The Delhi Excise Act, 2009 (hereinafter referred as the said ‘Act, 2009’) Preamble states it is an Act to consolidate, amend and update the Excise Laws relating to manufacture, import, export, transport, possession, purchase, sale, etc., of liquor and other intoxicants, in the National Capital Territory of Delhi and for matters connected therewith or incidental thereto. If the aim is to focus on RESPONSIBLE CONSUMPTION and Responsible Sale Of Alcohol, then AGE is the most relevant criteria regarding responsibility, not only in relation to consumption of alcohol but also from other markers of what the law and society consider a person to be responsible. For example the legal age of marriage in India is 18/21 years, age for permanent license to drive is 18 years, age for registration as voter is 18 years.
The said Act, 2009 uses age as relevant criteria to manage alcohol consumption in Delhi and as per S. 23 in Delhi the minimum age is 25 years, as compared to States among other like UTTAR PRADESH as per United Provinces Excise Act, 1910 is 21 years; RAJASTHAN as per Rajasthan Excise Act, 1950 is 18 years; in GOA as per Goa Excise Duty and Rules 1964 is 21 years;
TELENGANA as per S. 36(g) Telengana Excise Act, 1968 is 21 years; in PUDUCHERRY as per S.35(1)(g) of the Puducherry Excise Act, 1970 is 18 years and in the newly formed States of JHARKHAND as per Jharkhand/Bihar Excise Act 1915 is 21 years; in SIKKIM as per Sikkim Excise Act, 1992 is 18 years among others.
Following is the table which gives the details of the laws, regarding alcohol consumption in various states of India :-
|Andaman and Nicobar Islands||18||Andaman and Nicobar Islands Excise Regulation, 2012
|Andhra Pradesh||21||The Andhra Pradesh (Regulation of Wholesale Trade and Distribution and Retail Trade in Indian Liquor, Foreign Liquor, Wine and Beer) Act, 1993
Andhra Pradesh Excise Act 1968- Section 36
|Arunachal Pradesh||21||The Arunachal Pradesh Excise Act, 1993 Section 42|
|Assam||21||Rule 241 and 5.10 of the Assam Excise Rule 1945|
|Bihar||Illegal||Bihar Excise (Amendment) Bill 2016 – Section 19(4)|
|Chandigarh||25||Punjab Excise Act,1914- SECTION 29|
|Chhattisgarh||21||The Chhattisgarh Excise Act, 1915 Section 23|
|Dadra and Nagar Haveli||21||The Dadra And Nagar Haveli Excise Regulation, 2012 Section 24|
|Daman and Diu||21||The Goa, Daman and Diu Excise Duty Act & Rules 1964 Section 19|
|Delhi||25||The Goa, Daman and Diu Excise Duty Act & Rules 1964 Section 19|
|Goa||21||The Goa Excise Duty Act and Rules, 1964 – Section 19 (Earlier 18 but according to the Amendment Act 10 in 1976 the age has been increased to 21)|
|Gujarat||Illegal||Bombay Prohibition (Gujarat Amendment) Bill, 2009|
|Haryana||25||Punjab Excise Act,1914- SECTION 29|
|Himachal Pradesh||18||The Himachal Pradesh Liquor License Rules, 1986 Rule- 16|
|Jammu and Kashmir||21||Jammu and Kashmir Excise Act, 1958 – Section- 50 B Jammu and Kashmir Liquor License and Sales Rules, 1984 – RULE 11|
|Jharkhand||21||The Bihar & Orissa Excise Act, 1915 Section 54|
|Karnataka||21||Karnataka Excise Department, 1967|
|Kerala||18||Abkary Act, (1 OF 1077) Section- 15A & 15B|
|Madhya Pradesh||21||The Madhya Pradesh Excise Act, 1915- SECTION 23|
|Maharashtra||No limit (wine) 21 (beer)
|Bombay Prohibition Act,1949- Part VI-A Rule 70D|
|Manipur||Illegal||The Manipur Liquor Prohibition Act of199\|
|Meghalaya||25||Eastern Bengal And Assam Act, 1910|
|Mizoram||18||Mizoram Liquor (Prohibition and Control) Bill 2014 Section 58|
|Nagaland||Illegal||Nagaland Liquor Total Prohibition Act, 1989|
|Orissa||21||The Odisha Excise Act, 2005 Section 61|
|Puducherry||18||The Pondicherry Excise Act, 1970 Section 35|
|Punjab||25||Punjab Excise Act,1914- SECTION 29|
|Rajasthan||18||Rajasthan Excise Act 1950, SECTION 22|
|Sikkim||18||The Sikkim Home Guards Bill, 1992 ( Bill No. 1 Of 1992) Section 20|
