{"id":102832,"date":"1978-08-16T00:00:00","date_gmt":"1978-08-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-n-kaushal-etc-vs-union-of-india-on-16-august-1978"},"modified":"2018-09-02T03:32:28","modified_gmt":"2018-09-01T22:02:28","slug":"p-n-kaushal-etc-vs-union-of-india-on-16-august-1978","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-n-kaushal-etc-vs-union-of-india-on-16-august-1978","title":{"rendered":"P. N. Kaushal Etc vs Union Of India on 16 August, 1978"},"content":{"rendered":"
Supreme Court of India<\/div>\n
P. N. Kaushal Etc vs Union Of India on 16 August, 1978<\/div>\n
Equivalent citations: 1978 AIR 1457, \t\t 1979 SCR (1) 122<\/div>\n
Author: V Krishnaiyer<\/div>\n
Bench: Krishnaiyer, V.R.<\/div>\n
           PETITIONER:\nP. N. KAUSHAL ETC.\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA\n\nDATE OF JUDGMENT16\/08\/1978\n\nBENCH:\nKRISHNAIYER, V.R.\nBENCH:\nKRISHNAIYER, V.R.\nDESAI, D.A.\nREDDY, O. CHINNAPPA (J)\n\nCITATION:\n 1978 AIR 1457\t\t  1979 SCR  (1) 122\n 1978 SCC  (3) 558\n CITATOR INFO :\n R\t    1978 SC1476\t (3)\n R\t    1978 SC1484\t (4)\n RF\t    1979 SC 321\t (9)\n R\t    1979 SC1550\t (17,18)\n R\t    1979 SC1803\t (12)\n RF\t    1990 SC1927\t (45,51,60)\n RF\t    1992 SC1256\t (14)\n\n\nACT:\n     Punjab Excise  Act 1  of  1914,  Section  59(f)(v)\t and\nPunjab\tLiquor\tLicence\t Rules\t1956-Rule  37-Constitutional\nValidity of-Business  in intoxicants-  State if has power to\nprohibit absolutely every form of activity relating thereto.\n     Constitution of India. 1950-Part IV of the Constitution\nmust enter  the soul  of Part  III and\tthe laws made by the\nState-Articles 38  and 47-Progressive  implementation of the\npolicy of prohibition.\n\n\n\nHEADNOTE:\n     The  Punjab  Excise  Act  1914  contemplates  grant  of\nlicences for trading in (Indian) foreign and country liquor.\nSection 59(f)  (v) of the Act provides for the fixing of the\ndays during  which any\tlicensed premises  may or may not be\nkept open  for sale  of\t liquor\t and  the  closure  of\tsuch\npremises on special occasions. The conditions of the licence\nincludes restrictions  of various types including obligation\nnot to sell liquor on certain days and during certain hours.\nRule 37(a)  as it originally stood prohibited sale of liquor\non Tuesdays  upto 2  p.m. and  also on\ttho 7th day of every\nmonth. This  rule was  amended by  a notification whereby in\nplace of  \"Tuesdays upto 2 p.m. plus the 7th of every month\"\n\"Tuesday and  Friday in\t every week\", was substituted as the\ndays when  liquor vending was prohibited. \"Note\" appended to\nthe said  rule exempted\t tourist bungalows  and. rest-houses\nrun by\tthe Department\tof tho\tState  Government  from\t the\noperation of  the condition  regarding\tclosure.  Consequent\nupon the  change of  days, the\t. Licence  fee payable\tby a\nvendor was  reduced from  Rs. 12,000\/-\tto Rs.\t10,000\/-  to\ncompensate  for\t the  marginal\tloss  caused  by  two  days'\nclosure.\n     The petitioners  who were licensed vendors of liquor in\nthe  State   challenged\t the  constitutionality\t of  section\n59(f)(v) and the vires of Rule 37 on the ground that section\n59(f)(v)  vested   an  unguided,   uncanalised,\t vague\t and\nvagarious power\t in the\t Financial Commissioner\t to fix\t the\ndays or\t number of days and hours or number of hours without\nlaying\tdown   any  guidelines,\t indicators  or\t controlling\npoints.\n     The State on the other hand contended that the subject-\nmatter of  the legislation  being  a  deleterious  substance\n(liquor),  requiring   restrictions  in\t  the  direction  of\nmoderation in consumption, regulation regarding the days and\nhours of  sale and appropriateness in the matter of location\nof the places of sale, reasonableness and arbitrariness must\nbe tested  on the  touchstone of  principled pragmatism\t and\nliving realism,\n     Dismissing the writ petitions,\n^\n     HELD: (a)\tSection 59(f)(v)  of the  Punjab Excise\t Act\n1914 is valid. [158 C]\n123\n     (b) The  regulation of  the  number  of  days  and\t the\nduration of  the hours\twhen supply  of alcohol by licensees\nshall be  stopped is quite reasonable whether it be two days\nin a week or more. [158D]\n     (c) The exercise of the power to regulate, including to\ndirect closure\tfor some  days every  week, being reasonable\nand calculated\tto produce  temperance\tand  promote  social\nwelfare, cannot\t be invalidated on the imaginary possibility\nof misuse.  The test of the reasonableness of a provision is\nnot the theoretical possibility of tyranny. [158E]\n     (d)  There\t is  enough  guideline\tin  the\t scheme\t and\nprovisions of  the Punjab  Excise Act to govern the exercise\nof the power under sections 58 and 59. [158E]\n     (1) (a)  The  Constitutional  test\t of  reasonableness,\nbuilt into  Article  IV\t and  of  arbitrariness\t implied  in\nArticle\t 14   has  a   relativist  touch.   The\t degree\t  of\nconstitutional restriction  and the  strategy of  meaningful\nenforcement  will   naturally  depend  on  the\tThird  World\nsetting, the  ethos of\tour people, the economic compulsions\nof today and of human tomorrow. While scanning the rationale\nof an  Indian temperance  measure  it  would  be  useful  to\nremember the  universal evil in alcohol and the particularly\npernicious consequences of the drink evil in India. Societal\nrealities shape social justice. [133H, 134A-B]\n     (b) \"We,  the people  of India\" have enacted Article 47\nand \"we\t the Justices  of India\"  cannot 'lure\tit  back  to\ncancel half  a life'  or 'wash\tout a  word of it especially\nwhen progressive implementation of the policy of prohibition\nis, by Articles 38 and 47, made fundamental to the country's\ngovernance. [138H]\n     (c) The  Constitution is the property of the people and\nthe court's  know-how is  to apply  the Constitution  not to\nassess it.  In the  process of interpretation Part IV of the\nConstitution  must   enter  the\t soul  of  Part\t m  and\t the\nlaws.[138H, 139A]\n     State of  Kerala &\t Others v.  N. M.  Thomas  &  Others<\/a>\n[1976] 1 S.C.R. 906 referred to.\n     (d) Even  restrictions under  Article 19 may, depending\non  situations\t be  pushed  to\t the  point  of\t prohibition\nconsistently with  reasonableness. While the police power as\ndeveloped in  the American  Jurisprudence and Constitutional\nlaw.  may   not\t be   applicable  in  terms  to\t the  Indian\nConstitutional law,  there is  much that  is common  between\nthat doctrine  and the reasonableness doctrine under Article\n19 of  the  Indian  Constitution.  There  is  also  a  close\nsimilarity in judicial thinking on the subject. [148F, G]\n     South Western  Law Journal-Annual\tSurvey of  Texas Law\nVol. 30 No. 1. Survey 1976 pp. 725-26.\n     Idaho  Law\t Review\t Vol.  7  1970\tp.  131,  Fatehchand\nHimmatlal  v.  Maharashtra<\/a>  [1977]  2  SCR  828\t at  839-848\nreferred to.\n     (e) The  statutory scheme\tof the\tAct  is\t not  merely\nfiscal but  also designed  to regulate\tand reduce alcoholic\nhabit.\tWhile  commodities  and\t situation  dictate  whether\npower, in  given statutory  provisions, is too plenary to be\nother  than   arbitrary\t or   is  instinct   with   inherent\nlimitations, alcohol  is so  manifestly deleterious that the\nnature of  the guidelines  is written in invisible ink. [151\nG-H]\n124\n     (f)  The\tsubject-matter\tof   the  legislation  is  a\ndeleterious substance  (alcohol) requiring  restrictions  in\nthe  direction\tof  moderation\tin  consumption,  regulation\nregarding the  days and hours of sale and appropriateness in\nthe matter  of the  location of the places of sale. If it is\ncoal or\t mica or  cinema, the test of reasonableness will be\nstrict, but  if it  is an  intoxicant or  a killer drug or a\nfire-arm  the  restrictions  must  be  stern.  Just  as\t the\ndifference between  bread and brandy is felt in the field of\ntrade control,\tcoal and  gold are  as apart from whisky and\ntoddy as cabbages are from kings. Life speaks through law. [\n154D-F]\n     Nashirwar v.  M.P. State  [1975] 2\t SCR 861  at  869-71\nreferred to.\n     (2) Even  if section 59 and Rule 37 were upheld in toto\nthat does not preclude any affected party from challenging a\nparticular executive act pursuant Thereto on the ground that\nsuch an\t act is\t arbitrary, malafide  or  unrelated  to\t the\npurposes and  the guidelines  available in  the statute.  To\nillustrate, if\tthe   Financial Commissioner  or the  Excise\nCommissioner as\t the case  may be  declares that  all liquor\nshops shall be opened on his birthday or shall remain closed\non his\tFriend's death anniversary, the executive order will\nbe invalid.  The law  may be  good, but the executive action\nmay be corrupt and then it cannot be sustained. [145G-H]\n     (3) The  most significant\tsocial welfare aspect of the\nclosure is  the prevention  of the  ruination  of  the\tpoor\nworker by  drinking down  the little earnings he gets on the\nwage day.  Any\tgovernment  with  worker's  weal  and  their\nfamilies' survival  at heart  will use\tits  'police  power'\nunder Article  19(6) read  with. section 59(f)(v) of the Act\nto forbid  alcohol sales  on pay days. To save the dependent\nwomen and children of wage-earners the former unamended rule\nhad forbidden  sales on\t the 7th  day of every month the day\nthe monthly  pay packet\t passes into  the employees' pocket.\nWhile bringing\tin the Tuesday-Friday for biddance of sales,\nthe ban\t on sales on the seventh of every month was entirely\ndeleted. The victims of the change are the weeping wives and\ncrying children of the workers. All power is a trust and its\nexercise by  governments must be subject to social audit and\nJudas exposure. [146E-H]\n     (4)  The  liquor  trade  is  instinct  with  injury  to\nindividual  and\t community  aud\t has  serious  side  effects\nrecognised everywhere  in every\t age. Not to control alcohol\nbusiness is  to abdicate  the right  to rule for the good of\nthe people. Not to canalize the age and sex of the consumers\nand servers, the hours of sale and cash-and-carry basis, the\npunctuation and\t pause in  days, to  produce  partially\t the\n'dry' habit  it to fail functionally as a welfare state. The\nwhole scheme of the statute proclaims its purpose of control\nin time\t and  space  and  otherwise.  Section  58  vests  in\ngovernment the\tpower  for  more  serious  restrictions\t and\nlaying down  of principles.  Details and  lesser constraints\nhave been  left to  the rule-making  power of  the Financial\nCommissioner. The complex of provisions is purpose-oriented,\nconsiderably reinforced\t by Article  47.  Old  statutes\t get\ninvigorated by\tthe Paramount  Parchment. Interpretation  of\nthe text  of preconstitution  enactments can legitimately be\ninfused\t with\tthe  concerns\tand   commitments   of\t the\nConstitution as an imperative exercise. It is impossible 'to\nmaintain that no guidelines are found in the Act. [147D-F]\n     (5) While\tthe forensic  problem is constitutional, the\nConstitution itself  is a  human  document.  The  Court\t has\njustified the  ways of\tthe Constitution  and the law to the\nconsumers of  social justice  and spirituous potions. [128D,\n158G]\n125\n     (6) As  between temperance\t and  prohibition  it  is  a\npolicy decision\t for the   Administration.  Hopefully it  is\nexpected of  the State\tto bear true faith and allegiance to\nthat Constitution orphan, Article 47. [158A, G]\n     The Collected Works of Mahatma Gandhi pp 29-30.\n     Society and  the Criminal\tby M.  J. Sethna 3rd Edn. P.\n165, 166 & 168-69 .\n     Society, Crime and Criminal Career by Don C. Gibbars p.\n427-428.\n     Har Shankar  & others  etc. v.  Dy. Excise\t &  Taxation\nCommissioner  &\t others\t [1975]\t 3  S.C.R.  254\t at  266-267\nreferred to.\n     Report of the Study Team on Prohibition Vol. I pp. 344.\n346, 347\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGINAL JURISDICTION:  Writ Petitions  Nos. 4021-4022,
\n4024 4025, 4027-4032, 4037, 4040-4041, 4045-4047, 4049-4075,
\n4078- 4092,  4099, 4103-4111,  4120-4126,  4129-4140,  4142-
\n4143, 4155-4157,-4184,\t4187, 4188-4190,  4192, 4202,  4203,
\n4205, 4206,  4212, 4214,  4217, 4223, 4231, 4234-4235, 4245,
\n4250, 4252, 4300, 4308 of 1978 and 4226 of 1978.\n<\/p>\n
     (Under article 32 of the Constitution of India.)
\n\t\t\t    AND
\n     Writ  Petitions  Nos.  966-971,  3643-3650,  3884-3896,
\n3900-3921, 3965,  3975-3990, 4001-4020,\t 4034, 4100, 4127 to
\n4128, 4186,  4193, 4208,  4271, of 1978 and 3968-3971, 4191,
\n4221 and 4272-4275 of 1978.\n<\/p>\n
     (Under article 32 of the Constitution of India.\n<\/p>\n
\t\t\t    AND
\n     Writ petitions:  4154, 4209,  4242, 4243,\t4247,  4248,
\n4253, 4254, 4310 and 4314 of 1978.\n<\/p>\n
     (Under article 32 of the Constitution of India.)
