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:

  • Prohibition: The Bill imposes a prohibition on the manufacture, bottling, distribution, transportation, collection, storage, possession, sale and consumption of alcohol or any other intoxicant specified by the state government.  However, it also allows the state government to renew existing licenses, or allow any state owned company to undertake any of these activities (such as manufacture, distribution, etc.).
  • Excise revenue: The Bill expects to generate revenue from excise by levying (i) excise duty on import, export, manufacture, etc. of alcohol, (ii) license fee on establishing any manufactory, distillery, brewery, etc., (iii) fee on alcohol transit through Bihar, and (iv) fee on movement of alcohol within Bihar or import and export from Bihar to other states, among others.
  • Excise Intelligence Bureau: The Bill provides for the creation of an Excise Intelligence Bureau, which will be responsible for collecting, maintaining and disseminating information related to excise offences.  It will be headed by the Excise Commissioner.
  • Penalties and Offences: The Bill provides penalties for various offences committed under its provisions.  These offences include consuming alcohol, possession or having knowledge about possession of alcohol and mixing noxious substances with alcohol.  In addition, the Bill provides that if any person is being prosecuted, he shall be presumed to be guilty until his innocence is proven.
  • The Bill also allows a Collector to impose a collective fine on a group of people, or residents of a particular village, if these people are repeat offenders.

Process to be followed for offences The Bill outlines the following process to be followed in case an offence is committed:

  • If a person is found to have committed any offence under the Bill (such as consumption, storage or possession of alcohol), any authorised person (such as the District Collector, Excise Officer, and Superintendent of Police) may take action against the offender.
  • The Bill allows an authorised person to arrest the offender without a warrant.  Alcohol, any material or conveyance mode used for the offence may be confiscated or destroyed by the authorised person.  In addition, the premises where alcohol is found, or any place where it is being sold, may be sealed.
  • Under the Bill, the offender will be tried by a Sessions Court, or a special court set up by the state.  The offender may appeal against the verdict of the special court in the High Court.

Some issues that need to be considered

  • Family members and occupants as offenders: For illegal manufacture, possession or consumption of alcohol by a person, the Bill holds the following people criminally liable:
    1. Family members of the person (in case of illegal possession of alcohol). Family means husband, wife and their dependent children.
    2. Owner and occupants of a land or a building, where such illegal acts are taking place.

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.

  • Bar on Jurisdiction for confiscated items: The Bill allows for the confiscation of: (i) materials used for manufacturing alcohol, or (ii) conveyance modes if they are used for committing an offence (such as animal carts, vessels).  It provides that no court shall have the power to pass an order with regard to the confiscated property.  It is unclear what judicial recourse will be available for an aggrieved person.
  • Offences under the Bill: The Bill provides that actions such as manufacturing, possession or consumption of alcohol will attract an imprisonment of at least 10 years with a fine of at least one lakh rupees.  One may question if the term of imprisonment is in proportion to the offence committed under the Bill.

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.

As of May 22, 2020, there are 1,18,447 confirmed cases of COVID-19 in India, which is 76% higher than the cases on May 11, 2020 (67,152). Out of total confirmed cases, there are 66,330 active cases, 48,354 patients have been cured/discharged and 3,583 have died (Figure 1). As the spread of COVID-19 has increased across India, the central government has continued to announce several policy decisions to contain the spread, and support citizens and businesses who are being affected by the pandemic.  In this blog post, we summarise some of the key measures taken by the central government in this regard between May 11 and May 22, 2020.

Figure 1: Number of day wise COVID 19 cases as on May 22, 2020

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Aatma Nirbhar Bharat Abhiyaan

On May 12, the Prime Minister, Mr. Narendra Modi, announced a special economic package of Rs 20 lakh crore (equivalent to 10% of India’s GDP) aimed towards making the country ready for the tough competition in the global supply chain and empowering the poor, labourers, migrants who have been adversely affected by COVID-19.   Following this announcement, the Finance Minister, Ms. Nirmala Sitharaman, in five press conferences, announced the detailed measures under the economic package.  The economic package includes earlier measures taken by the government to support the citizens and businesses of India.  A break-up of the package is presented in Table 1.

Table 1: Break-up of stimulus from Aatma Nirbhar Bharat Abhiyaan package

Item

Key Topics covered

Amount (in Rs crore)

Stimulus from earlier measures

 Pradhan Mantri Garib Kalyan Yojana, Tax Concessions, and the Prime Minister's announcement for health sector

1,92,800

Part 1

Business including Micro, Small and Medium Enterprises (MSMEs)

5,94,550

Part 2

Poor people including migrants and farmers.

3,10,000

Part 3

Agriculture and allied sectors.

1,50,000

Part 4 and Part 5

Part 4: Coal and mineral sectors, defence sector, civil Aviation, airports and aircraft Maintenance, Repair and Overhaul (MRO), power sector, social infrastructures, space, atomic energy.

