Judicial prohibition

Supreme Court curbs on sale of alcohol call for a clearer demarcation of separation of powers.

Written by ARVIND P. DATAR | Updated: April 11, 2017 7:55 am
Liquor ban, liquor ban on highway, supreme court, supreme court order, bar licences, highway liquor sale, highway liquor outlets, indian express editorial, indian express cloumn, indian express Supreme Court (File Photo)

Hundreds of hotels and restaurants across India suddenly stopped selling liquor on April 1. Ironically, all had valid bar licences; for five-star and four-star hotels, it was mandatory to have bar licences. No liquor was supplied to Indian and foreign guests even in their rooms and several hotels promptly removed miniature liquor bottles that were stocked in individual rooms. In most states, a vast majority of liquor shops had shut down — in Tamil Nadu, over 60 per cent of state-owned retail outlets had to close.

This was no April Fools Day prank but part of a grand plan envisaged by the Supreme Court to reduce deaths by drunken driving. Official statistics showed that in 2015, there were 5,01,423 deaths due to accidents and 16,298 or 3.3 per cent of the total were due to drunken driving. In the past, there had been advisories from the Union of India to ban liquor shops on national and state highways but these were not implemented by the states. On December 15, 2016, the Supreme Court passed far-reaching orders directing closure of liquor shops on such highways by April 1, 2017, and also prohibiting sale of liquor within 500 metres on either side of them. All states and Union Territories were mandated to strictly enforce these directions.

On March 31, barring some relaxation for Meghalaya and Sikkim and for local bodies with a population of 20,000, the Supreme Court clarified that all its earlier directions would stand, pointing out that its judgments had neither formulated any liquor policy, nor assumed any legislative function. Actually, the court did exactly that.

A Model Policy, formulated by the Union of India in 2005, provided for a ban on retail liquor shops within 100 metres of any religious or educational institution or hospital and 220 metres from the middle of national or state highways. Most significantly, the Model Policy made it clear that this ban would not apply to parts of national or state highways that passed through cities and towns that had a population of more than 20,000.

Rejecting this exception, the Supreme Court declared that it made neither sense nor logic to allow sale of liquor on highways that passed through such cities or towns. In effect, the Supreme Court completely altered the Model Policy resulting in a ban on sale of alcohol throughout the national or state highways and even in licenced hotels — most of whom, unfortunately, are situated on such highways. The distance of 220 metres was also more than doubled to 500 metres.

To impose prohibition, fully or partially, is the sole prerogative of each state under Entry 8 of List II of Schedule VII of the Constitution and even Parliament cannot direct any state as to when and where liquor can be sold. Several states have formulated their own rules — Karnataka has imposed a 220 metre limit while West Bengal continues with a 720 feet rule. By imposing a nation-wide uniform ban of 500 metres with minor exceptions, the Supreme Court has really substituted all state laws with its own limits and other directions.

The two orders of the Supreme Court have had catastrophic fiscal consequences for almost all states, with revenue losses estimated to be in excess of Rs 75,000 crore and a potential loss of one million jobs. The collateral damage on domestic and international tourism is yet to be estimated. With the cancellation of bar licences, the huge impact on the revenues of hoteliers will result in loan defaults. What happens to licences that were valid well beyond April 1, 2017? Are they entitled to refund the licence or vend fees?

No country in the world, much less its courts, reduced deaths by drunken driving by closing liquor shops. Stringent punishment for those driving after drinking, being found with alcohol above a certain limit (through breath and/or blood tests) has a salutary effect. While the Supreme Court’s intention is laudable, it must be accepted that it is entirely for individual states to tackle this problem.

If a total death toll of 16,298 deaths can justify a substantial ban on sale of alcohol, can 10,00,000 deaths due to tobacco consumption justify a total ban by the Supreme Court on sale of all tobacco products?

The judicial ban on alcohol sales is unfortunately not unique. Last year, we had a sudden ban on sale of diesel vehicles, later limited to cars above 2000 cc. When the Motor Vehicles Act, 1988 permits diesel vehicles of certain specifications to be sold and licensed, can the Supreme Court or high courts impose additional conditions or restrictions on the ground that they will subserve public interest? The banning of diesel vehicles had serious economic consequences for manufacturers and dealers who had made plans based on Parliamentary legislation.

Judicial directions, based on PILs, but contrary to the existing laws, introduce a dangerous element of uncertainty and can often be counter-productive as courts do not have the luxury of time to consider the overall

consequences of their orders. These are what Lon Fuller calls “polycentric issues” that should be outside the realm of the judiciary. He likens such problems to a spider’s web. A pull on one strand results in a complicated pattern of tensions throughout the web, causing one or more of the weaker strands to snap (‘The Forms and Limits of Adjudication’, Lon Fuller and Kenneth Winston, (1978) 92 Harvard Law Review).

Far-reaching decisions are made by the Supreme Court under Article 142 of the Constitution — a provision which enables it to pass orders to do “complete justice”. Our Constitution does not have strict separation of powers — the legislature, executive and judiciary sometimes overlap — but there are certain lines that ought not to be crossed. In the absence of alcohol, it is perhaps time for a sobering reflection on the need to demarcate these lines with greater clarity and certainty.

The writer is a senior advocate practicing in the Supreme Court.

For all the latest Opinion News, download Indian Express App

    Live Cricket Scores & Results