DICTATION EXERCISE-65

          The sale of liquor has been prohibited by the Central Government in exercise of powers under the Disaster Management Act, 2005. The ban raises the question of the expanse of this enactment. How much inflation of ambit would be constitutionally permissible, given that our Constitution is federal in character and involves an elaborate distribution of powers in the Seventh Schedule, as also the fact that except for the exercise of powers under Article 356, the state governments cannot be superseded? The objective of the Disaster Management Act, 2005, is to deal with disasters, their impact, and all steps necessary to alleviate, remedy and rehabilitate. The object limits the ambit of the Act. It does not matter how wide the phraseology¹²⁰ of the provisions is. The object or purpose of the Act sets the limit. In an important court case judgement¹⁴⁰ in 2016, the Supreme Court had observed that purposive construction¹⁵⁰ is today’s golden rule of interpretation. If that is¹⁶⁰ so, can the Central Government prohibit the sale of liquor even though the sale of essential and non-essential goods has been permitted? Let us look at the three lists in the Seventh Schedule of the Constitution. Entry 8 in the State List, read with Article 246, gives exclusive power to the states to legislate and execute with respect to the manufacture, production, distribution and sale of liquor. The Central Government has no power in this respect. It cannot encroach upon the²⁴⁰ legislative domain of the states. How does the Disaster Management Act empower the Centre to impose a temporary ban on the sale of liquor during the fight with coronavirus pandemic?

The Centre can rest its case on entry 29 of²⁸⁰ the Concurrent List which enables it to deal with the epidemic. It may bring in the residuary entry 97 in³⁰⁰ the Central List to deal with disasters. The residuary entry operates only when there are no express entries in³²⁰ any list. Neither of these entries would displace entry 8 of the State List. If necessary, the Centre can prohibit all sales or some sales to deal with the pandemic disaster. But if retail and wholesale sales of essential articles as³⁶⁰ well as non-essential articles and food deliveries are allowed, can the retailers be prevented from supplying liquor? It is difficult to comprehend how the home delivery of liquor, particularly foreign liquor or IMFL, would result in the spread of coronavirus. It is a non-essential commodity which can be supplied to homes on demand after wearing masks and gloves. Notably, the⁴²⁰ supply of liquor presents a vital source of revenue, along with sales tax. The states need funds to remain functional and to discharge their duties, even those with respect to⁴⁵⁰ COVID-19. Managing a pandemic disaster brings in elements of centralization in an otherwise federal framework of our constitutional governance, but only to enable the Central Government to deal with the⁴⁸⁰ pandemic. The Disaster Management Act, 2005, cannot totally disrupt the states’ plenary jurisdiction as a federal partner. In fact, this enactment is itself carrying a federal structure for dealing with the pandemic. However, if the goods to be supplied are selected for prohibition, irrespective of linkage to pandemic management or proximate nexus with it or the classification and selection of goods for continued prohibition is palpably arbitrary, then it becomes unconstitutional.

The prohibition of liquor supply is in exercise of⁵⁶⁰ an executive power under the Disaster Management Act. The executive needs to satisfy the rationality and proportionality test. In this case, where the supplier is willing to comply with the precautionary norms and is in a position to do so, ⁶⁰⁰ the continued ban on supply of liquor in any form is clearly and manifestly arbitrary.  There is no justification for treating it differently from other non-essentials. There seems to be an oversight that this good is in the exclusive jurisdiction⁶⁴⁰ of the states and its sale is much needed for the revenue of a state. It adversely impacts the state’s economy as well as the fight against the pandemic. It is said that there is domestic violence on account of the consumption of liquor. If allowed in the present times, it would increase violence. But this is a matter⁷⁰⁰ for the states to consider for imposing a permanent ban. It is not a disaster management issue. It is said that⁷²⁰ the poor would divert his little income to liquor. For this reason, the whole society should be deprived, else there would be a charge of discrimination. This too, is for⁷⁵⁰ the states to consider while devising excise policy and rules. It may temporarily withhold supply of country liquor or raise its prices. Assuming that there is power micro-managing, selection of products by the Central Government is not a good idea. The states execute at the ground level and the situation⁸⁰⁰ of coronavirus spread in each state is different. Even within the states, there are areas where there is little or no impact or the situation is getting better. Hence, at the micro level, the states should be left alone to⁸⁴⁰ decide for themselves. It may be noted that the financial condition of the states is grim. The excise duty source needs to be revived. This will also help the Centre as the demand from the states for funds will reduce. Federal cooperation and federal freedom are essential for the economic revival of India.

