Sunny Markose v. State of Kerala — 1996 DIGILAW 80 (KER)

Judgment :- P. Shanmugam, J. The petitioner is a Route Manager for distribution of arrack in Vaikom-Range. He has filed the above Original Petition challenging the Government Order dt. 20.12.1995. The Government Order directs abolition of all arrack shops with effect from 1.4.1996. 2. The petitioner is a registered worker under the Kerala Abkari Workers Welfare Fund Act and is engaged permanently in the said work irrespective of the change of contractors. Petitioner is earning his livelihood by working as a Route Manager in Vaikom Range, covering 12 arrack shops. According to him, there are 5614 arrack shops in the State and there are 17112 registered workers working in this field. Petitioner contends that the Government of Kerala for the implementation of prohibition in a phased manner initially decided to reduce 10% of the arrack shops in various parts of Kerala. But the workers who became surplus were permitted to continue their work in such allotted areas. But this year the Government decided to close all arrack shops with effect from 1.4.1996. The said decision of the Government would affect the fundamental right of the petitioner to live. Petitioner also contends that he would be rendered jobless and would not be in a position to seek employment under Government or any other place. 3. Learned counsel for the petitioner also submits that the Government Order which relates only to arrack shops is discriminatory as it would allow toddy shops and Indian made foreign liquor shops to continue in violation of Arts.14 and 16 of the Constitution of India. 4. The sum and substance of the argument advanced on behalf of the petitioner by the learned counsel is two-fold. According to him, the Government Order is discriminatory and that it deprives the petitioner's right to employment. 5. The State has got exclusive right in granting the privilege of manufacturing and selling liquor. The said principle has been well recognised by a series of decisions of the Supreme Court. 6. In Nashirwar v. State of M. P. (AIR 1975 SC 360) the Supreme Court held that the State has the exclusive right or privilege of manufacturing and selling liquor. The Supreme Court also held that there is no fundamental right of citizens to do business in liquor. 6. In Nashirwar v. State of M. P. (AIR 1975 SC 360) the Supreme Court held that the State has the exclusive right or privilege of manufacturing and selling liquor. The Supreme Court also held that there is no fundamental right of citizens to do business in liquor. In this context the Supreme Court held as follows: "There is no fundamental right of citizens to carry on trade or to do business in liquor. There is the police power of the State to enforce public morality to prohibit trades in noxious or dangerous goods. There is power of the State to enforce an absolute prohibition of manufacture or sale of intoxicating liquor. Art.47 states that State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. The history of the excise law shows that the State has the exclusive right or privilege of manufacture or sale of liquor. Trade in liquor has historically stood on a different footing from other trades. Restrictions which arc not permissible in other trades are lawful and reasonable so far as the trade in liquor is concerned. That is why even prohibition of the trade in liquor is not only permissible but is also reasonable. The reasons are public morality, public interest an, harmful and dangerous character of the liquor". 7. Hidayatullah, J. (as he then was) held in Sheoshankar v. M.P. State Goverment (AIR (38) 1951 Nagpur 58 (FB) held that it is not for the court to decide whether the policy of the Government in relation to prohibition is right or wrong. The learned judge held as follows: "In so far as prohibition is concerned, there can be no doubt that a vast proportion of the population of this country does believe that drinking is an evil and that a policy of prohibition should be adopted. Whether they are right or wrong is immaterial. To prove that such views are held, it is enough to cite the solemn declaration of the people in Art.47 of the Constitution itself. Whether "toddy' which is prohibited under the C. P; and Berar Prohibition Act, 1938, is good or bad, better or worse than foreign liquor, is not for the Courts to determine. It is for the legislature representing the opinion in the country to decide". Whether "toddy' which is prohibited under the C. P; and Berar Prohibition Act, 1938, is good or bad, better or worse than foreign liquor, is not for the Courts to determine. It is for the legislature representing the opinion in the country to decide". As to the duties of the Court in relation to Court matters, the learned judge further held that: "In so far as the policy underlying an impugned Act is concerned it is no part of the du ties of the Court to pronounce upon it unless it can be brought within any of the exceptions provided in the Constitution. What the Courts are mainly concerned with is whether the Act, Rules, etc. in whole or in any part, are unconstitutional. If the Courts were to substitute their judgment and opinion for those of the Legislature they would be usurping the functions of the latter". 8. Mohan, J. (as he then was) in Sundara Babu Gramani. K. V. v. State of Tamil Nadu (1988 Writ L. R.427) after referring to the various decisions of the Supreme Court with regard to the principles applicable to the trade of foreign liquor, summarised the same as follows: "Thus it would follow: (1) That the State has the power to prohibit trades which are injurious to the health and welfare of the public, (2) dial elimination and exclusion from business is inherent in the nature of liquor business; (3) that no person has an absolute right to deal in liquor; (4) dial all forms of dealings in liquor have, from their in her ent nature, been treated as a class by themselves; (5) dial a citizen had neither a natural nor a fundamental right to carry on trade or business in liquor; (6) mat the State under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants - its manufacture, storage, export, import, sale and possession; and (7) dial these rights are vested in the State and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants". 9. In as much as it has been held that liquor trade is not a fundamental trade, it would follow that in that trade there would not be any right of employment which has been prohibited. 