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10 | THE HINDU MONDAY, JANUARY 4,2016

NOIDA/DELHI

CMYK

ND-ND

EDITORIAL

monday, january 4, 2016

CARTOONSCAPE

As virtually its last signifi-cant act of 2015, on Decem-ber 29, the Supreme Courtof India delivered its judg-ment on the validity of Ker-ala’s newest liquor policy,which seeks to prohibit thesale and service of alcohol

in all public places, save bars and restaurantsin five-star hotels. Regardless of what our re-spective moral positions on policies of pro-hibition might be, and regardless of the po-

tential efficacy of such programmes, the newlaw, as is only plainly evident, militatesagainst the fundamental promise of equalconcern and treatment under the Constitu-tion. In placing five-star hotels on a pedestal,the law takes a classist position, and commitsa patent discrimination that is really an af-front to the underlying principles of our de-mocracy. Regrettably, though, the SupremeCourt’s judgment, in The Kerala Bar Hotels

 Association v. State of Kerala, eschews eventhe most basic doctrines of constitutional-ism, and, in so doing, allows the state to per-petrate a politics of hypocrisy.

Kicking off the excise policy

Since 2007, the Kerala government hassought to tighten its  Abkari (excise) policywith a view to making liquor less freely avail-able in the State, ostensibly in the interest of public health. At first, the State sought toamend the policy by permitting new bar li-cences to be granted only to those hotels thatwere accorded a rating of three stars or moreby the Central government’s Ministry of Tourism. In 2011, these rules were further

changed. This time, all hotels that had a rat-ing of anything below four stars were disen-titled from having a licence issued to servealcoholic beverages on their premises. How-ever, those hotels with existing licences wereaccorded an amnesty, which permitted themto have their licences renewed even if theydid not possess a four-star mark.

The Supreme Court held, in a convolutedjudgment, in March 2014, that the deletion of three-star hotels from the category of hotelseligible for a liquor licence was, in fact, con-stitutionally valid. The court provided a rath-er bizarre rationale for what appeared to be apalpable act of favouritism. Even hotels with-out a bar licence, it said, were entitled tothree-star statuses under the Ministry of Tourism’s rules and regulations.

In August 2014, the Kerala governmentsought to further intensify its Abkari policy,by making its most drastic change yet, in pur-portedly trying to enforce complete prohib-ition. Only hotels classed as five star and

above, by the Union government’s Ministryof Tourism, the new policy commanded,would be entitled to maintain a bar licence.To give effect to this rule, the Abkari Act, apre-constitutional enactment that was ex-tended in 1967 to Kerala, was duly amended,and the State’s excise commissioners issuednotices to all hotels of four stars and below,which served liquor, intimating them of theannulment of their respective bar licences.

The new policy was immediately chal-lenged in a series of petitions filed in the Ker-ala High Court by hotels of various differentdenominations. In May last year, after a divi-sion bench of the High Court had ruled in fa-vour of the State, the hotels filed appeals be-fore the Supreme Court. They raised twoprimary grounds of challenge, both predicat-

ed on fundamental rights guaranteed underPart III of India’s Constitution.

Fundamental rights

First, the hotels submitted that in cancell-ing their bar licences, and in prohibitingthem from serving and selling liquor on theirpremises, the State had infracted their right,under Article 19(1)(g), to practise any profes-sion, or to carry on any occupation, trade orbusiness. Second, they pleaded, in separatelycategorising hotels of five stars or more, andin permitting those hotels alone to serve li-quor in public, the new  Abkari policy hadmade an unreasonable classification, bytreating persons on an equal standing un-equally, and therefore violated Article 14 of the Constitution.

The first argument was admittedly goingto be a difficult one to maintain. The liberty

to freely carry on any trade or business issubject to reasonable restrictions that maybe imposed by the state in the interest of thegeneral public. The Constitution itself, in Ar-ticle 47, requires States to make an endeavourtowards improving public health, includingby bringing about prohibition of the con-sumption of liquor. Therefore, quite natural-ly, any policy in purported furtherance of such goals would almost always be viewed asa legitimate limitation on any freedom to dobusiness. In fact, in 1994, a constitution benchof the Supreme Court, in Khoday Distilleries

 Ltd. v. State of Karnataka, explicitly ques-tioned whether any right to trade in alcoholicbeverages even flowed from ourConstitution.