Part 5: Government reforms and other provisions including public health and education, additional allocation to MGNREGS

48,100

Sub Total

 

1,295,400

RBI Measures (Actual)

Reduction in Cash Reserve Ratio (CRR), Special Liquidity Facility (SLF) for mutual funds, Special refinance facilities for NABARD, SIDBI and NHB at policy repo rate

8,01,603

Grand Total

 

20,97,053

Note: Part 1, 2, 3, 4, 5 in the table above represents the five press conferences conducted by the Finance Minister to announce the details of the economic package.

Source:   Presentation made by Union Finance & Corporate Affairs Minister Smt. Nirmala Sitharaman under Aatmanirbhar Bharat Abhiyaan to support Indian economy in fight against COVID-19, Ministry of Finance, May 13, 2020, PRS.

For more information on the details of the announcements made under Aatma Nirbhar Bharat Abhiyaan, please see here.

Finance

Following the Prime Minister’s and Finance Minister’s announcements, further announcements were also made. 

  • Cabinet approved the additional funding of Rs three lakh crore to eligible MSMEs and interested MUDRA borrowers under the Emergency Credit Line Guarantee Scheme.  The funding will be covered under 100% guarantee coverage by the National Credit Guarantee Trustee Company Limited in the form of a Guaranteed Emergency Credit Line facility.
     
  • Cabinet also approved the special liquidity scheme for Non-Banking Finance Companies (NBFCs)/Housing Finance Companies (HFCs).  The details of the scheme were shared by the Finance Minister in May 2020 under the Aatma Nirbhar Bharat Abhiyaan.
     
  • Securities and Exchange Board of India (SEBI) revised the post-default curing period for credit rating agencies (CRAs) in their circular dated May 21, 2020.  Now, once the default is cured and payments are regularised, CRAs will upgrade the rating from default to non-investment grade after a period of 90 days based on the satisfactory performance by the company during the period.  As of now, after the entity corrects the default, the CRAs upgrade the rating from default to speculative grade in 90 days and from default to investment grade in 365 days.
     
  • On May 22, the Monetary Policy Committee of Reserve Bank of India (RBI), reduced the policy repo rate under the liquidity adjustment facility (LAF) by 40 bps to 4% from 4.4%.  The marginal standing facility (MSF) and the bank rate have been reduced to 4.25% from 4.65%.  The reverse repo rate has been also reduced from 3.75% to 3.35%.
     
  • The Reserve bank of India (RBI) issued a statement with various development and regulatory policies.  The policies specify details on measures (i) to improve the functioning of market; (ii) to support exports and imports; (iii) to ease financial stress; (iv) for debt management.  The cash reserve ratio (CRR) of all banks will be reduced by 100 basis points to 3%, which will provide a liquidity support of Rs 1,37,000 crore across the banking system. The policy extends the moratorium on payment of instalments of all type of loans as on March 1, 2020 by another three months (up to August 2020).   This is applicable to loans from all commercial banks including Non-Banking Finance Companies (NBFCs) and co-operative banks.   

Lockdown 4.0

The Ministry of Home Affairs (MHA) passed an order extending the lockdown till May 31, 2020. This lockdown will have more relaxations compared to earlier lockdowns.

Zoning of areas

The new guidelines have authorised states/union territories (UTs) to define the red, green and orange zones based on the parameters prescribed by the Health Ministry.  The states/UTs can define a district, or a municipal corporation/ municipality or even smaller administrative units such as sub-divisions, etc. as a red or green or orange zone.

  • Red and Orange Zones: Within red and orange zones, the local authorities will identify containment and buffer zones based on the guidelines from the Health Ministry.  Buffer zones are areas adjacent to containment zones which have a high probability of cases.
     
  • Containment Zones: Movement of individuals will not be allowed in containment zones to ensure strict perimeter control except for medical emergencies and supply of essential goods and services.

The prohibition of certain activities or restrictions in various zones within a state will be at the discretion of the state/union territory as deemed necessary.

Prohibited Activities

Some activities will continue to remain prohibited throughout the country.  These include:

  • all international air travel of passengers, except for domestic medical services, domestic air ambulance and for security purposes or purposes as permitted by MHA;
     
  • metro rail services;
     
  • running of schools, colleges, educational and training/coaching institutions;
     
  • hotels, restaurants and other hospitality services, except for the running of canteens in bus depots, railway stations and airports;
     
  • places of large public gatherings such as cinemas, shopping malls, and gymnasiums entertainment parks;
     
  • social, political, cultural, and similar gatherings and other large congregations; and access to religious places/places of worship for the public. 

Online/ distance learning is encouraged and permitted; and, restaurants will be allowed to operate kitchens for home delivery of food items.