9. In as much as it has been held that liquor trade is not a fundamental trade, it would follow that in that trade there would not be any right of employment which has been prohibited. As it would be a policy decision to impose prohibition on liquor shops, it would not be open to this Court at the instance of persons who derive their income out of me liquor trade, to defeat the said policy and the directive principles. It would be an unwise decision to sustain few thousand of employees by depriving millions of people their life by making them addicts of intoxicating drinks. 10. The argument on the ground of discrimination also would not survive since no objection can be taken on the classification of intoxicating liquors between arrack, toddy and Indian made foreign liquor. 11. The classification can be upheld on the ground that one is more harmful than the other, as held by Hidayatullah, J. (as he then was) in the Full Bench decision referred above. In Sundarababu Gramani 's case referred above, Mohan, J. (as he then was) was also dealing with the case of discrimination between toddy and arrack. The learned judge following the Supreme Court decisions in Air India v. Nargesli Meerza (AIR 1981 SC 1829) and K.A. Abbas v. Union of India (AIR1971 SC 481) and having regard to the treatment of both kinds of liquor in distinct compartments and the nature of consumption of these intoxicating drinks and the existence of shops and applying these principles held that the effect of toddy and liquor on poorer classes could certainly be taken into consideration and that will form the basis of valid distinction. 12. In Maharashtra S. B. O. S.& H. S. Education v. Paritish (AIR 1984 SC 1543) the Supreme Court held as follows: "It is not for the Court to examine the merits or demerits of a policy laid down by regulation-making body because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegate by the Statute. Any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act". Even in a case which did not relate to abolition of trade, the Supreme Court took the view that it is not for the Court to appraise the wise ness of the policy. The same principle will apply in a much stronger way in so far the liquor trade is concerned. 13. In Joy, A. J. v. Government of I amil Nadu (1993 Writ L. R.813) a Division Bench of the Madras High Court rejected a similar contention of discrimination saying that the Government had good reasons to change the policy. The Division Bench also rejected the contention of violation of Art.14 by following the Supreme Court decisions, In Anandarajan v. State (1993(2) KLT 523) a Division Bench of this Court upheld the privilege of the State in regard to intoxicants. 14. Protection of personal liberty would mean that petitioner has right to employment. It would imply that his job can be deprived only in accordance with law. If the action of the Stale in imposing prohibition is found justifiable, then the consequences would be that the industry including the distilling factories would have to be closed down for the good of the State. It would be untenable and illogical to extend the scope of Art.21 to interpret the same to provide employment and to enable them to' continue the liquor shops and distilleries. 15. The State would not achieve total prohibition as envisaged under Art.47 of the Constitution of India, which was the fervent desire of the trainers of the Constitution and the right thinking people and the saints through the ages and history of mankind. It is worth noting that Saint Thiruvalluvar 2000 years ago recalled the ill-effect of intoxication in the following words: "The sight of the man who is intoxicated is an abomination even unto the mother that bore him; what must it be then to the worthy?" (Translation by Sri. V.V.S. Aiyar ). It is worth noting that Saint Thiruvalluvar 2000 years ago recalled the ill-effect of intoxication in the following words: "The sight of the man who is intoxicated is an abomination even unto the mother that bore him; what must it be then to the worthy?" (Translation by Sri. V.V.S. Aiyar ). Sreenivasan, J. in the Division Bench judgment referred above, (, after recalling the quotation in reference to the similar situation, held as follows: "Art.47 of the Constitution of India enjoins the Slate to endeavour to bring about prohibition of the consumption of intoxicating drinks and of drugs which are injurious to health except for medicinal purposes. Four decades and more have elapsed since the advent of the Constitution. But no effective steps could be taken by any State for eradicating the evil. When the sagely advice of the Saint lias failed to achieve its purpose for thousands of years, there is no wonder that the provision in the Constitution remains static. The problem is not confined to this country-. It is present all over the world, and it has attracted the attention of the reformers and Legislators in all ages and at all times almost from the beginning of civilised society. But no country has yet succeeded in enforcing total prohibition. In 1743, Lord Lonsdale said in the House of Lords: 'In every part of this great metropolis whoever shall pass along the streets will find wretchedness stretched upon the pavement, insensible and motionless, and only removed by the charity of passers by from the danger of being crushed by carriages or trampled by horses or strangled with filth in the common sewers.. These liquors not only infatuate the mind but poison the body; they not only fill our streets with madness and our prisons with criminals, but our hospitals with cripples Those women who riot in this poisonous debauchery are quickly disabled form bearing children, or produce children diseased from their birth'. The scenario now present in this country, at any rate in this State is almost the same which caused great concern to the House of Lords two centuries and a half ago. The Temperance Movement commenced-then, but has not been fully successful. The position in our State and oilier countries has been similar." 16. The scenario now present in this country, at any rate in this State is almost the same which caused great concern to the House of Lords two centuries and a half ago. The Temperance Movement commenced-then, but has not been fully successful. The position in our State and oilier countries has been similar." 16. The Government Order further states that the Labour Commissioner will examine the problems relating to retrenchment of workers of the arrack shops and their proper rehabilitation. Sufficient time is still available for the Labour Commissioner to go into the question and take suitable measures to alleviate the grievance of the workers. For all these reasons I do not find any grounds to interfere with the order of the Government, and the Original Petition is dismissed.