titions Nos
4021 4022 4024 4025 4027 4032 4037 4040 4041 4045 4047 4049 4075 4078 4092 4099 4103 4111 4120 4126 4129 4140 4142 4143 4155 4157 4184 4187 4188 4190 4192 4202 4203 4205 4206 4212 4214 4217 4223 4231 4234 4235 4245 4250 4252 4300 4308 of 1978 and 4226 of 1978
Under article 32 of the Constitution of India AND Writ Petitions Nos 966 971 3643 3650 3884 3896 3900 3921 3965 3975 3990 4001 4020 4034 4100 4127 to 4128 4186 4193 4208 4271 of 1978 and 3968 3971 4191 4221 and 4272 4275 of 1978
Under article 32 of the Constitution of India
AND Writ petitions 4154 4209 4242 4243 4247 4248 4253 4254 4310 and 4314 of 1978
Under article 32 of the Constitution of India A K Sen and Mrs Rani Chhabra in WP 402178 for the Petitioners
Yogeshwar Parshad and Mrs Rani Chhabra in WP Nos
4022 4024 4025 4027 4032 4037 4040 4041 4045 4047 4046 4064 4067 4078 4079 4092 4142 4143 4187 4090 4092 and 4231 of 1978
V C Mahajan and Mrs Urmila Sirur for the Petitioners in WP 4049 63 4080 91 4108 to 411178
K K Mohan section K Sabharwal Pramod Swarup and Shreepal Singh for the Petns
in WP Nos 103 4140 4184 4202 and 4234 of 1978
126 O P Sharma N N Sharma A K Srivastava Amlan Ghosh and P K Ghosh
in WP Nos
4190 92 and 4226 of 1978
O P Sharma for the Petitioner in WP 422678
K B Rohtgi for the Petitioners in WP 3975 76 and 4274 75 78
O P Singh in WP 966 71 of 1978 for the Petitioners
A L Trehan for the Petitioner in WP 410078
section K Sabharwal for the Petitioner in WP 421478
M Qamaruddin for the petitioner in WP 4193 of 1978
R K Jain K K Mohan and Rajiv Dutt L R Singh for the Petitioners in WP 4271 7378
section N Kacker Sol
Genl O P Rana for the State of UP Soli J Sorabjee Addl
of India and Hardev Singh for the State of Punjab J D Jain and B R Kapoor in WP Nos
4242 4244 4247 4228 4209 and 4308 of 1978
B R Kapoor and section K Sabharwal for the Petitioners in WP 4150 425478
M P Jha for the Petitioner in WP 425278
section K Sabharwal for the Petitioner in WP 4245 4253 and 431078
Shreepal Singh for the Petitioners in WP 423578
Hardev Singh on behalf of R N Sachthey for the State of Punjab
The Judgment of the Court was delivered by KRISHNA IYER J
What are we about A raging rain of writ petitions by hundreds of merchants of intoxicants hit by a recently amended rule declaring a break of two dry  days in every wet  week for licensed liquor shops and other institutions of inebriation in the private sector puts in issue the constitutionality of section 59fv and Rule 37 of the Punjab Excise Act and Liquor Licence Second Amendment Rules hereinafter for short the Act and the Rules
The tragic irony of the legal plea is that Article 14 and 19 of the very Constitution which in Article 47 makes it a fundamental obligation of the State to bring about prohibition of intoxicating drinks is pressed into service to thwart the State s half hearted prohibitionist gesture
Of course it is on the cards that the end may be good but the means may be bad constitutionally speaking
And there is a mystique about legalese beyond the layman s ken  127 To set the record straight we must state right here that no frontal attack is made on the power of the State to regulate any trade even a trade where the turnover turns on tempting the customer to take reeling rolling trips into the realm of the jocose belliocose lachrymore and comatose
Resort was made to a flanking strategy of anathematising the statutory regulatory power in section 59fv and its offspring the amended rule interdicting sales of tipay ecstasy on Tuesdays and Fridays as too naked unguided and arcane and resultantly too arbitrary and unreasonable to comport with articles 14 and 19
Our response at the first blush was this
Were such a plea valid what a large communication exists between lawyer s law and judicial justice on the one hand and life s reality and sobriety on the other unless there be something occultly unconstitutional in the impugned Section and Rule below the visibility zone of men of ordinary comprehension
We here recall the principle declared before the American Bar Association by a distinguished Federal 
Judge William Howard Taft in 1895 If the law is but the essence of common sense the protests of many average men may evidence a defect in a legal conclusion though based on the nicest legal reasoning and profoundest learning
 The Facts The Punjab Excise Act 1914 contemplates grant of licences inter alia for trading in Indian foreign and country liquor
There are various conditions attached to the licences which are of a regulatory and fiscal character
The petitioners are licence holders and have on deposit of heavy licence fee been permitted by the State to vend liquor
The conditions of the licences include restrictions of various types including obligation not to sell on certain days and during certain hours
Under the former rule 37 Tuesday upto 2 pm was prohibited for sale so also the seventh day of the month
The licences were granted subject to rules framed under the Act and Section 59 is one of the provisions empowering rule making
Rule 37 was amended by a notification whereby in the place of Tuesdays upto 2 pm plus the 7th day of every month Tuesdays and Fridays in every week were substituted as days when liquor vending was prohibited
Under the modified rules a consequential reduction of the licence fee from Rs 12000 to Rs 10000 was also made probably to compensate for the marginal loss caused by the two day closure
Aggrieved by this amendment the petitioners moved this 128 Court challenging its vires as well as the constitutionality of section 59fv which is the source of power to make rule 37
If the Section fails the rule must fall since the stream cannot rise higher that the source
Various contentions based on article 19g and 6 and article 14 were urged and stay of operation of the new rule was granted by this Court
We will presently examine the tenability of the argument and the alleged vice of the provisions and in doing so we adopt as counsel desired a policy of non alignment on the morality of drinking since law and morals interact and yet are autonomous but equally clearly we inform ourselves of the plural pathology  implicit in untrammelled trading in alcohol
He who would be a sound lawyer Andrea Alciati that 16th century Italian humanist jurist long ago stressed should not limit himself to the letter of the text or the narrow study of law but should devote himself also to history sociology philology politics economics nostics and other allied sciences if he is to be a jurist priest in the service of justice or legal engineer of social justice1 This is our perspective because while the forensic problem is constitutional the Constitution itself is a human document
The integral yoga of law and life once underlined the stage is set to unfold the relevant facts and focus on the precise contentions
Several counsel have made separate submissions hut the basic note is the same with minor variations in emphasis
Why drastically regulate the drink trade  the Social rationale on Brandies brief Anywhere on our human planet the sober imperative of moderating the consumption of inebriating methane substances and manacling liquor business towards that end will meet with axiomatic acceptance
Medical criminological and sociological testimony on a cosmic scale bears out the tragic miscellany of traumatic consequences of shattered health and broken homes of crime escalation with alcohol as the hidden villain or aggressively promotional anti hero of psychic breakdowns insane cravings and efficiency impairment of pathetic descent to doom sans sense sans shame sans everything and host of other disasters individuals familial genetic and societal2 We need hot have dilated further on the deleterious impost of unchecked alcohol intake on consumers and communities but Shri Mahajan advocated regulation as valid with the cute rider that even 1 Encyclopaedia of the Social Sciences Vol
J ll p 618
2 Ibid p 619 27
129 water intake if immoderate may affect health and so regulation of liquor trade may not be valid if more drastic than for other edibles
The sequitur he argued for was that the two day ban on liquor licensees was unreasonable under article 19g read with article 196
He also branded the power to restrict the days and hours of sale of liquor without specification of guidelines as arbitrary and scouted the submission of the Addl
Solicitor General that the noxious nature of alcohol and the notorious fall out from gentle bibbing at the beginning on to deadly addiction at the end was inherent guideline to salvage the provision from constitutional casualty
Innocently the equate alcohol with aqua is an exercise ill intoxication and straining judicial credibility to absurdity
We proceed to explain why alcohol business is dangerous and its very injurious character and mischief potential legitimate active policing of the trade by any welfare State even absent article 47
The alcoholics will chime in with AE Houseman1  And malt does more than Milton can to justify God s ways to man
But the wisdom of the ages oozes through Thomas Bacon who wrote For when the wine is in the wit is out Dr Walter Reckless a criminologist of international repute who had worked in India for years has in The Crime Problem rightly stressed Of all the problems in human society there is probably none which is as closely related to criminal behaviour as is drunkenness
It is hard to say whether this close relation ship is a chemical one a psychological one or a situational one  Several different levels of relationship between ingestion of alcohol and behaviour apparently exist
A recent statement by the National Council on Crime and Delinquency quite succinctly describes the effect of alcohol on behaviour Alcohol acts as a depressant it inhibits self control before it curtails the ability to act and an individual s personality and related social and cultural factors assert themselves during drunken behaviour 
Although its dangers are not commonly understood or accepted by the public ethyl alcohol can have perhaps the most serious con sequences of any mind and body altering drug
It causes 1 Makers of Modern world by Louis Untermeyer p 275
2 The Crime Problem Fifth Edition Walter C Reckle Page 115 116  117
130 addiction in chronic alcoholics who suffer consequences just as serious if not more serious than opiate addicts
It is by far the most dangerous and the most widely used of any drug emphasis added
The President s Commission on Law Enforcement and Administration of Justice made the following pertinent observation The figures show that crimes of physical violence are associated with intoxicated persons
Thus the closest relationship between intoxication and criminal behaviour except for public intoxication has been established for criminal categories involving assaultive behaviour