|Tamil Nadu||21||Tamil Nadu Liquor (License and Permit) Rules, 1981Section 25 rule XV|
|Telangana||21||Andhra Pradesh Excise Act 1968- SECTION 36 (until the new law is enforced)|
|Tripura||21||The Tripura Excise Act, 1987 Section 53 Uttar Pradesh 21 United Provinces Excise Act, 1910 Section 23 (Earlier 18 but by the amendment in the year 1976 it was increased to 21)|
|Uttarakhand||21||United Provinces Excise Act, 1910 The Uttaranchal (The Uttar Pradesh Excise Act, 1910) Section 23 (No separate law is available of Uttarakhand)|
|West Bengal||21||Bengal Excise Act 1909 SECTION 51|
Rapid growth and development of Delhi is resulting in opportunities of livelihood support. As per 2001 Census, Maharashtra received largest number of migrants (7.9 million), followed by Delhi (5.6 million) and West Bengal (5.5 million). In terms of proportion of in-migrants to total population Delhi Urban Agglomeration was at the top, with in-migrants constituting 16.4% of the total population of Delhi. The mean age of the migrants was found to be around 17 years at the time of migration, and nearly half of the migrants are from the state of Uttar Pradesh, followed by Bihar. The growth of population of Delhi has contributed to increasing congestion and shortages of civic amenities and problems of law and order.
The circumstance of the disparity between different States regarding the age when a person is able to consume alcohol is historic and reflects previous cultural norms and expectations. This disparity has the potential for adverse consequences and encouraging disdain for the law. A person coming to Delhi from a State which legalizes drinking at the age of 18 years is likely to continue consuming alcohol thus criminalizing their behavior. On the other hand young persons from Delhi travel to States which have lower legal ages to consume alcohol. Raising the question how a person by moving his/her location becomes responsible.
An important area of concern is law enforcement regarding sale and consumption of alcohol. In Delhi individuals are required to be 25 years of age to be served alcohol in settings like, bars, restaurants, lounges etc. as well as the purchase of alcohol. According to reports about 67 per cent of the respondents in the age group of 18-25 years, purchased alcohol from liquor vends but were never asked for age proof, which has a corrosive effect on respect for the law. It is pertinent to mention here there is no penalty imposed on persons found drinking who are not of legal age nor have sellers been penalized, no offence reported/detected, neither has any data in this context been collected by Delhi Excise Department. It is pertinent to point out that the police check post only fine persons for consumption in excess of the permissible limit and DO NOT penalize persons who are between ages 18-25 years for consumption, if within permissible limits; suggesting the police themselves either are also disdainful of the law or see the law as not enforceable. The fact is that the law is being followed in the breach and young persons becoming law breakers.
It has been observed by the Hon’ble Supreme Court in Central Inland Water Transport Corporation Limited and Anr. v. Brojo Nath Ganguly and Anr., (1986) 3 SCC 156 that:
“27. The law exists to serve the needs of the society which is governed by it. If the law is to play its allotted role of serving the needs of the society, it must reflect the ideas and ideologies of that society. It must keep time with the heartbeats of the society and with the needs and aspirations of the people. As the society changes, the law cannot remain immutable. The early nineteenth century essayist and wit, Sydney Smith, said, “When I hear any man talk of an unalterable law, I am convinced that he is an unalterable fool.” The law must, therefore, in a changing society march in tune with the changed ideas and ideologies.”