Earlier, this month, the United Nations Secretariat⁹⁰⁰ held a meeting of a group of countries on regional efforts to support peace in Afghanistan. Countries included in this group were China, Iran, Pakistan, Tajikistan, Turkmenistan, Uzbekistan, the United States, Russia and Afghanistan itself. India was conspicuous by its absence from the meeting on April 16, given its historical and strategic ties with Afghanistan. But this was not the⁹⁶⁰ first time it had happened. In December 2001, the Indian team arrived in Germany where the famous Bonn agreement was⁹⁸⁰ negotiated. The Indian team found that no reservations had been made for them at the official venue. In January 2010, India was invited to attend the London Conference on Afghanistan, but left out of the room during a crucial meeting that decided on opening talks with the Taliban. In 2020, the reason given for keeping India out of regional discussions on Afghanistan was ostensibly that it holds no boundary with¹⁰⁵⁰ Afghanistan. But in fact it is because New Delhi has never announced its support for the US-Taliban peace process. However, in both 2001 and 2010, India fought back its exclusion¹⁰⁸⁰ successfully. At the Bonn agreement, the Indian Ambassador was widely credited for ensuring that Northern Alliance leaders came to a consensus to accept Hamid Karzai as the Chairman of the interim arrangement that replaced the Taliban regime. After the 2010¹¹²⁰ conference, New Delhi redoubled its efforts with Kabul. In 2011, Prime Minister Manmohan Singh and Afghanistan President Karzai signed the historic Strategic Partnership Agreement, which was Afghanistan’s first such agreement with any country. 

As planners in South Block now consider their next steps in Afghanistan, they must fight back against the idea that any lasting solution in Afghanistan can be discussed without India in the room, while also studying the reasons for such exclusions. To begin with, India’s resistance to¹²⁰⁰ publicly talking to the Taliban has made it an awkward interlocutor at any table. Its position that only an Afghan-led, Afghan-owned, and Afghan-controlled process can be allowed, is a principled one, but has no takers. Kabul does not own or control the reconciliation process today, comprising the US-Taliban negotiation for American troops’ withdrawal, and intra-Afghan talks on power sharing. The¹²⁶⁰ US-Taliban peace deal means that the Taliban, which has not let up on violent attacks on the Afghan Army, will¹²⁸⁰ become more potent as the US withdraws soldiers from the country. It will hold more sway in the inter-Afghan process also, as the US withdraws funding for the Government in Kabul. New Delhi’s decision to put all its eggs in the Kabul basket has had a two-fold effect. Firstly, its voice in the reconciliation process has been limited; and secondly, it has weakened India’s position with other leaders of the¹³⁵⁰ deeply divided democratic setup in Kabul. Meanwhile, India’s presence inside Afghanistan, which has been painstakingly built up since 2001, is being threatened afresh by terror groups such as the ISKP, believed to be backed by Pakistan. Intercepts showed that the brutal attack in March that killed 25 people at a¹⁴⁰⁰ gurudwara in Kabul was meant for the embassy in Kabul, and intelligence agencies had warned of suicide car bomb threats to the consulates last December. While the Government has said the novel coronavirus pandemic prompted its decision to clear out¹⁴⁴⁰ both consulates this month, the truth is that a full security reassessment is under way for them. Either way, India’s diplomatic strength in Afghanistan should not appear to be in retreat just when it is needed the most. The Government must also consider the damage done to the vast reservoir of goodwill India enjoys in Afghanistan because of recent events¹⁵⁰⁰ in the country, especially the controversy over the Citizenship (Amendment) Act. The building blocks of that goodwill are India’s assistance in infrastructure projects, healthcare, education, trade and food security, and also in the liberal access to Afghans to study, train and work in India. Above all, it is India’s example as a pluralistic, inclusive democracy that inspires people. Many of Afghanistan’s majority-Muslim citizens have treated India as a second home. But they have felt cut out of the move to offer fast-track citizenship to only Afghan minorities. Not only this, they are also hurt by reports of anti-Muslim rhetoric and¹⁶⁰⁰ incidents of violence in India.