November 21, 2024

Nitish Kumar’s defence (in an article in NDTV.com) of the draconian provisions in the Bihar Prohibition and Excise Bill, 2016 is very spirited and reflects the zeal of a man on a mission. Politically, socially and administratively, he might pass muster in what he is trying to do. But legally, he is on slippery ground. There is no dispute if Kumar wants to enforce total prohibition in Bihar. He does not even have to quote Mahatma Gandhi, cite the Directive Principles or the Supreme Court. It is a noble initiative and if, as Kumar has pointed out, it is getting widespread support in Bihar, it will be a resounding success. Nitish Kumar deserves all praise for this.

But several things stand out like sore thumbs. One is the fact that if there is so much support for prohibition in the state, why does the government feel the need for introducing such punitive provisions in the law? Kumar has said that these measures are necessary to plug the leakages. That is a weak argument. If the support is there and if women have taken the lead as disclosed by Kumar in the NDTV article, then why don’t wives report their husbands for their drinking habit and get them treated at de-addiction centres? Why is the government finding the need of making a law to punish all adult members of the household if liquor is found in any house? If Kumar is not aware, this is called collective punishment or vicarious liability, which goes against tenets of natural justice and is also unconstitutional. No policy, even if it is for the good of the people, can subvert justice and hold the whole of an identifiable group of people responsible for the crime of any member or members of that group. Already, one village has been fined for this and they have protested. If this goes on, the support Kumar claims for prohibition will dissipate in a flash. For a law to be successful, public support is also necessary.

Secondly, police have been granted powers to arrest without warrant, which again is against natural justice. Then, treating people guilty unless proved innocent is turning the law on its head where people are presumed innocent till proved guilty. Thirdly, there is a provision that allows the police to confiscate the property, as opposed to sealing it, where liquor is found. This, and several other punishments, are clearly way more than the gravity of the crime and are again not tenable legally. Fourthly, the provision that seeks to punish people if a mixture of sugar or jaggery and grapes is found in their home is also draconian. It will be assumed that the things have been kept to manufacture liquor and the person will be punished on assumption only, despite not having actually committed the crime of making liquor.

In defence of his policy, Nitish Kumar has taken a stand as reformer, chief minister and legislator. If he were to look at it from the point of view of a jurist, he will find that making laws as per his own wish is not allowed in the constitution. All laws have to pass constitutional provisions. The stringent Bihar provisions will not pass constitutional scrutiny. Kumar has to ensure that the claimed widespread support translates into self regulation and such ‘unconstitutional’ provisions are not required.

Kumar has also got to ensure that prohibition is not politicized and exemptions are not made for vote banks. His decision to exempt toddy, or tadi in local parlance, from prohibition is one such issue. To mollify the scheduled caste Pasi community that controls the trade, toddy is freely available in Bihar. The poorest of the poor drink toddy only. Even though it is much cheaper than other liquor, their income is also low. So if it is calculated on income to spending- on-liquor percentage basis, the chances of financial ruin of the family remains the same. Plus the addiction level and harm to health also remain the same. So this exemption defeats the main purposes of prohibition in the state.

Read Nitish Kumar's article on NDTV.com here