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Article 47 of the Indian Constitution enshrines that states may introduce prohibitions on alcohol and other goods deemed health risks. The state of Gujarat was one of the first states in India to declare itself a so-called “dry state” (May, 1960) – that is, a state that fully imposes a ban on the production, sale and consumption of alcoholic drinks. A handful of other states have since followed Gujarat’s example in imposing full bans on alcohol, the most recent being Bihar in 2016. When in 2016 the State of Bihar introduced the “Bihar Prohibition and Excise Act”, newspapers reported of women taking to the streets in celebration of their “liberation from the curse of alcohol”. The Act prohibits not only the consumption of alcohol within the state, but also its production and sale. Although Bihar is not the first state in Indian history to become a “dry state”, its approach is especially strict, having made offenses related to the Act non-bailable as well as including even the mere possession of certain utensils within the scope of prohibited acts.
The author, in this article, approaches the aforementioned ban from a socio-legal perspective and asks whose norms are being represented in the legislation, and what the actors aim to achieve in demanding a prohibition. After a discussion of the position of alcohol within the Indian society, this article argues that on the one hand, several Bihari women called for prohibition of alcohol as they consider law a tool to be wielded to negotiate with their violent husbands. On the other hand, the state of Bihar responded to the demands for prohibition in order to promote public health and productivity.
Socialisation of Women: Aversion Against Alcohol
Since colonial times, Indians have generally associated the consumption of alcohol with failure and poverty. This generalisation is subject to nuances; from seven interviews with upper- and middle-class Indian youth, the author of this paper identifies two major inner-group differences: a generation gap and a gender gap. First, the youth, regardless of their social status, are tending towards a more lenient approach to alcohol consumption behind their parents’ back. Second, specific societal pressure is exerted on females to abstain from consuming alcohol. In fact, fewer than ten percent of women in India are found to consume alcohol at least occasionally (an exception being tribal communities and tea plantation workers). A suitable case to exemplify female attitudes towards alcohol is found in “arrack”, a country-liquor with high alcohol concentration that is consumed mainly by poorer parts of the society. Calls for its prohibition have been strong especially among rural women, as they accuse their husbands of resorting to violence due to the influence of alcohol. These women have seen a strong link between alcohol and ‘rowdy’ behaviour. In an extensive report on Women’s Empowerment in 2005, the Indian Ministry of Health and Family Welfare found that, indeed, “if a woman’s husband […] gets drunk often, then her odds of ever experiencing [domestic] violence are two to three times higher than the odds for women whose husbands never drink” (p.196).
Domestic Violence and Alcohol
As demonstrated in the following, female victims of domestic violence in Bihar have reason to consider a ban on alcohol as an effective means to counter the cause of their husband’s abusive behaviour. The same above-mentioned report on Women’s Empowerment produces an interesting infographic (p.108), in which Bihar visibly ranks the highest (nation-wide) in prevalence of physical violence between spouses. The report elaborates that fifty-six percent of women have experienced sexual, physical or mental violence. The link to alcohol being the perceived cause of domestic violence is made by the Food and Agriculture Organisation (FAO) of the United Nations, which observed, “with increasing marginalization and alienation, excessive alcohol consumption has become widespread among tribal men in […] Bihar.” Interestingly, ever since Bihar converted to a “dry state”, sexual violence is said to have decreased. The following statement taken from the Hindustan Times further illustrates the changes induced by the alcohol ban: “The alcohol menace had made my family life hell. I have no words to thank [the Chief Minister] for saving poor families like ours.” At first glance, this stands opposed to the results of interviews conducted by the author with seven youth, which led to the belief that alcohol legislation is not enforced effectively, and thus matters little. At a second glance, however, an interesting parallel arises to the case of a soft drug ban in a small town in the Netherlands, which served to assist people in their struggles to effectively communicate their opposition towards the consumption of soft drugs.
