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Right To Consumption of Alcohol under Article 21

“Alcohol may be man’s worst enemy, but the bible says love your enemy”

Frank Sinatra

INTRODUCTION

The Supreme Court bench of Chief Justice of India T.S Thakur, and Justices D.Y. Chandrachud, and L. Nageswara Rao passed an order of banning sales of liquor in States and Union Territories along National and State Highways across India from a PIL filed by “Arrive Safe” NGO which said nearly 1.42 lakh people die annually on roads in India because of accidents, drunk and drive being a major contributor to this high toll of human lives. The bench also said that ‘The license after 31st March 2017 will not be renewed’. The bench thereby directed that liquor vends should be 500m away from high populated highways, and 220m away from highways where the population is less than 20,000 and the shops should not be visible from highways. The Apex Court extended its verdict of banning of sales of alcohol to pubs, bars, and hotels too. The Supreme Court has banned liquor consumption in cases such as The State of Tamil Nadu Rep. by its Secretary Home v. K Balu[1] and Kerala Hotels Bar Association v. State of Kerala[2]

  • INTEGRATED RIGHTS IN THE CONSTITUTION

The right to privacy means the right to be left alone and the right of a person to be free from unwarranted publicity. Black’s Law Dictionary says that the term right to privacy is a generic term encompassing various rights recognized to be inherent in the concept of ordered liberty, and such rights prohibits government interference in intimate personal relationships or activities, freedoms of individual to make fundamental choices involving himself, his family, and his relationship with others.

Articles dealing with the Fundamental Rights do not portray separate streams of rights which do not mingle at any point. They are all parts of the integrated scheme in the constitution. Their waters mix to constitute that grand flow of unimpeded and impractical justice, i.e. social, economic and political; freedom, i.e. not only of thought, expression, belief, faith and worship, but also of association, movement, vocation or occupation as well as of acquisition and possession of reasonable property; or equality, i.e. of status and of opportunity, which implies absence of unreasonable or unfair discrimination between individuals, groups and classes; and of fraternity, i.e. assuring dignity-of the individual and the unity of the nation; which our constitution visualizes.[3]

  • RIGHT TO CONSUME ALCOHOL UNDER RIGHT TO PRIVACY AND PERSONAL LIBERTY

The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of the country by Article 21. It is a ‘right to be left alone.’[4]Meaning thereby right to privacy is inherent under Article 21. The Delhi High Court observed that right to privacy is an alleged human right, which may restrain both government and private party action that threatens the privacy of individuals. It has been recognized as a fundamental right by the Hon’ble SC under Article 21.[5] The term “personal liberty” used in Article 21 of the Constitution is a compendious term which includes within itself all varieties of rights which goes to make up personal liberties of a man[6] . Ihas been held by the Apex Court that what one eats is one’s personal affair and it is a part of his right to privacy.[7]

The personal autonomy includes both the negative right not to be subjected to interference by others and the positive right of individuals to make decisions about their life.[8] The right to privacy has since been widely accepted as implied in our Constitution, in other cases, namely, People’s Union For Civil Liberties v. Union of India[9], Mr.’X’ v. Hospital ‘Z’[10] and Sharda v. Dharmpal.[11]” the counsel humbly submits that in the recent judgment given by Supreme Court the right to privacy has been considered as a fundamental right.[12]

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In the case of Ramlila Maidan Incident v. Home Secretary, Union of India and Ors.[13]in which it was held as;“Thus, it is evident that right of privacy and the right to sleep have always been treated to be a fundamental right like a right to breathe, to eat, to drink, to blink, etc.” The right to decide as to what to eat and drink within the confines of once house, by an individual citizen, would come within the matter of right of privacy, within Article 21 of the Constitution. It is not the case of the State nor any material placed on record that drinking alcohol per se as a responsible citizen is bad or injurious to health.

