The Bihar Prohibition and Excise Bill, 2016 was introduced and debated in the Bihar Legislative Assembly today.  The Bill creates a framework for the levy of excise duty and imposes a prohibition on alcohol in Bihar.  In this context, we examine key provisions and some issues related to the Bill. Prohibition on the manufacture, sale, storage and consumption of alcohol was imposed in Bihar earlier in 2016, by amending the Bihar Excise Act, 1915.  The Bill replaces the 1915 Act and the Bihar Prohibition Act, 1938.  Key features of the Bill include:

  • Prohibition: The Bill imposes a prohibition on the manufacture, bottling, distribution, transportation, collection, storage, possession, sale and consumption of alcohol or any other intoxicant specified by the state government.  However, it also allows the state government to renew existing licenses, or allow any state owned company to undertake any of these activities (such as manufacture, distribution, etc.).
  • Excise revenue: The Bill expects to generate revenue from excise by levying (i) excise duty on import, export, manufacture, etc. of alcohol, (ii) license fee on establishing any manufactory, distillery, brewery, etc., (iii) fee on alcohol transit through Bihar, and (iv) fee on movement of alcohol within Bihar or import and export from Bihar to other states, among others.
  • Excise Intelligence Bureau: The Bill provides for the creation of an Excise Intelligence Bureau, which will be responsible for collecting, maintaining and disseminating information related to excise offences.  It will be headed by the Excise Commissioner.
  • Penalties and Offences: The Bill provides penalties for various offences committed under its provisions.  These offences include consuming alcohol, possession or having knowledge about possession of alcohol and mixing noxious substances with alcohol.  In addition, the Bill provides that if any person is being prosecuted, he shall be presumed to be guilty until his innocence is proven.
  • The Bill also allows a Collector to impose a collective fine on a group of people, or residents of a particular village, if these people are repeat offenders.

Process to be followed for offences The Bill outlines the following process to be followed in case an offence is committed:

  • If a person is found to have committed any offence under the Bill (such as consumption, storage or possession of alcohol), any authorised person (such as the District Collector, Excise Officer, and Superintendent of Police) may take action against the offender.
  • The Bill allows an authorised person to arrest the offender without a warrant.  Alcohol, any material or conveyance mode used for the offence may be confiscated or destroyed by the authorised person.  In addition, the premises where alcohol is found, or any place where it is being sold, may be sealed.
  • Under the Bill, the offender will be tried by a Sessions Court, or a special court set up by the state.  The offender may appeal against the verdict of the special court in the High Court.

Some issues that need to be considered

  • Family members and occupants as offenders: For illegal manufacture, possession or consumption of alcohol by a person, the Bill holds the following people criminally liable:
    1. Family members of the person (in case of illegal possession of alcohol). Family means husband, wife and their dependent children.
    2. Owner and occupants of a land or a building, where such illegal acts are taking place.

The Bill presumes that the family members, owner and occupants of the building or land ought to have known that an illegal act is taking place.  In all such cases, the Bill prescribes a punishment of at least 10 years of imprisonment, and a fine of at least one lakh rupees.

These provisions may violate Article 14 and Article 21 of the Indian Constitution.  Article 14 of the Constitution provides that no person will be denied equality before law.  This protects individuals from any arbitrary actions of the state.[1]  It may be argued that imposing criminal liability on (i) family members and (ii) owner or occupants of the building, for the action of another person is arbitrary in nature.

Article 21 of the Constitution states that no person can be deprived of their life and personal liberty, except according to procedure established by law.  Courts have interpreted this to mean that any procedure established by law should be fair and reasonable.[2]  It needs to be examined whether presuming that (i) family members of an offender, and (ii) owner or occupant of the building knew about the offence, and making them criminally liable, is reasonable.

  • Bar on Jurisdiction for confiscated items: The Bill allows for the confiscation of: (i) materials used for manufacturing alcohol, or (ii) conveyance modes if they are used for committing an offence (such as animal carts, vessels).  It provides that no court shall have the power to pass an order with regard to the confiscated property.  It is unclear what judicial recourse will be available for an aggrieved person.
  • Offences under the Bill: The Bill provides that actions such as manufacturing, possession or consumption of alcohol will attract an imprisonment of at least 10 years with a fine of at least one lakh rupees.  One may question if the term of imprisonment is in proportion to the offence committed under the Bill.