\n     A. K. Sen and Mrs. Rani Chhabra in W.P. 4021\/78 for the
\nPetitioners.\n<\/p>\n
     Yogeshwar Parshad\tand Mrs.  Rani Chhabra\tin W.P. Nos.
\n4022, 4024,  4025, 4027-4032,  4037, 4040, 4041, 4045, 4047,
\n4046, 4064-4067,  4078, 4079,  4092, 4142, 4143, 4187, 4090,
\n4092 and 4231 of 1978.\n<\/p>\n
     V. C. Mahajan and Mrs. Urmila Sirur for the Petitioners
\nin W.P. 4049-63, 4080-91, 4108 to 4111\/78.\n<\/p>\n
     K K. Mohan, S. K. Sabharwal, Pramod Swarup and Shreepal
\nSingh for  the Petns. in W.P. Nos. 103, 4140, 4184, 4202 and
\n4234 of 1978.\n<\/p>\n
126<\/span><\/p>\n
     O. P.  Sharma, N.\tN. Sharma,  A. K.  Srivastava, Amlan
\nGhosh and  P. K.  Ghosh. in  W.P. Nos.\t4190-92 and  4226 of
\n1978.\n<\/p>\n
     O. P.  Sharma for the Petitioner in W.P. 4226\/78. K. B.
\nRohtgi for the Petitioners in W.P. 3975-76 and 4274-75\/ 78.\n<\/p>\n
     O. P. Singh in W.P. 966-71 of 1978 for the Petitioners.
\n     A. L. Trehan for the Petitioner in W.P. 4100\/78.
\n     S. K. Sabharwal for the Petitioner in W.P. 4214\/78.
\n     M. Qamaruddin for the petitioner in W.P. 4193 of 1978.
\n     R. K. Jain, K. K. Mohan and Rajiv Dutt, L. R. Singh for
\nthe Petitioners in W.P. 4271-73\/78.\n<\/p>\n
     S. N.  Kacker, Sol.  Genl., O. P. Rana for the State of
\nU.P. Soli  J. Sorabjee\tAddl. Sol. Genl. of India and Hardev
\nSingh for the State of Punjab,
\n     J. D.  Jain and  B. R.  Kapoor in\tW.P. Nos. 4242-4244,
\n4247 4228, 4209 and 4308 of 1978.\n<\/p>\n
     B. R. Kapoor and S. K. Sabharwal for the Petitioners in
\nW.P. 4150-4254\/78.\n<\/p>\n
     M. P. Jha for the Petitioner in W.P. 4252\/78.
\n     S. K.  Sabharwal for  the Petitioner in W.P. 4245, 4253
\nand 4310\/78.\n<\/p>\n
     Shreepal Singh for the Petitioners in W.P. 4235\/78.
\n     Hardev Singh  on behalf of R. N. Sachthey for the State
\nof Punjab.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     KRISHNA IYER,  J.- What  are we about? A raging rain of
\nwrit petitions\tby hundreds  of merchants of intoxicants hit
\nby a  recently amended\trule declaring\ta break of two ‘dry’
\ndays in every ‘wet’ week for licensed liquor shops and other
\ninstitutions of\t inebriation in\t the private sector, puts in
\nissue the  constitutionality of section 59(f)(v) and Rule 37
\nof  the\t  Punjab  Excise  Act  and  Liquor  Licence  (Second
\nAmendment) Rules,  (hereinafter, for  short, the Act and the
\nRules). The  tragic irony  of the legal plea is that Article
\n14 and\t19 of  the very\t Constitution, which, in Article 47,
\nmakes it  a fundamental\t obligation of\tthe State  to  bring
\nabout prohibition  of intoxicating  drinks, is\tpressed into
\nservice to  thwart the\tState’s half-hearted  prohibitionist
\ngesture. Of  course, it\t is on the cards that the end may be
\ngood but  the means  may be  bad, constitutionally speaking.
\nAnd there  is a\t mystique about legalese beyond the layman’s
\nken !
\n127<\/span>
\n     To set  the record straight, we must state, right here,
\nthat no\t frontal attack is made on the power of the State to
\nregulate any trade (even a trade where the turnover turns on
\ntempting the customer to take reeling rolling trips into the
\nrealm of  the jocose,  belliocose, lachrymore and comatose).
\nResort was made to a flanking strategy of anathematising the
\nstatutory regulatory  power in S. 59(f)v) and its offspring,
\nthe amended  rule interdicting\tsales of  tipay\t ecstasy  on
\nTuesdays and Fridays, as too naked, unguided and arcane and,
\nresultantly, too  arbitrary and unreasonable to comport with
\nArts. 14 and 19.\n<\/p>\n
     Our response  at the  first blush was this. Were such a
\nplea  valid,  what  a  large  communication  exists  between
\nlawyer’s law and judicial justice on the one hand and life’s
\nreality and sobriety on the other, unless there be something
\noccultly unconstitutional  in the  impugned Section and Rule
\nbelow the  visibility zone of men of ordinary comprehension.
\nWe here\t recall the  principle declared\t before the American
\nBar Association\t by a  distinguished Federal……… Judge-
\nWilliam Howard Taft-in 1895:\n<\/p>\n
     “If the  law is  but the  essence of  common-sense, the
\n     protests of many average.- men may evidence a defect in
\n     a legal  conclusion though\t based on  the nicest  legal
\n     reasoning and profoundest learning.”<\/p>\n
The Facts
\n     The Punjab\t Excise Act,  1914,  contemplates  grant  of
\nlicences, inter\t alia, for  trading in\t(Indian) foreign and
\ncountry liquor. There are various conditions attached to the
\nlicences which are of a regulatory and fiscal character. The
\npetitioners are\t licence-holders and  have,  on\t deposit  of
\nheavy licence  fee, been  permitted by\tthe  State  to\tvend
\nliquor. The  conditions of the licences include restrictions
\nof various  types,  including  obligation  not\tto  sell  on
\ncertain days and during certain hours. Under the former rule
\n37 Tuesday  upto 2 p.m. was prohibited for sale; so also the
\nseventh day  of the month. The licences were granted subject
\nto rules  framed under\tthe Act and Section 59 is one of the
\nprovisions empowering  rule-making. Rule 37 was amended by a
\nnotification whereby,  in the  place of Tuesdays upto 2 p.m.
\nplus the  7th day  of every  month, Tuesdays  and Fridays in
\nevery week were substituted, as days when liquor vending was
\nprohibited.  Under   the  modified   rules  a  consequential
\nreduction of the licence fee from Rs. 12,000\/- to Rs. 10,000
\nwas also  made, probably to compensate for the marginal loss
\ncaused by  the two-day\tclosure. Aggrieved by this amendment
\nthe petitioners moved this
\n128<\/span>
\nCourt challenging its vires as well as the constitutionality
\nof S. 59(f)(v) which is the source of power to make rule 37.
\nIf the\tSection fails  the rule\t must fall, since the stream
\ncannot rise  higher that  the  source.\tVarious\t contentions
\nbased on  Art. 19(g) and (6) and Art. 14 were urged and stay
\nof operation of the new rule was granted by this Court.\n<\/p>\n
     We\t will\tpresently  examine  the\t tenability  of\t the
\nargument and  the alleged  vice of  the provisions;  and  in
\ndoing so  we adopt,  as counsel\t desired, a  policy of\tnon-
\nalignment on  the morality  of drinking since law and morals
\ninteract and  yet are  autonomous; but,\t equally clearly, we
\ninform ourselves  of  the  plural  ‘pathology’\timplicit  in
\nuntrammelled trading  in alcohol.  He who  would be  a sound
\nlawyer, Andrea\tAlciati, that 16th century Italian humanist,
\njurist, long  ago stressed,  should not limit himself to the
\nletter of  the text  or the  narrow study  of law but should
\ndevote\thimself\t  also\tto  history,  sociology,  philology,
\npolitics, economics,  nostics and  other allied sciences, if
\nhe is  to be  a jurist\tpriest in  the service of justice or
\nlegal engineer of social justice.(1) This is our perspective
\nbecause, while\tthe forensic  problem is constitutional, the
\nConstitution itself  is a  human document. The integral yoga
\nof law\tand life once underlined, the stage is set to unfold
\nthe relevant  facts and\t focus on  the precise\tcontentions.
\nSeveral counsel have made separate submissions hut the basic
\nnote is the same with minor variations in emphasis.\n<\/p>\n
     Why drastically  regulate the  drink trade ?-the Social
\n     rationale-on Brandies brief
\n     Anywhere on  our human  planet the\t sober imperative of
\nmoderating the consumption of inebriating methane substances
\nand manacling  liquor business\ttowards that  end, will meet
\nwith  axiomatic\t  acceptance.  Medical,\t criminological\t and
\nsociological testimony\ton a  cosmic  scale  bears  out\t the
\ntragic miscellany  of traumatic\t consequences of,  shattered
\nhealth and broken homes, of crime escalation with alcohol as
\nthe hidden villain or aggressively promotional anti-hero, of
\npsychic\t  breakdowns,\tinsane\t cravings   and\t  efficiency
\nimpairment, of\tpathetic descent  to doom  sans sense,\tsans
\nshame,\tsans   everything,  and\t  host\tof  other  disasters
\nindividuals, familial, genetic and societal.(2)
\n     We need  hot have\tdilated further\t on the\t deleterious
\nimpost\tof   unchecked\talcohol\t  intake  on  consumers\t and
\ncommunities but\t Shri Mahajan  advocated regulation as valid
\nwith the cute rider that even
\n(1) Encyclopaedia of the Social Sciences, Vol. J-ll p. 618.
\n(2) Ibid p. 619-27.\n<\/p>\n
129<\/span><\/p>\n
water intake,  if  immoderate,\tmay  affect  health  and  so
\nregulation of\tliquor\ttrade may  not\tbe  valid,  if\tmore
\ndrastic than  for other\t edibles. The sequitur he argued for
\nwas  that   the\t two-day   ban\ton   liquor  licensees\t was
\nunreasonable under  Art. 19(g) read with Art. 19(6). He also
\nbranded the  power to restrict the days and hours of sale of
\nliquor without\tspecification of guidelines as arbitrary and
\nscouted the  submission of  the Addl. Solicitor General that
\nthe noxious  nature of\talcohol and  the notorious  fall-out
\nfrom gentle  bibbing at the beginning on to deadly addiction
\nat the\tend was\t inherent guideline to salvage the provision
\nfrom constitutional  casualty. Innocently the equate alcohol
\nwith aqua  is an  exercise ill\tintoxication  and  straining
\njudicial credibility to absurdity. We proceed to explain why
\nalcohol\t business   is\tdangerous  and\tits  very  injurious
\ncharacter and  mischief potential legitimate active policing
\nof the trade by any welfare State even absent Art. 47.\n<\/p>\n
     The alcoholics will chime in with A.E. Houseman(1): ‘
\n     “And malt\tdoes more  than Milton\tcan to justify God’s
\n     ways to man…\n<\/p>\n
But the\t wisdom of  the ages  oozes through Thomas Bacon who
\nwrote:\n<\/p>\n
\t  “For when the wine is in, the wit is out.”\n<\/p>\n
     Dr. Walter\t Reckless, a  criminologist of international
\nrepute who  had worked\tin India for years has in “The Crime
\nProblem” rightly stressed
\n\t  “Of all  the problems\t in human  society, there is
\n     probably none  which is  as closely related to criminal
\n     behaviour as  is drunkenness. It is hard to say whether
\n     this  close   relation  ship   is\ta  chemical  one,  a
\n     psychological  one,  or  a\t situational  one.’  Several
\n     different levels  of relationship\tbetween ingestion of
\n     alcohol  and   behaviour  apparently  exist.  A  recent
\n     statement\tby   the  National   Council  on  Crime\t and
\n     Delinquency quite\tsuccinctly describes  the effect  of
\n     alcohol on\t behaviour: Alcohol acts as a depressant; it
\n     inhibits self-  control before  it curtails the ability
\n     to act;  and an  individual’s personality\tand  related
\n     social and\t cultural factors  assert themselves  during
\n     drunken behaviour\t…. Although  its dangers  are\t not
\n     commonly understood  or accepted  by the  public, ethyl
\n     alcohol can have perhaps the most serious con sequences
\n     of any mind-and-body-altering drug. It causes
\n(1) Makers of Modern world by Louis Untermeyer p. 275.
\n(2) The\t Crime Problem (Fifth Edition) Walter C. Reckle Page
\n115, 116 & 117.\n<\/p>\n
130<\/span><\/p>\n
     addiction\t in    chronic\t alcoholics,\twho   suffer
\n     consequences just\tas serious, if not more serious than
\n     opiate addicts. It is by far the most dangerous and the
\n     most widely used of any drug.” (emphasis added).
