Govt Decision To Open More Liquor Shops/Bars/Parlours Cannot Be Said To Be Unconstitutional: Kerala HC [Read Judgment]

The Kerala High Court has observed that the decision of the State Government in opening more liquor shops, bars/parlours, cannot be said to be violative of Constitution of India or the statutory provisions.

The bench of Chief Justice S. Manikumar and Shaji P. Chaly observed thus while dismissing a Public Interest Litigation filed by members of the Kerala Prohibition Council, a movement, striving to thwart the menace of alcoholism in the people of Kerala. They sought a direction to regulate the sale of liquor in the State of Kerala, by adopting three ways of bringing down the sale, viz., (i) limiting the number of points of sale of liquor; (ii) limiting the time of sale of liquor and (iii) limiting the quantity of liquor that may be sold to a person per day by adopting electronic means.

The bench considered the contentions raised by the petitioners in detail and observed that the action of the respondents, in opening more liquor shops/bars/parlours etc., cannot be said to be characterized as outrageous or in total defiance of the statutory provisions. 

"Merely because, more number of shops / bars / parlours etc. are opened, it cannot be said that the fundamental rights of the women and children are affected. While considering the scope of interference by Courts in economic matters, public interest cannot be circumscribed only to the rights of women and children. Decision of the Government in opening more liquor shops, bars/parlours, cannot be said to be violative of Constitution of India or the statutory provisions. Decision does not suffer from the vice of irrationality."

"The wisdom of policy underlying a Statute is a matter for the Government. If the Statute is reasonably designed to achieve the purposes of the Act and, in the case on hand, where Sections 10, 24 and 29 of the Cochin Abkari Act,1 of 1077 as amended from time-to-time, and the provisions of the Kerala Abkari Shops Disposal Rules, 2002, enable the Government to deal with disposal of licenses to liquor shops, bars, parlours etc., action of the Government in opening more liquor shops, bars etc., cannot be said to be unconstitutional or contrary to the statutory provisions."

The petitioners had also brought to the attention of the court the election manifesto published by the LDF in which they stated that the LDF Government will adopt a policy by which availability and consumption of liquor will be brought down. The bench therefore considered the issue whether the promises made in the election manifesto of any political party can be a ground to enforce the same, by way of a writ petition under Article 226 of the Constitution of India. In this regard, the bench, referring to a judgment delivered by Delhi High Court, observed that it is not within the domain of the Court to legislate or issue a direction therefor, making the manifesto a legally binding document on the political party issuing the same.

The 174 paged judgment refers to various judgments of the Supreme Court and High Court on the issue of jurisdiction of court to interfere in the matter of state policies.

a) The State under its regulatory power conferred under Article 47 of the Constitution of India, has the power to prohibit absolutely every form of activity in relation to intoxicants - its manufacture, storage, export, import, sale and possession.
b) Laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion, etc., and the legislature should be allowed, greater play in the case of legislation dealing with economic matters.
c) The courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions unless such policy framed could be faulted on the grounds of malafide, unreasonableness, arbitrariness, unfairness, etc. If the policy cannot be faulted on any of these grounds, the mere fact that it would hurt business interests of a party, does not justify invalidating the policy.
d) The courts are not expected to express their opinion as to whether at a particular point of time or in a particular situation any such policy should have been adopted or not. It is best left to the discretion of the State
e) It is to be presumed that before a policy is formulated by a State Government, all relevant aspects and the prevailing fact situation, attending circumstances and the public interest are taken into account. Unless a policy decision ex facie conflicts with a constitutional or statutory provision, or is apparently against public interest it cannot be struck down merely on the ground that the decision is not a prudent and wise one.
f) It is for the State to decide what economic and social policy it should pursue and what discriminations advance those social and economic policies. In view of the inherent complexity of these fiscal adjustments, courts give a larger discretion to the Legislature in the matter of its preferences of economic and social policies and effectuate the chosen system in all possible and reasonable ways.
g) The Court cannot examine the relative merits of different economic policies and cannot strike down the same merely on the ground that another policy would have been fairer and better.
h) It is neither within the domain of the Courts, nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved, nor are the Courts inclined to strike down a policy at the behest of a petitioners merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical.
i) In matters of trade and commerce or economic policy, the wisdom of the Government must be respected and courts cannot lightly interfere with the same unless such policy is contrary to the provisions of the Constitution or any law or such policy itself is wholly arbitrary.
j) Unless a policy decision is absolutely capricious, unreasonable and arbitrary and based on mere ipse dixit of the executive authority or is violative of any constitutional or statutory mandate, court's interference is not called for. Policy decision is in the domain of the executive authority of the State and the court should not embark on the adequacy of public policy and should not question the efficacy or otherwise of such policy so long it falls within the constitutional limitations and does not offend any provision of the statute.
k) Government have the power to frame and re-frame, change and re-change, adjust and readjust policy, the said action cannot be declared illegal, arbitrary or ultra vires the provisions of the Constitution only on the ground that the earlier policy had been given up, changed or not adhered to. It also cannot be attacked on the plea that the earlier policy was better and suited to the prevailing situation.
l) Court does not sit as a court of appeal, but merely review the manner in which, a policy decision was taken. A fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasiadministrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness, but must be free from arbitrariness not affected by bias or actuated by mala fides.

Case details
Case name: KHADEEJA NARGEES vs. STATE of KERALA
Case no.: W.P(C).9630/2020  
Coram: Chief Justice S. Manikumar and Shaji P. Chaly 
Counsel: Advocate Thanuja Roshan George for petitioner, Sr. GP SURIN GEORGE IPE, Advocates T. NAVEEN and M. SASINDRAN, 

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