The prohibition on liquor is violative of Article 21 of the Constitution. 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.[14]Any restriction by a State, on the right to choose what to eat and what to drink, apart from being invasion of right of privacy under Article 21, would prejudicially affect free movement and free residence, in any part of the territory of India, for the citizens. Keeping in view these factors, a citizen cannot be prohibited from his choice, within the confines of his house, subject to orderly behavior, of enjoying his drink, which he can procure from any other part of the country, where prohibition is not in force.

A reference on the case of Md. Hanif Quareshi and Ors. v. State of Bihar and Ors[15], in support of the view that the right to consume intoxicating drink is a fundamental right, while considering the case of Mohd. Hanif Quareshi, it needs to be borne in mind that there was a complete ban on the occupation of the butchers, which was held to be unreasonable in as much as a butcher can work even as a helper to hide merchant. There is nothing, in Mohd. Hanif Quareshi’s case, to show that right to consume the meat of cow of every age is a fundamental right. In Mohd. Hanif Quareshi’s case, though the ban was on all animals, it was held to be Constitutional, because the ban was for a limited period.

Likewise, in Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat[16], wherein the Hon’ble Court observed:

“What one eats is one’s personal affair and it is a part of his right to privacy which is included in Article 21 of our Constitution as held by several decisions of this Court. That the right to privacy is implicit in the right to life and liberty guaranteed by Article 21. It is a right to be let alone.[17]

But in a classic judgment in Govind v. State of Madhya Pradesh[18], accepted that the right to privacy ai an emanation from Articles 19(a), 19(d) and 21, but right to privacy is not an absolute right.

“Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right that fundamental right must be subject to restriction on the basis of compelling public interest.”

Also, in the case of Ashoka Kumar Thakur v. Union of India[19]it has been contended that the words “right to eat”, when equated with the words like the right to sleep, breathe or drink, carry a specific emphasis. They are concerned with the right of every person to have access to food in order to nourish his body and sustain his life. It cannot be stretched by any means to cover the right to choose a particular kind of food.

  • NEITHER IMPOSES REASONABLE RESTRICTIONS NOR IS IN THE INTEREST OF THE PUBLIC
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Any restrictions on the right of an individual which violates Article 21 of the Constitution can be sustained only if the State establishes the existence of a compelling public interest. But the plea of existence of compelling State interest is subject to scrutiny on the ground of reasonableness and proportionality of the intrusion vis-à-vis the compelling State interest. It is to be noted that the example of States like Haryana, which has now seen proliferation of liquor shops, had once experimented with prohibition in 1996. The ban was removed within two years after the State Government lost revenue worth Rs. 1,200 crores. In Andhra Pradesh, ban on liquor was imposed in 1995. When the government realized that it couldn’t fulfill its promises without the revenue generated from alcohol excise duty, the ban was lifted. In 2015, Mizoram lifted a 17-year-old ban. In fact, rampant illegal sale of liquor forced Nagaland’s Chief Minister to describe his State as the “Wettest Dry State”. And also, a booze-free Bihar is not necessarily a better Bihar because the State might see a rise in bootlegging owing to the growth of a ‘black market’.

In the case of Confederation of Indian Alcoholic Beverage Companies and Ors. v. The State of Bihar And Ors.[20] It was observed that

“It can be clearly noted that when the State decides to impose total prohibition in terms of Article 47, then, no citizen can make a grievance, for, it would be a reasonable restriction. A challenge can, perhaps, be sustained, if and when it can be shown that introduction of such prohibition puts some unreasonable restriction on his fundamental rights and, therefore, not sustainable. Consumption of alcohol by a person can never be regarded as his fundamental right nor can it be said that the right to consume alcohol can be merely regulated and not prohibited. The potable liquor, as being pointed out, is res extra commercium and nobody has the right, therefore, a fundamental right to carry on the trade or business in potable liquor unless the State permits. When the right to trade or business in potable liquor is not a fundamental right, it follows inescapably that the right to demand consumption of alcohol, as a fundamental right, can also not be sustained, because if such a demand has to be fulfilled, then, trade or business in potable liquor cannot be restricted or banned.”