Note that under the Indian Penal Code, 1860 an imprisonment at least 10 years is attracted in crimes such as use of acid to cause injury, or trafficking of a minor.  Other states where a prohibition on alcohol is imposed provide for a lower imprisonment term for such offences.  These include Gujarat (at least seven years) and Nagaland (maximum three years).[3]

Note:  At the time of publishing this blog, the Bill was being debated in the Legislative Assembly. [1] E.P. Royappa v State of Tamil Nadu, Supreme Court, Writ Petition No. 284 of 1972, November 23, 1973. [2] Maneka Gandhi v Union of India, AIR 1978 SC 597. [3] Gujarat Prohibition Act, 1949, http://www.prohibition-excise.gujarat.gov.in/Upload/06asasas_pne_kaydaao_niyamo_1.pdf.

On June 6, 2022, the Ministry of Electronics and Information Technology released the draft amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) for public feedback.  The IT Rules were notified on February 25, 2021, under the Information Technology Act, 2000 (IT Act).  The Ministry noted that there is a need to amend the Rules to keep up with the challenges and gaps emerging in an expanding digital ecosystem.  In this blog post, we give a brief background to the IT Rules, 2021 and explain the key proposed changes to the Rules.

Background to the IT Rules, 2021

The IT Act exempts intermediaries from liability for user-generated content on their platform provided they meet certain due diligence requirements.  Intermediaries are entities that store or transmit data on behalf of other persons and include telecom and internet service providers, online marketplaces, search engines, and social media sites.  IT Rules specify the due diligence requirements for the intermediaries.  These include: (i) informing users about rules and regulations, privacy policy, and terms and conditions for usage of its services, including types of content which are prohibited, (ii) expeditiously taking down content upon an order from the government or courts, (iii) providing a grievance redressal mechanism to resolve complaints from users about violation of Rules, and (iv) enabling identification of the first originator of the information on its platform under certain conditions.  It also specifies a framework for content regulation of online publishers of news and current affairs and curated audio-visual content.  For an analysis of the IT Rules 2021 please see here.

Key changes proposed to the IT Rules 2021

Key changes proposed by the draft amendments are as follows:

  • Obligations of intermediaries:  The 2021 Rules require the intermediary to “publish” rules and regulations, privacy policy and user agreement for access or usage of its services.   The Rules specify restrictions on the types of content that users are allowed to create, upload, or share.  The Rules require intermediaries to “inform” users about these restrictions.  Proposed amendments seek to expand the obligation on intermediaries to include: (i) “ensuring compliance” with rules and regulations, privacy policy, and user agreement, and (ii) "causing users to not" create, upload, or share prohibited content.
     
  • The proposed amendments also add that intermediaries should take all reasonable measures to ensure accessibility of their services to all users, with a reasonable expectation of due diligence, privacy, and transparency.   Further, intermediaries should respect the constitutional rights of all users.  The Ministry observed that such a change was necessary as several intermediaries have acted in violation of the constitutional rights of citizens.
     
  • Appeal mechanism against decisions of grievance officers:  The 2021 Rules require intermediaries to designate a grievance officer to address complaints regarding violations of the Rules.  The Ministry observed that there have been instances where these officers do not address the grievances satisfactorily or fairly.  A person aggrieved with the decision of the grievance officer needs to approach courts to seek redressal.  Hence, the draft amendments propose an alternative mechanism for such appeals.  A Grievance Appellate Committee will be formed by the central government to hear appeals against the decisions of grievance officers.  The Committee will consist of a chairperson and other members appointed by the central government through a notification.  The Committee is required to dispose of such appeals within 30 days from the date of receipt.  The concerned intermediary must comply with the order passed by the Committee.  Note that the proposed amendments do not restrict users from directly approaching courts.
  • Expeditious removal of prohibited content:  The 2021 Rules require intermediaries to acknowledge complaints regarding violation of Rules within 24 hours, and dispose of complaints within 15 days.  The proposed amendments add that the complaints concerning the removal of prohibited content must be addressed within 72 hours.  The Ministry observed that given the potential for virality of content over internet, a stricter timeline will help in removing prohibited content expeditiously.

Comments on the draft amendments are invited until July 6, 2022.