by licensees shall be stopped
is quite reasonable, whether it be two days in a week or even more. We leave
open the question as to whether prohibition of the number of days and the number
of hours, if it reaches a point of substantial destruction of the right to
vend, will be valid, since that question arises in other writ petitions;
(c) The exercise of the power to regulate,
including to direct closure for some days every week, being reasonable and
calculated to produce temperance and promote social welfare, cannot be
invalidated on the imaginary possibility of misuse. The test of the
reasonableness of a provision is not the theoretical possibility of tyranny;
and (d) There is enough guideline in the scheme and provisions of the Punjab
Excise Act to govern the exercise of the power under Secs. 58 and 59.
In a few beer bar cases the grievance
ventilated is regarding the manipulation of hours of sale. Nothing has been
made out to hold that the readjustment of the hour of beer-bidding is unrelated
to the statutory guidelines or destructive of the business. We reject the
objection.
We have reasoned enough to justify the ways
of the Constitution and the law to the consumers of social justice and
spirituous potions. The challenge fails and the Writ Petitions Nos. 4108-4109
tc., of 1978 are hereby dismissed with costs (one hearing fee). May we
hopefully expect the State to bear true faith and allegiance to that
Constitutional orphan, Art. 47 ? N V.K Petitions dismissed.
(1) "Reconsiderations H. L. Meneken-Anti
All Kinds of Blah by Lila Ray appeared in "Span" Aug. 1978 p. 41.
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