Kerala’s Liquor Policy: What’s wrong with it?

Recently, the Supreme Court upheld the ‘Liquor-Free Kerala’ policy restricting the serving of liquor to five-star hotels in the State. The apex court ruled that the State governments be given a free hand to curtail or ban public consumption of alcohol to protect public health and nutrition.

Before we go into details, let’s see the time-line of Kerala’s Excise Policy

2007 – Kerala govt. started tightening its excise policy to make liquor less-freely available in the state, in the interest of public health. It started a policy where only those hotels that were accorded 3-star or more by Union Govt.’s Ministry of Culture will be given new bar licenses.

2011 – It further tightened the policy by denying licenses to any hotels that were accorded less than 4-star by Union Govt.’s Ministry of Culture. However, those hotels with existing licenses were accorded amnesty, i.e. they were allowed renewal of licenses even if the hotel’s rating was less than 4-star.

2014 – Only hotels classed as 5-star and above by Union Govt.’s Ministry of Culture, will be allowed to serve liquor.


What is Liquor-Free Kerala policy?

The policy seeks to prohibit the sale and service of alcohol in all public places, except bars and restaurants in five-star hotels. To be precise, only five star hotels are now allowed to serve hard liquor.

  • Other categories of hotels could supply only beer and wine.
  • Govt-run liquor shops are to be phased out at a rate of 10% a year over the next decade.
  • Toddy is exempt from the ban and the drink has long been part of Kerala’s culture.

Foreign tourists could be satisfied by beer and wine, while the domestic tourism sector will be the most affected as tourists from other states prefer hard liquor.


What is the need for bringing such a policy?

  • Kerala accounts for 14% of the country’s liquor consumption.
  • Even, the apex court said that it is well established that consumption of liquor is bad for health of humankind.
  • Alcoholism critically impact the household budgets of the poor & may lead to domestic violence.

DPSP also requires state to endeavour for prohibition of intoxicating drinks and drugs, due to the well-known ill-effects on standards of living and public health.


How this ban could impact Kerala’s economy?

  • Kerala earns about $ 3.8 billion/year from tourism, which is likely to be hit by the liquor ban. The state govt. has hiked excise duty on beer to 5% and that on liquor to 8% to offset revenue losses.
  • The job opportunities in the tourism sector will also be get affected because of this policy, as the industry provides one out of four jobs in the state.

Why there is so much criticism against prohibition?

  • Actually, the policy of prohibition does not encourage the people to quit the habit.
  • It leads to underground trade and creates a market for spurious liquor.
  • As a policy, prohibition has met with little success anywhere in India, due to corruption within enforcement agencies.
  • Even when it has helped bring down overall consumption, prohibition has led to loss of lives in hooch tragedies.

What is the argument for exempting five-star hotels & why is it criticized?

  • The State govt. has argued that it is in the interest of tourism.
  • However, the Supreme Court’s decision to exempt five-star hotel seems unreasonable and arbitrary.
  • The judgment strikes at the root of non-discriminatory treatment under the constitution.

Let’s analyse the court verdict vis-a-vis fundamental rights?

The case is known as The Kerala Bar Hotels Association vs State of Kerala.

The bar associations have argued that the liquor policy violates Art 19(1)(g) and Art 14.

Article 19(1)(g) – To practice any profession, or to carry on any occupation, trade or business.

  • However, the liberty to freely carry on any trade or business is subject to reasonable restrictions that may be imposed by state in the interest of general public.
  • This argument fails, since Art 47 requires state to make an endeavour towards improving public health, including to bring about prohibition of the consumption of liquor.

Art 14 – The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

  • The new excise policy had made an unreasonable classification by separately categorizing hotel of 5-star or more and permitting these hotels to serve liquor in public.
  • Therefore, the policy violates Art 14 of constitution by treating persons on an equal standing unequally.

What could be the better policy alternative?

Experts argue that a better idea would be to engage non-state actors to step up the campaign for abstention.

Suggest some better policy alternatives or share some successful case-studies to curb the consumption of liquor.


 

Published with inputs from Pushpendra 

Any doubts?