\nThe  President’s   Commission\ton   Law   Enforcement\t and
\nAdministration\tof  Justice  made  the\tfollowing  pertinent
\nobservation:\n<\/p>\n
     The figures  show that  crimes of physical violence are
\n     associated with  intoxicated persons.. Thus the closest
\n     relationship   between    intoxication   and   criminal
\n     behaviour (except\tfor public  intoxication)  has\tbeen
\n     established   for\t  criminal   categories\t   involving
\n     assaultive behaviour.  This relationship  is especially
\n     high for  lower class  Negroes and\t whites.  More\tthan
\n     likely, aggression in these groups is weakly controlled
\n     and the  drinking of  alcoholic beverages\tserves as  a
\n     triggering\t mechanism   for  the  external\t release  of
\n     aggression. There\tare certain  types of key situations
\n     located in lower class life in which alcohol is a major
\n     factor in\ttriggering assaultive  behaviour. A frequent
\n     locale is the lower class travern which is an important
\n     social institution\t for  the  class  group.  Assaultive
\n     episodes are triggered during the drinking situation by
\n     quarrels that  center around  defaming personal  honor,
\n     threats to masculinity, and questions about one’s birth
\n     legitimacy. Personal quarrels between husband and wife,
\n     especially after  the  husband’s  drinking,  frequently
\n     result in assaultive episodes, in the lower-lower class
\n     family.”,
\n     The steady\t flow of drunkenness cases through the hands
\nof the police, into our lower courts, and into our jails and
\nworkhouses has been labelled the “revolving” door, because a
\nvery large  part of  this flow\tof cases consists of chronic
\ndrinkers who  go through  the door and out, time after time.\n<\/p><\/blockquote>\n
On one\toccasion when  the author  was visiting\t a  Saturday
\nmorning session\t of a misdemeanor court, there was a case of
\nan old\t“bum” who  had been in the local workhouse 285 times
\npreviously.”\n<\/p>\n
     An Indian\tauthor, Dr.  Sethna dealing with society and
\nthe criminal, has this to say :(1)
\n\t  Many crimes  are caused  under  the  influence  of
\n     alcohol or drugs. The use of alcohol, m course of time,
\n     causes great and irresistible craving for it. To retain
\n     the so-called
\n(1) Society  and the  Criminal by  M. J.  Sethna 3rd Edn. P.\n<\/p>\n
164.
\n131<\/span>
\n     ‘satisfaction’, derived  from the\tuse  of\t alcohol  or
\n     drugs, the\t  drunkard  or the drug-addict has got to go
\n     on increasing  the quantities from time to time; such a
\n     state of  affairs may lead him even to commit thefts or
\n     frauds to\tget the\t same otherwise. If he gets drunk so
\n     heavily that  he cannot  understand the consequences of
\n     his acts he is quite likely to do some harmful act-even
\n     an act  of homicide.  Every often,\t crimes of  violence
\n     have been\tcommitted in  a state  of intoxication.\t Dr.
\n     Hearly is\tof the\topinion that complete elimination of
\n     alcohol and harmful drug habits would cause a reduction
\n     in crime  by at  least 20\tper cent; not only that, but
\n     there  would   also  be   cumulative  effect   on\t the
\n     generations to  come, by diminishing poverty, improving
\n     home conditions  and habits  of living and environment,
\n     and perhaps even an improvement in heredity itself.
\n     Abstinence campaigns carried out efficiently and in the
\n     proper manner  show how  crime drops.  Dr. Hearly cites
\n     Baer,  who\t  says\tthat   Father  Mathew’s\t  abstinence
\n     compaigns in Ireland, during 1837-1842, reduced the use
\n     of spirits\t SO per\t cent, and  the crimes\tdropped from
\n     64,520 to\t47,027. According  to Evangeline  Booth, the
\n     Commander of  the Salvation  Army, “In  New York before
\n     prohibition, the  Salvation  Army\twould  collect\tfrom
\n     1,200 to  1,300 drunkards in a single night and seek to
\n     reclaim  them.   Prohibition  immediately\treduced\t the
\n     gathering to 400 and the proportion of actual drunkards
\n     from 95  per cent\tto less\t than 20  per cent”.  And “a
\n     decrease of  two thirds  in the  number  of  derelicts,
\n     coupled with  a decrease  in the  number  of  drunkards
\n     almost to\tthe  Vanishing\tpoint,\tcertainly  lightened
\n     crime and\tcharity bills. It gave many of the erstwhile
\n     drunkards new  hope and  a new  start”. So\t says E.  E.
\n     Covert, in an interesting article on Prohibition.
\n     The ubiquity of alcohol in the United States has led to
\nnationwide  sample   studies   and   they   make   startling
\ndisclosures from  a criminological  angle. For\tinstance, in
\nWashington, D.C.  76.5 %  of all  arrests in  1965 were\t for
\ndrunkenness, disorderly conduct and vagrancy, while 76.7% of
\nthe total arrests in Atlanta were for these reasons(1)
\n     Of the  8 million\tarrests in  1970 almost one-third of
\nthese were  alcohol-related. Alcohol  is said  to affect the
\nlives of 9 million persons
\n(1) Society, Crime and Criminal Careers by Don C. Gibbons p.
\n427-428.\n<\/p>\n
132<\/span><\/p>\n
and to\tcost 10\t billion in lost work time and an additional
\n15 billion health and welfare costs.”(1)
\n     Richard D.\t Knudten stated\t “Although more\t than 35% of
\nall annual arrests in the United States are for drunkenness,
\nadditional persons  committing\tmore  serious  crimes  while
\nintoxicated are\t included  within the other crime categories
\nlike drunken driving, assault, rape and murder.(2)
\n     President Brezhnev\t bewailed  the\tsocial\tmaladies  of
\nincreasing alcoholism. Nikita Krushchev was unsparing:\n<\/p>\n
     “Drunks should be ‘kicked out of the party’ not moved
\nfrom one responsible post to another.”(3)
\n     Abraham Lincoln, with conviction and felicity said that
\nthe use\t of alcohol  beverages had  many  defenders  but  no
\ndefence and intoned:\n<\/p>\n
\t  “Whereas the\tuse  of\t intoxicating  liquor  as  a
\n     beverage is  productive of\t pauperism, degradation\t and
\n     crime, and\t believing it is our duty to discourage that
\n     which produces  more evil\tthan  good,  we,  therefore,
\n     pledge  ourselves\t to  abstain   from   the   use\t  of
\n     intoxicating liquor as a beverage.”(4)
\n     In his famous Washington’s birthday address said:
\n\t  “Whether  or\t not  the   world  would  be  vastly
\n     benefited by  a total  and final  banishment from it of
\n     all intoxicating  drinks seems  to me  not now  an open
\n     question.\tThree\tfourths\t of   mankind  confess\t the
\n     affirmative with their lips, and I believe all the rest
\n     acknowledge it in their hearts.”(5)
\n     Jack Hobbs, the great cricketer, held:
\n\t  “The greatest\t enemy to  success  on\tthe  cricket
\n     field is the drinking habit.”<\/p><\/blockquote>\n
     And Don  Bradman, than  whom few batsmen better wielded
\nthe willow, encored and said:\n<\/p>\n
\t  “Leave drink\talone. Abstinence  is the thing that
\n     is what made me.”(6)
\n(1) Current  perspectives on  Criminal Behaviour  edited  by
\nAbraham S Blumberg P.23.\n<\/p>\n
(2) crime in a complex society by Richard D. Knudten P.138.
\n(3) Report of the study Team on Prohibition Vol. L. P. 344.
\n(4) Ibid p.34s.\n<\/p>\n
(5) Ibid p.345.\n<\/p>\n
(6) Report of the Study Team on Prohibition vol. I. P.347.\n<\/p>\n
133<\/span><\/p>\n
     Sir Andrew Clark, in Lachrymal language spun the lesson
\nfrom  hospital beds:\n<\/p>\n
     “As I  looked at  the hospital wards today and saw that
\n     seven out\tof ten\towed their  diseases to\t alcohol,  I
\n     could but\tlament that the teaching about this question
\n     was not more direct, more decisive, more home-thrusting
\n     than ever it had been.”(1)
\n     George Bernard  Shaw, a  provocative teetotaller,\tused
\ntart words of trite wisdom.\n<\/p><\/blockquote>\n
\t  ‘If  a  natural  choice  between  drunkenness\t and
\n     sobriety were  possible, I\t would leave the people free
\n     to choose.\t But then  I see  an  enormous\tcapitalistic
\n     organisation pushing  drink  under\t people’s  noses  of
\n     every corner  and pocketing  the price while leaving me
\n     and others\t to pay\t the colossal  damages,\t then  I  am
\n     prepared to smash that organisation and make it as easy
\n     for a  poor man  to stay sober, if he wants to as it is
\n     for his dog.\n<\/p><\/blockquote>\n
\t  Alcohol robs\tyou of\tthat last inch of efficiency
\n     that  makes   the\tdifference  between  first-rate\t and
\n     second-rate.\n<\/p><\/blockquote>\n
\t  I don’t drink beer-first, because I don’t like it;
\n     and second,  because my  profession is one that obliges
\n     me to keep in critical training, and beer is fatal both
\n     to training and to criticism.\n<\/p><\/blockquote>\n
\t  only teetotallers  can produce the best and sanest
\n     of which they are capable.\n<\/p><\/blockquote>\n
\t  Drinking is  the chloroform  that enables the poor
\n     to endure the painful operation of living.
\n     It is  in the last degree disgraceful that a man cannot
\n     pro vide  his own\tgenuine\t courage  and  high  spirits
\n     without drink.<\/p><\/blockquote>\n
\t  I  should  be\t utterly  ashamed  if  my  soul\t had
\n     shrivelled up  to such  an extent\tthat I had to go out
\n     and drink a whisky. (2)
\n     The constitutional\t test of  reasonableness, built into
\nArt. 19\t and of\t arbitrariness implicit\t in Art.  14, has  a
\nrelativist touch.  We have to view the impact of alcohol and
\ntemperance on a given society; and
\n(1) Ibid P. 347.\n<\/p>\n
(2) Report of the study Team on Prohibition Vol. I P. 346.\n<\/p>\n
134<\/span><\/p>\n
for us,\t the degree  of\t  constitutional restriction and the
\nstrategy of  meaningful enforcement will naturally depend on
\nthe Third  World setting,  the\tethos  of  our\tpeople,\t the
\neconomic  compulsions\tof  today  and\tof  human  tomorrow.
\nSocietal realities shape social justice. While the universal
\nevil  in   alcohol  has\t  been\tindicated  the\tparticularly
\npernicious consequence\tof the\tdrink evil  in India  may be
\nuseful to  R r\tremember while scanning the. rationale of an
\nIndian\ttemperance   measure.  Nearly\tfour  decades\tago,
\nGandhiji,  articulating\t the  inarticulate  millions’  well-
\nbeing, wrote:\n<\/p>\n
     “The most\tthat tea  and coffee  can do  is to  cause a
\n     little extra  expense, but one of the most greatly felt
\n     evils  of\tthe  British  Rule  is\tthe  importation  of
\n     alcohol..\tthat   enemy  of   mankind,  that  curse  of
\n     civilisation-in some  form or  an other. The measure of
\n     the  evil\twrought\t by  this  borrowed  habit  will  be
\n     properly gauged  by the reader when he is told that the
\n     enemy has\tspread throughout  the length and breadth of
\n     India, in\tspite of  the religious prohibition for even
\n     the touch\tof a  bottle containing alcohol pollutes the
\n     Mohammedan, according to his religion, and the religion
\n     of the  Hindu strictly  prohibits the use of alcohol in
\n     any form  whatever, and  yet alas\t! the Government, it
\n     seems, instead  of stopping, is aiding and abetting the
\n     spread of\talcohol. The  poor there, as everywhere, are
\n     the greatest  sufferers. It  is  they  who\t spend\twhat
\n     little they  earn in  buying alcohol  instead of buying
\n     good food\tand other  necessaries It  is that  wretched
\n     poor man who has to starve his family, who has to break
\n     the sacred trust of looking after his children, if any,
\n     in order  to drink\t himself into  misery and  premature
\n     death. Here  be it said to the credit of Mr. Caine, the
\n     ex-Member for  Barrow, that,  he  undaunted,  is  still
\n     carrying on his admirable crusade against the spread of
\n     the evil,\tbut what can the energy of one man, however,
\n     powerful, do  against the\tinaction of an apathetic and
\n     dormant Government.”(1)
\n     Parenthetically speaking,\tmany of\t these thoughts\t may
\nwell  be   regarded  by\t  Gandhians  as\t  an  indictment  of
\ngovernmental policy even to-day.<\/p><\/blockquote>\n
     The thrust\t of drink  control has\tto be  studied in  a
\nThird World country, developing its; human resources and the
\nhaven if  offers to  the poor,\tespecially their dependents.
\nGandhiji again:\n<\/p>\n
     “For me  the drink\t question is  one of  dealing with a
\n     growing social evil against which the State is bound to
\n(1) The Collected Works of Mahatma Gandhi pp.29-30
\n135<\/span>
\n     provide whilst  it has  got the opportunity. The aim is
\n     patent.   We want\tto wean the labouring population and
\n     the Harijans  from the curse. It is a gigantic problem,
\n     and  the\tbest  resources\t  of  all   social  workers,
\n     especially women,\twill be\t taxed to  the utmost before
\n     the drink habit goes. The prohibition I have adumbrated
\n     is but the beginning (undoubtedly indispensable) of the
\n     reform. We\t cannot reach  the drinker so long as he has
\n     the drink ship near his door to tempt him ”(l)
\n     Says Dr. Sethna in his book already referred to:
\n\t  “And\tin   India,   with   the   introduction\t  of
\n     prohibition we find a good decline in crime. There are,
\n     however, some  per sons  who cannot  do without liquor.
