Bihar Chief Minister Nitish Kumar thinks he can use alcohol prohibition as a plank to make the jump from regional satrap to national leader. But he's run into a problem: Prohibition doesn't really work. India has tried time and again to prevent its citizens from drinking liquor and most of those efforts have gone nowhere. Determined not to give up though, Kumar had his state assembly pass draconian new amendments to the prohibition law to scare citizens into following it.

On Wednesday, in an op-ed on NDTV.com, Kumar explained why he felt the need to do so.

"What sets the liquor prohibition apart is that no one in the past has been able to deliver it totally. The liquor lobby cheers to this one fact more than anything else. I am determined to change this track record of public policy."

How is he going about changing it? By turning to collective punishment, making entire families guilty for the offences of one person and flipping the general presumption of innocence. In amendments introduced late last month, Kumar changed the law to frighten the people even further into following prohibition.

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The Bihar Excise (Amendment) Act features a number of provisions that have caused outrage and prompted former Bharatiya Janata Party minister Yashwant Sinha to call Kumar a "man possessed".

Here is a summary of the provisions from PRS Legislative, a non-partisan think tank, (with emphasis added):

  • For illegal manufacture, possession or consumption of alcohol by a person...  the Bill holds the following people criminally liable:Family members of the personOwner and occupants of a land or a building, where such illegal acts are taking place.The Bill presumes that the family members, owner and occupants of the premises ought to have known that an illegal act is taking place.
  • The Bill also allows a Collector to impose a collective fine on a group of people, or residents of a particular village, if these people are repeat offenders.
  • The Bill provides penalties for... consuming alcohol, possession or having knowledge about possession of alcohol and mixing noxious substances with alcohol. Further, the Bill provides that if any person is being prosecuted under its provisions, he shall be presumed to be guilty until his innocence is proven. 

Naturally these provisions have caused outrage, particularly those that rely on presumptions, because most of them also involve punishments of at least 10 years in prison or a fine of at least Rs 1 lakh.

Questions have been raised as to whether these violate parts of the Constitution that require laws to be fair and reasonable, since it goes to the extent of presuming others in the house ought to have known that someone was drinking alcohol therein.

Kumar attempted to push back against this in his article:

"Those criticising this may care to advise as to the person to be arrested if, in a house, bottles of liquor are recovered, and no member of the family owns up to it. They should also enlighten us who should be arrested in a case if the house is in the name of the wife. Should the police either return empty-handed or commit a further travesty of justice by arresting the wife, knowing fully-well that in almost all the cases, it is the husband who drinks?"

In other words, Kumar is admitting that his original legislation is flawed, since it will not prevent what the chief minister calls "leakage", meaning alcohol might actually turn up in people's houses. And he wants to arrest someone for that. So why not just presume one adult is to blame and put the burden of innocence on that person?

His next sentence is even more problematic. Kumar just explained that this provision is necessary because he presumes people will not own up to being responsible for any bottles found. Yet he insists those very people will be compassionate enough not to blame other people, like their wife or children, for the alcohol.

Those criticising are also presuming that the adult male member who is actually drinking and violating the law, will, when caught, be inhuman and cruel enough to share the accusation with his wife and adult children. 

Compassionate Nitish Kumar sees the best and the worst in his people: They are cunning enough to not take the blame for alcohol being found in their houses, but kind enough not to blame that on someone else even though they know the other person will be prosecuted. The opportunities for misuse of this provision seem rife.

However, the truth is that these measures are a response to the administrative experience of the state in enforcing the ban. These problems, if unchecked, will lead to an unresponsive system of leakage which creates hooch tragedies. We have decided to nip this in the bud by placing direct accountability

Another example of this "direct accountability," is the collective punishment provision. Under this rule, a district collector can impose a fine on any village, town or group/community within which have been found to be repeat offenders.

This is already in operation. A fine of Rs 5,000 was imposed on every household in Kailashpuri, Bihar. Bottles were found repeatedly in a few houses, so authorities decided to take action against 50 households.

As Apar Gupta points out in the Telegraph, this – and many other provisions of this draconian law – are an attempt to demand "obedience through a fear of the law rather than respect towards it."

Kumar has admitted that prohibition has never really worked anywhere else, but knows that it is the sort of pan-Indian policy that could elevate him above the "regional leader" tag, and so he is determined to bludgeon his people into following the law.