IMPORTANT POINT
All rights under Article 19(1) of the Constitution are not absolute, as they are qualified by the respective clauses (2) to (6) of Article 19

Headnote:(a) Judicial Review – Judicial review is justified only if policy is arbitrary, unfair or violative of fundamental rights – Courts must be loathe to venture into an evaluation of State policy – It must be given a reasonable time to pan out – If a policy proves to be unwise, oppressive or mindless, electorate has been quick to make the Government aware of its folly. (Para 30)
       Case Law – Census Commissioner v. R. Krishnamurthy (2015) 2 SCC 796 – Referred.
       (b) Abkari Act, 1077 – S.10 and 24 to 29 – Sale of Indian Made Foreign Liquor (IMFL) – Writ petitioners, which include hotels which have been classified as Two Star, Three Star, Four Star and Heritage hotels, challenged the Abkari Policy for the year 2014-15 as well as the amendments to the Foreign Liquor Rules – Learned Single Judge carved out an exception vis-a-vis the eligibility of Four Star and Heritage category hotels to the grant of FL-3 licence, finding their exclusion to be arbitrary and violative of Article 14 of Constitution – All rights under Article 19(1) of the Constitution are not absolute, as they are qualified by the respective clauses (2) to (6) of Article 19 – A right under Article 19(1)(g) to trade in liquor does exist provided the State permits any person to undertake this business – Judgment of Single Judge reversed in appeal preferred by State and consequently held only Five Star hotels in State of Kerala permitted to serve alcohol in their bars i.e. in public – Free trade in alcohol denudes family resources and reserves and leaves women and children as its most vulnerable victims – Purchasing alcohol from a FL-1 shop would entail consuming it under the reproachful gaze of the dependants, especially the female members of the family – This is certainly a discouragement to regular and excessive consumption of alcohol – Intention to prohibit public consumption of alcohol even in Four Star and Heritage hotels – It is not State which imposed classification of Star gradation of hotels – This is done by Ministry of Tourism, which in turn is further guided by criteria established in the hospitality trade – Placing a moratorium on all hotels other than Five Star hotels, therefore, is not a violation of Article 14 of Constitution – Plea of Appellants pertaining to impermissibility of sub-classification on grounds that Section 15C of the Abkari Act creates a composite class of public places not acceptable – No illegality or irrationality with intention of State to clamp down on public consumption of alcohol – Challenge to this policy in respect of Three Star hotels and below has been repulsed – Business in potable liquor is in nature of res extra commercium and would therefore be subject to more stringent restrictions than any other trade or business. (Paras 24 to 30)
       Facts of the case:
       Writ petitioners, which include hotels which have been classified as Two Star, Three Star, Four Star and Heritage hotels, challenged the Abkari Policy for the year 2014-15 as well as the amendments to the Foreign Liquor Rules. While dismissing the writ petitions, the learned Single Judge carved out an exception vis-a-vis the eligibility of Four Star and Heritage category hotels to the grant of FL-3 licence, finding their exclusion to be arbitrary and violative of Article 14 of the Constitution. This holding resulted in the filing of appeals on behalf of the State. The impugned Judgment has reversed this conclusion of the learned Single Judge and consequently only Five Star hotels in the State of Kerala are presently permitted to serve alcohol in their bars i.e. in public.
       The Abkari Act, 1077 was introduced in the erstwhile State of Cochin in 1902 and came to be extended throughout the State of Kerala in 1967. The Foreign Liquor Rules were promulgated by virtue of Sections 10 and 24 to 29 of the Abkari Act, relating to the sale of Indian Made Foreign Liquor (IMFL). As at present, the private sector is not permitted to manufacture IMFL and there is only one State owned distillery. Previous to the extant policy, FL-1 licences i.e. retail of licence sale of foreign liquor, were auctioned by the State to private parties, which practice, as is obvious, has been discontinued. It may also be relevant to mention that the State of Kerala made a futile foray into prohibition, but this was withdrawn in 1967. The existence of a Union Territory, Mahe, within the State of Kerala, and boundaries with the States of Karnataka and Tamil Nadu where the sale or consumption of liquor is not prohibited indubitably makes it almost impossible for the State to venture into prohibition.
       It has not been disputed that the State of Kerala is facing an acute social problem because of the widespread and excessive consumption of alcohol. It appears that almost 14 per cent of the national consumption of alcohol occurs in this comparatively territorially small State (indeed a dubious distinction), which also justifiably boasts of 100 per cent literacy. Faced with this social malaise, the State Government appears to have considered that banning the consumption of hard alcohol in public may have the effect of bringing down and arresting the ever escalating addiction to liquor.
       Findings of the case: No illegality or irrationality with the intention of the State to clamp down on public consumption of alcohol.
       Result : Appeal dismissed. Impugned Judgment upheld.