National Directives for COVID Management

The Ministry of Home Affairs issued the National Directives for COVID Management, which apply to public places and work places. As per these guidelines:

  • wearing of face covers is compulsory; 
     
  • spitting will be punishable with fine as may be prescribed in accordance with its laws, rules or regulations by the State/ UT local authority; 
     
  • social distancing is to be followed by all persons in public places and in transport;  
     
  • marriage related gathering has been limited to 50 guests;  
     
  • for funerals/ last rites, the maximum number of persons allowed is 20;  
     
  • consumption of liquor, paan, gutkha and tobacco etc., is not allowed in public places.  

Guidelines for workplaces include:

  • employers will encourage practice of work from home to the extent possible; 
     
  • staggering of work hours will be adopted in respect of all offices and other establishments.  
     
  • there will be provision for thermal scanning, hand wash and sanitizers at all entry and exit points and common areas;
     
  • all work places and other sensitive locations are to be sanitized regularly.  
     
  • social distancing will have to be ensured through adequate distance between workers, adequate gaps between shifts, staggering the lunch break of staff and so on.

Aarogya Setu

The District authorities will ensure installation of the Aarogya Setu application on compatible mobile phones of all individuals and will have to regularly update their health status on the app.

Aarogya Setu Data access and knowledge sharing protocol, 2020

The Ministry of Electronics and Information Technology, Government of India issued a notification on the data access and knowledge sharing protocol, 2020 in reference to the Aarogya Setu mobile application.  The protocol will: (i) ensure secure collection of data by the mobile application, (ii) protect the personal data of individuals, and (iii) ensure efficient use and sharing of personal or non-personal data of the application users.  The protocol provides principles for: (i) collection and processing of response data, (ii) sharing of response data, (iii) obligations of entities with whom the data will be shared, and (iv) sharing of data for research purpose.  A sunset clause is applicable to the protocol subjecting it to a review after 6 months unless there is any extension of sunset clause in wake of the pandemic.

Travel and Movement

  • The Ministry of Railways announced to run Shramik special trains from all districts connected by railways in the country.  The ministry is awaiting details on migrants from each district to operationalise the trains.
     
  • The Ministry of Home Affairs (MHA) has written to Chief Secretaries of all states allowing them to arrange special buses to carry people from railway stations to their home.  This provision is applicable, with condition of maintaining proper social distancing norms, only at places where public or personal transport is not available.
     
  • On May 11, 2020, MHA passed an order permitting movement of individuals by trains.   Following the order, 15 pair of trains are being run   connecting New Delhi to Dibrugarh, Agartala, Howrah, Patna, Bilaspur, Ranchi, Bhubaneswar, Secunderabad, Bengaluru, Chennai, Thiruvananthapuram, Madgaon, Mumbai Central, Ahmedabad and Jammu Tawi.
     
  • The Ministry of Railways in consultation with the MHA and the Ministry of Health & Family Welfare, issued guidelines on partial restoration of train services (other than the Shramik trains) from June 1, 2020.  200 passenger trains with AC, Non-AC and general classes will be operationalised.   Booking for these trains commenced on May 21, 2020.  The guidelines contain detailed information on (i) booking of tickets and charting, (ii) quota permitted, (iii) catering, and (iv) linen and blankets.  All passengers will have to download and use the Aarogya Setu mobile application.
     
  • On May 19, 2020, MHA issued a Standard operating Procedure (SOP) for movement of stranded workers by trains.   As per the SOP, the Ministry of Railways will permit the movement of stranded workers by trains in consultation with MHA.  The Ministry of Railways will finalise the schedules for trains including the stoppages and destinations and will communicated it to state/UTs.  On arrival at the destination, the travelling passengers will have to adhere to the health protocols as prescribed by the destination state/UT.  The inter-state movement of stranded persons by bus and vehicles will be allowed subject to mutual consent of the concerned States/UTs.  The intra-state movement of vehicles will be at the discretion of the states/UTs.
     
  • The MHA amended the order on Lockdown 4.0 to facilitate domestic air travel for stranded persons.  Following the amendment, the Ministry of Civil Aviation issued the order for commencement of domestic air travel of passengers from May 25, 2020.  The passengers will have to show a self-declaration, using the Aarogya Setu mobile application, that they are free of COVID-19 symptoms and those with Red status will not be allowed to travel.  The order contains three annexures with (i) general instructions for commencement of domestic air travel, (ii) the detailed guidelines to be followed by air passengers, and (iii) specific operating guidelines for major stakeholders.

Health

  • The Ministry of Health and Family Welfare issued: (i) updated containment plan on COVID-19, and (ii) updated containment plan for large outbreaks of COVID 19.   These plans provide information on various scenarios of COVID-19 and strategies to control the spread of the disease including definitions, action plans and specific details on (i) identification of containment zones and buffer zones; (ii) perimeter control; (iii) support from various stakeholders such as testing laboratories and hospitals; (iv) pharamaceutical and non-pharmaceutical interventions; and (v) risk communication.

For more information on the spread of COVID-19 and the central and state government response to the pandemic, please see here.