 "alcohol, liquor, drink")
It was a hot afternoon in May. Legal arguments flew back and forth as Acting Chief Justice Iqbal Ahmed Ansari heard the bail petition of one Ram Sumir Sharma of Aurangabad whose nephew was charged with illegal possession of liquor under the state's new excise law.
The state government's counsel opposed the petition and quoted Section 19 (4) of the Bihar Excise (Amendment) Act, 2016, which, according to him, bans possession of alcohol within the state. Only, as the judge pointed out, there was a loophole in the law.
"The state government has not prohibited possession of liquor by anyone and unless such a notification is published, possession of foreign liquor would not become a punishable offence under the Act," Justice Ansari said in his order.
Bail was granted and the state government was left red-faced. Soon, many people booked under the new law started getting bail, including expelled Janata Dal (United) MLC Manorama Devi whose son, Rocky Yadav, killed a teenager in Gaya for overtaking his SUV; during a raid at her house, the police had found six bottles of IMFL (Indian-made foreign liquor).
Taking cue from the ruling, some magistrates also refused to allow the police to arrest people for possessing liquor.
The ban on alcohol, which was promised by Chief Minister Nitish Kumar, was in tatters. A desperate excise department put together a list of new amendments to be introduced in the prohibition law. However, in their zeal to appease their masters, officials introduced some provisions in the proposed act which are being called "draconian" by several analysts and even leaders of the ruling coalition.
The overkill
The draft legislation, which was cleared by the state Cabinet on Monday, proposes to make possession of alcohol a non-bailable offence. Moreover, all adult members of a family of the person consuming and/or possessing liquor will be charged and arrested.
All adult family members living under the same roof will be treated as accomplices. According to the state government officers, they will be considered to have had knowledge about the drinking habits of the person who has been accused of violating the prohibition rule. The family members could face a jail term of up to five years - the term can go up to 10 years in case of illicit liquor trade from the house.
In the Bill, "family" is defined to cover husband, wife, adult children, brothers, sisters, parents and dependents living together in the house. Family members living outside the premise will not come under the ambit of the proposed law. The Bill also proposes to arm the police with the power to search any house without a warrant and put anyone suspected of being a habitual drinker under house arrest.
As the state Assembly is in session and the Bill is to be introduced on Monday, officers refuse to comment about it. Privately, they call the provisions reasonable and just. "Why should only the person consuming or possessing liquor be punished? Family members living in the house are also responsible. They have the knowledge that a crime is being committed here and they decide to keep mum. That makes them accomplices," says a deputy secretary at the excise department.
The state government also wanted to prosecute neighbours and mukhiyas (headmen) if anyone was found possessing and consuming alcohol. For this it had included a separate provision in the proposed law. Excise Minister Abdul Jalil Mastan, a few weeks ago, argued that it's impossible for people to not have knowledge about what's going on in their neighbourhood. He said that people should keep a tab on people around them and inform the police about violations of the prohibition law.
However, that part was later removed when the Rashtriya Janata Dal (RJD), the largest partner in the ruling coalition, resisted.
It is said that RJD chief Lalu Prasad was particularly unhappy about it. According to party sources, in the recently concluded panchayat (village council) elections, a majority of the elected mukhiyas have links with the RJD. "A panchayat is a big area and in many cases covers more than one village. It's impossible for the mukhiyas to keep tabs on all of his electorate. It would have sent a wrong message and could have hurt our chances in the future," says a senior RJD leader.
The reaction
This new piece of legislation has put the state government at the receiving end of severe criticism. Several law makers, legal experts and analysts have condemned this Bill and accused the state government of "practically introducing police rule in the name of prohibition".
According to experts, the stringent legislation will be legally untenable. "It is drastic, extreme, arbitrary, sweeping and everything a law should not be," says a senior lawyer at the Patna High Court, "It violates an individual's fundamental right to liberty guaranteed under Article 21 of the Constitution. Criminal liability is individual, it can never be social. How can a family be responsible for the crime committed by a member? It is bound to be challenged."
Some fear the law will be prone to rampant misuse as anyone can implicate an entire family by simply planting a small bottle of liquor in their house.
Apart from legal problems, the proposed new legislation has also put the RJD and JD-U at loggerheads. Many in RJD think that Chief Minister Nitish Kumar is "overplaying" the prohibition card. On Thursday, Prasad openly expressed his displeasure about the Bill. "How can the police arrest my adult son if I am caught consuming liquor? One certainly cannot expect the wife of a drunkard to run to the police to get her husband arrested."
Only a day earlier, several RJD and Congress leaders also openly asked Kumar to review the Bill.
"There is a need for review," says RJD MLA Bhai Virendra. "The Bill has created an atmosphere of fear amongst the poor. The government must reconsider its decision to introduce these amendments to the law. After all, any law is supposed to give people a sense of security, not fear." Senior RJD leader Raghuvansh Prasad Singh has also criticised the state government for "trying to bring in police raj in the name of prohibition".
Congress MLA Shakeel Ahmed Khan asked the state government to "consult society" before introducing such "harsh measures".
However, JD-U is adamant to bring in the amendments as it feels prohibition has so far been successful in Bihar with the state government instilling fear in tipplers. According to supporters of the Bill, the latest amendments will give a fresh thrust to the existing law.
"No state has ever been as successful with prohibition as Bihar. It has had a positive impact on the socially and economically marginalised sections of society," says a senior JD-U leader.
But some of its leaders are not convinced. "I have no doubts about the benefits of prohibition. However, what I fear most is that in the coming days, the police would become so busy with prohibition that law and order situation would deteriorate further. If that happens, it will be suicidal for us as better law and order situation has been our USP," says a leader.
Impact on law and order
The vocal support for prohibition by Kumar stems from the argument that since its imposition in April, there has been a steep decline in crime. Crime data published by the Bihar Police reveal there was a marginal drop in criminal activities in April compared to March. In May, this affect had vanished all together: the number of cognisable offence at 16,208 was 13.5 per cent higher than April.
The data shows that there has been a 9 per cent increase in murder cases from April to May. There were 61 incidents of rape recorded in April, which went up to 79 in May. Robbery and kidnapping cases have also increased from 100 and 599 to 154 and 638, respectively.
Experts say while prohibition does have an impact on law and order, it can never be a substitute for better policing. "It's true that prohibition helps in curbing heinous crimes such as murder and rape, but it's the quick action and speedy disposition of cases which make the real dent. Prohibition alone can't do the trick," says former Director General of Police DN Gautam.
Moreover, the smuggling of liquor has increased in recent months. According to state government figures, since prohibition was imposed almost 70,000 litres of IMFL have been seized by the police and excise department in Bihar and more than 9,000 people have been arrested so far. According to opposition leaders, that reflects that liquor trade is still flourishing in the state, whereas state government officials claim it as their success.
Some police officials indicate that prohibition has caused law and order problems in some areas. "There were almost 20,000-25,000 people involved in the liquor trade in the state. Most of them had questionable history and wine shops gave them a stable income, which kept them occupied. However, after prohibition, a large number of them have made their way into the world of crime. Therefore, you would notice a spike in cases of robbery and theft in recent months," says an official.
Kumar, who has made prohibition his calling card, is clearly riding a tiger.