JUDGMENT :

Vikramajit Sen, J.

1. These Appeals call into question the legal correctness of the Judgment of the Division Bench of the High Court of Kerala dated 31.3.2015 by which several Writ Appeals filed by some of the Writ Petitioners assailing the Judgment of the learned Single Judge came to be dismissed and the Writ Appeals filed by the State came to be allowed. The writ petitioners, which include hotels which have been classified as Two Star, Three Star, Four Star and Heritage hotels, challenged the Abkari Policy for the year 2014-15 as well as the amendments to the Foreign Liquor Rules. While dismissing the writ petitions, the learned Single Judge carved out an exception vis-a-vis the eligibility of Four Star and Heritage category hotels to the grant of FL-3 licence, finding their exclusion to be arbitrary and violative of Article 14 of the Constitution. This holding resulted in the filing of appeals on behalf of the State. The impugned Judgment has reversed this conclusion of the learned Single Judge and consequently only Five Star hotels in the State of Kerala are presently permitted to serve alcohol in their bars i.e. in public.

2. The Abkari Act, 1077 was introduced in the erstwhile State of Cochin in 1902 and came to be extended throughout the State of Kerala in 1967. The Foreign Liquor Rules were promulgated by virtue of Sections 10 and 24 to 29 of the Abkari Act, relating to the sale of Indian Made Foreign Liquor (IMFL). As at present, the private sector is not permitted to manufacture IMFL and there is only one State owned distillery. Previous to the extant policy, FL-1 licences i.e. retail of licence sale of foreign liquor, were auctioned by the State to private parties, which practice, as is obvious, has been discontinued. It may also be relevant to mention that the State of Kerala made a futile foray into prohibition, but this was withdrawn in 1967. The existence of a Union Territory, Mahe, within the State of Kerala, and boundaries with the States of Karnataka and Tamil Nadu where the sale or consumption of liquor is not prohibited indubitably makes it almost impossible for the State to venture into prohibition.

3. It has not been disputed that the State of Kerala is facing an acute social problem because of the widespread and excessive consumption of alcohol. It appears that almost 14 per cent of the national consumption of alcohol occurs in this comparatively territorially small State (indeed a dubious distinction), which also justifiably boasts of 100 per cent literacy. Faced with this social malaise, the State Government appears to have considered that banning the consumption of hard alcohol in public may have the effect of bringing down and arresting the ever escalating addiction to liquor. But we must immediately record our reservation inasmuch as FL-11 licences for the sale of consumption of beer and wine are rampantly issued. If the addiction to alcohol or introduction into this pernicious habit is to be combated, there seems to us to be no justification to allow beer or wine to be publically consumed. There cannot be any caveat to the opinion that permitting the consumption of beer and wine is a gateway to the consumption of hard liquor, and indeed is a social malaise in itself. In 1992, the grant of FL-3 licence was restricted to hotels having Two Star and above classification. This was followed in 1996 by the banning of sale of arrack. In 2002, Rule 13(3) was amended thereby restricting grant of FL-3 licences to hotels possessing Three Star and above ratings; existing Two Star hotels possessing FL-3 licences were however renewed on the understanding that this was their bounden right. This policy was taken to the courts and was eventually settled by the decision of this Court in State of Kerala v. B.Six Hotels Resort Private Ltd. 2010 (5) SCC 186 which had upheld that policy. Obviously encouraged

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2015 Supreme(SC) 1216

IMPORTANT POINTAll rights under Article 19(1) of the Constitution are not absolute, as they are qualified by the respective clauses (2) to (6) of Article 19

Cases Referred (9)

IMPORTANT POINT
All rights under Article 19(1) of the Constitution are not absolute, as they are qualified by the respective clauses (2) to (6) of Article 19