Right to privacy, by its very nature can be looked at from two perspectives. One is from an individualistic point, and the other from a collective outlook. This primary distinction determines the citizen-state relationship with respect to protection of data and of the fundamental rights. Based on this, each country has looked at the right to privacy as either an individual’s right or as a subject of collective welfare. To cite an example, let us consider the case of the UK, USA and China.[i] In the case of the USA, the right to privacy is governed by the principle of laissez faire, while the UK has developed a solid precedent on privacy laws to protect individuals’ data. However, in the case of China, rather than securing the privacy of an individual, the government for the security of the State, has developed laws pertaining to the right to privacy. Hence, this becomes a case of protection of data to benefit the society collectively, in contrast to the individualistic outlook. Thus, the right to privacy has been a matter of contention on different planes in different countries and India is no exception.
As far as India is concerned, the right to privacy was recognised as a fundamental right in 2017 after the landmark Puttaswamy judgement, which over-ruled the decisions held in MP Sharma v. Satish Chandra in 1954 and Kharak Singh v. State of Uttar Pradesh in 1962.[ii] Ever since we started acknowledging the importance of this right for securing the integrity and dignity of an individual, the expansion in defining the same has been immense. In fact, the Puttaswamy judgement is the reason for the Justice Srikrishna Committee that highlighted the importance of data protection in this digital age and the importance of ensuring that digitisation does not widen socio-economic inequalities in the society.
We are now at a time where we are looking forward to several more milestones in the niche area of study to include not only an individual’s personal data, but also their food and drinking habits. In light of this progress, it is a matter of relevance to look at the prohibition and consumption of liquor in the country. Is it a fundamental right, where it is matter of one’s discretion or does his/ her actions have the potential to hamper the State’s responsibility towards making India a healthy nation?
As recently as July 2021, petitioners at Gujarat High Court had contended, “The citizens have a right to eat and drink as per their choice. Otherwise, what is to stop the State from coming into our homes and saying, no non-veg.” The ruling is at present reserved. Nevertheless, this is not the first matter on the topic. In 2015, it was argued by the then Advocate General of Maharashtra, Srihari Aney that ‘right to eat a particular kind of food‘ does not fall under the ‘right to privacy’ which is enshrined in Article 21 of the Constitution of India.
A man’s biggest wealth is his health, and it is these healthy individuals who contribute maximum towards the country’s welfare. In a country like India with rising unemployment, high poverty and illiteracy rates, it is of primary importance for regulations to be laid down that prevent people from consuming liquor on a large scale. This proactivism should be upheld by the state, if not for the individual, but for the sake of the country’s health and growth. Inevitably, the state would be protecting the health of each individual for the larger good.
On that note, while bringing forth regulations, the proposal to completely ban liquor might not be possible. Rather, a gradual process should be adopted by the Government to prevent depletion of health of citizens. The Kerala High Court emphasised that “Article 47 of the Constitution places a responsibility on every State Government to at least contain if not curtail consumption of alcohol”. The Court also held that the conflict between Fundamental Rights and Directive Principles of State Policy is inevitable. But in a developing nation like India, “the common good takes the lead and subordinates the individual’s inclinations”, said the High Court.
State’s action towards addressing the nation’s health is reflected through the policies and laws passed by the same. The state is under obligation as a matter of both Directive Principle and for safeguarding Article 21 of the Fundamental Rights, to initiate actions to protect the health of the individuals. Hence, we can conclude that the right to health prevails over the right to privacy, especially over the present-day concern on consumption of liquor.
In a recent petition filed by Ashwini Kumar Upadhyay, he has sought for “a writ in the nature of mandamus to the Centre and States to frame an effective policy to prohibit consumption, except for medicinal purposes, of intoxicating drinks and drugs which are injurious to health, in spirit of Article 47 read with Article 21, 38, 39, 46 and 51A of the Constitution of India”. This came during the health crisis that India as well as the entire world is facing – COVID-19 pandemic. The petitioner claimed that consuming more alcohol especially in times of the pandemic can make them more vulnerable to the deadly virus. Further, WHO also stated that “Alcohol use is linked to a number of communicable and noncommunicable illnesses, as well as mental health issues, making a person more prone to COVID-19. Alcohol, in particularly, weakens the intestinal mechanism and raises the likelihood of negative health effects.”.
An extensive study was performed by multiple researchers to find out if restricting the sale of alcohol in the USA can control excessive alcohol consumption and its related harm. The study concluded with a range of functioning policies across various countries, which can be used as a model to draft liquor sale and consumption policies in India. The study proved that one of the effective strategies “to prevent excessive alcohol consumption and related harms, including motor vehicle crashes, incidents of DUI, police interventions against intoxicated people, and, in some cases, assaults and domestic disturbances” is to restrict the days (or hours, or even both) of sale of liquor.
Currently, the sale and consumption of alcohol are banned in the states of Bihar, Gujarat, Tripura, Lakshadweep, Mizoram, and Nagaland, and even in a few districts of Manipur. This case of banning liquor caused a backlash in the State of Gujarat. Despite the ban, the maximum consumption of liquor was found to be in Gujarat. This is a lesson to be learnt to ensure that extreme measures can also lead to people breaking the rules by giving way for black market and illegal liquor consumption. In the case of Tamil Nadu, over 30% (as of 2016) of the State’s revenue comes from state-run liquor shops. It is one of the largest consumers of liquor in the country and as high as 15 percent (as of 2021) of its revenue is from excise duty on liquor sales. In congruence with Maslow’s hierarchy of needs, Indian states are yet to fulfil the bottom most part of the pyramid – access to health, education, stable employment, etc. With more and more states depending on liquor to pay up the bills, the entire Indian economy is turning into what KPM Basheer said, an ‘alcohol economy’.[iii]
Alan Westin defined privacy as one which inheres in itself solitude, intimacy, anonymity, and reserve, making it a right that is innately possessed. As much as this contention being put forward about the duty of the State sounds paternalistic, the situation definitely has scope for a dynamic shift in the future as we achieve our macrocosmic goals of a mature democracy, 100 percent literacy rate and no family below the poverty line. With these progresses, we can be assured that the State has no right to interfere with what you eat or drink inside the portals of your home-sweet-home.
Contributed by – Harshitha Satish and Ksheeraja Satish, an Economics Graduate at Stella Maris College, Chennai
[i] Committee of Experts under the Chairmanship of Justice B.N. Srikrishna, A Free and Fair Digital Economy Protecting Privacy, Empowering Indians, (2018) https://www.meity.gov.in/writereaddata/files/Data_Protection_Committee_Report.pdf
[ii] Trilegal, India: Supreme Court Declares Right To Privacy A Fundamental Right, 2017, MONDAQ. (July 12, 2021), https://www.mondaq.com/india/privacy-protection/625192/supreme-court-declares-right-to-privacy-a-fundamental-right
[iii] The alcohol economy, Hindu Business Line, December 8, 2013, Retrieved July 13, 2021, from https://www.thehindubusinessline.com/economy/the-alcohol-economy/article20697419.ece1