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.

This week, an in-house inquiry committee was constituted to consider a complaint against the current Chief Justice of India.  Over the years, three mechanisms have evolved to investigate cases of misconduct, including cases of sexual harassment, misbehaviour or incapacity against judges.  In this blog, we summarise the procedure for investigating such charges against judges of the Supreme Court.  

  • In-house procedure (1999): The Supreme Court has an in-house process to deal with allegations against a judge relating to the discharge of his judicial function, or with regard to his conduct or behaviour outside court.   
  • Sexual harassment guidelines: In 2013, Parliament passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.  Subsequently, the Supreme Court framed regulations for protection of women against sexual harassment in the Supreme Court. Under the regulations, the CJI is required to constitute a Gender Sensitisation and Internal Complaints Committee (GSICC).  The GSICC will include 7-13 members including: (i) one or two judges of the Supreme Court, and (ii) up to two outside members (having experience in social justice, women empowerment, gender justice, among others) to be nominated by the CJI.  The Regulations require the majority of the members of GSICC to be women.  As of 2018, the GSICC has received 13 complaints, out of which 10 have been disposed of. 
  • Removal for proven misbehaviour or incapacity: Charges of misconduct may also be investigated in the context of proceedings for removal of a judge.  Article 124(4) of the Constitution of India provides that a judge can be removed only by Parliament on the basis of a motion in either the Lok Sabha or Rajya Sabha.  The procedure for removal of judges is elaborated in the Judges Inquiry Act, 1968.  Till date, no judge of the higher judiciary has been impeached under this process. 

Table 1: Process for investigation of charges against a Supreme Court judge

 

In-house Procedure of Supreme Court

2013 SC Sexual Harassment Regulation

Removal Proceedings

Who may file a complaint

  • Complaint of misconduct may be filed by any person.
  • Written complaint of sexual harassment by a woman.
  • Signed notice by at least 100 members of the Lok Sabha, or 50 members of the Rajya Sabha on charges of misbehaviour or incapacity by a judge. 

Persons to whom complaint must be filed

  • CJI or President of India
  • GSICC
  • Presiding Officer of the relevant House of Parliament

Preliminary Inquiry

  • The CJI is required to determine whether the complaint is either frivolous or serious. If the complaint is frivolous or relates to a pending case, no further action will be taken.
  • If the CJI finds that the complaint involves serious misconduct or impropriety, he will seek the response of the concerned Judge. 
  • Based on the response and supporting materials, if the CJI finds that the complaint needs a deeper probe, he will constitute an inquiry committee. 
  • If the GSICC is satisfied that the complaint is genuine, it will constitute a three-member Internal Sub-Committee to conduct an inquiry into the complaint. 
  • If the notice is in order, the Presiding Officer will constitute a three-member committee to investigate the complaint.

Composition of Inquiry Committee

  • The Committee will comprise three judges including a Judge of the Supreme Court and two Chief Justices of other High Courts.
  • The Committee will comprise members of the GSICC or persons nominated by the GSICC, with majority members being a woman and an outside member.
  • The committee will comprise a Supreme Court judge, Chief Justice of a High Court, and a distinguished jurist. 

Time limit for submission of inquiry report

  • No specific time limit provided.
  • To be completed within 90 days of the constitution of the Internal Sub-Committee, and forwarded to the GSICC within 10 days of completion. 
  • To be submitted to the presiding officer within 90 days.

Findings of the Committee

  • The Committee may report to the CJI that:

​1.  there is no substance in the allegation made, or,

2.  there is substance in the allegations but the misconduct is not of such serious nature as to warrant removal, or,

3.  the misconduct is serious enough to initiate removal proceedings against the judge. 

  • If the committee concludes that the allegation has been proved, it will submit its report to the GSICC to pass appropriate orders within 45 days.
  • If more than two thirds of the GSICC members differ from the conclusion of the Committee, it will, after hearing the complainant and the accused, record its reasons for differing and pass orders.
  • After concluding its investigation, the Committee will submit its report to the presiding officer, who will lay the report before the relevant House.

 

Action taken upon submission of report

  • If the finding is under category (2) above, the CJI may call and advise the Judge accordingly and direct that the report be placed on record.
  • If the finding is under category (3) above, the CJI may ask the judge to resign or seek voluntary retirement.  If the judge refuses to resign, the CJI may decide to not allocate any judicial work to the judge concerned. 
  •  Further, the CJI may inform the President of India and the Prime Minister of his reasons for the action taken and forward a copy of the inquiry report to them.
  • The GSICC has the power to: (i) to pass an order of admonition (reprimand), which may also be published in the court precinct, or (ii) pass an order to prohibit the accused from harassing or communicating with the complainant, or (iii) pass any other order to end the sexual harassment faced by the complainant.
  • GSICC may also recommend to the CJI to pass orders against the accused, including: (i) prohibiting entry of the accused into the Supreme Court for up to a year, or (ii) filing a criminal complaint before the concerned disciplinary authority governing the accused.
  • If the report records a finding of misbehaviour or incapacity, the motion for removal will be taken up for consideration and debated. 
  • The motion is required to be adopted by each House by a majority of the total membership of that House and a majority of at least two-thirds of the members of that House present and voting.
  • Once the motion is adopted in both Houses, it is sent to the President, who will issue an order for the removal of the judge.

Process for Appeals

  • No specific provision.
  • Any aggrieved person may make a representation to the CJI to set aside/modify the orders passed by the GSICC.  The CJI also has the power to issue any other orders in order to secure justice to the victim.
  • No specific provision.

Sources: Report of the Committee on In-House Procedure, December 1999, Supreme Court of India; Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013; Article 124(4), Constitution of India; Judges Inquiry Act, 1968 read with the Judges Inquiry Rules, 1969; PRS.