‘Bans’: An Unjust Encroachment on the Right to Freedom of Choice?

By: Kriti Sharma

Over the din of overwhelming protests of people against the state’s prerogative to decide what should be consumed (not merely edibles of course), the individual’s freedom of choice lies hanging between its somewhat unsettled constitutionality and the larger role of polity in defining it.

The Maharashtra Animal Preservation (Amendment) Bill, 1995 was finally assented to by President Pranab Mukherjee after being passed by the Maharashtra Legislative Assembly, post a period of almost 19 years. The public outcry over the beef ban, imposed by the Maharashtra government, in fact ignored that the Bill which imposed a complete ban on the slaughter of cows and their progeny had been held constitutionally valid by a seven-judge bench (the largest bench on the issue since 1958[1] till date) by the Supreme Court in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat[2], in order to give effect to Article 48 of the Constitution of India. It further ruled that a total prohibition on slaughter of any bovine animal is permitted under Article 48 of the Constitution (as they are agricultural and draught animals that are the backbone of a largely agricultural economy), without being in contravention of Article 19 (1)(g) because “the protection conferred by the impugned enactment on cow progeny is needed in the interest of the nation’s economy. Merely because it may cause “inconvenience” or some “dislocation” to the butchers, restriction imposed by the impugned enactment does not cease to be in the interest of the general public. The former must yield to the latter.”[3]

This brings us to observe that the Government of Maharashtra was actually being criticized for acting in accordance with none other than the directive principles of state policy contained in Part IV the Constitution.[4] Hence, it could definitely be argued that what the state did by enacting the legislation was, in fact, an act of complying with its foremost prerogative of applying the directive principles in its enactments for the citizens’ welfare. Further, if the Government is being criticized for performing its duty, it would logically follow that we need to examine the very content of these directive principles that impose this duty upon them and perhaps abandon them in view of their anachronistic nature in the present day by questioning the validity of the volksgeist that permitted the existence of such principles to begin with.

In doing so, the fundamental freedom of any citizen of the country, to practise any trade or profession would prevail, as would the freedom of choice of a free-thinking citizen to consume the meat he or she desires. This approach to protecting individual freedom would help us in stepping away from the stronghold of majority opinion which might not always be morally sound or constitutionally correct to which history is testament – a time when Sati was a culturally endorsed practice and abandoned only to preserve the fundamental right of a woman to live her life on her own terms. The power to bring about this reform, however, is exclusive to the Legislature, which seemingly needs to amend the directive principles and to that extent perhaps, the Constitution itself, to be able to invalidate the absolute ban on beef, with no scope for any legally valid argument in the realm of law at present.

In targeting the lawmaking bodies, we also tend to misguidedly blame political parties because of widespread media bias that tends to associate certain perceivably ‘right-wing actions’ with ‘right-wing parties’ whereas in reality, under section 33-A of the Bombay Police (Amendment) Act, 2005 which imposed a total prohibition on the existence of dance bars in the state except in 3-star hotels (as per section 33-B of the Act), in order to “protect the moral fibre of the youth from corruption” was passed under the regime of the late Mr. R.R. Patil, former National Congress Party (NCP) leader and Home Minister of Maharashtra. This ban was upheld by the Bombay High Court, but overruled by the Supreme Court on grounds of violation of Article 14, 19(1)(g) and 21 where the court made a landmark observation, stating that “the discriminatory attitude of the State is illustrated in the fact that an infringement of Sec 33-A(1) would entail the owner of the bar being imprisoned for three years but no such punishment is prescribed for establishments falling under Sec 33 (B) which would result in merely losing license and such blatant discrimination cannot be justified under Article 14 of Constitution of India. Incongruously, the State does not find it to be indecent, immoral or derogatory to the dignity of women if they take up other positions in the same establishments, such as waitress, bartender or receptionist. The woman that serves alcohol will not arouse lust in customers, but women dancing would. Sexual arousal cannot be said to be monopolized by the upper or lower classes and hence, the activities which are obscene or likely to corrupt and deprive those whose minds are open to such immoral offences, cannot be distinguished on the basis as to whether they’re being performed in five-star hotels or dance bars.”[5]

This support of woman’s right to freedom of practising any legitimate trade or profession of her own choice signified respect for the individual’s fundamental freedom of right to choose and was witnessed even when the Supreme Court struck down Section 30 of the Punjab Excise Act, 1914 which prohibited women from serving alcohol in bars, as unconstitutional for being discriminatory against women and curtailing their right to freedom of practising any trade or profession of their choice. The court boldly stated, “in fact, we find that the Section 30 of the Punjab Excise Act, 1914 applicable in Delhi state, purporting to be a special provision, has today become a hindrance and impediment to women’s careers in the hospitality industry. It’s an archaic piece of legislation reflecting the structural and social norms of the past century.”[6] They added that “no women employee will be compelled to serve in a bar in case she has any objection to such deployment.” This marked a tiny victory against the state assuming the prerogative of determining as to what ought to be practised by sex according to what it envisions of gender roles in the country.

However, in the Kerala alcohol ban, the Government of Kerala may exercise immunity from criticism on grounds of acting under its duty “to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health”[7] in a bid to “raise the level of nutrition and the standard of living and to improve public health”[8]. We have to consider at this point, the operational spaces that the legislators would have envisioned when they inserted Articles 19 and 21 in the same breath as Article 47 in the Grundnorm. The principle of harmonious construction as was long laid down by the Hon’ble Supreme Court in Raj Krishna v. Binod[9] should apply in order that neither the directive principles nor the fundamental rights overpower each other in entirety as happened in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat. However, until the directive principles are amended accordingly, a compromise to the extent of giving way to harmonious construction will have to be tolerated as evidenced in the ban on the sale of alcohol in Kerala for the sake of not penalizing a government that in fact is acting on the principles laid down in the Constitution.

What needs to be addressed, however, is the state’s blind submission to historical influence in deriving legislation from culture, with no regard to circumstances when such legislation appears unjust or contrary to reason. For instance, in the extremely contentious case of Suresh Kumar Koushal v. Naz Foundation[10], the constitutional validity of Section 377, Indian Penal Code 1860 was challenged, for punishing “voluntary carnal intercourse against the order of nature with man, woman or animal”.  The court held that this provision was not violative of Article 14 or 21 of the Constitution stating that “right to privacy under Article 21 is not absolute and subject to certain restrictions”, and relegated the conscious, free, voluntary and consensual decision to have sexual relations with a member of the same gender to an “unnatural” human act, driven by the collectivist culture of a nation that preys on morality of a decision which should otherwise remain entirely a choice of an adult citizen and nothing more.

Perhaps we have reached a point in the legal evolution of our country where we need to start moving away from the collectivist approach towards law, which justifies its continuance merely on the basis of its cultural acceptability and start respecting the individual’s inviolate right to freedom of choice to live a life of dignity. High time, already.

[1] Mohd Hanif Quareshi v State of Bihar AIR 1958 SC 731.

[2] (2005) 8 SCC 534.

[3] ibid.

[4] Constitution of India 1950, art 37.

[5] State of Maharashtra v Indian Hotel and Restaurants Association and Ors (2013) 8 SCC 519, paras 116-122.

[6] Federation of Restaurant and Hotel Association of India v Union of India (1989) 3 SCC 634.

[7] Constitution of India 1950, art 47.

[8] ibid.

[9] AIR 1954 SC 587.

[10] (2014) 1 SCC 1.

(Kriti is currently Associate Editor at RMLNLU Law Review.)