“The State can prohibit completely the

trade or business in potable liquor since li-quor as beverage is res extra commercium,”wrote Justice P.B. Sawant. “The State may al-so create a monopoly in itself for trade orbusiness in such liquor. The State can furtherplace restrictions and limitations on suchtrade or business which may be in nature dif-ferent from those on trade or business in arti-cles res commercium.” Therefore, the court,in The Kerala Bar Hotels Association case,perhaps, had little choice but to hold the Ab-kari policy as being in conformity with theright under Article 19(1)(g).

Such a holding, though, ought not to haveprecluded the court from scrutinising the li-quor policy with further rigour. The merefact that a commodity is res extra commerci-um — a thing outside commerce — does notgive the state absolute power to make laws onthe subject in violation of the guarantee of 

equal treatment. While a law might repre-sent a valid constraint on the freedom totrade, it nonetheless must confirm to otherconstitutional commands, including Article14, which assures us that the state shall notdeny to any person equality before the law orthe equal protection of the laws within theterritory of India.

The point of classification

Equality, as the legal philosopher RonaldDworkin once wrote, is a contested concept.

But it is however, in its abstract form, a so-lemn constitutional pledge that underpinsour democracy. The Supreme Court, in someof its earliest decisions, interpreted Article 14as forbidding altogether any law that seeks tomake distinctions based on class, exceptwhere reasonable classifications are made ina manner that does no violence to the provi-sion’s core promise. The court also crystal-lised a basic two-prong test to determinewhat constitutes such a classification: theremust be, it held, an intelligible differentia,which distinguishes persons or things thatare grouped together from others left out of the group, and this differentia must have a ra-tional relation to the object sought to beachieved by the law in question.

Hence, in determining whether Kerala’s Abkari policy violated the right to equality,the question was rather simple: has the Statemade a reasonable classification in conso-nance with Article 14 by permitting only five-star hotels and above to serve liquor? Whenwe apply the test previously laid down by theSupreme Court, there is little doubt that thedistinction that the policy makes between

hotels on the basis of their relative offer ing of luxuries constitutes a discernible intelligibledifferentia between two classes of things. Buta proper defence of the law also requires thegovernment to additionally show us how thisclassification of five-star hotels as a separatecategory bears a sensible nexus with the ob-ject of the law at hand. The changes in the li-quor policy were ostensibly brought throughwith the view of promoting prohibition, andthereby improving the standard of publichealth in the State. Now, ask yourself this:how can this special treatment of five-starhotels possibly help the Kerala governmentin achieving these objectives?

The Supreme Court, as it happened, madeno concerted effort to answer this question.This could be because, however hard wemight want to try, it’s difficult to find any co-gent connection between classifying five-star hotels separately and the aim of achiev-ing prohibition. The court, therefore simplysaid, “There can be no gainsaying that theprices/tariff of alcohol in Five Star hotels isusually prohibitively high, which acts as a de-terrent to individuals going in for binge or

even casual drinking. There is also littlescope for cavil that the guests in Five Star ho-tels are of a mature age; they do not visitthese hotels with the sole purpose of con-suming alcohol.” Given the palpable inade-quacies of such a justification — and also giv-en its validation of a manifestly classistposition — the court also used the State gov-ernment’s excuse of tourism as a further ruseto defend the law. But when a policy exists topromote the prohibition of the consumptionof liquor, it’s specious to use an extraneousconsideration, in this case, tourism, to de-fend a classification made in the law, regard-less of how intelligible such a classificationmight be.

Prohibition often has a polarising effect onthe polity. But the criticisms of the ineffectu-ality of such policies apart, Kerala’s new lawought to have been seen for what it is: pater-nalism, at its best, and, at its worst, an exten-sion of an ingrained form of classism that isdemonstrably opposed to the guarantee of equality under our Constitution. The judg-ment in The Kerala Bar Hotels Associationcase is therefore deeply unsatisfactory, andrequires reconsideration.

