The Unconstitutionality of Evil

The Bihar government, with a view to completely ban sale and consumption of alcohol in the state, passed the Bihar Prohibition and Excise Act, 2016. The new law was put in force from 2nd October 2016 with intent “to enforce, implement and promote complete Prohibition of liquor and intoxicants in the territory of the State of Bihar.”

There was a lot of outrage when the Bihar government first came out with a notification in the month of April of the last year which sought to ban the sale of alcohol in the state. However, the Patna High Court struck down this notification by terming it as “draconian and unreasonable.” Thereafter, the state government came out with the present law. However, this new act attracted a lot of controversies, not due to its alcohol ban, but due to some stringent penalty sections enshrined in it. One such section is section 32(3) of the Act which presumes guilt against all the members of the family.

It goes as follows: “An offence is said to have been committed inside any house occupied by a family where any intoxicant or liquor is found or consumed, it shall be presumed that all the adults above the age of eighteen occupying or working at the place or in the premises or the members of the family above eighteen years of age occupying the house are having the knowledge of commission of such an offence, unless proved otherwise.”

This section presumes guilt against all the adult members of a family and shifts the burden on them to prove that they weren’t aware of the alleged fact. The act presumes that adult family members know or ought to know what the other members of a family are doing. This act does not limit itself just to a family but also extends to landlords who must make sure that their tenants don’t possess and consume alcohol within the building or land. In all such circumstances, as per section 30 of the act, a punishment of at least 10 years of imprisonment and a fine of at least one lakh rupees has been prescribed. This Act falls foul of many provisions of constitution and principles of natural justice.

Presumption of innocence means that a person is considered innocent until proven guilty by the court of law. This principle has been the cornerstone of the legal world, especially in criminal law. This principle puts the onus on the prosecution to prove the guilt of an accused. But in section 32(3) it has been specifically stated that the accused must prove that he was not liable for the crime he committed. This goes against the basic principles of criminal jurisprudence as it makes every adult member of a family seem guilty, even though they may be in fact innocent.

Section 32(3) of the Bihar prohibition act reflects gross unreasonableness and arbitrariness on the part of the government. Putting the burden of proof on the family members is unreasonable as they don’t have enough resources and apparatus which the state has at its disposable. This provision may also lead to filling of false and malicious complaints due to family feuds. As per section 76 of the said act, all the offences are cognizable and non-bailable. Such harsh provisions in the law will lead to some powerful taking its advantage at the cost of poor and uneducated. For example, if a person X, out of his feud with Y, places alcohol bottles into Y’s house without Y’s and his family members knowledge, and then X informs police that Y has alcohol in his possession, the police will prima facie assume that Y and his family members concealed the alcohol in the house, and subsequently arrest them. The critical points here will be: whether Y and his family would be able to prove that they had no knowledge that alcohol was kept in their house. Will the judges believe on their oral testimonies? How will they be able to prove, being incarcerated and without any apparatus, that it was X who kept the bottles in their house? This Act will further impair a person’s dignity and reputation in the society.

The apex court in the case of Francis Coralie Mullin v. The Administrator, Union Territory of Delhi has expanded the realm of Article 21 to include human dignity, and all that is associated with it. It held that every act which impairs human dignity will constitute “deprivation pro tanto” of Article 21. Detaining people for no fault of theirs is an impairment to their right to live with dignity and would constitute an inroad into Article 21. And, the law which authorises such a procedure leading to degrading treatment should be forthrightly characterised as unconstitutional.

Thus section 32(3) of the Bihar Prohibition and Excise Act, 2016 doesn’t pass the muster against the bulwarks of Article 14 and Article 21 of the constitution and hence are illegal. We have already seen some perverse outcomes due to this law. This law has put forth the concept of “collective guilt” which could, if set as a precedent, be used to justify violence against groups and minority communities.


ABOUT THE AUTHOR

Pratik Dixit

PRATIK PRAKASH DIXIT

Law Student pursuing BA LLB (Hons) at NLSIU, Bangalore. Interested in social and political issues.

 

 

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