\n     Such persons  even so  to the  extent of making illicit
\n     liquor and\t do  not  mind\tdrinking  harmful  rums\t and
\n     spirits. The  result is starvation of children at home,
\n     assaults and quarrels between husband and wife, between
\n     father and\t child, desertion, and other evils resulting
\n     from the abuse of alcohol.\n<\/p>\n
\t  The introduction  of prohibition in India actually
\n     caused considerable fall in the number of crimes caused
\n     by intoxication.  Before prohibition  one often  had to
\n     witness the  miserable spectacle  of poor\tand Ignorant
\n     persons-mill- hands. Labourers, and even the unemployed
\n     with starving  families at\t home-frequenting the pithas
\n     (liquor and  adulterated toddy  shops) drinking burning
\n     and  harmful  spirits,  and  adulterated  toddy,  which
\n     really had\t no vitamin  value; these  persons spent the
\n     little they  earned after\ta hard\tday’s toil,  or what
\n     little that  had remained\twith them  or what  they had
\n     obtained by  some theft,  trick, fraud  or a  borrowing
\n     they spent\t away all that, and then, at home, left wife
\n     and  children  starving  and  without  proper  clothes,
\n     education,\t and   other   elementary   necessaries\t  of
\n     life.”(2) (emphasis added)
\n     The Labour\t Welfare Department or the State Governments
\nand of\tthe Municipalities  are rendering  valuable service,
\nthrough their  labour  welfare\tofficers  who  work  at\t the
\ncentres assigned to them, impressing upon the people how the
\nuse of\talcohol is  ruinous and instructing them also how to
\nlive hygienically;  there are  lectures on the evils of drug
\nand drink habits.\n<\/p>\n
(1) The Collected Works of Mahatma Gandhi, Vol. 66 P. 47.
\n(2) Society  and the  Criminal by  M. J.  Sethna 3rd Edn. p.
\n165, 166 & 168-169.\n<\/p>\n
136<\/span><\/p>\n
     Partial  prohibition   of\thot   country  liquors\t was
\nintroduced by  the Congress  Ministries\t in  Bombay,  Bihar,
\nMadras\t(in   Salem,  Chittor,\t Cuddaph  and\tNorth  Arcot
\nDistricts) when\t they first  came into\tpower. In  C. P. and
\nBerar, prohibition  covered approximately  one-fourth of the
\narea and  population of\t the State. In Assam, prohibition is
\ndirected mainly\t against opium.\t In Deccan  Hyderabad on 3rd
\nJanuary, 1943,\ta Firman  as issued  by his Exalted Highness
\nthe Nizam,  supporting the  temperance movement.  Jammu\t and
\nKashmir came  also on  the move\t towards prohibition.  Since
\n1949 State Governments determined the policy of introduction
\nof total prohibition.\n<\/p>\n
     On April  10, 1948,  the Central  Advisory Council\t for
\nRailways, under\t the Chairmanship  of the  Hon’ble Dr.\tJohn
\nMatthai, agreed to the proposal to ban the serving of liquor
\nin refreshment rooms at railway stations and dining cars.\n<\/p>\n
     In Madras,\t prohibition was  inaugurated on 2nd October
\n1948, by  the Premier.\tthe  Hon’ble  Mr.  O.  P.  Ramaswami
\nReddiar who pronounced it a red letter day.\n<\/p>\n
     In 1949,  West Punjab  took steps for the establishment
\nof prohibition. In 1949, nearly half the area of the Central
\nProvinces and  Berar got dry, and it was proposed to enforce
\nprohibition throughout the State.\n<\/p>\n
     In Bombay\tthe Prohibition\t Bill was  passed and became
\nAct in 1949, and Bombay got dry by April 1950.\n<\/p>\n
     The  number  of  offences;\t under\tthe  Abkari  Act  is
\nnotoriously high.  It shows  the craving of some persons for
\nliquor in  spite of  all good  efforts of legal prohibition.
\nThe remedy  lies in  making prohibition\t successful  through
\neducation  (even   at  the  school  stage),  suggestion\t re-
\neducation.\n<\/p>\n
     The Tek  Chand Committee(1)  surveyed the civilizations
\nfrom Babylon  through China, Greece, Rome and India. X-rayed
\nthe  religions\tof  the\t world\tand  the  dharmasastras\t and
\nconcluded from\tthis conspectus\t that alcoholism  was public
\nenemy. Between innocent first sour sip and nocent never-stop
\nalcoholism  only   time\t  is   the   thin   partition\tand,
\ninevitability the  sure\t nexus,\t refined  arguments  to\t the
\ncontrary notwithstanding(2).\n<\/p>\n
     In India,\tsome genteel socialities have argued for the
\ndiplomatic pay-off from drinks and Nehru has negatived it:\n<\/p>\n
     (1) Report\t of the\t Study Team on Prohibition. (2) Ibid
\np. 345. (Vol. l).\n<\/p>\n
137<\/span><\/p>\n
\t  “Not only  does the health of a nation suffer from
\n     this  (alcoholism), but there is a tendency to increase
\n     conflicts both  in the  national and  the international
\n     sphere.”<\/p><\/blockquote>\n
     I must  say that I do not agree with the statement that
\nis  sometimes\tmade-even  by  our  ambassadors-that  drinks
\nattract people\tto parties and if there are no drinks served
\npeople will not come. I have quite B: frankly told them that
\nif people  are only attracted by drinks, you had better keep
\naway such people from our missions…… I do not believe in
\nthis kind  of diplomacy which depends on drinking….and, if
\nwe have\t to indulge  in that  kind of diplomacy, others have
\nhad more training in it and are like to win.(1)
\n     Of\t course,   the\tstruggle   for\tSwaraj\twent  beyond
\npolitical liberation  and  demanded  social  transformation.
\nRedemption from\t drink evil  was woven\tinto  this  militant
\nmovement and Gandhiji was the expression of this mission.\n<\/p>\n
     “I hold  drink to\tbe more\t damnable than\tthieving and
\nperhaps even  prostitution. Is\tit not\toften the  parent to
\nboth ?\tI ask  you to  join the\t country in  sweeping out of
\nexistence the drink revenue and abolishing the liquor shops.\n<\/p>\n
     Let me,  therefore, re-declare  my faith  in  undiluted
\nprohibition before  I land my self in deeper water. If I was
\nappointed dictator  for one  hour for  all India,  the first
\nthing I\t would do would be to close without compensation all
\nthe liquor  shops destroy all the toddy palms such as I know
\nthem in\t Gujarat, compel  factory owners  to produce  humane
\nconditions  for\t  the  workmen\t and  open  refreshment\t and
\nrecreation rooms  where these  workmen\twould  get  innocent
\ndrinks and  equally innocent  amusements. I would close down
\nthe factories if the owners pleaded for want of funds.”(2)
\n     It has  been a  plank in  the national  programme since
\n1920. It  is coming,  therefore, in  due fulfillment  of the
\nnational  will\tdefinitely  expressed  nearly  twenty  years
\nago.(3)
\nSociological Journey to interpretative Destination.\n<\/p>\n
     This long excursion may justly be brought to a close by
\nan off repeated but constitutionally relevant quotation from
\nField, J.  irresistible attractive for fine-spun feeling and
\nexquisite expression.\n<\/p>\n
     “There is\tin this\t position an  assumption of  a\tfact
\nwhich does  not exist,\tthat when  the liquors\tare taken in
\nexcess the injuries are confined to the party offending. The
\ninjury, if it is true, first falls upon
\n(1) Report of the Study Team on prohibition Vol. I P. 345.
\n(2) Ibid P. 344.\n<\/p>\n
(3) Collected  Works of\t Mahatma Gandhi\t Vol. 69  P. 83. 10-
\n520SCI\/78
\n138<\/span>
\nhim in\this health,  which  the\t habit\tundermines;  in\t his
\nmorals, which it weakens; and in the self-abasement which it
\ncreates. But as it leads to neglect of business and waste of
\nproperty and  general demoralization,  it affects  those who
\nare immediately connected with or dependent upon him. By the
\ngeneral\t concurrence  of  opinion  of  every  civilised\t and
\nChristian community,  there are\t few sources  of  crime\t and
\nmisery to society equal to the dram shop, where intoxication
\nliquors, in  small quantities,\tto be drunk at the time, are
\nsold  indiscriminately\t to  all   parties   applying.\t The
\nstatistics of every State show a greater amount of crime and
\nmisery attributable to the use of ardent spirits obtained at
\nthose retail  liquor saloons  than to  any other source. The
\nsale of such liquors in this way has therefore, been, at all
\ntimes, by  the courts  of every\t State,\t considered  as\t the
\nproper subject\tof legislative\tregulation. Not\t only may  a
\nlicence be  exacted from  the keeper  of the saloon before a
\nglass  of   his\t liquors   can\tbe  thus  disposed  of.\t but
\nrestrictions may  be imposed  as to  the class of persons to
\nwhom they  may be  sold, and  the hours\t of the day, and the
\ndays of\t the week, on which the saloons may be opened. Their
\nsale in\t that form  may be  absolutely prohibited.  It is  a
\nquestion of  Public Expediency\tand public morality, and not
\nof  federal  law.  The\tpolice\tpower  of  the\tState  fully
\ncompetent to  regulate the business to mitigate its evils or
\nto suppress  it entirely,  there is  no inherent  right in a
\ncitizen to  thus sell  intoxicating liquors by retail, it is
\nnot a privilege of a citizen of the State or of a citizen of
\nthe United  States. As it is a business attended with danger
\nto the\tcommunity, it  may  as\talready\t said,\tbe  entirely
\nprohibited, or\tbe permitted  under such  conditions as will
\nlimit to  the utmost  its evils.  The manner  and extent  of
\nregulation  rest   in  the   discretion\t of   the  Governing
\nauthority. That\t authority may\tvest in\t such officers as it
\nmay deem  proper and  power of passing upon applications for
\npermission to  carry it\t on, and  to issue licenses for that
\npurpose. It is a matter of legislative will only.”(1)
\n     The Panorama  of views,  insights and  analyses we have
\ntediously.  projected\tserves\tthe  sociological  essay  on
\nadjudicating the  reasonableness and  arbitrariness  of\t the
\nimpugned shut  down order  on Tuesdays and Fridays. Whatever
\nour personal  views and\t reservations on the philosophy, the
\npolitics, the  economics and  the pragmatics of prohibition,
\nwe are\tcalled upon  to pass  on the  vires of\tthe  amended
\norder. “We,  the people\t of India’, have enacted Art. 47 and
\n‘we, the  Justices of  India’ cannot ‘lure it back to cancel
\nhalf a\tlife’ or  ‘wash out  a word  of it’, especially when
\nprogressive implementation  of the policy of prohibition is,
\nby Articles  38 and  47 made  fundamental to  the  country’s
\ngovernance. The Constitution is the property of the people
\n(1) Crowely v. Christensen, 34, Law Ed. 620, 623.\n<\/p>\n
139<\/span><\/p>\n
and the courts know-how is to apply the constitution, not to
\nassess it.  In the process of interpretation, Part IV of the
\nConstitution must  enter the  soul of Part III and the laws,
\nas held\t by the\t Court in  State of  Kerala &  Anr. v. N. M.
\nThomas &  Ors.<\/a>(1) and  earlier. The  dynamics  of  statutory
\nconstruction,  in  a  country  like  ours,  where  the\tpre-
\nIndependence Legislative  package has  to be  adapted to the
\nvital spirit  of the  Constitution, may demand that new wine
\nbe poured into old bottles, language permitting. We propound
\nno novel proposition and recall the opinion of Chief Justice
\nWinslow of Wisconsin upholding as constitutional a Workmen’s
\nCompensation Act of which he said:\n<\/p>\n
\t  “when an eighteenth century constitution forms the
\n     charter of\t liberty of  a twentieth century government,
\n     must  its\t general   provisions\tbe   construed\t and
\n     interpreted by an eighteenth century mind surrounded by
\n     eighteenth century conditions and ideals ? Clearly not.<\/p><\/blockquote>\n
     This were\ta command  of half the race in its progress,
\n     to\t stretch   the\tstate\tupon  a\t  veritable  bed  of
\n     Procrustes.  Where\t there\tis  no\texpress\t command  or
\n     prohibition, but  only general language of policy to be
\n     considered, the  conditions prevailing  at the  time of
\n     its adoption must have their due weight hut the changed
\n     social, economic  and governmental\t conditions  of\t the
\n     time, as  well as\tthe problems  which the changes have
\n     produced,\tmust   also   logically\t  enter\t  into\t the
\n     consideration and\tbecome influential  factors  in\t the
\n     settlement\t  of\tproblems   of\t construction\t and
\n     interpretation.”(2)
\n     In short,\twhile the  imperial masters  were  concerned
\nabout the  revenues they  could make  from the\tliquor trade
\nthey were  not indifferent  to the  social control  of\tthis
\nbusiness which,\t if left  unbridled, was fraught with danger
\nto health, morals, public order and the flow of life without
\nstress or  distress. Indeed  even collection  of revenue was
\nintertwined with  orderly milieu; and these twin objects are
\nreflected in  the scheme  and provisions of the Act. Indeed,
\nthe history  of\t excise\t legislation  in  this\tcountry\t has
\nreceived judicial  attention earlier  and the whole position
\nhas been  neatly summarised  by Chandrachud  J. (as  he then
\nwas) if\t we may say so with great respect, as a scissor-and-
\npaste operation is enough for our purpose:
\n(1) [1976] I S.C.R. 906.\n<\/p>\n
(2) Borgnis  v. The Falk Co. 147 Wisconsin Reports P. 327 at
\n348 et\tSee (1911).  That this\tdoctrine is  to be deemed to
\napply  only   to  “due\t process’  and\t “police  –   Power”
\ndeterminations,\t see   especially  concurring\topinions  of
\nMarshalle, and Barness, J.\n<\/p>\n
140<\/span><\/p>\n
\t  “Liquor licensing has a long history. Prior to the
\n     passing  of  the  Indian  Constitution,  the  licensees
\n     mostly restricted\ttheir challenge to the demand of the
\n     Government as  being in  excess of the condition of the
\n     licence or on the ground that the rules in pursuance of
\n     which  such  conditions  were  framed  were  themselves
\n     beyond  the   rule-making\tpower\tof   the   authority
\n     concerned.\n<\/p><\/blockquote>\n
\t  The provisions  of the  Punjab Excise\t Act,  1914,
\n     like the  provisions of  similar Acts in force in other
\n     States, reflect  the nature  and the width of the power
\n     in the matter of liquor licensing. We will notice first
\n     the relevant provisions of the Act under consideration.
