Sometimes, when the state is faced with a legal challenge to its policy, all it needs to impress the judiciary is to make a suitably pious claim. Kerala, a State that accounts for nearly 14 per cent of the country’s liquor consumption as well as one that boasts of 100 per cent literacy, has managed to convince the highest court in the land that its policy of restricting bars that serve liquor to five-star hotels will bring down drinking. It has successfully claimed that if liquor is made prohibitively expensive, the State’s youth would be “practically compelled to abstain from public consumption of alcohol”. The court has accepted its argument that its objective was to prohibit all public consumption of alcohol, and that the only reason it made an exception in favour of five-star hotels was in the interest of tourism. The court sees no arbitrariness or caprice in this, saying even if it appears that there may be close similarities between five-star hotels and four-star or ‘heritage’ hotels, it is the preserve of the government to differentiate between them. The judgment strikes at the root of non-discriminatory treatment under the Constitution merely on the ground that the issue involved is the business of liquor. At one point, it recognises that a right to trade in liquor exists, and that once the State permits it any restriction on it has to be reasonable. Yet, it goes on to hold that a moratorium on other categories of hotels is not arbitrary or unreasonable because the potable liquor business, given supposed public health concerns, is res extra commercium , or a “thing outside commerce.”
The reasoning behind the Supreme Court’s decision to uphold Kerala’s latest liquor policy is twofold. First, it unexceptionably roots its verdict in the rule that courts ought to be wary of interfering in policy matters. Secondly, and somewhat controversially, it accepts a discriminatory classification in favour of five-star hotels. The exception on the ground of tourism is quite curious because tourists, both foreign and domestic, are not drawn from the upper echelons of society alone. The court notes that no one is barred from upgrading their hotels to five-star grade, yet it seems to have accepted a contention by the government that it was not allowing bars in four-star hotels because three-star hotels may get themselves upgraded to four-star status! While total prohibition may be a laudable objective and one of the Directive Principles of State Policy, it is doubtful whether confining drinking to homes and private spaces by itself will bring down consumption. In a non-permissive society, it may only result in converting drinking into a covert activity, a phenomenon requiring policing and also bringing corruption in its wake. The verdict places a heavy burden on the State to rehabilitate those left unemployed by the closure of hundreds of bars, as well as to make its policy succeed. It also needs to ensure that the sweeping discretion conferred on it to differentiate between classes of licensees is not misused for any extraneous considerations.