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The Bihar Prohibition and Excise Bill, 2016 was introduced and debated in the Bihar Legislative Assembly today. The Bill creates a framework for the levy of excise duty and imposes a prohibition on alcohol in Bihar. In this context, we examine key provisions and some issues related to the Bill. Prohibition on the manufacture, sale, storage and consumption of alcohol was imposed in Bihar earlier in 2016, by amending the Bihar Excise Act, 1915. The Bill replaces the 1915 Act and the Bihar Prohibition Act, 1938. Key features of the Bill include:
Process to be followed for offences The Bill outlines the following process to be followed in case an offence is committed:
Some issues that need to be considered
The Bill presumes that the family members, owner and occupants of the building or land ought to have known that an illegal act is taking place. In all such cases, the Bill prescribes a punishment of at least 10 years of imprisonment, and a fine of at least one lakh rupees.
These provisions may violate Article 14 and Article 21 of the Indian Constitution. Article 14 of the Constitution provides that no person will be denied equality before law. This protects individuals from any arbitrary actions of the state.[1] It may be argued that imposing criminal liability on (i) family members and (ii) owner or occupants of the building, for the action of another person is arbitrary in nature.
Article 21 of the Constitution states that no person can be deprived of their life and personal liberty, except according to procedure established by law. Courts have interpreted this to mean that any procedure established by law should be fair and reasonable.[2] It needs to be examined whether presuming that (i) family members of an offender, and (ii) owner or occupant of the building knew about the offence, and making them criminally liable, is reasonable.
Note that under the Indian Penal Code, 1860 an imprisonment at least 10 years is attracted in crimes such as use of acid to cause injury, or trafficking of a minor. Other states where a prohibition on alcohol is imposed provide for a lower imprisonment term for such offences. These include Gujarat (at least seven years) and Nagaland (maximum three years).[3]
Note: At the time of publishing this blog, the Bill was being debated in the Legislative Assembly. [1] E.P. Royappa v State of Tamil Nadu, Supreme Court, Writ Petition No. 284 of 1972, November 23, 1973. [2] Maneka Gandhi v Union of India, AIR 1978 SC 597. [3] Gujarat Prohibition Act, 1949, http://www.prohibition-excise.gujarat.gov.in/Upload/06asasas_pne_kaydaao_niyamo_1.pdf.
In an Indian express editorial, Mandira Kala discusses the Bills, addressing corruption and good governance, pending in Parliament. She discusses what their fate may be given that the Monsoon session is widely being viewed as a make or break session for the government to get its legislative agenda through Parliament. The monsoon session of Parliament started on a stormy note last week. Question hour was disrupted on most days and only one government bill was passed. There are 11 days left in the session and more than 40 bills pending for parliamentary approval. With the 15th Lok Sabha drawing to an end, this session is being viewed as a "make or break" session for the government to get its legislative agenda through Parliament. Since 2010, there has been much debate in Parliament on corruption and an important part of the government's legislative agenda was the introduction of nine bills in the Lok Sabha to address corruption and improve governance through effective delivery of public services. Three of these bills have been passed by the Lok Sabha and are currently pending before the Rajya Sabha. These include legislation to address corruption in public office, enforce standards and accountability in the judiciary, and protect whistleblowers. The government has proposed amendments to each of these bills that the Rajya Sabha will have to consider and pass. If the Rajya Sabha passes these bills with amendments, they will be sent back to the Lok Sabha for approval. It is difficult to assess in what timeframe these bills will become law, given that both Houses need to agree on the amendments. The Lokpal and Lokayuktas Bill creates a process for receiving and investigating corruption complaints against public officials, including the Prime Minister, Ministers and Members of Parliament, and prosecuting these in a timebound manner. The government amendments include allowing states the flexibility to determine their respective Lokayuktas and giving the Lokpal power of superintendence over the CBI, if the case has been referred by him. A mechanism to protect whistleblowers and create a process for receiving and investigating complaints of corruption or wilful misuse of discretion against a public servant are proposed under the Whistleblowers' Protection Bill, 2010. The amendments proposed by the government prohibit whistleblowing if the disclosure of information affects the sovereignty of the country and its strategic, scientific and economic interest. The Judicial Standards and Accountability Bill requires judges to declare their assets, lays down judicial standards and establishes processes for the removal of judges of the Supreme Court and high courts. The bill is not listed in the government's legislative agenda for the monsoon session and media reports suggest that the government intends to make amendments to it. In the arena of strengthening governance and effective delivery of public services, there are three bills currently pending in Parliament. The Citizens' Charter Bill confers the right to timebound delivery of goods and services on every citizen and creates a mechanism for redressing complaints on such matters. The Electronic Delivery of Services Bill mandates that Central and state governments shall deliver public services electronically no later than eight years from the enactment of the law. The parliamentary standing committee had highlighted that the Citizens' Charter Bill and Electronic Delivery of Services Bill have an inherent overlap, which the government would have to resolve. While the former is listed for passing in this session, the government plans to withdraw the latter and replace it with a new bill. This new bill is not part of the list that is up for consideration and passing this session. To create a reliable method of identifying individuals to facilitate their access to benefits and services the National Identification Authority of India Bill was introduced in Parliament to provide unique identification numbers ("aadhaar") to residents of India. This bill has not been listed for parliamentary approval during this session. Two other pending bills do not find place in the government's legislative agenda for the session either. These include legislation that curbs the holding and transfer of benami property and regulates the procurement process in government departments to ensure transparency, accountability and probity. The Prevention of Bribery of Foreign Public Officials Bill, which imposes penalties on Indian companies and individuals who bribe officials of a foreign government or international agency, is listed for passing this session. Each of these nine bills were introduced in the Lok Sabha. If they are not passed by both Houses before the 15th Lok Sabha is dissolved in 2014, no matter where they are in the legislative process, the bills will lapse. This implies that the entire legislative process will have to start all over again, if and when there is political will to legislate on these issues in the 16th Lok Sabha. The challenges in getting legislation passed by Parliament are many, given that its overall productive time, especially time spent on legislation, is decreasing. Typically, Parliament spends about 25 per cent of its time debating legislation, but in the past few years this average has declined to 15 per cent. While the time lost by the House due to frequent adjournments is difficult to make up, parliamentarians will have to cautious about passing bills without the rigours of parliamentary debate. It is uncertain what the trajectory of the anti-corruption legislation in Parliament will be — enacted as law or resigned to a pool of lapsed legislation.