\n\t  Section S of the Act empowers the State Government
\n     to regulate  the maximum  or minimum  quantity  of\t any
\n     intoxicant which  may be  sold by\tretail or wholesale.
\n     Section 8(a)  vests  the  general\tsuperintendence\t and
\n     administration of all matters relating to excise in the
\n     Financial Commissioner,  subject to  the control of the
\n     State  Government.\t  Section  16\tprovides   that\t  no
\n     intoxicant shall  be imported,  exported or transported
\n     except after payment of the necessary duty or execution
\n     of a  bond for such payment and in compliance with such
\n     conditions as  the State Government may impose. Section
\n     17 confers\t upon the  State  Government  the  power  to
\n     prohibit the import or export of any intoxicant into or
\n     from Punjab  or any  part thereof\tand to\tprohibit the
\n     transport\tof  any\t intoxicant.  By  section  20(1)  no
\n     intoxicant can  be manufactured  or collected,  no hemp
\n     plant can\tbe cultivated  no tari producing tree can be
\n     tapped, no\t tari can  be drawn  from any  tree  and  no
\n     person  can  possess  any\tmaterial  or  apparatus\t for
\n     manufacturing an  intoxicant  other  than\ttari  except
\n     under the\tauthority and  subject.\t to  the  terms\t and
\n     conditions of  a licence  granted by  the Collector. By
\n     sub section  (2) of section 20 no distillery or brewery
\n     can be constructed or worked except under the authority
\n     and subject  to the  terms and  conditions of a licence
\n     granted  by  the  Financial  Commissioner.\t Section  24
\n     provides that  no person  shall have  in his possession
\n     any intoxicant  in excess of such quantity as the State
\n     Government declares  to be\t the limit  of retail  sale,
\n     except under  the authority  and in accordance with the
\n     terms and\tconditions of  a  licence  or  permit.\tSub-
\n     section (4) of section 24 empowers the State Government
\n     to prohibit the posses
\n141<\/span>
\n\t  sion of  any intoxicant or restrict its possession
\n\t  by imposing  such conditions\tas it may prescribe.
\n\t  Section 26  prohibits the  sale of  liquor  except
\n\t  under the  authority and  subject to the terms and
\n\t  conditions of a licence granted in that behalf.\n<\/p><\/blockquote>\n
\t       Section 27  of the  Act\tempowers  the  State
\n\t  Government to\t “lease” on  such conditions and for
\n\t  such period  as it  may deem\tfit or\tretail,\t any
\n\t  country liquor  or intoxicating  drug\t within\t any
\n\t  specified local  area. On such lease being granted
\n\t  the Collector, under sub-section (2), has to grant
\n\t  to the lessee a licence in the form of his lease.\n<\/p><\/blockquote>\n
\t       Section 34(1)  of the Act provides that every
\n\t  licence, permit  or pass  under the  Act shall  be
\n\t  granted (a)  on payment  of such fees, if any, (b)
\n\t  subject  to\tsuch  restrictions   and   on\tsuch
\n\t  conditions, (c)  in such  form and containing such
\n\t  particulars,\tand  (d)  for  such  period  as\t the
\n\t  Financial  Commissioner  may\tdirect.\t By  section
\n\t  35(2), before\t any  licence  is  granted  for\t the
\n\t  retail sale  of  liquor  for\tconsumption  on\t any
\n\t  premises the\tCollector  has\tto  ascertain  local
\n\t  public opinion  in regard to the licensing of such
\n\t  premises.  Section   36  confers   power  on\t the
\n\t  authority  granting\tany  licence  to  cancel  or
\n\t  suspend it if, inter alia; any duty or fee payable
\n\t  thereon has not been duly paid.\n<\/p><\/blockquote>\n
\t       Section 56  of the  Act\tempowers  the  State
\n\t  Government  to  exempt  any  intoxicant  from\t the
\n\t  provisions of\t the Act.  By section  58 the  State
\n\t  Government may  make\trules  for  the\t purpose  of
\n\t  carrying out\tthe provisions\tof this Act. Section
\n\t  59 empowers  the Financial  Commissioner by clause\n<\/p><\/blockquote>\n
\t  (a) to  regulate the\tmanufacture, supply, storage
\n\t  or sale of any intoxicant.\n<\/p><\/blockquote>\n
\t       xxx\t      xxx\t      xx
\n\t       The Prohibition\tand Excise  Laws in force in
\n\t  other\t States\t  contain  provisions  substantially
\n\t  similar to  those contained  in the  Punjab Excise
\n\t  Act. Several\tActs passed  by\t State\tLegislatures
\n\t  contain  provisions\trendering  it\tunlawful  to
\n\t  manufacture  export,\timport,\t transport  or\tsell
\n\t  intoxicating liquor  except in  accordance with  a
\n\t  licence, permit  or pass  granted in\tthat behalf.
\n\t  The Bombay Abkari Act 1878; the Bombay Prohibition
\n\t  Act 1949, the Bengal Excise Acts of 1878 and 1909;
\n\t  the Madras Abkari Act 1886;<\/p><\/blockquote>\n
142<\/span><\/p>\n
\t  the Laws  and Rules contained in the Excise Manual
\n\t  United Province,  the\t Eastern  Bengal  and  Assam
\n\t  Excise Act  1910; the\t Bihar and orissa Excise Act
\n\t  1915; the  Cochin Abkari  Act as  amended  by\t the
\n\t  Kerala Abkari\t Laws Act  1964; the  Madhya Pradesh
\n\t  Excise  Act\t1915,\tare   instances\t  of   State
\n\t  legislation  by   which   extensive\tpowers\t are
\n\t  conferred on the State Government in the matter of
\n\t  liquor licensing. (1)
\n     In this background, let us read S. 59(f)(v) and Rule 37
\nbefore and after the impugned amendment:\n<\/p>\n
\t       “59(f)(v). The  fixing of  the days and hours
\n\t  during which\tany licensed premises may or may not
\n\t  be kept  open, and the closure of such premises on
\n\t  special occasions;\n<\/p><\/blockquote>\n
     Rule 37(9). Conditions dealing with licensed hours-\n<\/p><\/blockquote>\n
\t       Every licensee  for the\tsale of liquor shall
\n\t  keep his  shop closed\t on the seventh day of every
\n\t  month, on all Tuesdays upto 2 p.m. On Republic day
\n\t  (26th January), on Independence day (15th August),
\n\t  on Mahatma  Gandhi’s birthday (2nd October) and on
\n\t  such days  not exceeding three in a year as may be
\n\t  declared by  the Government  in  this\t behalf.  He
\n\t  shall\t observe   the\tfollowing   working   hours.
\n\t  hereinafter called  the licensed  hours, and shall
\n\t  not,\twithout\t  the\tsanction   of\tthe   Excise
\n\t  Commissioner, Punjab or other competent authority,
\n\t  keep\this   shop  open  outside  these  hours\t The
\n\t  licensed hours shall be as follows:\n<\/p><\/blockquote>\n
\t\t\t  xx xx xx
\nAfter amendment
\n     37(9). Conditions dealing with licensed hours.-\n<\/p><\/blockquote>\n
\t       Every licensee  for the\tsale of liquor shall
\n\t  keep his  shop closed on every Tuesday and Friday,
\n\t  on Republic  Day (26th  January), on\tIndependence
\n\t  day (15th  August), on  Mahatma Gandhi’s  birthday
\n\t  (2nd October) and on such days not exceeding three
\n\t  in a\tyear as may be declared by the Government in
\n\t  this\tbehalf.\t  He  shall  observe  the  following
\n\t  working hours,  hereinafter  called  the  licensed
\n\t  hours, and  shall not, without the sanction of the
\n\t  Excise
\n(1) Har Shankar & Ors. etc. v. Dy. Excise & Taxation Commr..\n<\/p><\/blockquote>\n
and ors. [1975 ], 3 S.C.R. 254 at 266-267.\n<\/p>\n
143<\/span><\/p>\n
\t  Commissioner, Punjab or other competent authority,
\n\t  keep\t his shop  open\t outside  these\t hours.\t The
\n\t  licensed hours shall be as follows:\n<\/p>\n
\t\t    *\t  *\t      *\n     Note:     The condition  regarding\t closure  of  liquor\n<\/pre>\n
     shops  on\t very  Tuesday\t and  Friday  shall  not  be
\n     applicable in the case of licenses of tourist bungalows
\n     and re sorts being run by the Tourism Department of the
\n     State Government.\n<\/p>\n
     Before formulating the contentions pressed before us by
\nShri A. K. Sen, Shri Mahajan and Shri Sharma, we may mention
\nthat  Shri   Seth,  one\t  of  the   Advocates\twho   argued
\ninnovatively, did  contend  that  the  Act  was\t beyond\t the
\nlegislative  competence\t of  the  State\t and  if  that\ttall
\ncontention met\twith our  approval there was nothing more to
\nbe done.  To substantiate this daring submission the learned
\ncounsel referred  us to\t the entries in the Seventh Schedule
\nto the\tConstitution. All  that we  need  say  is  that\t the
\nargument is  too abstruse  for us to deal with intelligibly.
\nTo mention  the plea is necessary but to chase it further is
\nsupererogatory.\n<\/p>\n
The main contention
\n     The primary submission proceeded on the assumption that
\na citizen  had a  fundamental right  to carry  on  trade  or
\nbusiness in intoxicants. The learned Addl. Solicitor General
\nurged that  no such  fundamental  right\t could\tbe  claimed,
\nhaving\tregard\t to  noxious   substances  and\tconsequences
\ninvolved and  further contended\t that,\tnotwithstanding\t the
\nobservations of Subba Rao, C.J. in Krishna Kumar Narula etc.
\nv. The\tState of  Jammu & Kashmir & ors.(I) the preponderant
\nview of\t this Court, precedent and subsequent to the ‘amber’
\nobservations in\t the aforesaid\tdecision, has  been that  no
\nfundamental right  can be  claimed by a citizen in seriously
\nobnoxious  trades,   offensive\t businesses   or   outraging
\noccupations like trade in dangerous commodities, trafficking
\nin human flesh, horrifying exploitation or ruinous gambling.
\nEven so,  since the  question of  the fundamentality of such
\nright  is  before  this\t Court\tin  other  batches  of\twrit
\npetitions which are not before us, we have chosen to proceed
\non the\tfooting, arguendo, that there is a fundamental right
\nin liquor  trade for  the petitioners. Not that we agree nor
\nthat Shree  Sorabjee concedes that there is such a right but
\nthat,
\n(1) [1961] S S.C.R. SO.\n<\/p>\n
144<\/span><\/p>\n
for the\t sake of  narrowing the scope of the colossal number
\nof writ\t petitions now\tbefore us, this question may well be
\nskirted. The  Bench and\t the Bar  have, therefore,  focussed
\nattention on  the vires of the provision from the standpoint
\nof valid  power of  regulation of the liquor trade vis-a-vis
\nunreasonableness, arbitrariness\t and vacuum  of any indicium
\nfor just  exercise. Essentially,  the point pressed was that
\nS. 59(f)(v)  vested  an\t unguided,  uncanalised,  vague\t and
\nvagarious power\t in the\t Financial Commissioner\t to fix\t any
\ndays or\t number of  days and any hours or number of hours as
\nhis fancy  or humour suggested. There were no guidelines, no
\nindicators, no\tcontrolling points whereby the widely-worded
\npower of  the Excise  Commissioner on  whom  Government\t has
\nvested the  power pursuant  to Sec. 9) should be geared to a
\ndefinite goal  embanked by  some clear-cut  policy and\tmade
\naccountable to some relevant principle. Such a plenary power
\ncarried the  pernicious potential for tyrannical exercise in
\nits  womb   and\t would\t be  still   born,  judged   by\t our
\nconstitutional values.\tIf the power is capable of fantastic
\nplayfulness or\tfanciful misuse\t it is\tunreasonable,  being
\nabsolute, tested  by the  canons of the rule of law. And if,
\narguendo, it  is so  unreasonably wide\tas  to\timperil\t the
\nenjoyment of  a fundamental  right it  is violative  of Art.
\n19(1)(g) and  is not  saved by\tArt. 19(6). Another facet of
\nthe same submission is that if the provision is an arbitrary
\narmour, the  power-wielder can\tact nepotistically, pick and
\nchoose discriminatorily\t or  gambol  goodily.  Where  a\t law
\npermits discrimination,\t huff and  humour, the\tguarantee of
\nequality becomes  phoney, flimsy  or  illusory\tArt.  14  is
\noutraged by such a provision and is liable to be quashed for
\nthat reason. .\n<\/p>\n
An important undertaking by the State
\n     We must  here  record  an\tundertaking  by\t the  Punjab
\nGovernment and\teliminate a  possible confusion. The amended
\nrule partially\tprohibits liquor  sales in the sense that on
\nTuesdays  and\tFridays\t no   hotel,  restaurant   or  other
\ninstitution covered  by it  shall trade\t in liquor. But this
\nprohibition is\tmade non-applicable to like institutions run
\nby the Government or its agencies. We, prima face, felt that
\nthis was  discriminatory  on  its  face.  Further,  Art.  47
\ncharged\t the  State  with  promotion  of  prohibition  as  a
\nfundamental policy  and it is indefensible for Government to
\nenforce\t prohibitionist\t restraints  on\t others\t and  itself
\npractise the opposite and betray the constitutional mandate.