The Hon’ble Bombay High Court in Shaikh Zahid Mukhtar v. State of Maharashtra[21],(Beef Ban Appeal) held that,

“As far as, the choice of eating food of the citizen is concerned, the citizens are required to be left alone only when the food of their choice is not injurious to health.”

Upon various instances, the Apex Court and in particular the decisions in the cases of Maneka Gandhi v. Union of India[22] and Delhi Transport Corporation v. Dtc Mazdoor Congress,[23]  it was urged that the Doctrine of Pith and Substance is not relevant for determining the question of infringement of the fundamental rights under Article 21. Thus, liquor ban in any State of India, constitutes a clear infringement of their right to personal liberty, includes right to eat and drink food of one’s choice, and privacy as guaranteed under Article 21 of the Constitution.

  • CONCLUSION
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The ‘Alcohol Ban’ can drastically affect employment opportunities. The biggest challenge before our country is to provide employment to the younger generation. In such scenario, bar and restaurant industries are the huge source of employment for our country’s younger generation. The world economists are of the view that prohibiting intoxicants leads to mafia and formation of criminal gang or people start making liquor at home. In 2009, around 43 people died in Kerala and Western India due to the consumption of the home-made alcohol. Prohibition or curbing alcohol consumption will cause problems in future. Neither it is the Judiciary’s duty to impose Directive Principles on States nor, it is an extreme case under Article 142 of the Constitution.


[1] The State of Tamil Nadu Rep. by its Secretary Home v. K Balu, Civil Appeal Nos. 12164-12166 of 2016.

[2] Kerala Hotels Bar Association v. State of Kerala, AIR 2016 SC 163

[3] Maneka Gandhi v. Union of India, (1978) 1 SCC 448

[4] R. Rajagopal v. State of Tamil Nadu, 1994 SCC (6) 632

[5] Kharak Singh v. State of UP, 1964 SCR (1) 332

[6] Ibid.

[7] Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat and Ors,(2008)5 SCC 33

[8] National legal Services Authority v. Union of India, WP (Civil) No 604 of 2013

[9] People’s Union For Civil Liberties v. Union Of India, AIR 2003 SC 2363

[10] Mr.’X’ v. Hospital ‘Z’, (1998) 8 SCC 292

[11] Sharda v. Dharmpal, AIR 1979 SC 468

[12] Justice K S Puttaswamy (Retd.), And Anr. V Union Of India And Ors., WP (Civil) No 494 of 2012

[13] Ramlila Maidan Incident v. Home Secretary, Union Of India And Ors, (2012) 5 SCC

[14] Kerala Hotels Bar Association v. State of Kerala, AIR 2016 SC 163

[15] Md. Hanif Quareshi And Others v. State Of Bihar And Others, AIR 1958 SC 731

[16] Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat, (2008) 5 SCC 33

[17] R. Rajagopal v. State of T.N., 1994 SCC (6) 632

[18] Govind v. State of MP, AIR 1975 SC 1378

[19] Ashoka Kumar v. Union of India, W.P. (C) 265 of 2006

[20] Confederation of Indian Alcoholic Beverage Companies and Ors. v. The State of Bihar And Ors., Civil Writ Jurisdiction Case No. 6675 of 2016.

[21] Shaikh Zahid Mukhtar v. State of Maharashtra, Writ Petition No. 5731 of 2015

[22] Maneka Gandhi v. Union of India, (1978) 1 SCC 448

[23] Delhi Transport Corporation v. DTC Mazdoor Congress, (1991)Supp 1 SCC 600


Cite this article (The Bluebook 20th ed.)-

Hariharan V, Right To Consumption of Alcohol under Article 21, Ex Gratia Law Journal, (October 2, 2020), https://exgratialawjournal.in/blawg/constitutional-law/right-to-consumption-of-alcohol-under-article-21/.

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