A key aspect of living by Gandhian principles is to stay away from vices like liquor and gambling. A recent Karnataka High Court judgment rejected a petition that sought to refuse licence for liquor shops near a Gandhi statue. Such guidelines are applicable to places close to religious institutions and places of public interest like schools. Former Bombay High Court judge, JUSTICE S C DHARMADHIKARI, examines Gandhi’s pivotal place in Indian life and values, and how the judgment erred in law.
he Karnataka High Court recently rejected a Writ Petition challenging a licence granted to a liquor shop situated within 100 metres of the statue of Mahatma Gandhi at Cubbon Park in Bengaluru, under the Karnataka Excise (Sale of Indian and Foreign liquors) Rules, 1968.
I am concerned only with a small part of the controversy, but I consider that to be of great significance. The petitioner urged that the statue was akin to a religious institution and, admittedly, being within 100 meters of the liquor shop would deeply hurt public sentiments.
Relying upon the wording of the rule, 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 with a view to secure morality, decency, or for any other reason. The bench did not refer to this part of the rules on a specious and technical reason – that the petitioner had not pleaded that the State must rely on this overriding discretionary power.
Perhaps this point has arisen for the first time but a detailed analysis and in depth consideration is expected of the court. A cryptic order does not do justice to the law.
In doing so, the order relies more on form and misses the substance totally.
The issue was of general public importance. The bench has not referred to any binding precedent. Perhaps this point has arisen for the first time but a detailed analysis and in depth consideration is expected of the court. A cryptic order does not do justice to the law.
Pan India Reverence of Mahatma Gandhi
Statues, memorials and other places worthy of reverence, even because of a fleeting visit by the Father of the Nation, are situated all over India and Bengaluru is such a city.
In Kanyakumari, very close to the Swami Vivekananda Memorial, is a structure housing a plaque and photographs of the Mahatma’s visit to the Confluence of Seas. That visit is etched in the memory of locals as well as tourists and visitors. Thousands visit this small museum even today to pay their respects. One can give numerous examples of such locations in India.
Notably, every major city, town and district in India has a Gandhi square with his statue. There are befitting tributes paid to him in the form of a Gandhi Park, library, memorials and so on even in remote parts of the country.
A father of the nation belongs to all.
People adore the Mahatma. The word “adore”, according to the dictionary, means, “regard with honour and deep affection, worship as divine, offer reverence to.” Huge crowds gather at Gandhi’s statues and memorials not only on 2nd October (Birth Anniversary) and 30th January (Day of Assassination) but also on other days.
Men and women do not worship only a personal god or gods entitled to obedience and in whom they have faith. The belief in a superhuman controlling power is expressed through worship, and that is religion
The Mahatma visited Bengaluru city nearly five times – in 1915, 1920, 1927, 1934 and 1936. The Government Arts and Science College Building, Gandhi Bhavan, Karnataka Gandhi Smarak Nidhi are, inter alia, sites that stand testimony. Even Nandi Hills is a place where Gandhi convalesced in 1936. Therefore, Bengaluru is immensely significant for Gandhi. It is but natural that the Government decided to place Gandhi’s statue in Cubbon Park.
Are Gandhi memorials “Religious Institutions”?
The Karnataka High Court bench has understood a “religious institution” to mean a temple, mosque, church or an abode of deity and where it is worshipped. Thus, the Cubbon Park statue cannot be equated with a religious institution. However, this word or expression was not defined in the rules. At least the bench does not say so.
The rule-makers may not have defined ‘religious institution’ deliberately to keeping the meaning narrow and refer to a temple. They perhaps intended to place sanctity and inviolability of the place as paramount factors. In fact, that should have been the focal point, but it was ignored.
Men and women do not worship only a personal god or gods entitled to obedience and in whom they have faith. The belief in a superhuman controlling power is expressed through worship, and that is religion according to the dictionary. However, that is not the accurate meaning.
In any event, the question before the bench was not relating 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, church and the like, but a place of worship.
The bench was aware that dealing in intoxicants and liquor is not a fundamental right, but a privilege claimed from the state.
A common man worships not only idols but human beings too. They are worshipped because of their sterling qualities and principles. To worship means “adoration or devotion comparable to religious homage shown towards a person or principle.”
Perhaps, no Indian after Rama commanded this scale of nationwide devotion and worship.
The Mahatma is the tallest leader and human being whose life itself is a message, being held in highest esteem. 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. It should look into the mischief sought to be remedied-the menace that the law seeks to regulate or prohibit, and these are the relevant tests.
This is precisely why governments and local bodies have been exercising caution and taking steps to prevent dishonour or disrespect to Gandhi’s statues, ashrams, and memorials.
Gandhi is our pride and honour.
No one can desecrate his statues as he belongs to humanity and is spread across nations. It is globally accepted that the Mahatma belongs to the international community. That his legacy continues is evident from how he is invoked globally. Even the colonial United Kingdom salutes him by remembering him on important occasions and has erected a statue outside Westminster Abbey.
Therefore, pressing a narrow reading of the expression, “Religious Institution” into service and 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 also granted under a Statute which enables imposing a total ban and prohibiting consumption and sale of alcohol throughout the state or parts of it.
Liquor Prohibition Laws in India
The prohibition law is saved by the above principle and, also, in view of Article 47 of the Constitution of India. The Karnataka Excise (Sale of Indian and Foreign liquors) Rules, 1968 enables the Government of Karnataka to regulate trading in liquor. The state may collect revenue from a liquor trader with a licence. The licence is issued subject to terms, which, ironically include not selling liquor on Gandhi Jayanthi.
The constitutional philosophy and the larger public interest are twin purposes which must be read into the statutory provision to save it from the vice of unconstitutionality. Principles of Statutory Interpretation enable the higher courts to render complete Justice.
The bench erred in not making an in-depth analysis on both counts, namely the interpretation of the rule by the state government and 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 amend and correct the Petition by relying upon another part of the rule. Having noted the Rules themselves, the bench should have enquired from the State as to why the rules have not been adhered to in their letter and spirit. How morality and decency is secured by allowing a liquor shop within 100 meters of the Mahatma’s Cubbon Park statue should have been enquired into.
How morality and decency is secured by allowing a liquor shop within 100 meters of the Mahatma’s Cubbon Park statue should have been enquired into.
The Supreme Court in Devidas Ramachandra Tuljapurkar versus State of Maharashtra held that it is an offence under Section 292 of the Penal Code to depict Gandhi as indulging in immoral, indecent, or obscene acts. In this judgment, the Supreme Court has referred to how it has been guided by the thinking of the Mahatma since decades together.
The ramifications and impacts are huge. If the rules of other states are similarly worded, without a binding precedent, then the Karnataka High Court’s view is likely to be followed elsewhere.
The nature of the business, its adverse effects on society particularly the youth should have entered the discussion. Now, authorities across States will not take any steps if such places are defaced and defiled.
All his life, Gandhi urged the countrymen to avoid consumption of liquor, gambling and activities which endanger a human being’s physical and mental health.
Precisely that has been 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 by the highest court of the state on serious issues, such as public health and interest, have the potential of inflicting more harm than preserving public good.
If Gandhi was around he would have definitely said,
”सबको सन्मति दे भगवान“
(Justice Satyaranjan C. Dharmadhikari is a retired judge of the Bombay High Court. Views are personal.)