\nIt suggests  dubious dealing  by State\tPower.\tSuch  hollow
\nhomage to  Art. 47  and\t the  Father  of  the  nation  gives
\ndiminishing credibility\t mileage in  a democratic polity The
\nlearned Additional Solicitor General, without going into the
\ncorrectness of propriety of
\n145<\/span>
\nour  initial   view-probably  he  wanted  to  controvert  or
\nclarify-readily\t   agreed  that the Tuesday-Friday ban would
\nbe  equally   observed\tby   the  State\t  organs  also.\t The
\nundertaking recorded,  as part\tof the\tproceddings  of\t the
\nCourt, runs thus:-\n<\/p>\n
\t  “The Additional  Solicitor General  appearing\t for
\n     the State\tof  Punjab  states  that  the  Punjab  State
\n     undertakes to proceed on the footing that the ‘Note’ is
\n     not in  force and\tthat they  do not propose to rely on
\n     the ‘Note’ and will, in regard to tourist bungalows and
\n     resorts run  by the  Tourism Department  of  the  State
\n     Government observe\t the same regulatory provision as is
\n     contained in  the substantive  part of Rule 37 Sub-rule\n<\/p><\/blockquote>\n
     9.\t We  accept  this  statement  and  treat  it  as  an
\n     undertaking by the State. Formal steps for deleting the
\n     ‘Note’ will be taken in due course.”<\/p><\/blockquote>\n
     Although a\t Note can  be law,  here the  State concedes
\nthat it may not be treated as such. Even otherwise, the note
\nis plainly severable and the rule independently viable. Shri
\nA. K. Sen who had raised this point at the beginning allowed
\nit to  fade out\t when the State’s undertaking was brought to
\nhis notice.  The vice  of discrimination, blotted out of the
\nlaw  by\t  this\tprocess,  may  not  be\tsufficient,  if\t the
\ntraditional approach  were to  be made to striking down; but
\nif restructuring  is done  and the  formal process  delayed,
\nthere is  no reason  to quash  when the\t correction is done.
\nCourts try  to save,  not to scuttle, when allegiance to the
\nConstitution is shown.\n<\/p>\n
     In short,\tTuesdays and  Fridays, so  long as this rule
\nremains (as  modified in the light of the undertaking) shall
\nbe a  holiday for  the liquor trade in the private Or public
\nsector throughout  the State.  We need\thardly state that if
\nGovernment goes\t back on  this altered\tlaw the consequences
\nmay be\tplural and  unpleasant. Of course, we do not expect,
\nin the least, that any such apprehension will actualise.\n<\/p>\n
     one confusion  that we want to clear up is that even if
\nS. 59 and Rule 37 were upheld in toto that does not preclude
\nany affected  party from  challenging a particular executive
\nact pursuant  thereto on  the ground  that such\t an  act  is
\narbitrary, mala\t fide or  unrelated to\tthe purposes and the
\nguidelines available  in the  Statute. If, for instance, the
\nFinancial Commissioner\tor the\tExcise Commissioner,  as the
\ncase may  be declares  that all liquor shops shall be opened
\non his birthday or shall remain closed on his friend’s death
\nanniversary, whatever  our pronouncement on the vires of the
\nimpugned provisions,  the executive  order will be sentenced
\nto death.  The law  may be  good, the act may be corrupt and
\nthen it cannot be saved.\n<\/p>\n
146<\/span><\/p>\n
     The only  question seriously  canvassed before us is as
\nto whether the power under S. 59(f)(v) unguided and the rule
\nframed there  under is\tbad as\tarbitrary. We will forthwith
\nexamine the soundness of that proposition.\n<\/p>\n
     An irrelevant  controversy\t consumed  some\t court\ttime
\nviz.,  that   the  two-day   shut-down\trule  meant  that  a
\nsubstantial portion  of the  year for  which the licence was
\ngranted for  full consideration\t would thus  be\t sliced\t off
\nwithout compensation. This step was iniquitous and inflicted
\nloss and  was therefore\t ‘unreasonable’-therefore void.\t The
\nAdditional Solicitor  General refuted  this charge  on facts
\nand challenged its relevance in law. We must not forget that
\nwe are\texamining the vires of a law, not adjudging a breach
\nof contract  and if  on account\t of a  legislation  a  party
\nsustains damages  or claims a refund that does not bear upon
\nthe vires of the provision but be longs to another province.\n<\/p>\n
     Moreover, the  grievance of  the  petitioners  is\tmere
\n‘boloney’ be  cause even  their licence fee has been reduced
\nunder the  amended rule\t to compensate,\t as it were, for the
\nextra closure  of a  day or  so. We  do not  delve into\t the
\ndetails nor  pronounce on  it as  it  is  not  pertinent  to
\nconstitutionality. But a disquieting feature of the rule, in
\nthe background\tof the\tpurpose of  the measure, falls to be
\nnoticed. Perhaps  the most significant social welfare aspect
\nof the\tclosure is  the prevention  of the  ruination of the
\npoor worker  by drinking down the little earnings he gets on
\nthe wage  day. Credit  sales are banned and cash sales spurt
\non wage\t days. Any Government, with -workers’ weal and their
\nfamilies’ survival  at heart,  will use\t its  police  power’
\nunder Art.  19(6) read\twith Sec.  59(f)(v) of\tthe  Act  to
\nforbid alcohol\tsales  on  pay\tdays.  Wisely  to  save\t the
\ndependent women\t and children  of  wage-earners\t the  former
\nunamended rule\thad forbidden  sales on\t the seventh  day of
\nevery month  (when, it is well known, the monthly pay packet
\npasses into  the employees’ pocket). To permit the tavern or
\nliquor bar  to transact\t business that\ttempting days  is to
\nabet the  dealer who picks the pocket of the vulnerables and
\nbetray the  Gandhian behest.  And yet, while bringing in the
\nTuesday-Friday forbiddance of sales, the ban on sales on the
\nseventh of every month was entirely deleted-an oblique bonus
\nto the\tliquor lobby, if we look at it sternly, an unwitting
\nindiscretion, if we view it indulgently. The victims are the
\nweeping wives  and crying children of the workers. All power
\nis a  trust and\t its exercise by governments must be subject
\nto social  audit  and  Judas  exposure.\t ‘For  whom  do\t the
\nconstitutional bells toll ?’ this court asked in an earlier
\n147<\/span>
\njudgment relating  to Scheduled\t Castes.(1) We\thope  Punjab
\nwill   rectify the  error and hearten the poor in the spirit
\nof Art. 47 and not take away by the left hand what the right
\nhand gives. We indicated these thoughts in the course of the
\nhearing so  that no one was taken by surprise. Be that as it
\nmay, the  petitioner can  derive no aid and comfort from our
\ncriticisms  which  are\tmeant  to  alert  the  parliamentary
\nauditors of subordinate legislation in our welfare 1 State.
\nThe Scheme and the subject matter supply the guidelines
\n     We come  to the crux of the matter. Is Section 59(f)(v)
\n‘bad for want of guidelines ? Is it over-broad or too bald ?
\nDoes it lend itself to naked, unreasonable exercise? We were
\ntaken through  a few rulings where power without embankments
\nwas held  bad. They  related to\t ordinary items like coal or
\nrestrictions where  guidelines were blank. Here, we are in a
\ndifferent street  altogether. The  trade  is  instinct\twith
\ninjury to  individual and  community and  has serious  side-
\neffects recognised  everywhere in  every age. Not to control
\nalcohol business  is to\t abdicate the  right to rule for the
\ngood of\t the people.  Not to  canalise the  age and  sex  of
\nconsumers and  servers, the hours of sale and cash-and-carry
\nbasis,\tthe   punctuation  and\tpause  in  days\t to  produce
\npartially the  ‘dry’ habit-is  to  fail\t functionally  as  a
\nwelfare State. The whole scheme of the statute proclaims its
\npurpose of  control in time and space and otherwise. Section
\n58  vests   in\tGovernment   the  power\t  for  more  serious
\nrestrictions and  laying down  of  principles.\tDetails\t and
\nlesser constraints  have been  left to the rule-making power
\nof the\tFinancial Commissioner. The complex of provisions is
\npurpose-oriented, considerably\treinforced by  Art. 47.\t Old
\nstatutes  get\tinvigorated  by\t  the  Paramount  Parchment.
\nInterpretation of  the text  of pre-constitution  enactments
\ncan  legitimately   be\tinfused\t  with\tthe   concerns\t and
\ncommitments or\tthe Constitution, as an imperative exercise.
\nThus, it  is impossible\t to maintain  that no guidelines are
\nfound in the Act.\n<\/p>\n
     We wholly\tagree with  the learned Additional Solicitor
\nGeneral that  the search  for guidelines  is  not  a  verbal
\nexcursion.  The\t  very\t.   subject-matter  of\tthe  statute
\nintoxicants-eloquently\timpresses   the\t Act  with  a  clear
\npurpose, a  social orientation\tand a statutory strategy. If
\nbread and  brandy are  different the  point we\tmake  argues
\nitself. The  goal IS  promotion of  temperance and,  flowing
\nthere out,  of sobriety,  public order,\t individual  health,
\ncrime control,\tmedical bills,\tfamily welfare,\t curbing  of
\nviolence and  tension, restoration  of the  addict’s mental,
\nmoral and physical personality and interdict on
\n(1) [1977] 1.S.C.R. 906.\n<\/p>\n
148<\/span><\/p>\n
impoverishment, in  various  degrees,  compounded.  We\thave
\nextensively quoted  supportive literature; and regulation of
\nalcohol per  se\t furnishes  a  definite\t guideline.  If\t the
\nSection or  the Rule  intended to  combat an evil is misused
\nfor a  perverse, ulterior  or extraneous object that action,
\nnot  the   law,\t will\tbe  struck   down.  In\t this  view,
\ndiscrimination or arbitrariness is also excluded.\n<\/p>\n
     A final  bid  to  stigmatize  the\tprovision  [Sec.  59\n<\/p>\n
(f)(v)] was  made by raising a consternation. The power to –
\nfix the\t days and  hours is  so broad that the authority may
\nfix six\t out of\t seven days  or 23  out of 24 hours as ‘dry’
\ndays or\t closed hours  and thus\t cripple the  purpose of the
\nlicence. This is an ersatz apprehension, a caricature of the
\nprovision and  an assumption  of power\trun amok.  An Abkari
\nlaw, as\t here unfolded\tby the scheme (chapters and Sections
\nfurther amplified  by the rules framed thereunder during the
\nlast 64\t years) is  not a  Prohibition Act with a mission of
\ntotal prohibition.  The\t obvious  object  is  a\t to  balance
\ntemperance with\t tax, to  condition and\t curtail consumption
\nwithout liquidating  the liquor business, to experiment with
\nphased and progressive projects of prohibition without total
\nban  on\t  the  alcohol\t trade\tor  individual\tintake.\t The
\ntemperance movement  leaves the\t door half-closed, not wide,
\najar; the  prohibition crusade\tbanishes wholly the drinking
\nof intoxicants.\t So it\tfollows that  the limited temperance
\nguideline writ large in the  Act will monitor the use of the
\npower. Operation  Temperance, leading  later to\t the former,
\nmay be a strategy within the scope of the Abkari Act.\n<\/p>\n
     Both may  be valid but we do not go into it. Suffice it
\nto say\tthat even  restrictions under Art. 19 may, depending
\non  situations,\t be  pushed  to\t the  point  of\t prohibition
\nconsistently with  reasonableness. The\tchimerical fear that
\n‘fix the  days’ means  even ban\t the whole  week, is  either
\npathological or\t artificial, not  certainly real  under\t the
\nAct. We\t are not to be understood to say that a complete ban
\nis without  the bounds\tof  the\t law-it\t turns\ton  a  given
\nstatutory scheme.\n<\/p>\n
     While the\tpolice power  as developed  in the  American
\njurisprudence and  constitutional law, may not be applicable
\nin terms  to the  Indian Constitutional\t law, there  is much
\nthat is\t common between that doctrine and the reasonableness
\ndoctrine under Art. 19 of the Indian Constitution. Notes  an
\nAmerican Law Journal:\n<\/p>\n
\t  “The police  power has often been described as the
\n     “least  limitable”\t  of  the  governmental\t powers.  An
\n     attempt to\t define its  reach or trace its outer limits
\n     is fruitless  for each  case turns upon its own facts..
\n     The police\t power must  be used  to promote the health,
\n     safety, or\t general welfare  of  the  public,  and\t the
\n     exercise of the power must be
\n149<\/span>
\n     “reasonable”. An  exercise of  the police\tpower  going
\n     beyond  these  basic  limits  is  not  constitutionally
\n     permissible.<\/p><\/blockquote>\n
\t  Noxious Use Theory: . This theory upholds as valid
\n     any regulation  of the  use of  property, even  to\t the
\n     point of total destruction of value, so long as the use
\n     prohibited is harmful to others.” (1)
\n     In a  Law\tReview\tpublished  from\t the  United  States
\n‘police power’ with reference to intoxicant liquors has been
\ndealt with and is instructive:\n<\/p>\n
\t  “Government control  over intoxicating liquors has
\n     long been recognized as a necessary function to protect
\n     society from  the evils  attending\t it.  Protection  of
\n     society and  not the  providing of\t a  benefit  of\t the
\n     license holder  is the  chief  end\t of  such  laws\t and
\n     regulations. There is no inherent right in a citizen to
\n     sell intoxicating\tliquors as  retail. It is a business
\n     attended  with  danger  to\t the  community\t and  it  is
\n     recognised everywhere as a subject of regulation.”<\/p><\/blockquote>\n
     As to  the legislative  power to  regulate liquor,\t the
\nUnited States Supreme Court has stated:\n<\/p>\n
\t  “If the public safety or the public morals require
\n     the discontinuance\t of the\t manufacture or\t traffic (of
\n     intoxicating  liquors)  the  hand\tof  the\t legislature
\n     cannot be stayed from providing for its discontinuance,
\n     by any  incidental inconvenience  which individuals  or
\n     corporations may suffer.”\n<\/p><\/blockquote>\n
\t  The  States\thave  consistently   held  that\t the
\n     regulation of  intoxicants is  a valid  exercise of its
\n     police power.  The police\tpower stands  upon the basic
\n     principle that  some rights must be and are surrendered
\n     or modified  in entering  into the social and political
\n     state as  indispensible to\t the good government and due
\n     regulation and well being of society.<\/p><\/blockquote>\n
\t  In   evaluating   the\t  constitutionality   of   a
\n     regulation within the police power, validity depends on
\n     whether the  regulation is\t designed  to  accomplish  a
\n     purpose within the scope of that power.”(2)
\n(1) South  Western Law\tJournal-Annual Survey  of Texas Law,
\nvol. 30 No. I, Survey 1976 pp. 725-26.\n<\/p>\n
(2) Idaho Law Review, Vol. 7, 1970 p. 131.\n<\/p>\n
150<\/span><\/p>\n
     It\t is  evident  that  there  is  close  similarity  in
\njudicial thinking on the subject. This has been made further
\nclear  from  several  observations  of\tthis  Court  in\t its
\njudgments and  we may  make a  reference to  a recent  case,
\nHimmatlal, and a few observations therein:\n<\/p>\n
\t  “In the  United States  of America,  operators  of
\n     gambling sought  the protection of the commerce clause.
