HC strikes down Nitish’s booze ban in Bihar

Total prohibition in Bihar ceased to exist from Friday with the Patna high court striking down a ban on Indian made foreign liquor (IMFL) in the state, dealing a body blow to chief minister Nitish Kumar’s pet initiative.

But tipplers’ joy may be short lived as the state government plans to go ahead with a modified version of the prohibition law – with more stringent measures – on Sunday, despite questions about its legality.

In a 150-page judgment, the HC quashed an April 5 notification that banned the manufacture, consumption and sale of IMFL, saying the order was “ultra vires to the Constitution, hence not enforceable”.

Sources said the government is planning to approach the Supreme Court against the HC order.

At the moment, with the new act not notified yet and the old act quashed, Bihar is without prohibition of IMFL until Sunday. However, the ban on country-made liquor continues.

Enforcing prohibition has proved to be a minefield for Nitish Kumar, who promised the measure during his assembly poll campaign. The move has won accolades from women’s groups but has outraged many, who say prohibition attacks their livelihoods and stringent penal measures for even possessing alcohol are unconstitutional. Kumar has toured many places in Jharkhand, Madhya Pradesh, Uttar Pradesh and Punjab, championing the cause of prohibition.

Bihar’s additional advocate general Lalit Kishore said that the Patna HC ruling was on the old act, which came into force in April.

“It will have no impact on the new act. The legislature passed the act and there is no need for gazette notification. In any case, cabinet has already taken a decision for its implementation from October 2,” he added.

But experts say the new law – which contains many of the provisions of the old law that was scrapped – will immediately be challenged in court.

The new measures had received the governor’s assent.

The April notification of the government had been challenged in the court by the Liquor Trade Association and a bunch of other individuals.

Allowing the writ applications, the court in its 142-page judgment said: “Section 19(4) of the Bihar Excise Act, 1915, as amended with effect from April 1, 2016 is ultra vires to the Constitution and unenforceable.

The impugned notification, dated April 5, 2016, issued by the state under section 19(4) of the said amended act is also ultra vires to the Constitution and consequently, unenforceable.

The penal provisions of enhanced sentence and provisions, with regard to confiscation of property, as introduced…with effect from April 1, 2016 are also held to be ultra vires to the Constitution.”

The petitioners challenging prohibition had argued that it “creates unreasonable restrictions on the choice of livelihood of a person which is protected under Article 21 of the Constitution”.

“We will study the court order and take action in that light,” said principal secretary, home department, Amir Subhani.