This relationship is especially high for lower class Negroes and whites
More than likely aggression in these groups is weakly controlled and the drinking of alcoholic beverages serves as a triggering mechanism for the external release of aggression
There are certain types of key situations located in lower class life in which alcohol is a major factor in triggering assaultive behaviour
A frequent locale is the lower class travern which is an important social institution for the class group
Assaultive episodes are triggered during the drinking situation by quarrels that center around defaming personal honor threats to masculinity and questions about one s birth legitimacy
Personal quarrels between husband and wife especially after the husband s drinking frequently result in assaultive episodes in the lower lower class family The steady flow of drunkenness cases through the hands of the police into our lower courts and into our jails and workhouses has been labelled the revolving door because a very large part of this flow of cases consists of chronic drinkers who go through the door and out time after time
On one occasion when the author was visiting a Saturday morning session of a misdemeanor court there was a case of an old bum who had been in the local workhouse 285 times previously An Indian author Dr Sethna dealing with society and the criminal has this to say 1 Many crimes are caused under the influence of alcohol or drugs
The use of alcohol m course of time causes great and irresistible craving for it
To retain the so called 1 Society and the Criminal by M J Sethna 3rd Edn
P 164
131 satisfaction  derived from the use of alcohol or drugs the drunkard or the drug addict has got to go on increasing the quantities from time to time such a state of affairs may lead him even to commit thefts or frauds to get the same otherwise
If he gets drunk so heavily that he cannot understand the consequences of his acts he is quite likely to do some harmful act even an act of homicide
Every often crimes of violence have been committed in a state of intoxication
Dr Hearly is of the opinion that complete elimination of alcohol and harmful drug habits would cause a reduction in crime by at least 20 per cent not only that but there would also be cumulative effect on the generations to come by diminishing poverty improving home conditions and habits of living and environment and perhaps even an improvement in heredity itself
Abstinence campaigns carried out efficiently and in the proper manner show how crime drops
Dr Hearly cites Baer who says that Father Mathew s abstinence compaigns in Ireland during 1837 1842 reduced the use of spirits SO per cent and the crimes dropped from 64520 to 47027
According to Evangeline Booth the Commander of the Salvation Army In New York before prohibition the Salvation Army would collect from 1200 to 1300 drunkards in a single night and seek to reclaim them
Prohibition immediately reduced the gathering to 400 and the proportion of actual drunkards from 95 per cent to less than 20 per cent
And a decrease of two thirds in the number of derelicts coupled with a decrease in the number of drunkards almost to the Vanishing point certainly lightened crime and charity bills
It gave many of the erstwhile drunkards new hope and a new start
So says E E Covert in an interesting article on Prohibition
The ubiquity of alcohol in the United States has led to nationwide sample studies and they make startling disclosures from a criminological angle
For instance in Washington DC 765  of all arrests in 1965 were for drunkenness disorderly conduct and vagrancy while 767 of the total arrests in Atlanta were for these reasons1 Of the 8 million arrests in 1970 almost one third of these were alcohol related
Alcohol is said to affect the lives of 9 million persons 1 Society Crime and Criminal Careers by Don C Gibbons p 427 428
132 and to cost 10 billion in lost work time and an additional 15 billion health and welfare costs  1 Richard D Knudten stated Although more than 35 of all annual arrests in the United States are for drunkenness additional persons committing more serious crimes while intoxicated are included within the other crime categories like drunken driving assault rape and murder2 President Brezhnev bewailed the social maladies of increasing alcoholism
Nikita Krushchev was unsparing Drunks should be kicked out of the party  not moved from one responsible post to another
3 Abraham Lincoln with conviction and felicity said that the use of alcohol beverages had many defenders but no defence and intoned Whereas the use of intoxicating liquor as a beverage is productive of pauperism degradation and crime and believing it is our duty to discourage that which produces more evil than good we therefore pledge ourselves to abstain from the use of intoxicating liquor as a beverage
4 In his famous Washington s birthday address said Whether or not the world would be vastly benefited by a total and final banishment from it of all intoxicating drinks seems to me not now an open question
Three fourths of mankind confess the affirmative with their lips and I believe all the rest acknowledge it in their hearts
5 Jack Hobbs the great cricketer held The greatest enemy to success on the cricket field is the drinking habit And Don Bradman than whom few batsmen better wielded the willow encored and said Leave drink alone
Abstinence is the thing that is what made me
6 1 Current perspectives on Criminal Behaviour edited by Abraham S Blumberg P23
2 crime in a complex society by Richard D Knudten P138
3 Report of the study Team on Prohibition Vol
L P 344
4 Ibid p34s
5 Ibid p345
6 Report of the Study Team on Prohibition vol
I P347
133 Sir Andrew Clark in Lachrymal language spun the lesson from hospital beds As I looked at the hospital wards today and saw that seven out of ten owed their diseases to alcohol I could but lament that the teaching about this question was not more direct more decisive more home thrusting than ever it had been
1 George Bernard Shaw a provocative teetotaller used tart words of trite wisdom If a natural choice between drunkenness and sobriety were possible I would leave the people free to choose
But then I see an enormous capitalistic organisation pushing drink under people s noses of every corner and pocketing the price while leaving me and others to pay the colossal damages then I am prepared to smash that organisation and make it as easy for a poor man to stay sober if he wants to as it is for his dog
Alcohol robs you of that last inch of efficiency that makes the difference between first rate and second rate
I don t drink beer first because I don t like it and second because my profession is one that obliges me to keep in critical training and beer is fatal both to training and to criticism
only teetotallers can produce the best and sanest of which they are capable
Drinking is the chloroform that enables the poor to endure the painful operation of living
It is in the last degree disgraceful that a man cannot pro vide his own genuine courage and high spirits without drink
I should be utterly ashamed if my soul had shrivelled up to such an extent that I had to go out and drink a whisky
2 The constitutional test of reasonableness built into article 19 and of arbitrariness implicit in article 14 has a relativist touch
We have to view the impact of alcohol and temperance on a given society and 1 Ibid P 347
2 Report of the study Team on Prohibition Vol
I P 346
134 for us the degree of constitutional restriction and the strategy of meaningful enforcement will naturally depend on the Third World setting the ethos of our people the economic compulsions of today and of human tomorrow
Societal realities shape social justice
While the universal evil in alcohol has been indicated the particularly pernicious consequence of the drink evil in India may be useful to R r remember while scanning the
rationale of an Indian temperance measure
Nearly four decades ago Gandhiji articulating the inarticulate millions  well being wrote The most that tea and coffee can do is to cause a little extra expense but one of the most greatly felt evils of the British Rule is the importation of alcohol that enemy of mankind that curse of civilisation in some form or an other
The measure of the evil wrought by this borrowed habit will be properly gauged by the reader when he is told that the enemy has spread throughout the length and breadth of India in spite of the religious prohibition for even the touch of a bottle containing alcohol pollutes the Mohammedan according to his religion and the religion of the Hindu strictly prohibits the use of alcohol in any form whatever and yet alas  the Government it seems instead of stopping is aiding and abetting the spread of alcohol
The poor there as everywhere are the greatest sufferers
It is they who spend what little they earn in buying alcohol instead of buying good food and other necessaries It is that wretched poor man who has to starve his family who has to break the sacred trust of looking after his children if any in order to drink himself into misery and premature death
Here be it said to the credit of Mr Caine the ex Member for Barrow that he undaunted is still carrying on his admirable crusade against the spread of the evil but what can the energy of one man however powerful do against the inaction of an apathetic and dormant Government
1 Parenthetically speaking many of these thoughts may well be regarded by Gandhians as an indictment of governmental policy even to day
The thrust of drink control has to be studied in a Third World country developing its human resources and the haven if offers to the poor especially their dependents
Gandhiji again For me the drink question is one of dealing with a growing social evil against which the State is bound to 1 The Collected Works of Mahatma Gandhi pp29 30 135 provide whilst it has got the opportunity
The aim is patent
We want to wean the labouring population and the Harijans from the curse
It is a gigantic problem and the best resources of all social workers especially women will be taxed to the utmost before the drink habit goes
The prohibition I have adumbrated is but the beginning undoubtedly indispensable of the reform
We cannot reach the drinker so long as he has the drink ship near his door to tempt him  l Says Dr Sethna in his book already referred to And in India with the introduction of prohibition we find a good decline in crime
There are however some per sons who cannot do without liquor
Such persons even so to the extent of making illicit liquor and do not mind drinking harmful rums and spirits
The result is starvation of children at home assaults and quarrels between husband and wife between father and child desertion and other evils resulting from the abuse of alcohol