(Suhrith Parthasarathy is an advocate practising in the Madras High Court.)

Regardless of what our respective moral positions on policies of prohibition might be, andregardless of the potential efficacy of such programmes, the judgment on the validity of Kerala’s liquor policy militates against thefundamental promise of equal concern andtreatment under the Constitution

When a policy exists to promote the prohibition of the

consumption of liquor, it is specious to use an extraneous

consideration — tourism — to defend a classification made in

the law, regardless of how intelligible this might be.

 All in the spirit of equality

 W ithin the short space of a month, PrimeMinister Narendra Modi and his govern-ment have gone through the entire cycle of India-Pakistan ties, as they have played for

the past two decadesever since the two countries agreed toa composite, structured dialogue between them. Therehasbeen talks about talks, talks about terror, a brief moment of euphoria with gestures of renewing ties from the leaders,followed by an attack. While Mr. Modi’s Lahore landingwas certainly bold, it has not yet proven to be the game-changer that perhaps he too hoped it would be. Instead, thesame kind of terrorist attack that has always accompaniedIndia-Pakistan engagement hit Pathankot in the earlyhours of Saturday. As with similar attacks in the past, itshould not surprise anyone if the terrorists came from Pa-kistan, and belonged to an anti-India group the Pakistaniarmy has neatly sidestepped in its otherwise fairly success-ful crackdown on terrorists in the past year. Frustrated bytheir inability to hurt India, the Jaish-e-Mohammad (JeM),the Lashkar-e-Toiba (LeT) and others have tried to retaintheir relevance by instead targeting the India-Pakistan dia-logue process time and again. By not calling off talks imme-

diately after the attack, the Modi government seems tohave indicated it will not allow these groups the satisfac-tion of achieving those aims. A sustained dialogue is theonly fitting answer to terrorist groups and to their handlersinside the Pakistan establishment who wish to destabilisethe peace process. In fact, External Affairs Minister Sush-ma Swaraj told Parliament last month that India would not“be provoked by saboteurs who want to stop the dialogueprocess in one way or another”.

Going forward, the talks process must be further insulat-ed from the ‘veto’ of these forces. First, the foreign secretar-ies must move quickly to set up a timetable of meetings of all the secretaries in the two countries involved in the com-prehensive dialogue. The process will receive momentumif India and Pakistan agree to a resolution on what are oftencalled the “low-hanging fruit” of issues such as visas, confi-dence building measures on the Line of Control, water is-sues and the Sir Creek dispute. The more issues they areable to agree on, the greater their chances of addressing thesingle largest issue that holds back ties today, that of terror-ism. On this, it is for Pakistan to show its good intentions,by acting against the JeM and LeT, both in court and on theground in Punjab where they run extensive militias. India

must stay the course it has set in the past month, includingduring the National Security Adviser talks, where it has de-livered its message firmly, but quietly, with no hint of theone-upmanship that can hamper engagement. These ac-tions will pave the road that was opened by the two PrimeMinisters on Christmas day, allowing them to slice throughthe proverbial Gordian knot on India-Pakistan ties, ratherthan having to disentangle the ends that constantly threat-en to strangle peace in the subcontinent.

Stay the course

after Pathankot

 The death sentence handed out to two studentslast week for the murder of a secular blogger inBangladesh marks the first major verdict in astring of cases related to the killings of writers

in the South Asian nation. Ahmed Rajib Haider, 35, washacked to death by machete-wielding attackers in Febru-ary 2013. The judge at a fast-track court found that the twostudents and another man were guilty of murder and con-

victed another five people on lesser charges. Haider’smurder had opened a new phase of violence in Bangla-desh’s contemporary history. A number of secular writershave been targeted by Islamists ever since. In 2015 alone,five writers were killed in the country. Bloggers are vic-tims of an ongoing conflict between the country’s secularestablishment and Islamist factions. The Awami Leaguegovernment’s decision to open a trial of the war crimescommitted during the country’s 1971 liberation war did notgo down well with Islamists. The conviction of some of the leaders of the opposition parties such as the Bangla-desh Nationalist Party and the Jamaat-e-Islami made mat-ters more complicated. Extremist sections are steadfastlyopposed to the trial, but they lack the political capital tobuild a popular resistance against it. Therefore, they turn-ed towards violent protests against the war crimes trial,which created serious law and order problems in thecountry.