Legislation for Communicative Action
The Dutch ban was explained through Habermas’ Theory of Communication: Habermas argues that control in society is established primarily through communication, not law. Through what Habermas terms “communicative action”, individuals find common grounds and inform each other of the behaviour they find preferable. However, communicative action can falter when there is either “no faith in the power of communicative action”, or where barriers exist to communicating on an equal footing. In those cases, “translating the norm into a legal rule with formal sanctions is hailed as a viable solution”, as it is arguably easier for individuals to convince others if a formal norm backs the request. That is: Having legal backing to a request may elevate the request-maker from an unequal to an equal or higher footing. Habermas’ theory overlaps with the ban in Bihar: A factor that certainly contributed to the ban was the desire to obtain more leverage to discuss alcohol consumption with spouses, and potentially convince them to seek professional help for alcoholism. It thus appears that the affected group of women sought to use legal codification as an instrument for their own empowerment. Another factor is the fact that while alcohol will surely resurge on the black market, it will become more costly and less easily accessible – while richer parts of society will be able to continue drinking, poorer parts will not. This perfectly suits the goal of the women involved, who arguably did not intend to ban alcohol for all and engage in “moral entrepreneurship”, but to change the alcohol consumption of specific actors. Being able to refer to a legal backing has empowered these women (who suffer/ have suffered/ are likely to suffer violence) to communicate their demands.
Why the State Reacts: Engineering a Healthy Population
The previous paragraph established that certain women in Bihar called for a ban on alcohol in the belief that it would assist them in their struggle against domestic violence. It remains to be established, however, why the local government responded to their demands. An easy explanation is to say that the ban secured a large voter base for the Chief Minister. Such an explanation seems plausible given that the introduction of a ban was a major election promise of the current Chief Minister. Regardless, there is arguably more to the prohibition than simple lust for power, as the State Government in 2016 organised a human chain said to have been eleven thousand kilometres in length in order to foster public support for the Act.
Law as a Selective Mirror of Societal Goals
Brian Tamanaha’s literature review on the interaction of legislation and society sheds light on what explanations could be given for the ban. Clearly, the prohibition does not reflect a general sentiment among the whole of Bihar; as was held above, society is too heterogenous on the issue. Rather, what Tamanaha terms “Selective Mirror Thesis” can be used to approximate the dynamics of how the ban came to be. By “selective mirror”, Tamanaha refers to a law reflecting “only certain customs or morals, or values and interests within society” (p.40). He briefly lays out the elements of the sub-category of Marxism, which generally seeks to use law instrumentally to “shape moral attitudes” with the goal of building a society “in which there is no longer any law and where social relations will be ruled by custom alone” (p.42). While it would be too far-fetched to claim having found notions of Marxism and socialist thought within the Bihar government, the government arguably does want to regulate day-to-day habits until people have internalised the behaviour and understood its value. In fact, the Indian government as a whole has increasingly emphasised on healthy lifestyles and has made awareness-raising a key element of its policies – prominent examples being Swachh Bharat, the International Yoga Day, and the introduction of cigarette warning banners flashing on television. Furthermore, Bihar, which is known to be one of the most underdeveloped states in India, arguably has an economic interest in promoting a healthy lifestyle in order to boost the local workforce.
Overall, especially Indian women are being raised to view cheap alcohol as a cause of failure and violence. This manifested in the state of Bihar which banned alcohol in 2016, where women affected by domestic violence considered alcohol as the root cause of the problem. The “Bihar Prohibition and Excise Act” provided these women with the feeling of having leverage to communicate their demands to their husbands. While it may appear as if the women were aiming to engage in moral entrepreneurship and engineer a society that conforms to their norms, they were rather trying to use law as an instrument for their own interests. The government that responded to the demands for prohibition, on the other hand, is primarily interested in engineering a healthier society for economic reasons. Overall, the topic leaves room for further investigation, particularly in regard to the actual efficacy of legislation in actually reducing violence on the one hand and promoting a healthy lifestyle on the other. Additionally, as several other Indian states with lesser instances of domestic violence consider banning alcohol or plan to impose stricter legislation, the question arises whether other factors such as religion play a major role in these contexts, while they did not in the case of Bihar.
(This post has been authored by Alena Kahle, an MSc student at the Sociology of Law Department at Lund University, Sweden. She holds a BA degree in Liberal Arts and Sciences with a major in International Justice from Leiden University)
Cite As: Alena Kahle, ‘Bihar Liquor Prohibition and Excise Act, 2016: The Strategic Use of Law as a Tool for Battered Women’ (The Contemporary Law Forum, 21 August 2020) <https://tclf.in/2020/08/21/bihar-liquor-prohibition-and-excise-act-2016-the-strategic-use-of-law-as-a-tool-for-battered-women> date of access.