The introduction of prohibition in India actually caused considerable fall in the number of crimes caused by intoxication
Before prohibition one often had to witness the miserable spectacle of poor and Ignorant persons mill hands
Labourers and even the unemployed with starving families at home frequenting the pithas liquor and adulterated toddy shops drinking burning and harmful spirits and adulterated toddy which really had no vitamin value these persons spent the little they earned after a hard day s toil or what little that had remained with them or what they had obtained by some theft trick fraud or a borrowing they spent away all that and then at home left wife and children starving and without proper clothes education and other elementary necessaries of life
2 emphasis added The Labour Welfare Department or the State Governments and of the Municipalities are rendering valuable service through their labour welfare officers who work at the centres assigned to them impressing upon the people how the use of alcohol is ruinous and instructing them also how to live hygienically there are lectures on the evils of drug and drink habits
1 The Collected Works of Mahatma Gandhi Vol
2 Society and the Criminal by M J Sethna 3rd Edn
p 165 166  168 169
136 Partial prohibition of hot country liquors was introduced by the Congress Ministries in Bombay Bihar Madras in Salem Chittor Cuddaph and North Arcot Districts when they first came into power
In C P and Berar prohibition covered approximately one fourth of the area and population of the State
In Assam prohibition is directed mainly against opium
In Deccan Hyderabad on 3rd January 1943 a Firman as issued by his Exalted Highness the Nizam supporting the temperance movement
Jammu and Kashmir came also on the move towards prohibition
Since 1949 State Governments determined the policy of introduction of total prohibition
On April 10 1948 the Central Advisory Council for Railways under the Chairmanship of the Hon ble Dr John Matthai agreed to the proposal to ban the serving of liquor in refreshment rooms at railway stations and dining cars
In Madras prohibition was inaugurated on 2nd October 1948 by the Premier
the Hon ble Mr O P Ramaswami Reddiar who pronounced it a red letter day
In 1949 West Punjab took steps for the establishment of prohibition
In 1949 nearly half the area of the Central Provinces and Berar got dry and it was proposed to enforce prohibition throughout the State
In Bombay the Prohibition Bill was passed and became Act in 1949 and Bombay got dry by April 1950
The number of offences under the Abkari Act is notoriously high
It shows the craving of some persons for liquor in spite of all good efforts of legal prohibition
The remedy lies in making prohibition successful through education even at the school stage suggestion re education
The Tek Chand Committee1 surveyed the civilizations from Babylon through China Greece Rome and India
X rayed the religions of the world and the dharmasastras and concluded from this conspectus that alcoholism was public enemy
Between innocent first sour sip and nocent never stop alcoholism only time is the thin partition and inevitability the sure nexus refined arguments to the contrary notwithstanding2
In India some genteel socialities have argued for the diplomatic pay off from drinks and Nehru has negatived it 1 Report of the Study Team on Prohibition
2 Ibid p 345
137 Not only does the health of a nation suffer from this alcoholism but there is a tendency to increase conflicts both in the national and the international sphere
 I must say that I do not agree with the statement that is sometimes made even by our ambassadors that drinks attract people to parties and if there are no drinks served people will not come
I have quite B frankly told them that if people are only attracted by drinks you had better keep away such people from our missions
I do not believe in this kind of diplomacy which depends on drinking and if we have to indulge in that kind of diplomacy others have had more training in it and are like to win1 Of course the struggle for Swaraj went beyond political liberation and demanded social transformation
Redemption from drink evil was woven into this militant movement and Gandhiji was the expression of this mission
I hold drink to be more damnable than thieving and perhaps even prostitution
Is it not often the parent to both  I ask you to join the country in sweeping out of existence the drink revenue and abolishing the liquor shops
Let me therefore re declare my faith in undiluted prohibition before I land my self in deeper water
If I was appointed dictator for one hour for all India the first thing I would do would be to close without compensation all the liquor shops destroy all the toddy palms such as I know them in Gujarat compel factory owners to produce humane conditions for the workmen and open refreshment and recreation rooms where these workmen would get innocent drinks and equally innocent amusements
I would close down the factories if the owners pleaded for want of funds
2 It has been a plank in the national programme since 1920
It is coming therefore in due fulfillment of the national will definitely expressed nearly twenty years ago3 Sociological Journey to interpretative Destination
This long excursion may justly be brought to a close by an off repeated but constitutionally relevant quotation from Field J irresistible attractive for fine spun feeling and exquisite expression
There is in this position an assumption of a fact which does not exist that when the liquors are taken in excess the injuries are confined to the party offending
The injury if it is true first falls upon 1 Report of the Study Team on prohibition Vol
I P 345
2 Ibid P 344
3 Collected Works of Mahatma Gandhi Vol
10 520SCI78 138 him in his health which the habit undermines in his morals which it weakens and in the self abasement which it creates
But as it leads to neglect of business and waste of property and general demoralization it affects those who are immediately connected with or dependent upon him
By the general concurrence of opinion of every civilised and Christian community there are few sources of crime and misery to society equal to the dram shop where intoxication liquors in small quantities to be drunk at the time are sold indiscriminately to all parties applying
The statistics of every State show a greater amount of crime and misery attributable to the use of ardent spirits obtained at those retail liquor saloons than to any other source
The sale of such liquors in this way has therefore been at all times by the courts of every State considered as the proper subject of legislative regulation
Not only may a licence be exacted from the keeper of the saloon before a glass of his liquors can be thus disposed of
but restrictions may be imposed as to the class of persons to whom they may be sold and the hours of the day and the days of the week on which the saloons may be opened
Their sale in that form may be absolutely prohibited
It is a question of Public Expediency and public morality and not of federal law
The police power of the State fully competent to regulate the business to mitigate its evils or to suppress it entirely there is no inherent right in a citizen to thus sell intoxicating liquors by retail it is not a privilege of a citizen of the State or of a citizen of the United States
As it is a business attended with danger to the community it may as already said be entirely prohibited or be permitted under such conditions as will limit to the utmost its evils
The manner and extent of regulation rest in the discretion of the Governing authority
That authority may vest in such officers as it may deem proper and power of passing upon applications for permission to carry it on and to issue licenses for that purpose
It is a matter of legislative will only
1 The Panorama of views insights and analyses we have tediously
projected serves the sociological essay on adjudicating the reasonableness and arbitrariness of the impugned shut down order on Tuesdays and Fridays
Whatever our personal views and reservations on the philosophy the politics the economics and the pragmatics of prohibition we are called upon to pass on the vires of the amended order
We the people of India  have enacted article 47 and we the Justices of India  cannot lure it back to cancel half a life  or wash out a word of it  especially when progressive implementation of the policy of prohibition is by Articles 38 and 47 made fundamental to the country s governance
The Constitution is the property of the people 1 Crowely vs Christensen   623
139 and the courts know how is to apply the constitution not to assess it
In the process of interpretation Part IV of the Constitution must enter the soul of Part III and the laws as held by the Court in State of Kerala  Anr
vs N M Thomas  Ors1 and earlier
The dynamics of statutory construction in a country like ours where the pre Independence Legislative package has to be adapted to the vital spirit of the Constitution may demand that new wine be poured into old bottles language permitting
We propound no novel proposition and recall the opinion of Chief Justice Winslow of Wisconsin upholding as constitutional a Workmen s Compensation Act of which he said when an eighteenth century constitution forms the charter of liberty of a twentieth century government must its general provisions be construed and interpreted by an eighteenth century mind surrounded by eighteenth century conditions and ideals  Clearly not
This were a command of half the race in its progress to stretch the state upon a veritable bed of Procrustes
Where there is no express command or prohibition but only general language of policy to be considered the conditions prevailing at the time of its adoption must have their due weight hut the changed social economic and governmental conditions of the time as well as the problems which the changes have produced must also logically enter into the consideration and become influential factors in the settlement of problems of construction and interpretation
2 In short while the imperial masters were concerned about the revenues they could make from the liquor trade they were not indifferent to the social control of this business which if left unbridled was fraught with danger to health morals public order and the flow of life without stress or distress
Indeed even collection of revenue was intertwined with orderly milieu and these twin objects are reflected in the scheme and provisions of the Act
