WA No. 1823 of 2016 in WP(C) 33709/2015. Case: Anoop M.S. Vs State of Kerala and Ors.. High Court of Kerala (India)
| Case Number | WA No. 1823 of 2016 in WP(C) 33709/2015 |
| Counsel | For Appellant: S. Vinod Bhat and Legith T. Kottakkal, Advs. and For Respondents: Bijoy Chandran, Government Pleader, Naveen T. and M. Sasindran, SC |
| Judges | P.R. Ramachandra Menon and Dama Seshadri Naidu, JJ. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 41, 41A, 438; Constitution of India - Articles 14, 19, 19(1), 19(1)(a), 19(1)(g), 19(6), 21, 37, 47 |
| Judgement Date | January 12, 2017 |
| Court | High Court of Kerala (India) |
Judgment:
Dama Seshadri Naidu, J.
Introduction:
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To drink or not to drink. That is the Hamletian dilemma of Anoop, the appellant. He has chosen to drink. He rails at the rules that obstruct his passion for the pint, his right to choose, to be let alone, to privacy, and, of all, his right to life. He claims that the laws prohibiting alcoholic drinks fall foul of the fundamental rights guaranteed to a citizen, to him. Do they? Our answer: No.
Facts:
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Anoop M.S., the appellant, has a profession: he taps rubber trees and extracts latex. He taps about 400 trees a day. For this he works from 6 in the morning till 2 in the afternoon. Anoop has a habit: given what he calls it to be his "hectic work schedule", he finds his solace in "consuming small quantities" of liquor purchased from the retail outlets of Kerala State Beverages Corporation (KSBC) and Kerala State Co-operative Federation; that is, the second and third respondents. Liquor is his "daily diet." This daily diet makes Anoop "rejuvenated, relaxed," and even "physically fit, "as if it were the elixir of his life. Anoop is KSBC's loyal consumer, so to say.
Grievance:
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Before 2014-15, when the Government introduced a new Abkari Policy ("the New Policy"), Anoop took his daily diet from the "bar hotels". Because of the New Policy, now he could not have access to bar-hotels but is constrained to buy liquor from the Government outlets. It costs him more.
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According to the Policy, the Government has decided to shut down the retail outlets in a phased manner-10% of retail outlets to be closed annually as per Clause 2 of the Policy. Clause 2, Anoop accuses, was introduced with no "specific or scientific study." Though the consumption of liquor is not prohibited in Kerala, the Policy indirectly prohibits the consumption. The State cannot prohibit a lawful thing "by introducing a policy." It ought to be effected only by a positive legislative enactment. The Policy is bad in law.
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The Government has monopolized the liquor trade. The State is "enriched by the sale of liquor." Though KSBC levies exorbitant taxes and duties on liquor, it provides no quality services to the customers. The retail outlets closed in a phased-manner, the remaining outlets struggle to cater to the customers. The queue lengthening, the consumers must spend over two hours "in unhealthy and unworthy circumstances" to purchase liquor. The policy, in fact, is against the KSBC's objectives.
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Anoop sanctifies liquor: alcohol has "historical and religious importance" in Kerala. It is used in some temples and rituals of Hindu Community, so closing outlets will affect the religious sentiments of the Hindus who follow "Puliyampulli", a ritual observed among some sects within the Hindu community in Kerala to worship Goddesses Shakhty. Remediless, Anoop has filed W.P. No. 33709 of 2015 to have the New Policy quashed.
Writ Outcome:
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Through a judgment, dated 6th August 2016, this Court, per a learned Single Judge, dismissed the writ petition: The courts, up to the apex level, have upheld the policy; so, the policy needs no interference.
Appeal:
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Resolute and resilient, Anoop, the rubber-tree tapper, has filed this Writ Appeal, reiterating the same contentions that earned rejection earlier.
Submissions:
Appellant's:
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Sri Legith T. Kottakkal, the learned counsel for the appellant, has passionately argued that the Government has misused its dominant position by introducing the policy, though it has no authority to prohibit a lawful activity, and indirectly at that. According to him, Abkari Act ("the Act") has no provision to empower the Government to prohibit liquor. The liquor prohibition, even in a phased manner, is outside the purview of Abkari Act.
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State cannot dictate to the individuals what they should eat and what they should drink, the counsel contends. Reasonable restrictions can only be imposed but only by a statute. The New Policy does not restrict the liquor sale; on the contrary, it prohibits the liquor. It militates against Article 21 of the Constitution of India. Clause 2 of the Policy, according to the learned counsel, is irrational and has no nexus to the objectives sought to be achieved. Clause 2 of the Policy is ultra vires because it offends the distribution of Legislative Power under Constitution of India and Act 65 of 1951.
