Last week, the Patna High Court struck down as unconstitutional Bihar's amendments to its 1915 Excise Act that prohibited the sale or possession of alcohol. The judgment argued that even laws that sought justification in the Directive Principles of State Policy in the Constitution had to be reasonable and must respect fundamental rights. In addition, the court said, the punishments prescribed by the law were "quite unreasonable and draconian and cannot be justified in a civilised society. It may be justified in a police state, which surely we are not." Unfortunately, rather than taking this signal reproof to heart, Chief Minister Nitish Kumar, who has made prohibition the outstanding policy choice of his current term, has chosen instead to double down. Following a specially called Cabinet meeting on October 2, the state government notified the Bihar Prohibition and Excise Act, 2016, which is broadly similar to the amendments the high court set aside.
Many of the provisions in these laws violate basic liberal principles. One of the most egregious is the proposal that guilt can be associative, and punishment can be collective. All adults in a house will be held responsible if alcohol is found to be sold, consumed, manufactured or distributed on the premises. District bureaucrats can even impose a collective fine on an entire village if they determine it is harbouring repeat offenders. But it is an essential part of the fabric of a modern society that individuals be held responsible for their acts alone, and not for the acts of other adults - whether or not those adults live on the same premises or in the same village. In any case, the law is proving to be almost impossible to enforce. Although over 13,000 arrests have been made since prohibition was enforced, a dozen or so heads of police stations have also been suspended for their inability to enforce prohibition. The state has chosen to rely on a network of informants to help implement the law. This has, unsurprisingly, led to a breakdown in social cohesion. Neighbours are informing on each other; false accusations and frame-ups are rife.
Mr Kumar's previous terms as chief minister of Bihar were seen as models for other dynamic state leaders. He focused on the restoration of law and order and repairing the state's damaged social fabric. The efficiency of administration and the fairness of the state machinery were seen as central objectives. His quixotic pursuit of prohibition would seem to undermine all the progress that Bihar has made during his watch. It is true that Mr Kumar is a canny politician, and he is responding to a clear demand from many of his voters, particularly women. And alcohol addiction - and the related abuse of women - is certainly a major issue in the state, as in many others. But prohibition is a misguided response to the problem, even if not accompanied by draconian and illiberal provisions. If domestic abuse is a problem, then better policing is the answer, as is empowering women through other means. There are no short-cuts to social reform. Mr Kumar has been unwise to stake his credibility and the fate of his chief ministership on this effort. The high court judgment provided an opportunity to escape his election commitment; he should have seized it.
