Constitutional Validity of the Sale of Liquor during the Lockdown Period

– Tarun Agarwal

Introduction

Amid uproar by the state governments to raise the state funding during the COVID-19 crisis, the central government revisited its guidelines and lifted the ban on the sale of alcohol. It would not be a gaffe to say that liquor contributes a considerable amount of money to the states’ exchequer. It was evident when the Delhi Government imposed a 70 percent hike in the price of liquor across categories in the capital. It was not only the Delhi Government which had imposed the ‘special corona fee‘, but other states such as Karnataka also raised taxes on liquor by 11 percent. As the states were struggling hard to fill their coffers amidst the lockdown, production and sale of alcohol seem to be their primary source of revenue. Last September, RBI published a report titled ‘State Finances: A Study of Budgets of 2019-2020’, which showed that state excise duty on alcohol contributes around 10 to 15 percent of Own Tax Revenue of a majority of states. In fact, after state GST, state excise duty on liquor contributes the highest amount to the state Own Tax Revenue.

Apart from raising the revenue during the lockdown, alcohol has multiple side effects on the individual and society, which have become the primary concern during the lockdown.  As per the World Health Organisation report on the “public health problems caused by harmful use of alcohol“, consumption of alcohol influences the health of an individual, reduces the immunity level, and causes domestic violence against women and children to increase. In another report of WHO namely “intimate partner violence and alcohol“, it was mentioned that a strong link was found between alcohol use and intimate partner violence in many foreign countries. During the lockdown, reports of domestic abuse have soared across the world. The National Commission of Women of India has also observed that there has been a significant rise in the reported cases of domestic violence.

In the current COVID-19 crisis when the number of active cases is constantly rising in India, it has become the primary issue to be addressed that “whether it was necessary to lift the ban on the sale of liquor considering the fact it has a detrimental impact on the health of an individual and has a direct link with domestic violence or abuse”? and “whether the sale of liquor during the lockdown violates Constitutional right and International law”? 

Constitutional mandate on the Health of an individual and protection from Domestic abuse

The author would like to argue that the state has the legal obligation to protect the health of an individual from the ill consumption of liquor and safeguard the people from the acts of domestic violence. In the case of Association of Medical Super… v. Union of India, the SC observed that Article 21 of the Constitution of India imposes an obligation on the state to protect the right to life of every person. Preservation of Human Life is of utmost importance. In another case, Paschim Banga Khet Mazdoor Samity and Others v. State of W.B. and Another, the SC stated that the constitution of India envisages the establishment of a welfare state. The primary duty of the government in the welfare state is to ensure the creation of sustainable condition for good health. In the case of Akhil Bharatiya Soshit Karamchari Sangh v. Union of India, SC held maintenance and improvement of the public health to be as crucial as the physical existence of society and building of a society which the constitution makers had envisioned. In T. Soobramoney vs. Minister of Health (Kwazulu-Natal) (Case CCT 32/97) the Constitutional Court of South Africa stated that legal jurisprudence of Indian SC around the right to life imposes a positive obligation on the government in respect of the basic need of its inhabitants.  In the present crisis of COVID-19, WHO has already recommended people to minimize alcohol consumption primarily because alcohol consumption is associated with communicable and non-communicable diseases, making a person more susceptible to the virus. This shows the negligence on the part of the state in dealing with the pandemic, and thus the sale of liquor is an instance of violation of the right to life.

Duty of the State

In the case of Minerva Mills, Justice PN Bhagawati stated that the Directive Principles are fundamental in the governance of the country and are binding on the state. The state is under a constitutional obligation to carry out its duty. The same was reiterated in case of Union of India v. Mool Chand Khairati Ram Trust, where SC observed that under Article 47, the state has to make every effort to raise the level of nutrition and the standard of living and to improve public health. In fact, during unprecedented times, the duty on the state is highly important. But the removal of a ban on liquor by the state violated its constitutional obligation by compromising with the health of people and creating conditions which induce domestic violence during the lockdown.

Right to Health based on International Covenant and Treaties

India is a party to various international conventions and covenants which have the provision that recognised the right to health. The International Covenant on Economic, Social and Cultural Rights gives the most exhaustive article on right to health in international human rights law. As per Article 12(1) of the ICESR, state parties identified “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” while Article 12(2) illustrates the necessary steps to be taken by state parties to achieve the full realization of this right, and, Article 12(2) (c) discussed one of the steps as “the prevention, treatment, and control of epidemic, endemic, occupational and other diseases”. Similarly, Article 25(1) of the Universal Declaration of Human Rights states that everyone has the right to a standard of living adequate for the health of himself and the family. These international treaties and conventions impose an obligation over the state to protect the health of an individual.

Instead of taking robust measures to contain the outbreak, the government lifted the ban on the sale of liquor which leads to the violation of the obligation by the government to take all necessary steps to ensure the realization of the right to health.

Observations

It is evident from the time of the Great Recession of the US that fear of uncertainty, food insecurity and unemployment are positively correlated with abusive behaviour. And the sale of liquor during the crisis will only act as fuel in the fire and aggravates the tension and the feeling of inadequacy in men at home and make women the victim of those tensions. As per NCRB crime data of 2018, the instances of cruelty by husband against women in dry states like Gujarat and Bihar are quite low as compared to other states having the same amount of population. The same observation was made by Kenneth E Leonard in his study that ban on the sale of alcohol is associated with a substantial reduction in the cases of domestic violence. It is quite ironic to observe that the Ministry of AYUSH. on one hand, was awakening the public to raise the immunity level, while on the other hand, the government was selling liquor during the pandemic.

The argument that liquor generates revenue would not stand valid when the country’s health infrastructure is fighting an unprecedented global pandemic and the act of Government to lift the ban is contrary to the preamble of The Disaster Management Act, 2005 which talks about the effective management of the disaster. In India, around 32 per cent of the adult population consumes alcohol and almost half of them are a hazardous drinker. The lifting of ban on the sale of liquor would be counterproductive to the government’s efforts to curb the spread of the virus by making an alcoholic consumer more prone to the virus. It cannot be considered as a valid step to generate funds where Bihar and Gujarat are also functioning efficiently as dry states. The government must take every decision with an objective to reduce the unnecessary burden on the health system of the country so that people who are unknowingly contracted with the virus can use the facilities in the best possible manner.

This article is authored by Tarun Agarwal. He is a student of law at Nirma University.