Indeed the history of excise legislation in this country has received judicial attention earlier and the whole position has been neatly summarised by Chandrachud J as he then was if we may say so with great respect as a scissor and paste operation is enough for our purpose 1 1976 I SCR 906
2 Borgnis vs The Falk Co 147 Wisconsin Reports P 327 at 348 et See 1911
That this doctrine is to be deemed to apply only to due process  and police Power determinations see especially concurring opinions of Marshalle and Barness J 140 Liquor licensing has a long history
Prior to the passing of the Indian Constitution the licensees mostly restricted their challenge to the demand of the Government as being in excess of the condition of the licence or on the ground that the rules in pursuance of which such conditions were framed were themselves beyond the rule making power of the authority concerned
The provisions of the Punjab Excise Act 1914 like the provisions of similar Acts in force in other States reflect the nature and the width of the power in the matter of liquor licensing
We will notice first the relevant provisions of the Act under consideration
Section S of the Act empowers the State Government to regulate the maximum or minimum quantity of any intoxicant which may be sold by retail or wholesale
Section 8a vests the general superintendence and administration of all matters relating to excise in the Financial Commissioner subject to the control of the State Government
Section 16 provides that no intoxicant shall be imported exported or transported except after payment of the necessary duty or execution of a bond for such payment and in compliance with such conditions as the State Government may impose
Section 17 confers upon the State Government the power to prohibit the import or export of any intoxicant into or from Punjab or any part thereof and to prohibit the transport of any intoxicant
By section 201 no intoxicant can be manufactured or collected no hemp plant can be cultivated no tari producing tree can be tapped no tari can be drawn from any tree and no person can possess any material or apparatus for manufacturing an intoxicant other than tari except under the authority and subject
to the terms and conditions of a licence granted by the Collector
By sub section 2 of section 20 no distillery or brewery can be constructed or worked except under the authority and subject to the terms and conditions of a licence granted by the Financial Commissioner
Section 24 provides that no person shall have in his possession any intoxicant in excess of such quantity as the State Government declares to be the limit of retail sale except under the authority and in accordance with the terms and conditions of a licence or permit
Sub section 4 of section 24 empowers the State Government to prohibit the posses 141 sion of any intoxicant or restrict its possession by imposing such conditions as it may prescribe
Section 26 prohibits the sale of liquor except under the authority and subject to the terms and conditions of a licence granted in that behalf
Section 27 of the Act empowers the State Government to lease on such conditions and for such period as it may deem fit or retail any country liquor or intoxicating drug within any specified local area
On such lease being granted the Collector under sub section 2 has to grant to the lessee a licence in the form of his lease
Section 341 of the Act provides that every licence permit or pass under the Act shall be granted a on payment of such fees if any b subject to such restrictions and on such conditions c in such form and containing such particulars and d for such period as the Financial Commissioner may direct
By section 352 before any licence is granted for the retail sale of liquor for consumption on any premises the Collector has to ascertain local public opinion in regard to the licensing of such premises
Section 36 confers power on the authority granting any licence to cancel or suspend it if inter alia any duty or fee payable thereon has not been duly paid
Section 56 of the Act empowers the State Government to exempt any intoxicant from the provisions of the Act
By section 58 the State Government may make rules for the purpose of carrying out the provisions of this Act
Section 59 empowers the Financial Commissioner by clause a to regulate the manufacture supply storage or sale of any intoxicant
xxx xxx xx The Prohibition and Excise Laws in force in other States contain provisions substantially similar to those contained in the Punjab Excise Act
Several Acts passed by State Legislatures contain provisions rendering it unlawful to manufacture export import transport or sell intoxicating liquor except in accordance with a licence permit or pass granted in that behalf
The Bombay Abkari Act 1878 the Bombay Prohibition Act 1949 the Bengal Excise Acts of 1878 and 1909 the Madras Abkari Act 1886 142 the Laws and Rules contained in the Excise Manual United Province the Eastern Bengal and Assam Excise Act 1910 the Bihar and orissa Excise Act 1915 the Cochin Abkari Act as amended by the Kerala Abkari Laws Act 1964 the Madhya Pradesh Excise Act 1915 are instances of State legislation by which extensive powers are conferred on the State Government in the matter of liquor licensing
1 In this background let us read section 59fv and Rule 37 before and after the impugned amendment 59fv
The fixing of the days and hours during which any licensed premises may or may not be kept open and the closure of such premises on special occasions Rule 379
Conditions dealing with licensed hours Every licensee for the sale of liquor shall keep his shop closed on the seventh day of every month on all Tuesdays upto 2 pm
On Republic day 26th January on Independence day 15th August on Mahatma Gandhi s birthday 2nd October and on such days not exceeding three in a year as may be declared by the Government in this behalf
He shall observe the following working hours
hereinafter called the licensed hours and shall not without the sanction of the Excise Commissioner Punjab or other competent authority keep his shop open outside these hours The licensed hours shall be as follows xx xx xx After amendment 379
Conditions dealing with licensed hours
Every licensee for the sale of liquor shall keep his shop closed on every Tuesday and Friday on Republic Day 26th January on Independence day 15th August on Mahatma Gandhi s birthday 2nd October and on such days not exceeding three in a year as may be declared by the Government in this behalf
He shall observe the following working hours hereinafter called the licensed hours and shall not without the sanction of the Excise 1 Har Shankar  Ors etc
vs Dy
Excise  Taxation Commr and ors
1975  3 SCR 254 at 266 267 143 Commissioner Punjab or other competent authority keep his shop open outside these hours
The licensed hours shall be as follows    Note The condition regarding closure of liquor shops on very Tuesday and Friday shall not be applicable in the case of licenses of tourist bungalows and re sorts being run by the Tourism Department of the State Government
Before formulating the contentions pressed before us by Shri A K Sen Shri Mahajan and Shri Sharma we may mention that Shri Seth one of the Advocates who argued innovatively did contend that the Act was beyond the legislative competence of the State and if that tall contention met with our approval there was nothing more to be done
To substantiate this daring submission the learned counsel referred us to the entries in the Seventh Schedule to the Constitution
All that we need say is that the argument is too abstruse for us to deal with intelligibly
To mention the plea is necessary but to chase it further is supererogatory
The main contention The primary submission proceeded on the assumption that a citizen had a fundamental right to carry on trade or business in intoxicants
The learned Addl
Solicitor General urged that no such fundamental right could be claimed having regard to noxious substances and consequences involved and further contended that notwithstanding the observations of Subba Rao CJ in Krishna Kumar Narula etc
vs The State of Jammu  Kashmir  orsI the preponderant view of this Court precedent and subsequent to the amber  observations in the aforesaid decision has been that no fundamental right can be claimed by a citizen in seriously obnoxious trades offensive businesses or outraging occupations like trade in dangerous commodities trafficking in human flesh horrifying exploitation or ruinous gambling
Even so since the question of the fundamentality of such right is before this Court in other batches of writ petitions which are not before us we have chosen to proceed on the footing arguendo that there is a fundamental right in liquor trade for the petitioners
Not that we agree nor that Shree Sorabjee concedes that there is such a right but that 1 1961 S SCR SO 144 for the sake of narrowing the scope of the colossal number of writ petitions now before us this question may well be skirted
The Bench and the Bar have therefore focussed attention on the vires of the provision from the standpoint of valid power of regulation of the liquor trade vis a vis unreasonableness arbitrariness and vacuum of any indicium for just exercise
Essentially the point pressed was that section 59fv vested an unguided uncanalised vague and vagarious power in the Financial Commissioner to fix any days or number of days and any hours or number of hours as his fancy or humour suggested
There were no guidelines no indicators no controlling points whereby the widely worded power of the Excise Commissioner on whom Government has vested the power pursuant to Sec 9 should be geared to a definite goal embanked by some clear cut policy and made accountable to some relevant principle
Such a plenary power carried the pernicious potential for tyrannical exercise in its womb and would be still born judged by our constitutional values
If the power is capable of fantastic playfulness or fanciful misuse it is unreasonable being absolute tested by the canons of the rule of law
And if arguendo it is so unreasonably wide as to imperil the enjoyment of a fundamental right it is violative of article 191g and is not saved by article 196
Another facet of the same submission is that if the provision is an arbitrary armour the power wielder can act nepotistically pick and choose discriminatorily or gambol goodily
Where a law permits discrimination huff and humour the guarantee of equality becomes phoney flimsy or illusory article 14 is outraged by such a provision and is liable to be quashed for that reason
An important undertaking by the State We must here record an undertaking by the Punjab Government and eliminate a possible confusion
The amended rule partially prohibits liquor sales in the sense that on Tuesdays and Fridays no hotel restaurant or other institution covered by it shall trade in liquor
