Supreme Court's highway liquor ban can be criticised for being simplistic, but not for judicial overreach

The Supreme Court order on 31 March reaffirming its earlier decision (15 December, 2016) to ban liquor vending along the national and state highways has given rise to a whale of protest. The pubs, bars, hotels and restaurants along the highways that serve liquor had sought to make a fine distinction between vending and serving liquor and had sought exemption from the SC order on the ground that such units are part of hospitality industry, and not the liquor industry.

The Government of India agreed with this contention. The Attorney General (AG) of India, the highest law officer of the land, accordingly rendered a legal opinion to the Kerala government — in the aftermath of the 15 December order — that the apex court’s ban on liquor supply within 500 metres of the national and state highways would not apply to hotels, restaurants, pubs or bars that serve liquor.

But the Supreme Court bench, headed by the Chief Justice of India, categorically rejected the AG’s contention on the ground that exemption to serving of liquor (as against vending of liquor) would defeat the very basis of its 15 December order that sought to prevent drunken driving.

Representational image. AFP

Representational image. AFP

In the aftermath of the 31 March order, the hospitality industry has risen in revolt. It has raised the twin threats that the SC order is likely to pose that have national implications: First, the loss of jobs; it is bandied about that one million jobs will be hit; second, the loss of revenue; it is claimed that Rs 65,000 crore of revenue would be lost on account of this misplaced court order.

The Government of India seems to have concurred with this view. The CEO of Niti Aayog, the highest policy-making body of India, has come out strongly against the SC order saying that it would kill the tourism industry in India. The Union tourism minister has also said that the SC order would adversely affect tourism. The minister has promised that the government would initiate measures to skirt round the problem. One suggestion doing the rounds is that the central government is likely to denotify, for official purposes, the national highways so that the Supreme Court order would be rendered virtually null and void. Most state governments (except Gujarat and Bihar which are dry states) have enthusiastically embraced the idea and have made moves to denotify state highways.

One will have to wait to see how this game is played out and how the apex court reacts to such moves. But there is no denying that the Supreme Court is at the receiving end of a lot of brickbats from opinion-makers who are batting for the cause of the hospitality industry and those who are insisting on their right to drink, irrespective of consequences, in a democratic society. There are others who accuse the Supreme Court of judicial overreach – of making law instead of interpreting it.

There is a lot of substance in the criticism of the SC verdict. It is true that an alarmingly large number of people (1.34 lakh as per the last count) die in road accident every year. The Community Against Drunk Driving (CADD), which deposed before the apex court, gave evidence that more than 70 percent of the road accident deaths are due to drunken driving. “Twenty-four hour availability of alcohol along national and state highways results in impulsive buying of alcohol and about 72 percent road accidents on highways,” CADD said.

There are many who would dispute the contention that availability of alcohol on the highways is the cause of drunken driving and death. They cite the example of Gujarat, for example, which has been a dry state for years but which witnesses accidents and deaths due to drunk driving on a large scale. These critics would point the finger at the lack of effective monitoring and enforcement mechanism against drunken driving as the prime cause for fatal accidents. And they are perhaps right.

But the accusation of judicial overreach is possibly borne out of ignorance of the critics. The SC was aware of its vulnerability to such a charge and, therefore, mentioned it candidly in its order: “We must at the outset notice that this court while exercising its jurisdiction has neither formulated policy nor (as we shall indicate) has it assumed a legislative function.”

The court said that it was merely enforcing a model policy of the government which was in the making for more than a decade.

Here are the facts. The first NDA government headed by Atal Bihari Vajpayee had set up a National Road Safety Council which gave its unanimous recommendation on 15 January, 2004 to the effect that no fresh licence should be given or old licence be renewed along highways.

The UPA government that came to power in May 2004 carried forward the NDA government’s work in this regard. The Ministry of Road Transport and Highways issued the first advisory on 26 October, 2007 asking all state governments to make the national highways free of liquor shops (the Centre did not mention state highways as it had no jurisdiction over them) and repeated such advisories several times thereafter. Such advisories were largely ignored by the state governments on the ground of loss of revenue on a large scale. The central government could not have enforced the advisory as alcohol came under the state subject.

The Supreme Court, therefore, merely gave effect to the intent of the central government as the latter was not in a position to do so by itself because of the constraints of our federal structure. The Supreme Court found support in the legislative intent in this regard in the Section 185 of the Motor Vehicles Act, 1988 that enumerated punishment for drunken driving.

The Supreme Court admitted that it was making an important departure from the model policy of the central government that had stipulated the distance of 100 metres for the liquor vending to go off sale; the SC, in its 15 December order, increased the distance to 500 metres to make the move effective but relaxed it to 220 metres in urban areas in its 31 March order.

Overall, the SC could be criticised for agreeing to a mono-causal, simplistic solution but it cannot be accused of judicial policy-making. It only gave effect to what has long been legislative and executive policy intent.

Published Date: Apr 04, 2017 12:31 pm | Updated Date: Apr 04, 2017 12:31 pm

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