  1. Profile photo of krishna tinku447 krishna tinku447

    by giving some kind of card for liquor like adhar ,subsidies should not be given to people who drink alcohol or pension will not given t

Ban was based on Centre’s studies: SC

  1. Issue: The Supreme Court’s ban on liquor vends along National and State Highways
  2. SC: “This court, while exercising its jurisdiction, has neither formulated policy nor has it assumed a legislative function”
  3. Rationale for intervention: The basis and foundation for the ban is derived entirely from studies done by the Central government over the past decade
  4. Official data produced by the MoRTH show the extent of road accidents caused by drunken driving
  5. Also, the Centre has pledged its unequivocal support to such a ban

Note4students:

This is not only an issue of liquor ban but one of judicial activism. Note it for mains. Also note the difference between judicial activism and judicial overreach.

Back2basics:

Judicial Review:

  1. The process by which the Judiciary review the validity of laws passed by the legislature
  2. This power originates from Article 13 of the Constitution
  3. Example- The striking down of the Section 66A of the IT Act as it was against the Fundamental Rights guaranteed by the constitution

Judicial activism:

  1. A more active role taken by Judiciary to dispense social justice
  2. It has no constitutional articles to support its origin. Indian Judiciary invented it. There is a similar concept in the United States of America
  3. Examples- Invention of the ‘basic structure doctrine’ in the ‘Keshavanad Bharati case’ (1973) by which Supreme Court further extended the scope of Judicial Review, incorporation of due process of law instead of procedure established by law, institutionalization of PIL

Judicial Overreach:

  1. The line between Judicial activism and Judicial Overreach is very narrow
  2. When Judicial activism crosses its limits and becomes Judicial adventurism it is known as Judicial Overreach
  3. When the judiciary oversteps the powers given to it, it may interfere with the proper functioning of the legislative or executive organs of government
  4. It is undesirable in any democracy
  5. Examples- What makes any action activism or overreach is based upon the perspective of individuals
  6. But in general, striking down of NJAC bill and the 99th constitutional amendment, the order passed by the Allahabad High Court making it compulsory for all Bureaucrats to send their children to government school, misuse the power to punish for contempt of court etc. are considered as Judicial Overreach

[op-ed snap] My way on the highway

Context:

  1. The Supreme Court’s order on December 15, 2016 prohibiting the sale of alcohol within 500 metres of National and State highways highlights the perils of polycentric adjudication
  2. The stated reason for this order is the overriding imperative of preventing road accidents due to drunken driving
  3. There are reports about the collateral consequences: lost livelihoods and a substantial hit in tourism for States such as Goa
  4. The court’s clarification — that its initial order applied not merely to “liquor vends”, but also to bars, hotels, and restaurants — has led to the paradoxical consequence of even members-only clubs being forced to go dry because of their proximity to a highway

Overreaching justice:

  1. It has been argued that banning alcohol — and micromanaging the distance from the highways where alcohol cannot be sold — is a classic example of policymaking, and that the Supreme Court has indulged in “judicial overreach”

The court’s reasoning:

  1. Unlike many other cases in which the Supreme Court has passed far-reaching orders in the course of “public interest litigation”
  2. In this case, the court has gone to some lengths to defend its alcohol-banning order against claims of judicial overreach
  3. In its December 15 order the court referred to a number of government policy documents that drew a correlation between alcohol consumption and road accidents
  4. The Central government had issued circulars “advising” State governments not to grant any new licences to liquor shops along the highways
  5. On this basis, the court observed: “The issue is whether such liquor licences should be granted on national and state highways at the cost of endangering human lives and safety. In our view, which is based on the expert determination of the Union government, we hold that the answer should be in the negative”

Who should do what:

  1. There are two different questions: what should be done about a problem, and who should do it
  2. In this case, the question of whether the government should grant liquor licences in the proximity of highways — should not be answered by a court, whatever the answer may be
  3. The question is not whether the government’s determination is correct or incorrect, but which body is authorised to act upon that determination
  4. The court observed that it was “not fashion[ing] its own policy but enforc[ing] the right to life under Article 21 of the Constitution based on the considered view of expert bodies”