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The learned counsel contends that consumption is a personal choice, a facet of right to privacy and right to be let alone, as has been enshrined under the Articles 21 and 19(1)(a) of Constitution of India. To support his contention, Anoop relies on Hinsa Virodhak Sangh Vs. Mirzapur Mou Kuresh Jamat AIR 2008 SC 1892.
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Given the change of Government, the Hon'ble Governor in his speech under Art. 176 on the floor of the Assembly has observed that the New Policy has "not yielded the desired positive impact." (para 214 of the Address). Mr. Legith also submitted that, on 30.06.2016, the Government on the floor of the Assembly that the New Policy is a failure; the policy resulted in the rampant abuse of drugs and ganja in the society. Even after admitting that the policy has failed, the Government, complains, Anoop, is not rolling it back-officially.
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Faced with numerous precedents on the same issue, though concerning liquor trade, Sri Legith asserts that the issue of right to choose or of privacy is sub silentio in those cases. Sri Legith, during his submissions, has cited a plethora of precedents, apart from relying on some international covenants. They will be referred to by and by if the need arises. Eventually, the learned counsel urges the Court to quash the New Policy.
The Respondent's:
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The learned Government Pleader, on the other hand, has submitted that the petitioner has brought a frivolous cause before the Court; he has no other intention than hogging the limelight by wasting precious judicial time. According to him, already many rounds of challenge were laid against the New Policy but were all successfully repelled, up to the level of the Supreme Court. So the writ petition, as rightly dismissed, is hit by constructive res judicata, asserts the learned Government Pleader.
Issue:
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A self-proclaimed hardworking individual takes liquor on a daily-basis and claims that he thus finds his relaxation. The Government, in 2015, introduced a New Liquor Policy to usher in prohibition in a phased manner, though. It has decided to close the liquor retail outlets, a State's monopoly, at 10% annually. Does the New Policy infringe on the petitioner's right to choose, right to privacy, or right to life?
Discussion:
Setting the Tone:
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"Our rulers will best promote the improvement of the people by strictly confining themselves to their own legitimate duties-by leaving capital to find its most lucrative course, commodities their fair price, industry and intelligence their natural reward, idleness and folly their natural punishment--by maintaining peace, by defending property, by diminishing the price of law and by observing strict economy in every department of the State. Let the Government do this: The people will assuredly do the rest/' hoped Thomas Babington Macaulay1. Macaulay visualised a Utopian state, a state of laissez-faire, too. But governance is much more.
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Governance, according to the United Nations2, is the exercise of political, economic, and administrative authority to manage a nation's affairs. It involves complex mechanisms, processes, relationships, and institutions through which citizens and groups articulate their interests, exercise their rights and obligations, and mediate their differences. Governance encompasses every institution and every organization in the society, from the family to the State; it embraces all methods--good and bad--that societies use to distribute power and manage public resources and problems. Good governance, a subset of governance, manages the public resources effectively, efficiently to cater to critical needs of society. True, effective democratic forms of governance rely on public participation, accountability, and transparency.
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Article 37 in Part IV on Directive Principles of State Policy uses the expression 'governance of the country.' But good governance is writ large and implicit in several provisions of the Constitution, argues Madhav Godbole, a former civil servant espousing the cause of administrative reforms. Incidentally, it pays to note that Madhav Godbole and another former civil servant filed W.P. (Civil) No. 69 of 2004 (PIL) seeking the Supreme Court to declare a citizen's right to good governance a fundamental right. The Apex Court, while dismissing the writ petition, observed thus: if there was a specific case of grievance, the court could consider it, but it could not rewrite the Constitution or run the administration. To grant the relief sought, the Court must look into every aspect of governance. It is impermissible3.
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There may be jurisprudential justification for viewing the constitutional commands and statutory stipulations through a moral prism. But there is little legal justification for conflating morals with legislation and pontificating the adjudicatory process. Morality may inspire law and may even result in legislation, but morality by itself is not law. But the metamorphosis is always from morality to law; that is, rights.
Constitutionally entrenched rights and penumbral rights
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An inherent dignity of an individual and the inviolable integrity of his or her personality give rise to the notion that certain human rights are immutable and not negotiable. The multidimensional morality of human rights transcends the enumerated fundamental rights; it imperceptibly, inexorably chips away at the legislative limits of the rights. It sends from its ranks the rights, initially hazy and nebulous, to stand by the peripherals of the enumerated rights--to the status of penumbral rights. With the judicial winds in their sails, they slowly travel towards the core of the...
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