It was against this background that right-wing fringegroups such as the Ansarullah Bangla Team started target-ing writers. The bloggers, who consistently campaignedagainst the war criminals and demanded their executions,invited the wrath of Islamists. The government of Prime

Minister Sheikh Hasina had initially faced criticism fornot doing enough to stop violence against writers. Now,with a relatively fast conclusion of the trial of Haider’smurder case and the passing of the highest possible puni-shment to the convicts, the government appears to be up-ping the ante against the Islamists. The government’s re-solve to bring the attackers to book is timely. But at thesame time there are questions over the worsening securitysituation which allows the extremists to carry out attacksand, more important, the government’s increased relianceon the death penalty to address the Islamist threat. Dha-ka’s primary challenge is to prevent any such incidentstaking place again. Islamists have apparently issued a “hitlist” of bloggers, threatening to kill them all. Given the re-cent cycle of violence, Thursday’s verdict could triggermore attacks by extremist groups. The governmentshould not lower its guard. As regards the death penalty, itis worth noting that the hanging of war criminals has donelittle in weakening Islamist polit ics in the country. Even inthe case of bloggers murders, long prison terms would beideal which would not only strengthen the government’smoral position in this conflict with Islamist radicals, butwill also weaken the latter’s narrative that the state is wag-

ing a war against them. Bangladesh needs a comprehen-sive strategy to fight Islamists, because the latter’s target isnot merely writers, but the country’s secular polity itself.

Bangladesh’sIslamist challenge

Terror at Pathankot

The incident where four terroristsstormed the Pathankot Air Forcebase (“Terror revisits Punjab afterfive months”, Jan.3) is an affront tothe sincere peace moves India isinitiating with Pakistan. Imaginethe grave situation had this key basebeen overrun. The question now isthis: are all our strategicinstallations and military stationssafe against such attacks (“Puzzlingdelays, squandered chances andthen gunshots”, Jan.3)? It is notenough on the part of Pakistan tomouth condemnation and expressits empathies. It bears theenormous responsibility of 

identifying and eliminatingterrorist outfits operating from itssoil.

Suryanaryanan S.,Chennai

The attack is bound to upset everyright thinking Indian especially asthis comes close on the heels of theDecember 25 peace initiative byPrime Minister Narendra Modi.The incident is both deplorable anda mark of cowardice. It is notsurprising that there is a pattern tothis every time — of a terroristattack in India after any peaceinitiative.

Now, questions are wont to beraised about proceeding with talkswith Pakistan but it becomes all themore imperative now because theissue of terrorism emanating fromits soil can be emphatically placedon the negotiating table.

Nalini Vijayaraghavan,Thiruvananthapuram

The bonhomie over Mr. Modi’sLahore “drop-in” appears to be a

short-lived one. The way in whichthe attack was planned andexecuted shows that it could nothave been done without theblessings and active support of terrorist elements from across theborder. What is the point inclinging on to peace parleys whenIndia continues to be wounded andpay such a heavy price?

S.V. Venkatakrishnan, Bengaluru

This is an attack that has all themarkings of another clandestineoperation by handlers based inPakistan. Despite all the vows andtalk of strong retaliation by India(“Must discuss terror with

Pakistan: Rajnath”, Jan.3), it isbecoming increasingly apparentthat such statements are not beingtaken seriously by the Pakistanigovernment. It is just talk and noaction. Pakistan has to be heldaccountable for these attacks.