Article 21 and weak evidence:

  1. It may be argued that Article 21 is not merely a right against state action that deprives an individual of her life, but also against state inaction that results in loss of life
  2. In other words, the argument might be that road deaths could be prevented if the state was to refuse to grant liquor licences in the proximity of highways
  3. The state’s failure to do so is a breach of its obligations under Article 21, and the court’s order merely enforced a fundamental right by requiring the state to act
  4. If this is the legal foundation of the judgment, however, then it misses two crucial building blocks
  5. First, the court ought to have provided a test for the degree of proximity between state (in)action and loss of life, for a finding that Article 21 had been breached
  6. There are a lot of things that the state does, or does not do, which ultimately affect peoples’ lives
  7. For instance, people would probably live longer, and there would be fewer deaths by heart attacks, if the state was to ban all junk food
  8. That, however, would not justify the court invoking Article 21 and directing the state to ban all junk food, on the ground that it was failing in its obligations under Article 21 through its inaction
  9. And second, the court’s conclusion ought to have rested on firmer evidentiary foundations than it did

Complete justice:

  1. The court concluded by clarifying that it was passing orders under Article 142 of the Constitution
  2. Article 142 empowers the Supreme Court to do “complete justice” in any case before it
  3. However, this power is bounded by the further requirement that the court act “within its jurisdiction”
  4. Article 142, therefore, is not a carte blanche for the Supreme Court to implement its vision of justice, without regard to issues of institutional competence and legitimacy

Note4Students:

In the liquor ban case, despite its efforts to do so, the court has failed to make out a compelling case for why its orders do not encroach upon the executive’s domain of policymaking. Its polycentric consequences — which are only now emerging — lend further credence to the view that the court has, indeed, overreached. Read how the Court has interpreted Article 21.

[op-ed snap] None For The Road

Context:

  1. Supreme Court’s ban on liquor shops on national and state highways
  2. Road accidents cause annual deaths to nearly 1,50,000 and are among the top 10 causes for death and disease in India, according to Global Burden of Disease, 2015
  3. Drunk driving is the most common cause for automobile accidents. The SC order will save thousands of lives and save insurance costs

Questioning selective ban:

  1. Why ban only liquor shops and exempt bars that serve wine, whisky, brandy, etc. which contain 15 to 50% alcohol?
  2. Any alcohol, when drunk in sufficient quantity, blurs judgement and dulls reflexes
  3. Hence, all opportunities for drinking must be removed from the highways

Trying to neutralize the SC order:

  1. The liquor lobby is trying to neutralise the SC order
  2. In several places, moves are afoot to transfer the management of highways to municipal corporations to bypass the apex court ban which applies only to national and state highways
  3. This must be plugged. If alcohol is harmful on the roads, is it safe elsewhere? Is alcohol an innocent drink?

Reports:

  1. WHO attributes 200 types of diseases to alcohol with an estimated annual 3.3 million deaths globally, and a loss of a total of 140 million life-years
  2. Alcohol kills more people than HIV
  3. But why fuss about people occasionally indulging in a peg or two?
  4. According to the WHO Statistical Report 2015, the annual per adult consumption of absolute alcohol in India is four litres — about 400-500 drinks per year
  5. As only 20% of adults in India drink, their per head annual consumption is 2,500 to 3,000 drinks
  6. Think about the impact on those who consume alcohol, and those around them

Freedom of choice:

  1. What about the individual’s freedom of choice to drink? Yes, but what makes this free choice? The brain
  2. Alcohol influences the brain and compromises its ability to make a reasoned choice
  3. After the first drink, it is alcohol which is dictating choice, not the brain
  4. In the case of alcohol, the idea of free choice is a myth
  5. Alcohol takes away our ability and, thereby our freedom, to make a choice
  6. Abstaining from alcohol protects our freedom of choice
  7. There is third party damage. Those around the abusers — wives, children, neighbours, those walking or driving on the streets, employers, colleagues, even recipients of the drunk’s service — are at grievous risk
  8. The issue is not simply the freedom of choice of drinkers; it is also the freedom of life, safety and dignity, of family income and the productivity of other people

