Bihar shelter home case

Reading time: 6-8 minutes.

A Delhi Court through Additional Sessions Judge Saurabh Kulshreshtha sentenced Brajesh Thakur and 11 others to imprisonment for life for sexually and physically assaulting several girls in a shelter home in Bihar’s Muzaffarpur district. These offenders were charged under various offences under the Protection of Children from Sexual Offences (POCSO) Act, and under the Indian Penal code (IPC).

Facts of the case

In a shelter home run by an NGO Sewa Sankalp Evam Vikas Samiti at Muzaffarpur, Bihar, cases of sexual abuse, rape and torture were reported. In May 2018, reports of sexual abuse surfaced at the shelter after Mumbai’s Tata Institute of Social Sciences (TISS) carried out a social audit of shelter homes across Bihar for 2017. In its report, TISS pointed out the sexual abuse of girls at the Muzaffarpur shelter home.

After TISS submitted its report in April 2018, an FIR was lodged against 12 people on May 31, 2018. The main accused, Brajesh Thakur was the head of the NGO, who ran various other NGOs as well. Because of his political connections, there was an apparent delay in investigation and only when the CBI interfered that the trial and the case expedited.

Following the filing of FIR, the girls were rescued and shifted to Madhubani, Patna and Mokama. Medical tests at Patna Medical College Hospital in June confirmed the sexual abuse of 34 out of the 42 girls housed at the shelter home. The test stated that girls were forced to undergo abortion and one was even killed and buried within the shelter compound, however on exhuming to investigate the same, no dead body was found. On 2 August 2018, the Apex Court took a suo moto cognizance in the Muzaffarpur shelter home case and brought the case directly to itself.

Legal provisions involved

In its 1,546 page judgment, the court had convicted Brajesh Thakur and 11 others of offences under Indian Penal Code for Criminal Conspiracy (Section 120-B), causing hurt by dangerous weapons or means (Section 324), voluntarily causing hurt (Section 323), under POCSO Act for failure to report the commission of an offence (Section 21) and under Juvenile Justice Act for cruelty to a Child (Section 75).

Public reaction to the case

The acts of the offenders have been abhorred by every citizen of the nation. The morbid acts of sexual assaults that the offender have committed show their inhumanity and portray that despite human evolution there is a grey area in our brains which divests us with our cumbersome past.

• In Bihar, the case drew criticism of the ruling party not only by the opposition leaders but also by the Supreme Court of India.
• The Apex Court has asked media organizations not to interview the accused or the victims to avoid traumatizing them and establishing narratives in this case.
• Political parties have led a state-wide strike all over the nation. A protest organised by 12 political parties was held at Jantar Mantar specifically against this case and the latency that has been made in this case.
• The CBI has sought for life imprisonment for Thakur stating that rape is a crime of lust and power and leniency should not be shown to the convicts as the victims in the case were minors.

Significance of current development

Significance of this case cannot be read in isolation of the TISS report. It is due to the TISS report that the Shelter Home Case of Muzaffarpur came into light. The report has dealt with the condition of Shelter Homes not only in Muzaffarpur but in all of Bihar. The report mentions that more than 45% of the shelter homes are in no condition to accommodate people.

The report has stated that the staffs are untrained, they lack the knowledge to run such institution and concurred that this is the major reason why a case like Muzaffarpur arose. This is not the case only in Bihar, if in every part of the nation such audit reports are made many more cases would come before us.

But considering this particular case in isolation one can learn a lot. Firstly, the management of such institutions should understand the importance of their jobs and should also understand that the violation of their duties may lead to so much turmoil as was in this case. Secondly, States should try to maintain a standard of work in such institution because if cases like this would arise it would be a stain not only on the state but also on the nation because cases like these simply defeat the very notion of human rights.

Considering the judgment in the present case our legislature should work upon developing a law which is so robust that a person committing such crime should think twice for the consequences which would in turn help take the criminality out from the minds of such people. It is only when we learn from cases like these that no new case would arise in the future otherwise all that has happened will simply lose its significance and will serve no purpose.

Conclusion

This case was a perfect example of how authority maligns the mentality of a person and leads him/her on the route of moral turpitude. It is offenders like these who defeats the purpose of basic human rights of the weak and action against them should be expedited and rigorous action should be taken so that an example could be established to prevent such crimes in the future. It is high time now for our nation and deterring such offences is only possible when we as citizens work hand in hand with our government to curb out this problem.

Author: Pratyush Pandey from Rajiv Gandhi National University of Law, Patiala.

Editor: Tamanna Gupta from RGNUL, Patiala

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Liquor ban: Legal angle

Reading time: 6-8 minutes.

Today in India, there is a total ban on liquor in the States of Gujarat, Bihar, Nagaland, Mizoram and in the UT of Lakshadweep. Whereas, in the States of Manipur, Kerala, Andhra Pradesh, Meghalaya and Tamil Nadu, the ban has been done away with.

It is pivotal to note the scope of ‘liquor ban’ which is that all the individuals who indulge in any unlawful import, export, transport, manufacture, possession, sale of any kind of intoxicant or liquor, to have criminal liability and hence be punished in accordance with the relevant law. This scope is thereafter tweaked to suit the requirements of a State.

This article deliberates upon the State’s authority and constitutional validity of the laws enforced to bring about the ban on liquor oriented activities.