\n     But the  Court upheld  the power  of  the\tCongress  to
\n     regulate and  control the same. Likewise, the pure Food
\n     Act which\tprohibited the\timportation  of\t adulterated
\n     food was  upheld. The  prohibition of transportation of
\n     women for immoral purposes from one State to another or
\n     to a  foreign land\t was held valid. Gambling itself was
\n     held in  great disfavour  by the  Supreme\tCourt  which
\n     roundly stated  that ‘there  is no constitutional right
\n     to gamble`.\n<\/p><\/blockquote>\n
\t  Das, C.J.,  after  making  a\tsurvey\tof  judicial
\n     thought, here  and\t abroad,  opined  that\tfreedom\t was
\n     unfree when  society was  exposed to grave risk or held
\n     in ransom\tby the operation of the impugned activities.
\n     The contrary argument that all economic activities were
\n     entitled to  freedom as  ‘trade’ subject  to reasonable
\n     restrictions which\t the Legislature  might impose,\t was
\n     dealt with\t by the learned Chief Justice in a sharp and
\n     forceful presentation;\n<\/p><\/blockquote>\n
\t  “on this  argument it\t will follow  that  criminal
\n     activities undertaken  and carried\t on with  a view  to
\n     earning profit  will be protected as fundamental rights
\n     until they\t are restricted by law. Thus there will be a
\n     guaranteed right  to carry\t on a business of hiring out
\n     goodness to  commit assault  or even  murder, of house-
\n     breaking, of  selling obscene  pictures, of trafficking
\n     in women  and so  on until\t the law curbs or stops such
\n     activities.  This\t appears  to  us  to  be  completely
\n     unrealistic and  incongruous. We  have  no\t doubt\tthat
\n     there  are\t  certain  activities  which  can  under  no
\n     circumstances be  regarded\t as  trade  or\tbusiness  or
\n     commerce although\tthe usual  forms and instruments are
\n     employed therein.\tTo exclude those activities from the
\n     meaning of those words is not to cut down their meaning
\n     at all  but to  say only  that they  are not within the
\n     true meaning  of those  words. Learned  Counsel has  to
\n     concede that  there can  be no  ‘trade’ or\t business in
\n     crime but\tsubmits that  this principle  should not  be
\n     extended .. ”\n<\/p><\/blockquote>\n
(1) Fatehchand\tHimmatlal v. Maharashtra<\/a> [1977] 2 S.C.R. 828
\nat 839-840.\n<\/p>\n
151<\/span><\/p>\n
\t  We have  no hesitation,  in  our  hearts  and\t our
\n     heads, to\t hold that every systematic, profit oriented
\n     activity, how  ever sinister,  suppressive or  socially
\n     diabolic, cannot,\tipso  facto,  exalt  itself  into  a
\n     trade. Incorporation  of Directive\t principles of State
\n     policy casting  the high  duty upon the State to strive
\n     to promote\t the welfare  of the  people by securing and
\n     protecting as  effectively as  it may a social order in
\n     which justice  social, economic  and  political-  shall
\n     inform all\t the institutions  of the  national life, is
\n     not idle  print but  command to  action. We  can  never
\n     forget, except  at our  peril,  that  the\tConstitution
\n     obligates the  State to  ensure an\t adequate  means  of
\n     livelihood to  its citizens  and to sec that the health
\n     and strength  of workers men and women, are not abused,
\n     that  exploitation,   normal  and\tmaterial,  shall  be
\n     extradited. In  short State action defending the weaker
\n     sections  from   social  injustice\t and  all  forms  of
\n     exploitation and  raising the standard of living of the
\n     people, necessarily  imply\t that  economic\t activities,
\n     attired as\t trade or  business or\tcommerce, can be de-
\n     recognised as  trade or  business. At  this point,\t the
\n     legal culture  and the  public morals  of a  nation may
\n     merge, economic  justice and  taboo of  traumatic trade
\n     may meet  and jurisprudence may frown upon day dark and
\n     deadly  dealings.\t The   Constitutional\trefusal\t  to
\n     consecrate\t exploitation  as  ‘trade’  in\ta  socialist
\n     Republic like ours argues itself.”\n<\/p>\n
     A precedentral approach to the ultra vires argument.
\n     The single\t substantive contention\t has  incarnated  as
\ntriple constitutional  infirmities. Counsel  argued that the
\npower to make rules fixing the days and hours for closing or
\nkeeping\t open\tliquor\tshops  was  wholly  unguided.  Three
\ninvalidatory vices  flowed from\t this single  flaw viz.\t (i)
\nexcessive delegation of legislative power, (ii) unreasonable
\nrestriction on the fundamental right to trade in intoxicants
\nunder Art.  19(1) (g), and (iii) arbitrary power to pick and
\nchoose, inherently violative of Art. 14.\n<\/p>\n
     Assuming the  legality of\tthe triune lethal blows, the
\nbasic  charge\tof  uncanalised\t and  naked  power  must  be
\nestablished. We\t have already held that the statutory scheme
\nis not\tmerely fiscal  but also\t designed  to  regulate\t and
\nreduce\talcoholic   habit.  And,   while   commodities\t and
\nsituations  dictate   whether  power,\tin  given  statutory
\nprovisions, is\ttoo plenary to be other than arbitrary or is
\ninstinct with inherent limitations, alcohol is so manifestly
\ndeleterious that  the nature of the guidelines is written in
\ninvisible ink.\n<\/p>\n
152<\/span><\/p>\n
     A brief reference to a few rulings cited by counsel may
\nnot be inept.\n<\/p>\n
     It\t is   true  that   although  the   enactment   under
\nconsideration is  more than  five decades  old, its validity
\ncan now be assailed on the score of unconstitutionality:\n<\/p>\n
\t  “When India became a sovereign democratic Republic
\n     on 26th  January, 1950, the validity of all laws had to
\n     be tested on the touchstone of the new Constitution and
\n     all laws  made before  the coming\tinto  force  of\t the
\n     Constitution have\tto stand the test for their validity
\n     on the provisions of Part Ill of the Constitution.”(1)
\nThis is\t why the  principle of excessive delegation, that is
\nto say,\t the making over by the legislature of the essential
\nprinciples of  legislation to another body, becomes relevant
\nin the\tpresent debate.\t Under our constitutional scheme the
\nlegislature must  retain in  its own  ‘hands  the  essential
\nlegislative  functions.\t  Exactly   what   constitutes\t the
\nessential legislative functions is difficult to define.\n<\/p><\/blockquote>\n
\t  “The legislature  must retain in its own hands the
\n     essential\t legislative\tfunction.    Exactly\twhat
\n     constituted  “essential   legislative  function”,\t was
\n     difficult to define in general terms, but this much was
\n     clear that\t the essential\tlegislative function must at
\n     least consist  of the  determination of the legislative
\n     policy  and  its  formulation  as\ta  binding  rule  of
\n     conduct. Thus  where the  law passed by the legislature
\n     declares the  legislative\tpolicy\tand  lays  down\t the
\n     standard which  is enacted\t into a\t rule of law, it can
\n     leave the\ttask of subordinate legislation which by its
\n     very nature  is ancillary to the statute to subordinate
\n     bodies, i.e.,  the making of rules, regulations or bye-
\n     laws. The\tsubordinate authority  must do so within the
\n     frame-work of  the law  which makes the delegation. and
\n     such subordinate  legislation has to be consistent with
\n     the law under which it is made and cannot go beyond the
\n     limits of the policy and standard laid down in the law.<\/p><\/blockquote>\n<\/blockquote>\n
     Provided the  legislative\tpolicy\tis  enunciated\twith
\n     sufficient clearness  or a\t standard is  laid down, the
\n     courts should  not interfere  with the  discretion that
\n     undoubtedly  rests\t  with\tthe  legislature  itself  in
\n     determining the  extent of\t delegation necessary  in  a
\n     particular case.”(2)
\n(1) Suraj  Mall Mohta  and Co.v.A.V.  Visvanatha Sastri\t and
\nanother [1955] 1. S.C.R. 448 at 457.\n<\/p><\/blockquote>\n
(2) Municipal Corporation of Delhi v. Birla Cotton, Spinning
\nand Weaving Mills Delhi & Anr.<\/a> [1968] 3 S.C.R. 251 at 261
\n153<\/span>
\nIn Vasanthlal  Maganbhai Sajanwal  v. The State of Bombay(1)
\nthe  same point was made:\n<\/p>\n
\t  “A statute  challenged on  the ground of excessive
\n     delegation\t must therefore be subject to two tests, (1)
\n     whether it\t delegates essential legislative function or
\n     power and\t(2) WHETHER-  the legislature has enunciated
\n     its policy\t and  principle\t for  the  guidance  of\t the
\n     delegate.”<\/p><\/blockquote>\n
     Likewise, if  the State  can choose any day or hour for
\nexclusion as  it fancies  and there are no rules to fix this
\ndiscretion, plainly the provision [Sec.59(f)(v)] must offend
\nagainst Art.14\tof the\tConstitution.  (See  Saghir  Ahmed’s
\ncase)(2)
\n     Another  aspect   of  unguided   power  to\t affect\t the
\ncitizen’s fundamental  rights in  the province\tof  Art.  19
\nsince imposition  of unreasonable  restrictions on the right
\nlo  carry   on\tbusiness  is  violative\t of  Art.  19(1)(g).
\nPatanjali Sastri, C.J., in V. G. Row’s case observed(2)
\n\t  “The test  of reasonableness,\t wherever prescribed
\n     should l)\tapplied to  each individual statute impugned
\n     and  no   abstract\t standard   or\tgeneral\t pattern  of
\n     reasonableness can\t be Laid  down as  applicable to all
\n     cases. The\t nature of  the right  alleged to  have been
\n     infringed, the  underlying purpose\t of the\t restriction
\n     imposed, the extent or urgency of the evil sought to be
\n     remedied thereby,\tthe disproportion of imposition, the
\n     prevailing conditions at the time should enter into the
\n     judicial verdict”\n<\/p>\n
This Court,  in R.  M. Seshadri,(4)  dealt with unreasonable
\nrestrictions on\t showing of  films  by\ttheatre\t owners\t and
\nstruck down  the provisions.  Similarly, in  Harichand(5) an
\nunreasonable restriction  on the  right to  trade was struck
\ndown because the regulation concerned provided no principles
\nnor contained any policy and this Court observed:\n<\/p>\n
     “A provision  which leaves\t an unbridled  power  to  an
\nauthority  cannot   in\tany   sense  be\t  characterised\t  as
\nreasonable.  Section   3  of  the  Regulation  is  one\tsuch
\nprovision and  is therefore  liable to\tbe  struck  down  as
\nviolative of Art. 19(1)(g)”.\n<\/p>\n
(1) [1961] 2 S.C.R. 341.\n<\/p>\n
(2) [1955] 1 S.c.R. 707.\n<\/p>\n
(3) [1952] S.C.R. 597.\n<\/p>\n
(4) [1955]1 S.C.R. 686.\n<\/p>\n
(S) LALA  Hari Chand  Sarda v.\tMizo District  Council & Anr<\/a>
\n[1967]1 S.C.R. 1012
\n11-520 SCI\/78
\n154<\/span>
\nother decisions\t in the\t same strain  were cited.  Indeed an
\nannual shower  of decisions  on this  point issues from this
\nCourt. But  the essential  point made  in all these cases is
\nthat  unchannelled  and\t arbitrary  discretion\tis  patently
\nviolative of  the requirements\tof reasonableness in Art. 19
\nand of\tequality under\tArt. 14, a proposition with which no
\none can\t now quarrel.  lt is  in the  application  of  these
\nprinciples that\t disputes arise\t as Patanjali  Sastri,\tC.J.
\nclarified early\t in the\t day in\t V.  G.\t Row’s\tcase  (cited
\nSupra).\t  Reasonableness    and\t  arbitrariness\t   are\t not
\nabstractions  and  must\t be  tested  on\t the  touchstone  of
\nprinciple pragmatism and living realism.\n<\/p>\n
     It is  in this  context that  the observations  of this
\nCourt in Nashirwar(1) become decisive. While considering the
\nsoundness of  the propositions\tadvanced by the advocate for
\nthe petitioners\t the Additional\t Solicitor  General  rightly
\nshielded the  statutory provisions i question by drawing our
\nattention to  the crucial  factor that the subject matter of
\nthe  legislation   was\ta  deleterious\tsubstance  requiring
\nrestrictions in\t the direction of moderation in consumption.
