Now that Patna High Court has struck down the main section of Bihar Excise (Amendment) Act, 2016, it will be very interesting to know how Nitish Kumar reacts tomorrow when his cabinet meets. One option open to him is to go ahead with notifying the amended law – Bihar Prohibition and Excise Act, 2016 without any change and challenge the high court order in Supreme Court. Another option left for him is to rework the amended law keeping in view strong observations of the high court on loopholes of the old Act in question.
One who knows Nitish Kumar well as a recalcitrant politician may have reason to believe that he can take the first option, leaving it to Supreme Court to take a final call on the Act, some penal provisions of which have been termed ‘Draconian and unreasonable’ by the High Court. But if CM wants to avoid future embarrassment, his legal experts might ask him to rework the Act as the new Act having more stringent provisions will amount to ‘overreaching high court judgement and possible contempt of the court’ in eyes of several lawyers who have read the 142-page judgement, available on high court site (CWJC/6675/2016).
The state government that begrudged media and alleged that some are hobnobbing with liquor mafia now needs to read the judgement carefully and with open mind. It strikes down section 19 (4) of Bihar Excise (Amendment) Acf, 2016 allowing prohibition. The court calls the section vavue, indefinite and unlimited. In plain words, it questions how the government can impose total prohibition without applying its ‘mind’ and preparing well to implement it. After all, the government had imposed ban only on country liquor since April 1, 2016 and soon changed its mind within five days to enforce complete liquor ban since April 5, 2016. The court questions why the government did not think about business interest of IMFL and beer manufacturers and distributers and also about those going to lose their jobs because of total prohibition. Though the judgement does not make any comment on how Nitish Kumar government hurried through the whole process in his bid to make prohibition a political tool to nurse his national ambition, the court judgement does show mirror to those who drafted the law in a tearing hurry.
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Nitish Kumar always gave the impression that he made a foolproof law to ensure total liquor ban and always criiticised media for calling it ‘Draconian’. This is when the court has not commented on new amended law that has more stringent and unreasonable provisions than April Act. The court sees serious problems with laying penal provisions of punishment from five to ten years extending up to life sentence. The court says the government has not given them scope to minimise punishment. It also says how a Collector can use his or her discretion to fix community fine and decide area and worse, does not provide scope for appeal. The court said such provisions can be allowed in a ‘police state which we are not’.
Though the legislation is prerogative of legislature but this is where one may raise question on executive responsibility. Who are bureacrats and legal experts who framed such law? Even if one gets to know, things will boil down to legislature and particularly to what CM wants now. Nitish Kumar government looks unfazed by the court order. Grand Alliance spokespersons are only talking about going through the judgement. No one has yet admitted that the government has erred on several provisions in its zeal to impose total prohibition. Irrespective of what Nitish Kumar decides on October 2 , the government is hugely embarrassed in its hubris over its claims to know the best of liquor law. Nitish Kumar may not yet like to lose on political symbolism of October 2 but one has to wait and watch if he follows his political gut sense or legal one.