The words of Justice Bhagwati in the case of National Textile Workers’ Union v. P.R. Ramakrishnan (1983)ILLJ45SC , need to be set out. They are:
“We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still : it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast changing society and not lag behind.”
In Delhi the law is being violated with impunity, and observed in the breach, and although the law requires persons to be 25 years of age to be served alcohol in settings like, bars, restaurants, lounges etc. as well as the purchase of alcohol. Yet reports suggest that about 67 per cent of the respondents in the age group of 18-25 years, purchased alcohol from liquor vends but were never asked for age proof, which has a corrosive effect on respect for the law. There is no penalty imposed on persons found drinking in Delhi who are not of legal age not have sellers been penalized, no offence reported/detected, neither has any data in this context been collected.
Law must encourage enforcement and the Hon’ble High Court of Rajasthan in Rajasthan State Electricity Board and Ors. Vs. Sultan Mohd., MANU/RH/0312/1999 in Paragraph 47 and 48 observed that:
47. The doctrine of rule of law, presupposes that the people are to be governed by law and not by lawlessness. The law which is to govern the people, cannot be the law which individual human being may, in its discretion, make for himself and others. The law which is to govern the people must be the law enacted by a competent Legislature in whom the power to enact the law is reposed, no matter what is the form of government. The Legislature which enacts and gives law to the people for the purpose of regulating their lives, liberties, fates and fortunes, it is obviously distinguishable from the individual citizen.
48. The primary responsibility of enforcing the rule of law is that of the State and the rest of the society and not of the concerned citizen, it must be held that the State and its various organs must take appropriate steps in time to enforce the rule of law considering it to be their primary responsibility, without waiting for the petition from the citizen. It is for the State and its functionaries to justify their omission to enforce the rule of law and, the blame for non-enforcement of rule of law on their part, cannot be shifted to the concerned individual nor the duty to-enforce the rule of law can be avoided on the ground that the petitioner did not move a petition or that the petition filed by him was delayed.
The Hon’ble High Court of Patna in the case of Confederation of Indian Alcoholic Beverage Companies and Ors. Vs. The State of Bihar and Ors. MANU/BH/0839/2016 held that “A citizen has a right to enjoy his liquor within the confines of his house in an orderly fashion and that right would be a part of right of privacy, a fundamental right, under Article 21 of the Constitution and, any deprivation thereof would have to withstand the test of Articles 14 and 19 of the Constitution as well.”
Fundamental rights are given in part III of the Indian Constitution. Article 14 mandates equality before law, it provides that State shall not deny to any person equality before law or the equal protection of laws within the territory of India. Article 15 of Constitution Prohibits discrimination on grounds of religion, race, sex, caste or place of birth.
Delhi Government is State and as per article 13 of the Constitution, State cannot enact any law which is inconsistent with or in derogation of fundamental rights and as a consequence there of Delhi Government cannot frame any law /rules/bye laws/regulations for its functioning which is inconsistent with or in derogation of fundamental rights. Article 13 mandates that the laws which take away or abridges rights conferred under part III of the Constitution shall be void to extent of that inconsistency. Accordingly S.23 of Delhi Excise Act, 2009 which provides 25 years as legal drinking age in National Capital Territory Delhi be declared void which prescribes 25 years as legal age of Drinking in the National Capital Territory of Delhi leading to discrimination against residents of National Capital Territory of Delhi compared to citizens of India residing in different states in India where the legal age of Drinking is less than 25 years.
Recently hearing the petition Delhi High Court dismissed the petition by observing that “We see no reason to quash the provision which prohibits the licensee to sell or deliver alcohol to a person who is less than 25 years of age. The petitioner has presumed that the age of drinking has been prescribed but this is not the reason for quashing and setting aside Section 23 of Delhi Excise Act. It is a policy decision, that on what age the sale of alcohol should be prohibited.”