Case ID: 3860

Judgment:
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 W.P. 4021/78 for the Petitioners. Yogeshwar Parshad and Mrs. Rani Chhabra in W.P. 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 W.P. 4049 63	 4080 91	 4108 to 4111/78. K K. Mohan	 section K. Sabharwal	 Pramod Swarup and Shreepal Singh for the Petns. in W.P. 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 W.P. Nos. 4190 92 and 4226 of 1978. O. P. Sharma for the Petitioner in W.P. 4226/78. K. B. Rohtgi for the Petitioners in W.P. 3975 76 and 4274 75/ 78. O. P. Singh in W.P. 966 71 of 1978 for the Petitioners. A. L. Trehan for the Petitioner in W.P. 4100/78. section K. Sabharwal for the Petitioner in W.P. 4214/78. M. Qamaruddin for the petitioner in W.P. 4193 of 1978. R. K. Jain	 K. K. Mohan and Rajiv Dutt	 L. R. Singh for the Petitioners in W.P. 4271 73/78. section N. Kacker	 Sol. Genl.	 O. P. Rana for the State of U.P. Soli J. Sorabjee Addl. of India and Hardev Singh for the State of Punjab	 J. D. Jain and B. R. Kapoor in W.P. Nos. 4242 4244	 4247 4228	 4209 and 4308 of 1978. B. R. Kapoor and section K. Sabharwal for the Petitioners in W.P. 4150 4254/78. M. P. Jha for the Petitioner in W.P. 4252/78. section K. Sabharwal for the Petitioner in W.P. 4245	 4253 and 4310/78. Shreepal Singh for the Petitioners in W.P. 4235/78. 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 59(f)(v) 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 59(f)v) 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 p.m. 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 p.m. 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. 12	000/ to Rs. 10	000 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 59(f)(v) 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 19(g) 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 justice.(1) 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 societal.(2) 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 19(g) read with article 19(6). 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 A.E. Houseman(1): ' "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 64	520 to 47	027. According to Evangeline Booth	 the Commander of the Salvation Army	 "In New York before prohibition	 the Salvation Army would collect from 1	200 to 1	300 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	 D.C. 76.5 % of all arrests in 1965 were for drunkenness	 disorderly conduct and vagrancy	 while 76.7% of the total arrests in Atlanta were for these reasons(1) 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 murder.(2) 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 P.23. (2) crime in a complex society by Richard D. Knudten P.138. (3) Report of the study Team on Prohibition Vol. L. P. 344. (4) Ibid p.34s. (5) Ibid p.345. (6) Report of the Study Team on Prohibition vol. I. P.347. 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 pp.29 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 Committee(1) 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 notwithstanding(2). 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 win.(1) 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 ago.(3) 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 520SCI/78 138 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 & Ors.(1) 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 S.C.R. 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 8(a) 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 20(1) 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 34(1) 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 35(2)	 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 59(f)(v) and Rule 37 before and after the impugned amendment: "59(f)(v). 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 37(9). 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 p.m. 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 37(9). 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 S.C.R. 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	 C.J. in Krishna Kumar Narula etc. vs The State of Jammu & Kashmir & ors.(I) 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 S.C.R. 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 59(f)(v) 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 19(1)(g) and is not saved by article 19(6). 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 59(f)(v) 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 19(6) read with Sec. 59(f)(v) 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 Castes.(1) 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 59(f)(v) '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] 1.S.C.R. 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 (f)(v)] 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	 C.J.	 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 19(1) (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	 i.e.	 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 Co.v. A.V. 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 Bombay(1) 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 [Sec.59(f)(v)] must offend against Art.14 of the Constitution. (See Saghir Ahmed 's case)(2) 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 19(1)(g). Patanjali Sastri	 C.J.	 in V. G. Row 's case observed(2) "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. Seshadri	(4) dealt with unreasonable restrictions on showing of films by theatre owners and struck down the provisions. Similarly	 in Harichand(5) 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 19(1)(g)". (1) (2) ; (3) ; (4) [1955]1 S.C.R. 686. (S) LALA Hari Chand Sarda vs Mizo District Council & Anr [1967]1 S.C.R. 1012 11 520 SCI/78 154 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	 C.J. 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 Nashirwar(1) 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 (3)is 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 59(f)(v)] 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. 59(f) (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 up(1): "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 59(f)(v) 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 V.K 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 59(f) (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 37(a) as it originally stood prohibited sale of liquor on Tuesdays upto 2 p.m. and also on tho 7th day of every month. This rule was amended by a notification whereby in place of "Tuesdays upto 2 p.m. 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. 12	000/ to Rs. 10	000/ 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 59(f)(v) and the vires of Rule 37 on the ground that section 59(f)(v) 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 59(f)(v) 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 laws.[138H	 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 M.P. 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 19(6) read with. section 59(f)(v) 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