The Karnataka High Court recently rejected a writ petition challenging a licence granted under the Karnataka Excise (Sale of Indian and Foreign liquors) Rules, 1968 to a liquor shop located within 100 metres of the Mahatma Gandhi statue at Bengaluru’s Cubbon Park.

The petitioner had submitted that the statue was akin to a religious institution. and being within 100 meters of the liquor shop, public sentiment would be hurt. But the Bench held that the Father of the Nation was above all religions and that the statue was not a religious institution.

Yet, the Bench did notice that the Rules conferred an overriding discretionary power to refuse a liquor shop licence for “morality, decency or for any other reason”. With the greatest respect, the Bench did not refer to this part of the Rules on a technical reason – that the petitioner had not pleaded that the State relies on this discretionary power. The Bench did not refer to any binding precedent, too. The point, perhaps, has arisen for the first time.

Gandhi statues

All over India are statues, memorials and places worthy of reverence, even because of a visit, however fleeting. The Mahatma visited Bengaluru five times, in 1915, 1920, 1927, 1934 and 1936. The Government Arts and Science College Building, the Gandhi Bhavan, and the Karnataka Gandhi Smarak Nidhi are sites that stand testimony. And, Nandi Hills is where Gandhiji convalesced in 1936. Therefore, Bengaluru is significant for Gandhiji. It is but natural that the Government decided to place a statue for the Mahatma in Cubbon Park.

There are numerous such locations across India. Take Kanyakumari. Close to the Swami Vivekananda Memorial is a structure housing a plaque and photographs of Gandhiji’s visit to the Confluence of Seas. Thousands visit this small museum to pay their respects. People adore the Mahatma. According to the dictionary, ‘adore’ means to “regard with honour and deep affection, worship as divine, offer reverence to.” People gather at Gandhiji’s statues/memorials not only on October 2 (Birth Anniversary) or January 30 (Day of Assassination) but also on other days.

The Bench has taken a “religious institution” to mean a temple, mosque, church or abode of a deity that is worshipped, and thereby the Cubbon Park statue cannot be one.

With respect, this expression was not defined in the Rules. At least the Bench does not say so. The Rule makers may deliberately not have defined it as narrowly as to mean a temple, etc., for it intended sanctity and inviolability of the place as paramount factors.

The expression of belief in a superhuman power lies in worship, and that is religion, according to the dictionary. However, that is not the accurate meaning. In any case, the question before the Bench did not relate to religious belief and faith. The word or expression in point was “religious institution.” Its common parlance meaning is clear. A “religious institution” means not just a temple, mosque, or a church, but a place of worship.

Worth worshipping

A common man worships not only idols but human beings, too, because of their qualities and principles. To worship means “adoration or devotion comparable to religious homage shown towards a person or principle.” Perhaps, no Indian, after Rama and Krishna, has commanded this scale of devotion as Gandhiji. Worship is “recognition, honour and respect given or due to a human being’s ideals and principles.”

Therefore, the expression “Religious Institution” ought to have been assigned a meaning consistent with the objectives of the law — in this case, the Prohibition and Excise Act. The mischief sought to be remedied, the menace to be regulated or prohibited by the law are the relevant tests.

This is precisely why governments and local bodies have been taking steps to prevent dishonour or disrespect to Gandhiji’s statues, ashrams, and memorials. Gandhiji is the pride and honour of humanity. This is evident from how he is invoked globally. Even the British salute him by remembering him on important occasions and have erected a statue outside Westminster Abbey.

Therefore, a narrow reading of the expression “Religious Institution”, forgetting the context, is inappropriate. The Bench was aware that dealing in intoxicants and liquor is not a fundamental right but a privilege claimed from the State. That is granted under a statute that can also impose a ban or prohibit consumption and sale of alcohol throughout the State or parts of it.

The prohibition law is saved by the above principle and also in view of Article 47 of the Constitution. The law enables the Government of Karnataka to regulate trading in liquor. The State may collect revenues from the liquor trade, with a licence. The licence is issued subject to terms which, ironically, include not selling liquor on Gandhi Jayanthi day.

The constitutional philosophy and the larger public interest are twin purposes that must be read into the statutory provision to save it from the vice of unconstitutionality. Principles of Statutory Interpretation enable higher courts to render complete justice.

The Bench erred in not making an analysis on either count --- the interpretation of the rule by the State or the overriding discretionary power of the commissioner.

Strict rules of pleadings are ordinarily inapplicable to writ petitions. The Bench should have given the petitioner an opportunity to correct the petition by relying upon another part of the Rule. The Bench should have asked the State why the Rules have not been adhered to in letter and spirit. How morality and decency are secured by allowing a liquor shop within 100 meters of the Mahatma’s Cubbon Park statue should have been inquired into.

The Supreme Court, in (2015) 13 SCC page 50, has held that it is an offence under Section 292 of the Penal Code if Gandhiji is depicted as indulging in immoral, indecent or obscene acts. In this judgment, the Court referred in detail as to how it is guided by the thinking of the Mahatma.

Public good

The ramifications and impact are huge. If the rules of other States are similarly worded, absent a binding precedent, the Karnataka High Court’s view is likely to be followed elsewhere.

Authorities across States will not take any steps if such places are defaced and defiled. All his life, Gandhiji urged his countrymen to avoid consumption of liquor, gambling and activities that endanger a human being’s physical and mental health.

Precisely that is highlighted in the Directive Principles of State policy. The policies of every government ought to be directed towards improving the level of nutrition and maintenance of public health.

Therefore, cryptic orders from the highest court of Karnataka, with respect, on serious issues and matters of public health and interest have the potential to inflict more harm than preserving public good.

Had Gandhiji been around, he would have definitely said, ‘ sab-ko sanmathi de-bhagwan ’.

The writer is a retired judge of the Bombay High Court. Views are personal

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