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Above: Consumption of liquor in a public place is a punishable offence under the Bihar Excise (Amendment) Act, 2016/Photo: facebook.com

The Supreme Court, while interpreting the Bihar Prohibition and Excise Act, 2016, denied the right to privacy to occupants of a private car on a public road. Will it curtail this right in all its forms?

By Venkatasubramanian

In the landmark judgment declaring the right to privacy as a fundamental right, the Supreme Court held in 2017 that this right includes the right to be left alone. Do occupants of a car privately-owned but plying on a public road have a right to privacy? Can they claim that the laws meant to ensure decency in a public place are inapplicable to them as what they do within the confines of a privately-owned car cannot be construed to offend the provisions of a law regulating a person’s behaviour in a public place?

The Supreme Court’s judgment in Satvinder Singh @ Satvinder Singh Saluja and Others vs The State of Bihar, delivered by a division bench of Justices Ashok Bhushan and KM Joseph, has serious implications for the exercise of the right to privacy in a public place, even though it is silent on the right to privacy as such.

The Bihar government introduced a new excise policy in 2015. It contemplated implementation of total prohibition in a phased manner. To achieve this objective, amendments were made to the Bihar Excise Act, 2015, by the Bihar Excise (Amendment) Act, 2016, notified on March 31, 2016. In Section 2 (17A), the definition of a “public place” was inserted in the following manner: “Public Place means any place to which the public has access, whether as a matter of right or not and includes all places visited by general public and also includes any open space.”

The provision, it is obvious, is vague and can be used to unreasonably restrict the right to privacy. In Section 19 of the Act, sub-section (4) was substituted in the following manner: “Notwithstanding anything contained in this Act and the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the state government may by notification, absolutely prohibit the manufacture, bottling, distribution, sale, possession or consumption by any manufactory, bottling plant, license holder or any person, in the whole State of Bihar or in any specified local area in respect of all or any of the intoxicants either totally or subject to such conditions as it may prescribe.”

In the Bihar Excise (Amendment) Act, 2016, a new Section 53—“Penalty for consumption of liquor in a public place”—was inserted. This Section says: “Whoever, in contravention of this Act or the rules, notifications made thereunder—(a) consumes liquor in a public place or an unauthorised place; or (b) consumes liquor in a public place or an unauthorised place or an authorised place and creates nuisance; or (c) permits drunkenness or allows assembly of unsocial elements in his premises or on the premises of a liquor establishment shall be punishable.”

It further adds: “(1) In case of an offence falling under clause (a), with a term which shall not be less than five years but which may extend to seven years and with fine, which shall not be less than one lakh rupees but which may extend to ten lakh rupees; (2) In case of an offence falling under clause (b), with a term which shall not be less than seven years but which may extend to 10 years and with fine, which shall not be less than one lakh rupees which may extend to 10 lakh rupees; (3) In case of an offence falling under clause (c), with a term which shall not be less than 10 years but which may extend to imprisonment for life and with fine, which shall not be less than one lakh rupees which may extend to 10 lakh rupees.”

In the Bihar Prohibition and Excise Act, 2016, the definitions of “place” and “public place” were changed to the following effect—Section 2 (53): “Place includes building, house, shop, boat, booth, vessel, raft, vehicle, conveyance or tent enclosure”; Section 2 (54): “Public Place means any place to which the public has access, whether as a matter of right or not and includes any open space or any transport, whether public or private.”

In place of Section 53 which provided for penalty for consumption of liquor in a public place, a new Section, namely, Section 37 providing for “penalty for consumption of liquor” has been introduced. Under this new provision, whoever consumes liquor or intoxicant in any place, or is found drunk or in a state of drunkenness at any place, or drinks and creates a nuisance or violence at any place including in his own house or premises, or permits or facilitates drunkenness or allows assembly of drunken elements in his own house or premises, shall be punishable with the same severity, as had been prescribed under Section 53.

In the present case, the appellants, all Rotarians, were travelling from Giridih, Jharkhand, to Patna to attend a meeting of the Rotary Club on June 25, 2016. Their vehicle was stopped at Rajauli checkpost, Nawada district, Bihar, by an excise sub-inspector. Nothing incriminating was found in the vehicle. The appellants were subjected to a breath analyser test in which a certain quantity of alcohol was found. They were arrested and remained in custody for two days. The chief judicial magistrate (CJM), Nawada, took cognisance of the offence. The appellants first filed an application under Section 482, CrPC, praying for setting aside the CJM’s order. The Patna High Court dismissed the application on the ground that the CJM had jurisdiction to try the case as the Bihar Prohibition and Excise Act, 2016, which provides for cognisance of offences by a special judge came into force after the CJM took cognisance.

The Supreme Court considered whether the definition of “public place” as introduced by Section 2 (17A) should include a private vehicle. The definition of “place”, the bench held, as contained in Section 2 (17) is an inclusive definition which specifically includes “vehicle”. When the word “place” includes “vehicle”, the term “public place” also has to be interpreted in the same light, the bench reasoned.

Underlining the key words, “any place to which the public has access” which is qualified by the phrase, “whether as a matter of right or not”, the bench held that when a private vehicle is passing through a public road, it cannot be accepted that the public has no access. “It is true that the public may not have access to a private vehicle as a matter of right, but definitely the public has the opportunity to approach a private vehicle while it is on a public road.” Thus the bench rejected the contention that the vehicle in which the appellants were travelling was not covered by the definition of “public place” under Section 2 (17A) of the Bihar Excise (Amendment) Act, 2016. It also rejected the argument that private conveyances would be excluded from the definition of “public place” as contained in Section 2 (17A).

The bench agreed that the consumption of liquor within Bihar constitutes an offence under the Act. A person who consumes liquor in a different state cannot be penalised under Section 53(a) unless there is some evidence to prove that the act took place in Bihar. But the bench noted the difference in phraseology of the Bihar Prohibition and Excise Act, 2016, and the Bihar Excise (Amendment) Act, 2016, which applied to the appellants. Under the former Act, even a person who consumes liquor outside Bihar and enters Bihar, but is found drunk or in a state of drunkenness can be charged with offences under Section 37 (b) of that Act. Under the latter, the consumption of liquor has to be within the state of Bihar. The bench, therefore, asked the appellants to approach the jurisdictional magistrate to consider their discharge on this ground.

But the larger question thrown up by this judgment is whether Section 294 of the IPC, which seeks to punish any obscene act in “any public place” with imprisonment of the doer for a term which may extend to three months or with fine or with both, could apply to the occupants of a privately-owned vehicle on a public road. If so, it has grave implications for the sexual freedom of a consensual couple.

Hopefully, the Supreme Court’s interpretation of the Bihar Prohibition Act will not be stretched so as to curtail the right to privacy in all its manifestations.

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