But this prohibition is made non applicable to like institutions run by the Government or its agencies
We prima face felt that this was discriminatory on its face
Further article 47 charged the State with promotion of prohibition as a fundamental policy and it is indefensible for Government to enforce prohibitionist restraints on others and itself practise the opposite and betray the constitutional mandate
It suggests dubious dealing by State Power
Such hollow homage to article 47 and the Father of the nation gives diminishing credibility mileage in a democratic polity The learned Additional Solicitor General without going into the correctness of propriety of 145 our initial view probably he wanted to controvert or clarify readily agreed that the Tuesday Friday ban would be equally observed by the State organs also
The undertaking recorded as part of the proceddings of the Court runs thus The Additional Solicitor General appearing for the State of Punjab states that the Punjab State undertakes to proceed on the footing that the Note  is not in force and that they do not propose to rely on the Note  and will in regard to tourist bungalows and resorts run by the Tourism Department of the State Government observe the same regulatory provision as is contained in the substantive part of Rule 37 Sub rule 9
We accept this statement and treat it as an undertaking by the State
Formal steps for deleting the Note  will be taken in due course Although a Note can be law here the State concedes that it may not be treated as such
Even otherwise the note is plainly severable and the rule independently viable
Shri A K Sen who had raised this point at the beginning allowed it to fade out when the State s undertaking was brought to his notice
The vice of discrimination blotted out of the law by this process may not be sufficient if the traditional approach were to be made to striking down but if restructuring is done and the formal process delayed there is no reason to quash when the correction is done
Courts try to save not to scuttle when allegiance to the Constitution is shown
In short Tuesdays and Fridays so long as this rule remains as modified in the light of the undertaking shall be a holiday for the liquor trade in the private Or public sector throughout the State
We need hardly state that if Government goes back on this altered law the consequences may be plural and unpleasant
Of course we do not expect in the least that any such apprehension will actualise
one confusion that we want to clear up is that even if section 59 and Rule 37 were upheld in toto that does not preclude any affected party from challenging a particular executive act pursuant thereto on the ground that such an act is arbitrary mala fide or unrelated to the purposes and the guidelines available in the Statute
If for instance the Financial Commissioner or the Excise Commissioner as the case may be declares that all liquor shops shall be opened on his birthday or shall remain closed on his friend s death anniversary whatever our pronouncement on the vires of the impugned provisions the executive order will be sentenced to death
The law may be good the act may be corrupt and then it cannot be saved
146 The only question seriously canvassed before us is as to whether the power under section 59fv unguided and the rule framed there under is bad as arbitrary
We will forthwith examine the soundness of that proposition
An irrelevant controversy consumed some court time viz that the two day shut down rule meant that a substantial portion of the year for which the licence was granted for full consideration would thus be sliced off without compensation
This step was iniquitous and inflicted loss and was therefore unreasonable  therefore void
The Additional Solicitor General refuted this charge on facts and challenged its relevance in law
We must not forget that we are examining the vires of a law not adjudging a breach of contract and if on account of a legislation a party sustains damages or claims a refund that does not bear upon the vires of the provision but be longs to another province
Moreover the grievance of the petitioners is mere boloney  be cause even their licence fee has been reduced under the amended rule to compensate as it were for the extra closure of a day or so
We do not delve into the details nor pronounce on it as it is not pertinent to constitutionality
But a disquieting feature of the rule in the background of the purpose of the measure falls to be noticed
Perhaps the most significant social welfare aspect of the closure is the prevention of the ruination of the poor worker by drinking down the little earnings he gets on the wage day
Credit sales are banned and cash sales spurt on wage days
Any Government with workers  weal and their families  survival at heart will use its police power  under article 196 read with Sec
59fv of the Act to forbid alcohol sales on pay days
Wisely to save the dependent women and children of wage earners the former unamended rule had forbidden sales on the seventh day of every month when it is well known the monthly pay packet passes into the employees  pocket
To permit the tavern or liquor bar to transact business that tempting days is to abet the dealer who picks the pocket of the vulnerables and betray the Gandhian behest
And yet while bringing in the Tuesday Friday forbiddance of sales the ban on sales on the seventh of every month was entirely deleted an oblique bonus to the liquor lobby if we look at it sternly an unwitting indiscretion if we view it indulgently
The victims are the weeping wives and crying children of the workers
All power is a trust and its exercise by governments must be subject to social audit and Judas exposure For whom do the constitutional bells toll   this court asked in an earlier 147 judgment relating to Scheduled Castes1 We hope Punjab will rectify the error and hearten the poor in the spirit of article 47 and not take away by the left hand what the right hand gives
We indicated these thoughts in the course of the hearing so that no one was taken by surprise
Be that as it may the petitioner can derive no aid and comfort from our criticisms which are meant to alert the parliamentary auditors of subordinate legislation in our welfare 1 State
The Scheme and the subject matter supply the guidelines We come to the crux of the matter
Is Section 59fv bad for want of guidelines  Is it over broad or too bald  Does it lend itself to naked unreasonable exercise We were taken through a few rulings where power without embankments was held bad
They related to ordinary items like coal or restrictions where guidelines were blank
Here we are in a different street altogether
The trade is instinct with injury to individual and community and has serious side effects recognised everywhere in every age
Not to control alcohol business is to abdicate the right to rule for the good of the people
Not to canalise the age and sex of consumers and servers the hours of sale and cash and carry basis the punctuation and pause in days to produce partially the dry  habit is to fail functionally as a welfare State
The whole scheme of the statute proclaims its purpose of control in time and space and otherwise
Section 58 vests in Government the power for more serious restrictions and laying down of principles
Details and lesser constraints have been left to the rule making power of the Financial Commissioner
The complex of provisions is purpose oriented considerably reinforced by article 47
Old statutes get invigorated by the Paramount Parchment
Interpretation of the text of pre constitution enactments can legitimately be infused with the concerns and commitments or the Constitution as an imperative exercise
Thus it is impossible to maintain that no guidelines are found in the Act
We wholly agree with the learned Additional Solicitor General that the search for guidelines is not a verbal excursion
The very 
subject matter of the statute intoxicants eloquently impresses the Act with a clear purpose a social orientation and a statutory strategy
If bread and brandy are different the point we make argues itself
The goal IS promotion of temperance and flowing there out of sobriety public order individual health crime control medical bills family welfare curbing of violence and tension restoration of the addict s mental moral and physical personality and interdict on 1 1977 1SCR 906
148 impoverishment in various degrees compounded
We have extensively quoted supportive literature and regulation of alcohol per se furnishes a definite guideline
If the Section or the Rule intended to combat an evil is misused for a perverse ulterior or extraneous object that action not the law will be struck down
In this view discrimination or arbitrariness is also excluded
A final bid to stigmatize the provision Sec 59 fv was made by raising a consternation
The power to fix the days and hours is so broad that the authority may fix six out of seven days or 23 out of 24 hours as dry  days or closed hours and thus cripple the purpose of the licence
This is an ersatz apprehension a caricature of the provision and an assumption of power run amok
An Abkari law as here unfolded by the scheme chapters and Sections further amplified by the rules framed thereunder during the last 64 years is not a Prohibition Act with a mission of total prohibition
The obvious object is a to balance temperance with tax to condition and curtail consumption without liquidating the liquor business to experiment with phased and progressive projects of prohibition without total ban on the alcohol trade or individual intake
The temperance movement leaves the door half closed not wide ajar the prohibition crusade banishes wholly the drinking of intoxicants
So it follows that the limited temperance guideline writ large in the Act will monitor the use of the power
Operation Temperance leading later to the former may be a strategy within the scope of the Abkari Act
Both may be valid but we do not go into it
Suffice it to say that even restrictions under article 19 may depending on situations be pushed to the point of prohibition consistently with reasonableness
The chimerical fear that fix the days  means even ban the whole week is either pathological or artificial not certainly real under the Act
We are not to be understood to say that a complete ban is without the bounds of the law it turns on a given statutory scheme
While the police power as developed in the American jurisprudence and constitutional law may not be applicable in terms to the Indian Constitutional law there is much that is common between that doctrine and the reasonableness doctrine under article 19 of the Indian Constitution
Notes an American Law Journal The police power has often been described as the least limitable of the governmental powers