\nregulation  regarding\tthe  days  and\thours  of  sale\t and
\nappropriateness in  the matter of the location of the places
\nof sale.  If it\t is coal  or mica  or cinema,  the  test  of
\nreasonableness will  be stricter, but if it is an intoxicant
\nor a  killer drug  or a\t fire-arm the  restrictions must  be
\nstern. When  the public\t purpose is  clear and\tthe policing
\nneed is manifest from the nature of the business itself, the
\nguidelines are\teasy to find. Shri Mahajan’s reliance on the
\nCoal Control  Case(‘) or  Shri A.  K. Sen’s  reliance on the
\nGold Control  case (3)is  inept. Coal  and gold are as apart
\nfrom whisky  and toddy\tas cabbages are from kings. Don’t we
\nfeel the difference between bread and brandy in the field of
\ntrade control ? Life speaks through Law.\n<\/p>\n
     Counsel after  counsel has\t pressed that  there  is  no
\nguideline for  the exercise  of the power of rule-making and
\nthe Addl.  Solicitor General  has  turned  to  the  history,
\nsociology and  criminology relating to liquor. In support of
\nhis contention,\t Shri Soli  Sorabjee for the State has drawn
\nour attention  to the  following passages in Nashirwar which
\nare quoted  is extenso because of the persistence of counsel
\non the\tother side  in pressing\t their point about unbounded
\npower:\n<\/p>\n
\t  “In our  country the\thistory of excise shows that
\n     the regulations  issued  between  1790-1800  prohibited
\n     manufacture or sale of liquors without a licence from a
\n     Collector. In 1 808 a regulation was introduced in tile
\n     Madras Presidency
\n(1) [1975] 2 S.C.R. 861.\n<\/p><\/blockquote>\n
(2) A.I.R. 1954 S.C. 224.\n<\/p>\n
(3) A.I.R. 1970 S.C. 1453.\n<\/p>\n
155<\/span><\/p>\n
     Which  provided   that  the   exclusive  privilege\t  of
\n     manufacturing and\tselling arrack\tshould be  farmed in
\n     each district. In 1820 the law was amended to authorise
\n     the treatment  of toddy  and other fermented liquors in
\n     the same  way as  spirits\tby  allowing  Collectors  to
\n     retain the manufacture and sale under direct management
\n     if deemed\tpreferable to  farming. In  1884 a Committee
\n     was appointed  to investigate  the excise\tsystem.\t The
\n     recommendations of\t the Committee\twere adopted.  Under
\n     the new  system the  monopoly of  manufacture  was\t let
\n     separately from that of sale. The former was granted on
\n     condition of  payment of  a fee per shop or a number of
\n     shops, or on payment of a fee determined by auction. In
\n     the Bombay\t Presidency the\t monopoly of the retail sale
\n     of spirits\t and  the  right  to  purchase\tspirits\t was
\n     formed. In\t 1857 the  Government  declared\t its  future
\n     policy to\tbe the letting by auction of each shop, with
\n     its still,\t separately. In\t 1870-71 a  change was made.
\n     The rule  at that time was that the Collector would fix
\n     the number\t and locality  of the  different  shops\t and
\n     determine\ttheir\tletting\t value\t according  to\t the
\n     advantages possessed  by each. It was not intended that
\n     they  should,   as\t a   rule,  be\t put  up  to  public
\n     competition; but  competition might  be resorted  to by
\n     the Collector and taken into account in determining the
\n     same at  which each would be leased. This rule remained
\n     in force  for many\t years. The  practice of putting the
\n     shops up  to  auction  was,  thereafter  followed.\t The
\n     history of\t excise administration in our country before
\n     the Independence  shows that  there was  originally the
\n     farming system  and thereafter  the central  distillery
\n     system for\t manufacture. The retail sale was by auction
\n     of the  right and\tprivilege of sale. The Government of
\n     India  appointed  an  Excise  Committee  in  1905.\t The
\n     measures recommended by the Committee were the advances
\n     of taxation,  the\tconcentration  of  distillation\t the
\n     extended adoption\tof the\tcontract distillery  system.
\n     The  Committee   suggested\t among\t other\tthings\t the
\n     replacement of  the then  existing excise\tlaw by fresh
\n     legislation on the lines of the Madras Abkari Act. (See
\n     Dr. Pramatha  Nath Banerjee: History of Indian Taxation
\n     P. 470 seq.).\n<\/p>\n
\t  Reference may\t be made  to  the  Taxation  Enquiry
\n     Commissioner  Report   1953-54  Vol.  3.  At  page\t 130
\n     following there is a discussion of State excises. Among
\n     the major sources of revenue which are available to the
\n     State Government  there is\t a duty on alcoholic liquors
\n     for human\tconsumption. At page 132 of the Report it is
\n     stated that in addition
\n156<\/span>
\n     to the  excise duties,  licence fees  are\tcharged\t for
\n     manufacture or  sale of  liquor or\t for  tapping  toddy
\n     trees etc.\t Similarly, several  fees like\tpermit fees,
\n     vend fees, outstill duties are also levied. Manufacture
\n     or sale  of liquor\t is forbidden  except under licences
\n     which are\tgenerally granted  by auction to the highest
\n     bidders. The  manufacture of  country spirit is done in
\n     Government distilleries or under the direct supervision
\n     of the  excise  staff.  All  supplies  are\t drawn\tfrom
\n     Government warehouses  which ensures that the liquor is
\n     not more  than of the prescribed strength. The licensed
\n     sellers have  to sell  the country spirit between fixed
\n     hours and\tat fixed  selling rates.  As in\t the case of
\n     country spirit,  the right of tapping and selling toddy
\n     is also  auctioned. In addition to the licence, in some
\n     States  the   licensee  has   to  pay  a  tree  tax  to
\n     Government.\n<\/p>\n
\t  Traditionally\t tobacco,   opium  and\tintoxicating
\n     liquors have been the subject matter of State monopoly.
\n     (See section  IV of  the Madras Regulation XXV of 1 802
\n     relating to  permanent  settlement\t of  land  revenue).
\n     Section IV\t states that  the Government having reserved
\n     to itself\tthe entire  exercise of\t its  discretion  in
\n     continuing or  abolishing, temporarily  or permanently,
\n     the articles  of revenue  included,  according  to\t the
\n     custom and\t practice of  the country, under the several
\n     heads inter  alia of  the abkary, or tax on the sale of
\n     spirituous liquors\t  and  intoxicating  drugs,  of\t the
\n     excise on\tarticles of  consumption, of  taxes personal
\n     and  professional,\t  as  well  as\tthose  derived\tfrom
\n     markets, fairs,  or bazars. of lakhiraj lands (or lands
\n     exempt from  the payment of public revenue), and of all
\n     other lands  paying only  favourable  quit\t rents,\t the
\n     permanent assessment  of the  land-tax  shall  be\tmade
\n     exclusively of the said articles now recited.
\n\t  The excise  revenue arising out of manufacture and
\n     sale of  intoxicating liquors  is one of the sources of
\n     State revenue as is customs and excise. In England sale
\n     of intoxicating  liquors although\tperfectly lawful  at
\n     common   law    is\t  subject   to\t certain   statutory
\n     restrictions. These  restrictions are  primarily of two
\n     kinds; those  designed for\t the orderly  conduct of the
\n     retail trade  and those designed to obtain revenue from
\n     the trade r whether wholesale or retail.\n<\/p>\n
\t  Trade\t in  liquor  has  historically\tstood  on  a
\n     different footing from other trades. Restrictions which
\n     are  not\tpermissible  other  trades  are\t lawful\t and
\n     reasonable so far as the trade
\n157<\/span>
\n     in liquor is concerned. That is why even prohibition of
\n     the   trade in  liquor is\tnot only  permissible but is
\n     also  reasonable.\tThe  reasons  are  public  morality,
\n     public interest  and harmful and dangerous character of
\n     the liquor.  The State  possesses the right of complete
\n     control  over   all  aspects   of\tintoxicants,   viz.,
\n     manufacture,  collection,\tsale  and  consumption.\t The
\n     State has\tsight in order to raise revenue. That is the
\n     view of  this Court  in  Bharucha’s  case\t(supra)\t and
\n     jaiswal’s case  ( supra)  . The  nature of the trade is
\n     such that the State confers the right to vend liquor by
\n     farming out  either in  auction or\t on private  treaty.
\n     Rental is\tthe consideration  for the privilege granted
\n     by the  Government for manufacturing or vending liquor.
\n     Rental is\tneither a  tax nor an excise duty. Rental ii
\n     the  consideration\t for  the  agreement  for  grant  of
\n     privilege by the Government.” (pp. 869-871)
\nThe guide-lines.\n<\/p>\n
     Now that  we have\theld  that  the\t provision  [Section
\n59(f)(v)] is  valid  on\t a  consideration  of  the  criteria
\ncontrolling the\t wide words  used therein  there is  a minor
\nmatter remaining  to be\t disposed of.  The extract  from the
\nSection, as  will be  noticed, contains a clause which runs:
\n“and the  closure of  such premises  on special\t occasions”.
\nThus, rules  may be  made by  the Financial Commissioner for
\nfixing\tthe   closure  of   licensed  premises\ton  ‘special
\noccasion’. Shri\t Mahajan insisted  that ‘special  occasions’
\nmay mean  anything and\tmay cover  any occasion\t dictated by
\nhumour, political pressure or other ulterior considerations.
\nIt  is\tthus  a\t blanket  power\t which\tis  an\tunreasonable
\nrestriction on\tthe licensee’s\ttrade. Certainly if ‘special
\noccasions’ means  any occasion\twhich appeals to the mood of
\nthe Financial  Commissioner or\thas other casual fascination
\nfor him\t the rule may suffer from arbitrary and unreasonable
\nfeatures. Gandhiji’s  birthday and  also Vinobaji’s birthday
\nhave  been   included  in   the\t licence   itself.  ‘Special
\noccasions’ contemplated\t by Sec.  59(f) (v) are not stricken
\nby such\t a vice\t for the obvious reasons we have elaborately
\ngiven in the earlier part of our argument. The occasion must
\nbe  special   from  the\t  point\t of   view  of\t the   bread
\nconsiderations of  national solemnity.\tpublic order, homage
\nto national figures, the likelihood of eruption of inebriate
\nviolence On  certain days  on account of meals, festivals or
\nfrenzied  situations   or  periods   of\t tension.   Bapuji’s
\nbirthday,  election   day,  hours  of  procession  by  rival
\ncommunities  when   tensions  prevail\tor  festivals  where
\ncolossal numbers  of people  gather and outbreak of violence
\nis  on\t the  agenda,\tare  clear  illustrations.  ‘Special
\noccasions’ cannot  be equated  with fanciful  occasions\t but
\nsuch as promote the policy of the statute as expounded by us
\nearlier. There\tis no  merit in\t this argument either and we
\nreject it.\n<\/p>\n
158<\/span><\/p>\n
     As between\t temperance and\t prohibition it\t is a policy
\ndecision for  the Administration.  Much may  be said for and
\nagainst total prohibition as an American wit has cryptically
\nyet sarcastically  summed up(1): “The chief argument against
\nprohibition is\tthat it\t does not prohibit. This is also the
\nchief argument in favour of it.”\n<\/p>\n
\t  This survey  of the  law-ways of  Art. 19  and the
\n     police power  is sufficient  in our  view to clinch the
\n     issue.\n<\/p><\/blockquote>\n
     our conclusions may now be set out.<\/p><\/blockquote>\n
     (a) Section 59(f)(v) of the Punjab Excise Act, 1914, is
\nperfectly valid;\n<\/p>\n
     (b) The  regulation of  the  number  of  days  and\t the
\nduration of  the hours\twhen supply  of alcohol by licensees
\nshall be stopped is quite reasonable, whether it be two days
\nin a  week or  even more.  We leave  open the question as to
\nwhether prohibition  of the number of days and the number of
\nhours, if  it reaches  a point of substantial destruction of
\nthe right to vend, will be valid, since that question arises
\nin other writ petitions;\n<\/p>\n
     (c) The exercise of the power to regulate, including to
\ndirect closure\tfor some  days every  week, being reasonable
\nand calculated\tto produce  temperance\tand  promote  social
\nwelfare, cannot\t be invalidated on the imaginary possibility
\nof misuse.  The test of the reasonableness of a provision is
\nnot the theoretical possibility of tyranny; and\n<\/p>\n
     (d)  There\t is  enough  guideline\tin  the\t scheme\t and
\nprovisions of  the Punjab  Excise Act to govern the exercise
\nof the power under Secs. 58 and 59.\n<\/p>\n
     In a  few beer  bar cases\tthe grievance  ventilated is
\nregarding the  manipulation of\thours of  sale. Nothing\t has
\nbeen made  out to  hold that the readjustment of the hour of
\nbeer-bidding is\t unrelated to  the statutory  guidelines  or
\ndestructive of the business. We reject the objection.\n<\/p>\n
     We have  reasoned enough  to justify  the ways  of\t the
\nConstitution and  the law to the consumers of social justice
\nand spirituous\tpotions. The  challenge fails  and the\tWrit
\nPetitions Nos.\t4108-4109 tc.,\tof 1978 are hereby dismissed
\nwith costs  (one hearing  fee). May  we hopefully expect the
\nState  to   bear  true\t faith\tand   allegiance   to\tthat
\nConstitutional orphan, Art. 47 ?\n<\/p>\n
N V.K\t\t\t\t\tPetitions dismissed.\n<\/p>\n
(1) “Reconsiderations  H. L.  Meneken-Anti All Kinds of Blah
\nby Lila Ray appeared in “Span” Aug. 1978 p. 41.\n<\/p>\n
159<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India P. N. Kaushal Etc vs Union Of India on 16 August, 1978 Equivalent citations: 1978 AIR 1457, 1979 SCR (1) 122 Author: V Krishnaiyer Bench: Krishnaiyer, V.R. PETITIONER: P. N. KAUSHAL ETC. Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT16\/08\/1978 BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. DESAI, D.A. REDDY, O. CHINNAPPA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-102832","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nP. N. 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