Ourview A boost to fundamental rights

Courts are finally protecting individual liberty in prohibition and beef ban cases

The politics of alcohol consumption and cow slaughter have, of late, run roughshod over issues of constitutional law and philosophy. The Patna high court’s recent judgement on prohibition in Bihar—especially when read together with the Bombay high court’s earlier beef ban verdict—is a necessary redressal of the balance. These judgements are a nuanced look at how the relationship between the republic and the citizen is being renegotiated within the constitutional framework. The fundamental question at the heart of both cases is this: Do Indian citizens have the right to drink and eat what they want?

Justice Navaniti Prasad Singh, in penning the main argument in the Bihar prohibition judgement, answers in the affirmative. He writes: “Similarly, with expanding interpretation of the right to privacy, as contained in Article 21 of the Constitution, a citizen has a right to choose how he lives, so long as he is not a nuisance to the society. State cannot dictate what he will eat and what he will drink.” This is a landmark observation since never before have the courts viewed prohibition through the lens of personal liberty. Previous judgements on the issue, almost always upholding prohibition, have viewed it through the right to livelihood lens and found that the limitations on the production and sale of alcohol were reasonable restrictions imposed by the state. This time, however, the personal liberty aspect was specifically raised by the petitioners who included not just alcohol traders but also individuals asserting their right to drink reasonable quantities of alcohol in the confines of their home.

A similar line of thinking is seen in the Bombay high court’s beef ban verdict. In striking down section 5 (d) of the Maharashtra Animal Preservation (Amendment) Act which criminalized the possession of the flesh of cattle slaughtered outside Maharashtra (such slaughter is banned within the state), the court opines: “As far as the choice of eating food of the citizens is concerned, the citizens are required to be let alone especially when the food of their choice if not injurious to health…. The state cannot make an intrusion into his home and prevent a citizen from possessing and eating food of his choice…. This intrusion...is prohibited by the right to privacy which is part of personal liberty guaranteed by Article 21.”

These are hugely progressive steps in the evolving discourse on personal liberty but they aren’t without their challenges. The directive principles of state policy (DPSP) urge the state to prohibit the consumption of intoxicating substances that are injurious to health (though this is not a call for a blanket ban because drinking in moderate sums is, arguably, not injurious to health—a point that is made in the Bihar verdict)—and the slaughter of cows and calves and other milch and draught cattle. What happens when the state seeks to realize these goals but also steps on the citizens’ fundamental rights? This issue has been debated at length by the courts, and the ground rule now is that while the two need to be viewed harmoniously, in case of conflict, fundamental rights cannot be sacrificed in the pursuit of DPSP.

Notably, in the prohibition verdict, even though the two-judge bench agreed that the alcohol ban did not stand up to legal scrutiny on other grounds, there was disagreement on this specific issue of fundamental rights versus DPSP. The chief justice of the Patna high court argued that the framers of our Constitution did not see alcohol consumption as a fundamental right because then they wouldn’t have listed prohibition as a DPSP. This is a convoluted line of reasoning which, as Justice Singh rightly points out, erodes fundamental rights to secure a DPSP—thereby militating against the principles set out famously in the Minerva Mills case.

Similarly, in the beef ban verdict, while the court struck down section 5 (d) for violating the fundamental right to privacy, it upheld the other sub-sections, 5 (a) to 5 (c), even though they too could have been brought under the same umbrella. For example, enforcing section 5 (c) which criminalizes the possession of flesh of cattle illegally slaughtered in Maharashtra requires the same intrusion of privacy that the court objects to for Section 5 (d).

That said, it is important to keep in mind that in deciding the beef ban case, the Bombay high court had to take into consideration several Supreme Court judgements that had previously upheld complete beef bans. These judgements had rejected arguments based on freedom of religion and freedom of trade because cattle preservation was considered to be in the public interest in an agrarian economy. But evidence points to a ban on cattle slaughter being the wrong way to protect that public interest.

It is also worth wondering if the courts’ zealous attitude towards cow slaughter will change as India becomes an industrialized economy. The issue of laws evolving to reflect changing social mores is touched upon in the prohibition verdict where Justice Singh writes, “We have to view this concept (of personal liberty) in changing times, where international barriers are vanishing.” He goes on to talk about Indian citizens who enjoy their drink being reluctant to move to a dry state, thereby restricting their right to move and settle anywhere in the country. This might be pushing the argument too far but nonetheless offers a progressive push to both law and society.

Source: Mintepaper, 6-10-2016