State’s purpose behind It

Countries such as Saudi Arabia, Afghanistan, Bangladesh, Pakistan, Iran, Libya are the ones who have already enforced a pan-country liquor ban. The reason for these countries to enforce this ban is religious, as Muslims strongly believe that consumption of alcohol is against their religion.

The reason behind enforcing liquor bans by the States in India is socio-economic and can be termed as ‘strong moral intuition’. This can be proved from the fact that States’ believe and reason liquor and intoxication to be a major contributor in violent incidences against women. To reduce crime rates is an obligation upon the State and therefore, the ban.

Apart from crimes against women, other factors contributing to liquor ban are a potential –

• Decrease in State crime rates of murders, gang robberies, etc.,
• Decrease in riots, unlawful assemblies,
• Decrease in traffic related incidents, including, rash driving, drink and drive, hit-and-run, etc.,
• Decrease in deaths caused from excessive alcohol consumption.

Therefore, the listed States believe that through this one step of Liquor Ban, many social menaces of the society can be decreased and the State shall to a certain extent successfully fulfill its obligation of maintaining a safe and peaceful environment for all members of the society.

Laws used to enforce the ban

The history of liquor ban dates back to 1914, wherein Mahatma Gandhi initiated the Temperance Movement, which resulted in significant decrease in the consumption of imported alcohol, country-wide. It was this national event, which influenced the Constituent Assembly to include the Directive Principles of State Policy (DPSP) within the Constitution embracing the obligation upon State to promote, secure and protect the welfare of the members of the society and further increase the level of nutrition and standard of living of its people. DPSP are mere guidelines for the State and are not enforceable in the court of law.

From the obligations enlisted in the DPSPs, the State Governments are authorized to enforce laws relating to the same. Therefore, the State Governments can by Constitution, enforce a liquor ban.

The first State to enforce a complete liquor ban was Gujarat. Post-independence, when the State of Bombay and Gujarat were one, the State Legislature passed the Bombay Prohibition Act, 1949. However, after 1960, when Maharashtra and Gujarat were designated as two separate States of India, Gujarat retained the total ban via Bombay Prohibition (Gujarat Amendment) Act, 1963. The Gujarat Act incorporates a permit system and the individuals which lack the same can be put to trial for death penalty also.

Nagaland enforced Nagaland Liquor Total Prohibition (NLTP) Act, 1989, to bring about a total ban on liquor production, transportation, possession and consumption in the State.

Mizoram first enforced the total ban on liquor in 1995, which got repealed in 2014. The 2014 ban was enacted only to be repealed in 2019. The State Government then passed the Mizoram Liquor (Prohibition) Act, 2019 to convey the total ban again.

The latest addition to the list is Bihar. State Government of Bihar amended the Bihar Excise Act via Amendment Act, 2016 and enforced a total liquor ban in the State. The Amended Act enshrines mandatory imprisonment and fine as punishment for offenders of the law, which is to be enforced only by Bihar Special Courts.

Constitutional validity of ‘Liquor ban’

Activities relating to liquor have always been under the scanner of the enforcement authorities. The first landmark case on ‘commercialization of alcohol’ was the Khoday case. The Supreme Court held that the liquor trade is unconstitutional as per Article 47 of the Constitution. However, since DPSPs are un-enforceable upon the Governments, they can allow such trade, but, it is upon them to regulate the same.

The above stance of unconstitutionality of liquor trade became irrelevant over the years and therefore, the Apex Court in the Kerala case, held that trade in liquor is constitutional and thus permitted.

The first challenge to the constitutionality of ‘liquor ban’ was brought before the Bihar High Court. The Bihar HC held the ban to be “illegal, impractical and unconstitutional” on September 30, 2016. Aggrieved from the order of the HC, the State Government approached the SC.

The SC not only stayed the HC order, but also mandated that no proceedings shall be initiated against the Bihar Excise (Amendment) Act, 2016 enforced on October 2, 2016, only to finally decide that the said Law is constitutionally valid.

Simultaneous to the Bihar Liquor Ban case, the SC also heard the Highways case so brought forth by the State of Tamil Nadu, after considering the multiple road accidents on the State Highways wherein the liquor shops are owned by the State itself.

The SC held that upon all state and national highways all across the country, the respective governments shall ensure that the liquor shops are located at least 500 m. away from each other, with no exceptions in any case. The said case was brought to review in 2017, wherein the SC upheld the judgment only giving exceptions to the highways of Meghalaya and Sikkim, considering their hilly-uneven terrain.

Therefore, there has been a huge change in the stance from 1995 to 2019. As on today, the commercialization of liquor is constitutional and so is the liquor ban.

Impact of the ban

Upon the judiciary, the impact of the ban seems to be adverse, due to the pendency of multiple cases including the ones challenging liquor ban. The Bihar HC had to seek relief from the State Government upon two lakh pending cases in the HC, only challenging the said ban

Socially, the State Governments have successfully recorded decline in crimes and deaths resulting from liquor.

Economically, these States have also recorded increase in the sales of milk, cheese, 2-wheeled vehicles, electrical appliances, etc. However, the huge effect on the state exchequer cannot be denied. A reason why many states repealed the ban.

Conclusion

Therefore, it is concluded that Liquor Ban enforced by State Governments in India are due to socio-economic reasons. State Laws enforcing criminal liability against liquor production, transportation, possession and consumption are held to be constitutionally valid by the Supreme Court of India.

Author: Harshita Kapoor from Symbiosis Law School, Pune.

Editor: Farsana Sadiq from Faculty of Law, Jamia Millia Islamia.