India’s criminal justice system has failed to stand on its feet when it comes to the checkpoint of reformative justice. Instead of formulating policies that could lead to restoration and healing, criminal law and policy engender a vicious cycle of violence.

An example of this is the prohibition policy in force in Bihar and Gujarat. These legislations only add to the hardship of thousands of people and are based on a flawed morality. The Bihar Prohibition and Excise Act, 2016, prohibiting ‘manufacturing, bottling, distributing, transporting, collecting, storing, possessing, purchasing, selling or consuming any intoxicant or liquor’ was enforced by the then newly-elected Janata Dal (United) government in 2016 to fulfil its electoral pledge of reducing crime against women and bringing prosperity to the backward classes. The law ended up putting a large number of poor and marginalized people — wage earners, mendicants, destitutes — behind bars. The offence is bailable for first-time offenders; but most of the accused have languished in prison for periods ranging up to two years on account of the absence of awareness about the law and the lack of legal aid.

The kingpins behind the trade remain free while the small fry are arrested. A high percentage of the arrested people belong to Dalit communities such as Pasis and Musahars. These communities have traditionally been involved in the manufacture of toddy and liquor. They were left without livelihood options in the absence of alternative rehabilitation avenues. The state government introduced a scheme under which communities involved in toddy-making would be given assistance to start selling neera. But the scheme did not succeed because it was implemented poorly. Furthermore, prohibition labelled these communities as criminals. The associated social stigma encouraged the police to extract protection money from these vulnerable constituencies.

Governments across the world have imposed prohibition in order to curb alcoholism. Attempts by the United States of America, Norway, Russia and Iceland have failed in this regard. In India, similar restrictions in Gujarat, Kerala, Mizoram, Nagaland and Andhra Pradesh have yielded unsatisfactory results because of tardy implementation and corruption. In Gujarat, the debate on prohibition has taken an interesting turn. Several petitions had been filed in the Gujarat High Court in 2019 against the prohibition of consumption of alcohol inside the privacy of one’s house on the grounds that it violates the right to privacy. The petitioners have demanded that sections 12, 13, 24-1B, 34, 35, 39, 40, 40A, 40B, 41, 46, 46A, 47, 65, 65AA and 66 of the Gujarat Prohibition Act and rules 63, 64, 64A, 64B, 64C, 67, 68, 69, 70, 70A of the Bombay Foreign Liquor Rules should be struck down because they violate the rights conferred in Articles 14, 19 and 21 of the Constitution. The petitioners have also demanded that the punishments prescribed under sections 65, 65AA and 66 of the Act are excessive and ought to be deleted.

One of the major reasons behind governments bringing in such laws is vote-bank politics. The Bihar liquor ban law, for example, was passed to capture the votes of women who suffer as a result of the alcoholism of men in the family. The intention is noble. But can the same be said about its implementation? In spite of the negative impact of such laws on the lives of the poor and the socially excluded, policy makers continue to dabble with flawed experiments.