An attempt to define its reach or trace its outer limits is fruitless for each case turns upon its own facts
The police power must be used to promote the health safety or general welfare of the public and the exercise of the power must be 149 reasonable
An exercise of the police power going beyond these basic limits is not constitutionally permissible
Noxious Use Theory 
This theory upholds as valid any regulation of the use of property even to the point of total destruction of value so long as the use prohibited is harmful to others
 1 In a Law Review published from the United States police power  with reference to intoxicant liquors has been dealt with and is instructive Government control over intoxicating liquors has long been recognized as a necessary function to protect society from the evils attending it
Protection of society and not the providing of a benefit of the license holder is the chief end of such laws and regulations
There is no inherent right in a citizen to sell intoxicating liquors as retail
It is a business attended with danger to the community and it is recognised everywhere as a subject of regulation
 As to the legislative power to regulate liquor the United States Supreme Court has stated If the public safety or the public morals require the discontinuance of the manufacture or traffic of intoxicating liquors the hand of the legislature cannot be stayed from providing for its discontinuance by any incidental inconvenience which individuals or corporations may suffer The States have consistently held that the regulation of intoxicants is a valid exercise of its police power
The police power stands upon the basic principle that some rights must be and are surrendered or modified in entering into the social and political state as indispensible to the good government and due regulation and well being of society
In evaluating the constitutionality of a regulation within the police power validity depends on whether the regulation is designed to accomplish a purpose within the scope of that power
2 1 South Western Law Journal Annual Survey of Texas Law vol 30 No I Survey 1976 pp
725 26
2 Idaho Law Review Vol 7 1970 p 131
150 It is evident that there is close similarity in judicial thinking on the subject
This has been made further clear from several observations of this Court in its judgments and we may make a reference to a recent case Himmatlal and a few observations therein In the United States of America operators of gambling sought the protection of the commerce clause
But the Court upheld the power of the Congress to regulate and control the same
Likewise the pure Food Act which prohibited the importation of adulterated food was upheld
The prohibition of transportation of women for immoral purposes from one State to another or to a foreign land was held valid
Gambling itself was held in great disfavour by the Supreme Court which roundly stated that there is no constitutional right to gamble
Das CJ after making a survey of judicial thought here and abroad opined that freedom was unfree when society was exposed to grave risk or held in ransom by the operation of the impugned activities
The contrary argument that all economic activities were entitled to freedom as trade  subject to reasonable restrictions which the Legislature might impose was dealt with by the learned Chief Justice in a sharp and forceful presentation on this argument it will follow that criminal activities undertaken and carried on with a view to earning profit will be protected as fundamental rights until they are restricted by law
Thus there will be a guaranteed right to carry on a business of hiring out goodness to commit assault or even murder of house breaking of selling obscene pictures of trafficking in women and so on until the law curbs or stops such activities
This appears to us to be completely unrealistic and incongruous
We have no doubt that there are certain activities which can under no circumstances be regarded as trade or business or commerce although the usual forms and instruments are employed therein
To exclude those activities from the meaning of those words is not to cut down their meaning at all but to say only that they are not within the true meaning of those words
Learned Counsel has to concede that there can be no trade  or business in crime but submits that this principle should not be extended   1 Fatehchand Himmatlal vs Maharashtra  at 839 840
151 We have no hesitation in our hearts and our heads to hold that every systematic profit oriented activity how ever sinister suppressive or socially diabolic cannot ipso facto exalt itself into a trade
Incorporation of Directive principles of State policy casting the high duty upon the State to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice social economic and political shall inform all the institutions of the national life is not idle print but command to action
We can never forget except at our peril that the Constitution obligates the State to ensure an adequate means of livelihood to its citizens and to sec that the health and strength of workers men and women are not abused that exploitation normal and material shall be extradited
In short State action defending the weaker sections from social injustice and all forms of exploitation and raising the standard of living of the people necessarily imply that economic activities attired as trade or business or commerce can be de recognised as trade or business
At this point the legal culture and the public morals of a nation may merge economic justice and taboo of traumatic trade may meet and jurisprudence may frown upon day dark and deadly dealings
The Constitutional refusal to consecrate exploitation as trade  in a socialist Republic like ours argues itself
 A precedentral approach to the ultra vires argument
The single substantive contention has incarnated as triple constitutional infirmities
Counsel argued that the power to make rules fixing the days and hours for closing or keeping open liquor shops was wholly unguided
Three invalidatory vices flowed from this single flaw viz i excessive delegation of legislative power ii unreasonable restriction on the fundamental right to trade in intoxicants under article 191 g and iii arbitrary power to pick and choose inherently violative of article 14
Assuming the legality of the triune lethal blows the basic charge of uncanalised and naked power must be established
We have already held that the statutory scheme is not merely fiscal but also designed to regulate and reduce alcoholic habit
And while commodities and situations dictate whether power in given statutory provisions is too plenary to be other than arbitrary or is instinct with inherent limitations alcohol is so manifestly deleterious that the nature of the guidelines is written in invisible ink
152 A brief reference to a few rulings cited by counsel may not be inept
It is true that although the enactment under consideration is more than five decades old its validity can now be assailed on the score of unconstitutionality When India became a sovereign democratic Republic on 26th January 1950 the validity of all laws had to be tested on the touchstone of the new Constitution and all laws made before the coming into force of the Constitution have to stand the test for their validity on the provisions of Part Ill of the Constitution  1 This is why the principle of excessive delegation that is to say the making over by the legislature of the essential principles of legislation to another body becomes relevant in the present debate
Under our constitutional scheme the legislature must retain in its own hands the essential legislative functions
Exactly what constitutes the essential legislative functions is difficult to define
The legislature must retain in its own hands the essential legislative function
Exactly what constituted essential legislative function was difficult to define in general terms but this much was clear that the essential legislative function must at least consist of the determination of the legislative policy and its formulation as a binding rule of conduct
Thus where the law passed by the legislature declares the legislative policy and lays down the standard which is enacted into a rule of law it can leave the task of subordinate legislation which by its very nature is ancillary to the statute to subordinate bodies ie the making of rules regulations or bye laws
The subordinate authority must do so within the frame work of the law which makes the delegation
and such subordinate legislation has to be consistent with the law under which it is made and cannot go beyond the limits of the policy and standard laid down in the law
Provided the legislative policy is enunciated with sufficient clearness or a standard is laid down the courts should not interfere with the discretion that undoubtedly rests with the legislature itself in determining the extent of delegation necessary in a particular case
2 1 Suraj Mall Mohta and Cov
AV Visvanatha Sastri and another  at 457
2 Municipal Corporation of Delhi vs Birla Cotton Spinning and Weaving Mills Delhi  Anr  at 261 153 In Vasanthlal Maganbhai Sajanwal vs The State of Bombay1 the same point was made A statute challenged on the ground of excessive delegation must therefore be subject to two tests 1 whether it delegates essential legislative function or power and 2 WHETHER the legislature has enunciated its policy and principle for the guidance of the delegate
 Likewise if the State can choose any day or hour for exclusion as it fancies and there are no rules to fix this discretion plainly the provision Sec59fv must offend against Art14 of the Constitution
See Saghir Ahmed s case2 Another aspect of unguided power to affect the citizen s fundamental rights in the province of article 19 since imposition of unreasonable restrictions on the right lo carry on business is violative of article 191g
Patanjali Sastri CJ in V G Row s case observed2 The test of reasonableness wherever prescribed should l applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be Laid down as applicable to all cases
The nature of the right alleged to have been infringed the underlying purpose of the restriction imposed the extent or urgency of the evil sought to be remedied thereby the disproportion of imposition the prevailing conditions at the time should enter into the judicial verdict This Court in R M Seshadri4 dealt with unreasonable restrictions on showing of films by theatre owners and struck down the provisions
Similarly in Harichand5 an unreasonable restriction on the right to trade was struck down because the regulation concerned provided no principles nor contained any policy and this Court observed A provision which leaves an unbridled power to an authority cannot in any sense be characterised as reasonable
