This article has been authored by Shantanu Lakhotia, a practising advocate and a graduate of O P Jindal Global University, Sonipat.
Shri Manish Sisodia, the Deputy Chief Minister of the National Capital Territory of Delhi (“Delhi”) on 22nd March 2021 via a press conference announced that the government of Delhi has decided to reduce the ‘liquor consumption age’ from the age of 25 to 21. To report this announcement, the most common phrase that can be found in the headlines of any newspaper is the phrase ‘legal drinking age’. However, the phrase used by the Deputy Chief Minister in his press conference as well as the one appearing in the headlines of most if not all newspaper, is in direct contradiction of an observation made by the Delhi High Court in the case of Kush Kalra v. State of NCT of Delhi & Ors.
Through the medium of this article, the author seeks to prove that the terminology ‘legal drinking age’ and other similar phrases are legally incorrect.
Law on Point
The conjoint reading of three Sections of the Delhi Excise Act, 2009 (“DE Act”) i.e., 23, 42(1) and 51 lays down the law concerning consumption of liquor by an underage person in Delhi.
Section 23 has the heading “Prohibition of sale to certain persons”. The Section states as follows, “No person or licensed vendor or his employee or agent shall sell or deliver any liquor to any person apparently under the age of twenty five years, whether for consumption by self or others.”
Section 42 has the heading, “Penalty for employing minors or selling liquor to minors”. Clause (1) of the Section states as follows: “If any license holder or any person acting on his behalf, sells or delivers any liquor to any person apparently under the age of twenty five years, he shall be punishable with fine which may extend to ten thousand rupees”
Section 51 states, “Whoever does any act in contravention of any provision of this Act or any rule or order made thereunder and punishment for which has not been otherwise provided for such contravention, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to ten thousand rupees, or with both.”
In 2019, a Public Interest Litigation was filed in the Delhi High Court, praying inter alia for the quashing of Section 23 of DE Act. A Division Bench of the Delhi High Court, headed by the Chief Justice D.N. Patel held at paragraph 2 as follows, “It is a wrong notion in the mind of the petitioner, that 25 years is the legal age for drinking alcohol. What is prohibited under Section 23 has nothing to do with the age of drinking. It is a prohibition upon a licensee to sell or deliver alcohol to persons under the age of 25 years.” The same observation was reiterated in paragraph 5 as follows, “In fact, the petitioner has presumed that it is age of drinking which is prescribed, which is wrong notion in the mind of the petitioner”.
Section 23 of the DE Act operates with a simple 2+2 logic that if a person under the age of 25 cannot purchase alcohol, then that person cannot drink alcohol. The DE Act punishes a licensed holder and any of its employee under Section 42 and any other person under Section 51 who delivers or sell alcohol to a person below the age of 25 years. However, the DE Act prescribed no punishment for a person indulging in underage drinking.
This is the crucial reason why during a raid the only punishment that can be doled out by the law enforcement agencies to an underage person consuming alcohol is in the realm of ‘moral policing’ i.e., a call to the parents of the underage person.
Thus, at present, as the law currently stands, Delhi possesses a law which prohibits ‘selling of alcohol’ to a person below the age of 25, rather than a law prohibiting ‘drinking of alcohol’ by a person below the age of 25. If by hook or by crook a person below the age of 25 years is able to attain alcohol, that underage person cannot be punished under the DE Act.
The way forward
As stated above the DE Act does not prescribe any age limit for consumption of liquor, which means that a person even below the age of 25 can consume liquor. There has been a rampant increase in underage drinking in Delhi, in a public survey conducted, it has been reported that even though a majority of the survey group were aware that they are below the legal age to ‘consume’ alcohol, they nevertheless indulged in underage drinking. To dissuade the activity of underage drinking the Delhi government should follow in the footsteps of the Kerala governments and consider formulating a law similar to Section 15A read with Section 67A of the Akbari Act, which states that, “No person under the age of 23 years shall consume or use any liquor”. Thus, in the State of Kerala the person himself/herself indulging in underage drinking is punished along with the person selling or delivering him the alcohol.
The new Delhi Excise policy announced by the Deputy Chief Minister fails to address this vacuum in the law, and it is the sanguine hope of the author that the aforesaid suggestion will be adopted by the Delhi Government in the near future to help curb the menace of underage drinking prevalent in the capital of the Nation.