Why SC verdict on Kerala’s alcohol policy is correct and does not violate the right to equality

Talking to any women in Kerala today would reveal how right the Supreme Court was.
Why SC verdict on Kerala’s alcohol policy is correct and does not violate the right to equality
Why SC verdict on Kerala’s alcohol policy is correct and does not violate the right to equality
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By Ajit Joy

In recent years, one of the best decisions of the Kerala Government has been the new Abkari Policy of 2014-15, under which licences for all bars except those in five-star hotels was withdrawn. Though the policy itself was born under political manoeuvring of the ruling coalition and corruption, leading to cases against two state ministers and the resignation of one of them, it has nonetheless brought cheer to families across the state. The decision has especially brightened the lives of women who were the worst affected by the chronic alcoholism of their husbands in a state which consumes 14% of all alcohol produced in the country. 

The greatest loss from the decision of the state government was to the powerful liquor lobby which Justice Krishna Iyer termed as “the merchants of intoxication.” They stood to lose about Rs. 2000 crore in yearly sales from the closure of bars attached to their two, three and four-star hotels. Needless to say, the policy was keenly contested by the bar owners before the courts. However, both the High Court of Kerala and the Supreme Court have upheld the liquor policy of the Kerala Government.

It is this recent decision of the Supreme Court in The Kerala Bar Hotels Association v. State of Kerala that advocate Suhrith Parthasarathy  has sharply critiqued in The Hindu in his article All in the Spirit of Equality. The main objection of the author is that bars in five-star hotels have been allowed to remain while the ones in smaller hotels have been shut down which, and that it is a classist decision in favour of the five-star hotels. The writer claims that this discrimination, on the supposed ground of protecting the state’s tourism sector, patently militates against the fundamental right to equality guaranteed under the Constitution.

The writer’s contention on two grounds appears to be erroneous. Firstly, he seems to miss the woods for the trees by finding fault with the retention of bars in five-star hotels which is only one among a whole package enunciated as part of a future “alcohol-free Kerala”. The other measures include closing down of 10% of beverages outlets every year, educating students in schools and colleges against use of alcohol, a 5% cess on alcohol sales to rehabilitate alcohol addicts and bar workers who lose jobs and all Sundays being declared as dry-days.

Starting in 2002, a series of steps were initiated by the government to check rampant alcohol consumption in the state. One of the earliest decisions was the ban on the manufacture and sale of arrack. Subsequently, foreign liquor supply was taken away from private hands and brought under government control; sale of alcohol through bars in two-star and un-starred hotels  were prohibited and later the ban extended to three-star hotels in 2013 and further to four- star and heritage hotels. All this was geared towards reducing alcohol consumption in the state and countering huge social costs on account of it. At every stage, as expected, the decision of the State was challenged, but fortunately the Supreme Court upheld the state governments efforts (State of Kerala v. B. Six Holiday Resorts (P) Ltd 2010 and State of Kerala  v. B. Surendra Das 2014). The present order needs to be seen as a logical continuation in the line of such positive and social minded decisions from the apex court.

The second mistake that the author makes is in taking a rather doctrinaire view on the ‘equality’ principle guaranteed by the Constitution. Equality does not mean that no exception is allowed. State can make a classification and devise special provisions in promotion of an avowed good. Thus we have the provision for reservation, special provision for women and children and the like. As long as there is a reasonable relation between the classification and the object sought to be achieved and so far as the classification is not arbitrary or mala fide, there would be no unconstitutionality. Mr. Parthasarathy narrowly frames his question – isn’t allowing only five-star hotels to serve alcohol not a violation of the equality principle? Whereas, Justice Vikramjit Sen who wrote the decision warned that the question under consideration is not as simple as that. According to Justice Sen the real question is whether the policy to ban consumption of alcohol in public or the exception carved out of this policy in favour of five-star hotels is in violation of the rights under equality principles.

Viewed in this light, the general decision to ban drinking in all public places and to make a narrow exception for the five-star hotel, perhaps for a short period of time while the state slowly but surely moves towards total alcohol ban, is a step that is palpably reasonable and does not seem like an action that needs reconsideration. It is also note worthy that alcohol sale through five-star hotels accounted for only 0.08% of the total alcohol sales in the state.

One of the cardinal democratic principles that that our courts have been assiduously following, and which the author conveniently ignores, is that courts generally do not interfere with state policies. Unless the policy is unreasonable, mala fide, arbitrary or contrary to provisions of the Constitution, courts defer to them and do not impose their own wisdom on the government. And rightly so, Justice Sen observed that the way in which, “this policy is to be implemented, modified, adapted or restructured is the province of the State Government and not of the Judiciary.” Courts have also been liberal enough to observe that the state in policy matters must be allowed to “experiment, make mistakes and modify.”

Finally, Mr. Parthasarathy in his argument, unlike the Supreme Court, completely lost sight of the big picture - to appreciate the constitutional duty cast on the state under Article 47 to restrict the use of intoxicants and promote public health. Kerala’s alcohol policy is a step in this direction of dealing with a massive social evil.  Therefore, such policies should only be a subject of encouragement by courts and not restricted through narrow moot- court like legalistic arguments. Talking to any women in Kerala today would reveal how right the Supreme Court was.

The writer is a former IPS officer and has worked in the United Nations. He contested the Parliamentary elections in Thiruvananthapuram representing AAP in 2014.

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