Section 3 of the Regulation is one such provision and is therefore liable to be struck down as violative of article 191g
1 2  3  4 19551 SCR 686
S LALA Hari Chand Sarda vs Mizo District Council  Anr 19671 SCR 1012 11 520 SCI78 154 other decisions in the same strain were cited
Indeed an annual shower of decisions on this point issues from this Court
But the essential point made in all these cases is that unchannelled and arbitrary discretion is patently violative of the requirements of reasonableness in article 19 and of equality under article 14 a proposition with which no one can now quarrel
lt is in the application of these principles that disputes arise as Patanjali Sastri CJ clarified early in the day in V G Row s case cited Supra
Reasonableness and arbitrariness are not abstractions and must be tested on the touchstone of principle pragmatism and living realism
It is in this context that the observations of this Court in Nashirwar1 become decisive
While considering the soundness of the propositions advanced by the advocate for the petitioners the Additional Solicitor General rightly shielded the statutory provisions i question by drawing our attention to the crucial factor that the subject matter of the legislation was a deleterious substance requiring restrictions in the direction of moderation in consumption
regulation regarding the days and hours of sale and appropriateness in the matter of the location of the places of sale
If it is coal or mica or cinema the test of reasonableness will be stricter but if it is an intoxicant or a killer drug or a fire arm the restrictions must be stern
When the public purpose is clear and the policing need is manifest from the nature of the business itself the guidelines are easy to find
Shri Mahajan s reliance on the Coal Control Case  or Shri A K Sen s reliance on the Gold Control case 3is inept
Coal and gold are as apart from whisky and toddy as cabbages are from kings
Don t we feel the difference between bread and brandy in the field of trade control  Life speaks through Law
Counsel after counsel has pressed that there is no guideline for the exercise of the power of rule making and the Addl
Solicitor General has turned to the history sociology and criminology relating to liquor
In support of his contention Shri Soli Sorabjee for the State has drawn our attention to the following passages in Nashirwar which are quoted is extenso because of the persistence of counsel on the other side in pressing their point about unbounded power In our country the history of excise shows that the regulations issued between 1790 1800 prohibited manufacture or sale of liquors without a licence from a Collector
In 1 808 a regulation was introduced in tile Madras Presidency 1  2  3  155 Which provided that the exclusive privilege of manufacturing and selling arrack should be farmed in each district
In 1820 the law was amended to authorise the treatment of toddy and other fermented liquors in the same way as spirits by allowing Collectors to retain the manufacture and sale under direct management if deemed preferable to farming
In 1884 a Committee was appointed to investigate the excise system
The recommendations of the Committee were adopted
Under the new system the monopoly of manufacture was let separately from that of sale
The former was granted on condition of payment of a fee per shop or a number of shops or on payment of a fee determined by auction
In the Bombay Presidency the monopoly of the retail sale of spirits and the right to purchase spirits was formed
In 1857 the Government declared its future policy to be the letting by auction of each shop with its still separately
In 1870 71 a change was made
The rule at that time was that the Collector would fix the number and locality of the different shops and determine their letting value according to the advantages possessed by each
It was not intended that they should as a rule be put up to public competition but competition might be resorted to by the Collector and taken into account in determining the same at which each would be leased
This rule remained in force for many years
The practice of putting the shops up to auction was thereafter followed
The history of excise administration in our country before the Independence shows that there was originally the farming system and thereafter the central distillery system for manufacture
The retail sale was by auction of the right and privilege of sale
The Government of India appointed an Excise Committee in 1905
The measures recommended by the Committee were the advances of taxation the concentration of distillation the extended adoption of the contract distillery system
The Committee suggested among other things the replacement of the then existing excise law by fresh legislation on the lines of the Madras Abkari Act
See Dr Pramatha Nath Banerjee History of Indian Taxation P 470 seq
Reference may be made to the Taxation Enquiry Commissioner Report 1953 54 Vol 3
At page 130 following there is a discussion of State excises
Among the major sources of revenue which are available to the State Government there is a duty on alcoholic liquors for human consumption
At page 132 of the Report it is stated that in addition 156 to the excise duties licence fees are charged for manufacture or sale of liquor or for tapping toddy trees etc
Similarly several fees like permit fees vend fees outstill duties are also levied
Manufacture or sale of liquor is forbidden except under licences which are generally granted by auction to the highest bidders
The manufacture of country spirit is done in Government distilleries or under the direct supervision of the excise staff
All supplies are drawn from Government warehouses which ensures that the liquor is not more than of the prescribed strength
The licensed sellers have to sell the country spirit between fixed hours and at fixed selling rates
As in the case of country spirit the right of tapping and selling toddy is also auctioned
In addition to the licence in some States the licensee has to pay a tree tax to Government
Traditionally tobacco opium and intoxicating liquors have been the subject matter of State monopoly
See section IV of the Madras Regulation XXV of 1 802 relating to permanent settlement of land revenue
Section IV states that the Government having reserved to itself the entire exercise of its discretion in continuing or abolishing temporarily or permanently the articles of revenue included according to the custom and practice of the country under the several heads inter alia of the abkary or tax on the sale of spirituous liquors and intoxicating drugs of the excise on articles of consumption of taxes personal and professional as well as those derived from markets fairs or bazars
of lakhiraj lands or lands exempt from the payment of public revenue and of all other lands paying only favourable quit rents the permanent assessment of the land tax shall be made exclusively of the said articles now recited
The excise revenue arising out of manufacture and sale of intoxicating liquors is one of the sources of State revenue as is customs and excise
In England sale of intoxicating liquors although perfectly lawful at common law is subject to certain statutory restrictions
These restrictions are primarily of two kinds those designed for the orderly conduct of the retail trade and those designed to obtain revenue from the trade r whether wholesale or retail
Trade in liquor has historically stood on a different footing from other trades
Restrictions which are not permissible other trades are lawful and reasonable so far as the trade 157 in liquor is concerned
That is why even prohibition of the trade in liquor is not only permissible but is also reasonable
The reasons are public morality public interest and harmful and dangerous character of the liquor
The State possesses the right of complete control over all aspects of intoxicants viz manufacture collection sale and consumption
The State has sight in order to raise revenue
That is the view of this Court in Bharucha s case supra and jaiswal s case  supra 
The nature of the trade is such that the State confers the right to vend liquor by farming out either in auction or on private treaty
Rental is the consideration for the privilege granted by the Government for manufacturing or vending liquor
Rental is neither a tax nor an excise duty
Rental ii the consideration for the agreement for grant of privilege by the Government pp
869 871 The guide lines
Now that we have held that the provision Section 59fv is valid on a consideration of the criteria controlling the wide words used therein there is a minor matter remaining to be disposed of
The extract from the Section as will be noticed contains a clause which runs and the closure of such premises on special occasions
Thus rules may be made by the Financial Commissioner for fixing the closure of licensed premises on special occasion 
Shri Mahajan insisted that special occasions  may mean anything and may cover any occasion dictated by humour political pressure or other ulterior considerations
It is thus a blanket power which is an unreasonable restriction on the licensee s trade
Certainly if special occasions  means any occasion which appeals to the mood of the Financial Commissioner or has other casual fascination for him the rule may suffer from arbitrary and unreasonable features
Gandhiji s birthday and also Vinobaji s birthday have been included in the licence itself Special occasions  contemplated by Sec
59f v are not stricken by such a vice for the obvious reasons we have elaborately given in the earlier part of our argument
The occasion must be special from the point of view of the bread considerations of national solemnity
public order homage to national figures the likelihood of eruption of inebriate violence On certain days on account of meals festivals or frenzied situations or periods of tension
Bapuji s birthday election day hours of procession by rival communities when tensions prevail or festivals where colossal numbers of people gather and outbreak of violence is on the agenda are clear illustrations Special occasions  cannot be equated with fanciful occasions but such as promote the policy of the statute as expounded by us earlier
There is no merit in this argument either and we reject it
158 As between temperance and prohibition it is a policy decision for the Administration
Much may be said for and against total prohibition as an American wit has cryptically yet sarcastically summed up1 The chief argument against prohibition is that it does not prohibit
This is also the chief argument in favour of it This survey of the law ways of article 19 and the police power is sufficient in our view to clinch the issue
