Jindal Global Law School, India
On the 24th of November 1948, the Indian Constituent Assembly debated the draft Article 38 which later found itself as Article 47 in the Indian Constitution. Today, Article 47 envisages a prohibition on the consumption of intoxicating drinks except for medicinal purposes. Article 47, although a Directive Principle, has been fodder to populist rhetoric in election times. But total prohibition has demonstrably failed in contemporary India. The classic example is that of Kerala, where after imposing a total ban in 2014, the state then recalled the ban in 2017. Furthermore, in 2014, Manipur lifted curbs on alcohol consumption in select areas. And while Gujarat is labelled a “dry state” one can obtain permits to consume alcohol. Not surprisingly, Nepali liquor sellers have profited from the ban as a result of smuggling across the border.
Deliberations on prohibition in 1948 were contentious despite the opposition to it being miniscule. The prohibitionists’ arguments were anchored on a bifold rationale that was scriptural and welfarist, whereas the anti-prohibitionists argued on the platform of individual liberty and religious freedom. Prohibition although not justiciable, has been imposed in parts of India with varying degrees. It is also well known for its populist undercurrents. In this blog post, I will analyze the Constituent Assembly Debates on prohibition in order to demonstrate how encouraging responsible drinking and not total prohibition will serve the purpose of promoting the welfare of citizens. Ultimately, the Constituent Assembly Debates still resonate today and reveal how the welfarist aims of prohibition can be resolved through the state implementing policies aimed at responsible drinking.
Looking to the Constituent Assembly Debates for a Resolution?
Prohibition was on the table since 1937 when the then Congress Government in Provincial Legislatures took it up first thing after coming to power. Later in November 1948, deliberations in the constituent assembly regarding the inclusion of the words “except for medicinal purposes” in Article 47, sparked a debate between prohibitionists and anti-prohibitionists.
Although made by only 2 members, the anti-prohibitionist arguments, had a palpable impact on the debate. These dissidents were B.H. Khardekar, independent member from Kolhapur-cum-Satara and Jaipal Singh, independent member from Bihar. In his maiden speech in the assembly, Khardekar began by countering the prohibitionists’ arguments, describing it as “flimsy”. He argued that (a) it is not true that India must have prohibition because America has it, and its manifest failure in the U.S. must be a lesson for India; (b) the fact that the Congress pledged to it didn’t serve reason to adopt it without question; (c) the success of prohibition in Madras was a myth as a number of people continued indulging in drinks and languished in jails; (d) it was not true that there was cross community approval for prohibition as Christians and Parsis were against it and (e) while Gandhian philosophy was against alcohol, we cannot blindly follow such an ideology without paying heed to the fact that Gandhism was about love, tolerance and non-violence. Quoting from Harold Laski’s ‘Liberty in the Modern State’ he said, “prohibition goes against the very grain of personal liberty”.
Jaipal Singh also argued against prohibition. His fundamental objection was that prohibition interfered with the religious rights of certain groups in the country. Keeping his opposition brief, Singh cited the example of consumption of rice beer by Adivasis and urged the assembly not to deliberate on the matter until the advisory committee made recommendations on the Scheduled Tribe areas as it affected their religious rights.
The famous sociologist MN Srinivas said prohibition of alcohol was as much a Sanskritic act, like cow slaughter. Incidentally cow slaughter was discussed the same day as prohibition. In the same vein, the teetotalists’ arguments rested on Gandhi, Hindu scriptures, people’s wellbeing and linking the origins of alcohol to the British. V. I. Munuswamy Pillai, member from Madras said “when the Britishers came, they brought in the whisky bottle and when they disappeared, from the administration of this land, we must take it that wine also has disappeared”. Defending Gandhian philosophy, Pillai said that persistent poverty arose due to the poor spending all their earnings on liquor. B.G. Kher, the Congress member from Bombay, argued that the drinking of liquor was one of the five deadly sins which the Smritis have laid down and given that alcohol consumption was also sinful in Islam, there was no case against prohibition.
While the prohibitionists based their arguments on the experience of Madras, one must note that Madras, later Tamil Nadu, was one of the first states in the country to recall the ban in 1971. It did so citing the loss of revenue and the availability of liquor from the neighboring states. In addition, the argument that liquor originated from England was a narrative that was in brazen disregard of the existence of indigenous forms of liquor including Bhaang, Kallu, Apo and Coconut Toddy. It is also quite surprising that the failure of prohibition in the United States in the 1920’s did not deter the prohibitionist’s zeal. Seventy years on, the religious argument is obsolete and the only argument or perhaps the only legitimate concern that potentially stands out is the wellbeing of the people. And to this end, the extent to which the State should intervene in social life should only be to encourage responsible drinking and nothing more.
An Alternative Solution - Encouraging Responsible Drinking
The sole credible purpose of the prohibitionist’s argument, that is, protecting the wellbeing of Indian people can further be achieved by the state encouraging responsible drinking. True it is that the families of the poor and downtrodden, as argued in the assembly are blighted by working members turning into alcoholics, but total Prohibition is a futile solution that ignores the substratum of alcoholism which is irresponsible drinking.
Encouraging responsible drinking is admittedly a broad claim and a vague objective, thus I shall lay out a few steps that can be achieved in this direction. Firstly, the state must license the consumption of alcohol and impose penalties (as is done in Australia) for any sale or assistance in sale of alcohol to anyone who is unduly intoxicated. Secondly the sale of alcohol must be capped, so as to prevent excessive drinking. Thirdly, the government must establish rehabilitation centers to fight dipsomania and devise programs that educate the population on responsible drinking.
The Directive Principles of State Policies are essentially non-justiciable pious obligations. TT Krishnamachari had called these principles a ‘veritable dustbin of sentiments’, it is hardly surprising that prohibition found its place among them. Nevertheless, these very principles are a guide to the establishment in order to achieve the social revolution that the Constituent Assembly aspired for. Thus, in this piece, I have read Article 47 through a perusal of the deliberations on Prohibition in the assembly. The cornerstone of these deliberations was the well-being through abstinence and for this to translate into feasible policy in contemporary times, the state must devise mechanisms to ensure responsible drinking.
Surya Rajkumar is an undergraduate student at the Jindal Global Law School, India.