India and its neighbours:

  1. In Pakistan and Bangladesh, the government policy and religion are anti-alcohol
  2. According to WHO 2015 statistics, the annual per adult consumption of absolute alcohol (legal plus illicit) in India is 4,000 ml while it is 100 ml in Pakistan and 200 ml in Bangladesh
  3. In the predominantly Buddhist Myanmar and Bhutan, it is 700 ml
  4. It is less than 1,000 ml in 26 countries where governments and culture have taken an anti-alcohol view. Clearly, alcohol consumption can be controlled

Government’s role:

  1. Culture does influence peoples’ behaviour, especially when the government also holds a similar view
  2. Most religions in India — Hinduism, Islam, Sikhism, Jainism and Buddhism — prohibit drinking
  3. The net cultural influence in India is, therefore, anti-alcohol
  4. According to WHO, even today, 80% of the adults in India don’t drink
  5. If government policy and efforts complement this cultural factor, lessening the present alcohol consumption by 75%, and reducing it to less than 1,000 ml per capita, may not be impossible
  6. Even countries like France and Italy, known for their drinking culture, have reduced alcohol consumption by a third. Russia aims to reduce it by 55%

Note4Students:

Alcohol consumption probably will never become zero. The right question to ask is not whether prohibition was successful or a failure, but if it reduced alcohol consumption. Moreover, as the Supreme Court judgement says, it is the government’s constitutional duty to make the policy work. The question about prohibition is not if, but how. Make notes for Mains answer as well as Essay on the topic.

Bihar govt. enforces new prohibition law

  1. Bihar Govt notified and enforced a new Prohibition law with more stringent provisions- Bihar Prohibition and Excise Act, 2016
  2. Recently, the Patna High Court had quashed the prohibition law in Bihar
  3. Govt also declared that it would appeal to the Supreme Court against the High Court judgment
  4. The law ensures complete ban on sale and consumption of liquor- both Indian Made Foreign Liquor and country-made— in the State with immediate effect

Bihar imposes total ban on alcohol

  1. News: The Bihar govt had banned sale and consumption of country-made liquor across the State from April 1 with provisions of even death penalty for those involved in trade of hooch
  2. Industry: The liquor companies and factories in the State can continue to manufacture, but cannot trade in it within the State
  3. Exemption: Army cantonment areas would be exempt as they regulate sale and consumption of alcohol in their own way

Bihar Assembly passes bill on partial ban on liquor

  1. News: Bihar passed a new Bill that incorporates some stringent measures against liquor consumption in the state
  2. Provisions: Those involved in the hooch tragedy will be awarded punishment up to capital punishment
  3. Importance: The govt has opened indoor and outdoor de-addiction centres in every district in the state to help people in getting rid of liquor habit
  4. The govt would create such an environment that people in urban areas would automatically quit liquor consumption

Apex court upholds curbs on serving liquor in Kerala

  1. SC has upheld the controversial ‘Liquor-Free Kerala’ policy restricting the serving of liquor to 5-star hotels in the State.
  2. The SC ruled that the State govts be given a free hand to curtail or ban public consumption of alcohol to protect public health and nutrition.
  3. The policy led to the closure of over 400 bars and restricted liquor availability to nearly 20 five-star hotels.
  4. SC said that consumption of tobacco as well as liquor is now undeniably deleterious to the health of humankind.

Good in principle, tough to practise – Ban on Liquor

  1. DPSP requires state to endeavour for prohibition of intoxicating drinks and drugs, due to the well-known ill-effects on standards of living and public health.
  2. Any ban on liquor sales will necessarily co-exist with a spurt in bootlegging and illicit distillation.
  3. As a policy, prohibition has met with little success anywhere in India, due to corruption within enforcement agencies.
  4. Even when it has helped bring down overall consumption, prohibition has led to loss of lives in hooch tragedies.
  5. Many of the government’s freebie schemes actually run on revenues from duties and taxes levied on liquor, prohibition leaving govt. exchequer empty.


:( We are working on most probable questions. Do check back this section.







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