our conclusions may now be set out
a Section 59fv of the Punjab Excise Act 1914 is perfectly valid b The regulation of the number of days and the duration of the hours when supply of alcohol by licensees shall be stopped is quite reasonable whether it be two days in a week or even more
We leave open the question as to whether prohibition of the number of days and the number of hours if it reaches a point of substantial destruction of the right to vend will be valid since that question arises in other writ petitions c The exercise of the power to regulate including to direct closure for some days every week being reasonable and calculated to produce temperance and promote social welfare cannot be invalidated on the imaginary possibility of misuse
The test of the reasonableness of a provision is not the theoretical possibility of tyranny and d There is enough guideline in the scheme and provisions of the Punjab Excise Act to govern the exercise of the power under Secs
58 and 59
In a few beer bar cases the grievance ventilated is regarding the manipulation of hours of sale
Nothing has been made out to hold that the readjustment of the hour of beer bidding is unrelated to the statutory guidelines or destructive of the business
We reject the objection
We have reasoned enough to justify the ways of the Constitution and the law to the consumers of social justice and spirituous potions
The challenge fails and the Writ Petitions Nos
4108 4109 tc
 of 1978 are hereby dismissed with costs one hearing fee
May we hopefully expect the State to bear true faith and allegiance to that Constitutional orphan article 47  N VK Petitions dismissed
1 Reconsiderations H L Meneken Anti All Kinds of Blah by Lila Ray appeared in Span Aug 1978 p 41


Summary:
The Punjab Excise Act 1914 contemplates grant of licences for trading in Indian foreign and country liquor
Section 59f v of the Act provides for the fixing of the days during which any licensed premises may or may not be kept open for sale of liquor and the closure of such premises on special occasions
The conditions of the licence includes restrictions of various types including obligation not to sell liquor on certain days and during certain hours
Rule 37a as it originally stood prohibited sale of liquor on Tuesdays upto 2 pm and also on tho 7th day of every month
This rule was amended by a notification whereby in place of Tuesdays upto 2 pm plus the 7th of every month Tuesday and Friday in every week was substituted as the days when liquor vending was prohibited
Note appended to the said rule exempted tourist bungalows and
rest houses run by the Department of tho State Government from the operation of the condition regarding closure
Consequent upon the change of days the 
Licence fee payable by a vendor was reduced from Rs 12000 to Rs 10000 to compensate for the marginal loss caused by two days  closure
The petitioners who were licensed vendors of liquor in the State challenged the constitutionality of section 59fv and the vires of Rule 37 on the ground that section 59fv vested an unguided uncanalised vague and vagarious power in the Financial Commissioner to fix the days or number of days and hours or number of hours without laying down any guidelines indicators or controlling points
The State on the other hand contended that the subject matter of the legislation being a deleterious substance liquor requiring restrictions in the direction of moderation in consumption regulation regarding the days and hours of sale and appropriateness in the matter of location of the places of sale reasonableness and arbitrariness must be tested on the touchstone of principled pragmatism and living realism Dismissing the writ petitions  HELD a Section 59fv of the Punjab Excise Act 1914 is valid
158 C 123 b The regulation of the number of days and the duration of the hours when supply of alcohol by licensees shall be stopped is quite reasonable whether it be two days in a week or more
158D c The exercise of the power to regulate including to direct closure for some days every week being reasonable and calculated to produce temperance and promote social welfare cannot be invalidated on the imaginary possibility of misuse
The test of the reasonableness of a provision is not the theoretical possibility of tyranny
158E d There is enough guideline in the scheme and provisions of the Punjab Excise Act to govern the exercise of the power under sections 58 and 59
158E 1 a The Constitutional test of reasonableness built into Article IV and of arbitrariness implied in Article 14 has a relativist touch
The degree of constitutional restriction and the strategy of meaningful enforcement will naturally depend on the Third World setting the ethos of our people the economic compulsions of today and of human tomorrow
While scanning the rationale of an Indian temperance measure it would be useful to remember the universal evil in alcohol and the particularly pernicious consequences of the drink evil in India
Societal realities shape social justice
133H 134A B b We the people of India have enacted Article 47 and we the Justices of India cannot lure it back to cancel half a life  or wash out a word of it especially when progressive implementation of the policy of prohibition is by Articles 38 and 47 made fundamental to the country s governance
138H c The Constitution is the property of the people and the court s know how is to apply the Constitution not to assess it
In the process of interpretation Part IV of the Constitution must enter the soul of Part m and the laws138H 139A State of Kerala  Others vs N M Thomas  Others  referred to
d Even restrictions under Article 19 may depending on situations be pushed to the point of prohibition consistently with reasonableness
While the police power as developed in the American Jurisprudence and Constitutional law
may not be applicable in terms to the Indian Constitutional law there is much that is common between that doctrine and the reasonableness doctrine under Article 19 of the Indian Constitution
There is also a close similarity in judicial thinking on the subject
148F G South Western Law Journal Annual Survey of Texas Law Vol
30 No 1
Survey 1976 pp
725 26
Idaho Law Review Vol 7 1970 p 131 Fatehchand Himmatlal vs Maharashtra  at 839 848 referred to
e The statutory scheme of the Act is not merely fiscal but also designed to regulate and reduce alcoholic habit
While commodities and situation dictate whether power in given statutory provisions is too plenary to be other than arbitrary or is instinct with inherent limitations alcohol is so manifestly deleterious that the nature of the guidelines is written in invisible ink
151 G H 124 f The subject matter of the legislation is a deleterious substance alcohol requiring restrictions in the direction of moderation in consumption regulation regarding the days and hours of sale and appropriateness in the matter of the location of the places of sale
If it is coal or mica or cinema the test of reasonableness will be strict but if it is an intoxicant or a killer drug or a fire arm the restrictions must be stern
Just as the difference between bread and brandy is felt in the field of trade control coal and gold are as apart from whisky and toddy as cabbages are from kings
Life speaks through law
 154D F Nashirwar vs MP State  at 869 71 referred to
2 Even if section 59 and Rule 37 were upheld in toto that does not preclude any affected party from challenging a particular executive act pursuant Thereto on the ground that such an act is arbitrary malafide or unrelated to the purposes and the guidelines available in the statute
To illustrate if the Financial Commissioner or the Excise Commissioner as the case may be declares that all liquor shops shall be opened on his birthday or shall remain closed on his Friend s death anniversary the executive order will be invalid
The law may be good but the executive action may be corrupt and then it cannot be sustained
145G H 3 The most significant social welfare aspect of the closure is the prevention of the ruination of the poor worker by drinking down the little earnings he gets on the wage day
Any government with worker s weal and their families  survival at heart will use its police power  under Article 196 read with
section 59fv of the Act to forbid alcohol sales on pay days
To save the dependent women and children of wage earners the former unamended rule had forbidden sales on the 7th day of every month the day the monthly pay packet passes into the employees  pocket
While bringing in the Tuesday Friday for biddance of sales the ban on sales on the seventh of every month was entirely deleted
The victims of the change are the weeping wives and crying children of the workers
All power is a trust and its exercise by governments must be subject to social audit and Judas exposure
146E H 4 The liquor trade is instinct with injury to individual and community aud has serious side effects recognised everywhere in every age
Not to control alcohol business is to abdicate the right to rule for the good of the people
Not to canalize the age and sex of the consumers and servers the hours of sale and cash and carry basis the punctuation and pause in days to produce partially the dry  habit it to fail functionally as a welfare state
The whole scheme of the statute proclaims its purpose of control in time and space and otherwise
Section 58 vests in government the power for more serious restrictions and laying down of principles
Details and lesser constraints have been left to the rule making power of the Financial Commissioner
The complex of provisions is purpose oriented considerably reinforced by Article 47
Old statutes get invigorated by the Paramount Parchment
Interpretation of the text of preconstitution enactments can legitimately be infused with the concerns and commitments of the Constitution as an imperative exercise
It is impossible to maintain that no guidelines are found in the Act
147D F 5 While the forensic problem is constitutional the Constitution itself is a human document
The Court has justified the ways of the Constitution and the law to the consumers of social justice and spirituous potions
128D 158G 125 6 As between temperance and prohibition it is a policy decision for the Administration
Hopefully it is expected of the State to bear true faith and allegiance to that Constitution orphan Article 47
158A G The Collected Works of Mahatma Gandhi pp 29 30
Society and the Criminal by M J Sethna 3rd Edn
P 165 166  168 69 
Society Crime and Criminal Career by Don C Gibbars p 427 428
Har Shankar  others etc
vs Dy
Excise  Taxation Commissioner  others  at 266 267 referred to
Report of the Study Team on Prohibition Vol
344 346 347