C.V. Aravind, Bengaluru

The attack will only strengthen thehands of those who are againstpursuing peace with Pakistan. Indiamust persist with a bipartisanapproach vis-a-vis Pakistan, of continuing dialogue and beingtough on terrorism at the sametime. It is evident that Pakistan hasno control over terrorist centres onits soil. If it allows a joint operationwith India in eliminating thesebases, it will lend credence to itsprotestations that it opposesterrorism in right earnest (“Test of ‘Pakistan’s intentions’”, Jan.3).What is worrying is the ease with

which terrorist elements arecrossing over into India. We shouldalso be wary of some of our own

citizens supporting these terrorists.K.R. Jayaprakash Rao,

 Mysuru

Space for workersThe deteriorating rights of theIndian working class wassuccinctly depicted in the July 2012incident of labour unrest atManesar (“Labour’s love lost”, Jan.1). The system of outsourcingand contractual labour, neverthought of before, is now rampanteven in government undertakings.Even with labour laws in place,nobody bothers to uphold even thethe most basic of rights. Withsuccessive governments, since 1991,trying to dilute labour laws, and the

present government hostile to theidea of labour reforms, it is time theIndian working class unites to fightanti-people reform. Why shouldthere be hostility towards theworkforce? It should not beforgotten that trade unions haveplayed a major role in stoppingmultinationals — and nowbeholden to the government —from running riot.

G.B. Sivanandam,Coimbatore

Temple dress codeThere are many temples whichenforce a so-called dress codestrictly, an example being theGuruvayur temple (“T.N. templesring in dress code”, Jan.2). Oneneeds to welcome the High Courtorder as, of late, people visitingtemples appear to be doingeverything other than seeking anaudience with god. One often findsloud cellphone talk, and

discussions about jewellery andflashy attire causing muchdiscomfiture to other devotees and

affecting the divine ambience. Onehopes the order is strictly adheredto.

E.S. Chandrasekaran,Chennai

What should be a welcome sight ina temple often ends up filling mewith disgust and disregard for theperson in question.

Though questions might ariseover the link between one’s style of dressing and level of devotion, thefact is that a place of worship ispublic space. A code will ensurethat every visitor receives astandard level of respect. One looksforward to having a similar code inWest Bengal.

Nabamita Halder, Kolkata

As expected, this is a move thatappears to have raised the hacklesof atheists. However a majority of the devout do welcome such a code,and are of the opinion that it shouldhave been enforced a long time ago.A place of worship is one accessedby the public and a sense of decency and decorum is essential.People who feel that their personalrights are being violated as a resultof this step can stay away.

B.S. Jayaraman,Coimbatore

The order to decide on what oneshould or should not wear isstrange. There are quite a fewtemples in the South where one hasto go bare-bodied, so how does adress code work here? In anyreligious place, it is one’s devotionand inner state of mind that matter,

and not external appearances.Vipin Yadav,

Tiruchi

Concern over the way devoteesdress only devalues the importanceof the place. Is it not akin toindirectly according importance toones’s outer appearance when it isone’s inner devotion that counts? Inthe name of upholding religiousvalues, one’s personal freedomshould not be interfered with.

Riya James, Pala, Kerala

Hunger in BengalOne cannot help but be moved byreports on the plight of the teaworker in West Bengal. It isshocking that in modern India, onestill comes across examples of grinding poverty, and with no

solution in sight (Editorial, Dec.29).There needs to be a comprehensivestudy on why Indian tea is notselling especially when it is indemand in many parts of the world.Moves to help tea workers must bestepped up with all their basicneeds being met. There needs to bea government cash dole and theopening of primary health centresnear tea estates to ensure workerwell-being. Can they be allocatedwork under a scheme likeMGNREGA?

G. Purushothaman,Tirunelveli

Taking refuge behind reasons suchas climate change and economicconditions show that West Bengalis not interested in extendingmuch-wanted relief to the teaworkers. Cash-rich tea firms mustextend food security to theirpredominantly female workforce.It is odd that women’s activists are

not fighting for their rights.Mehaboob T.,

 Hyderabad

LETTERS TO THE EDITOR Letters emailed to letters@thehindu.co.inmust carry the full postal address and the full name or the name with initials.

SUHRITH

P ARTHASARATHY