A bench of Justice Anil R. Dave and Justice U.U. Lalit asked the Kerala High Court to hear the plea by the bar owners who have challenged the state government notification asking them to down shutters. The order was to come into effect from 11 p.m. Thursday (Sep 11).
Saying that it would like the matter to be decided by the high court so that it knows what reasons weighed with it in deciding the matter pending before it, the apex court hoped that the matter will be decided by Sep 30.
Even as a battery of lawyers including senior lawyers Fali Nariman, Ram Jethmalani, C.A.Sundaram, Rajiv Dhawan, Dushyant Dave and others, appearing for a number of petitioners, urged the court to put on hold the Kerala government's notification banning the service of liquor in bars till the matter was pending litigation, senior counsel Kapil Sibal argued that it was a policy matter and policy could not be stayed.
But the court was not moved by Sibal's stand.
"For so many years they have been doing the business, logically can you ban it overnight?" it asked Sibal who appeared for the Kerala government.
Apparently not persuaded by the state's position, the court wondered how it is that a person with a fat purse could go to a five star hotel bar and have a drink while another person has no such option.
"Educate the people. It is a social problem," it observed as Sibal resisted the contention that the prohibition on serving liquor at bars other than in five star hotels was discriminatory.
The court, which had wondered at the logic behind banning liquor in bars outside five star hotels during the mentioning of the matter Wednesday, inquired Thursday: "What is the distinction between four star and five star hotels."
Stating that there was a huge difference between the customers visiting the two, Sibal told the court that alcohol was a huge problem in Kerala as "maximum liquor is consumed by the people" in the state.
He, however, conceded that the only ground on which the policy could be contested is on article 14 of the constitution guaranteeing equality before law.
Defending the ban, Sibal said that the liquor was available at the retail outlets and people can buy and drink at their homes. Drinking at home, with the wife and children being present, was a hindrance, he noted.
Assailing the prohibition policy that would come into force in phases over ten years, Sundaram said the policy envisages phasing out 10 percent retail outlets every year but mocked it, saying it does not talk about the quantity of liquor to be sold over the succeeding years.
Dhawan said the issue was whether the government can take coercive steps during the pendency of the litigation over the issue, noting the licences of the affected bar owners were valid till March 31, 2015, and they should be allowed to operate till then. Thereafter, the government can take a call not to renew them, he said.
Contending that the balance of convenience was in favour of bar owners faced with a shut down, senior counsel Ram Jethmalani said there were constitutional and legal objections to the policy. He said that licences that are valid till March 31, 2015, could not be cancelled by the government by creating new grounds by an executive order.
Taking a dig at the political class, Dave asked: "Tell us how many parliamentarians and MLAs drink." He said that policy was about phasing out retail outlets over a period of 10 years and 80 percent of liquor was sold at these outlets, thus questioning the rationale behind prohibiting bars, other than at five star hotels, from serving liquor.