THE BIG BAN THEORY – Mukesh Batra

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How Away Should be the Highway to be High

The Big Ban Theory of the Supreme Court

 

  1. Ladies and Gentlemen, this time we take a sojourn over the order pronounced by the apex court of the land that prohibits sale of liquor within 500 meters of the national and state highways across the nation. The order is modified to 220 meters for the areas where the population is less than 20000. The proposal initially was applicable to vends and when these vends started converting into bars and restaurants, the ambit was amplified to sale as well as service. The liquor trade as emphasised by the Honourable Supreme Court is res extra commercium, something outside the idea of commerce. It exists solely at the discretion of the policy makers without any concomitant fundamental right that the other businesses enjoy. This was the ground cited by the honourable court while ordering prohibition on sale of liquor within 500 meters of national and state highways.

  1. Before I embark on the factual and legal aspects, I am reminded of the American legal philosopher Lon Fuller who had framed a term called “polycentric problems” thereby implying a spider web where a pull on one strand will distribute tensions to the various other strands of the web as a whole and with no pattern and uniformity. He then tenaciously affirmed that the Judiciary in particular, is ill suited to handle such polycentric problems and its effect on the various interdependent strands in the society due to lack of expertise or time to understand and measure the subterranean situation. The Supreme Court’s orders of December 16 and March 17 highlight the perils of polycentric adjudication. The courts of law are required to lay down the law lastingly and not pro tempore and that the laws should be fair, just and reasonable and not fanciful, arbitrary and oppressive.

  1. There has been a lot of hue and cry among the masses, print and the social media about the estimated job and the revenue loss. States like UP and Rajasthan were the first to denotify the highways for the understandable reasons and a few states opting to seek review highlighting the peculiarities of the respective state. The Chief Minister of a state has also placed on record that they would also seek review from an appropriate bench which appears plausible at the first blush but stares hard later for being devoid of merit and substance as the review petitions are referred to the same bench. As regards the industry, the hotels are resorting to all the possible innovative methods under the sun to achieve 500 meters between themselves and the highways and some have even made zigzag manoeuvres to circumvent the pusillanimous situation as there are no definite guidelines to take measurement.

  1. The background of the development stems from 2004 when the National Road Safety Council had recommended that no fresh licences should be issued and no existing licenses to be renewed along highways and thereafter the Ministry of Road Transport and Highways had issued an advisory on 26 October 2007 to the state governments to make national highways free of liquor shops for the cause of road safety. Therefore, it was an advisory but not a mandate as this being a state subject. The order of the honourable court is outcome of the PIL filed by Harman Singh Sidhu in Punjab and Haryana High court. When the matter was argued before the SC, it invoked its powers vested under Article 142 of the constitution.

  1. I wish to mention here that imposing restrictions on the location of the liquor outlets and applying them differentially to vends, shops, restaurants and bars is purely an executive decision. The executive may exhibit laxity in enforcement or could be corrupt in issuing license. The order primarily puts an embargo on the sale and service but does little to strengthen the laws to curb drunken driving. We often target the individuals and not the process and the mechanism. If the need of the hour was to amend the law, it was a legislative action and stricter imposition being an executive decision but certainly not a case of judicial intervention by any stretch of imagination. As per data available, 6755 deaths were caused due to drunken driving in 2015 which is 3.3 percent of the total deaths due to road accidents. Supreme court order is perceived as a sledgehammer on the liquor business and the hospitality sector causing a huge revenue loss estimated at a formidable Rs. 65000 to 100000 crore annually and a loss of 13 lakh jobs to the hotel industry.

  1. Now the Legal and the Constitutional aspects. The Constituent Assembly while framing the constitution, deliberated on the fundamental rights between February and October 1948 and ensured two layered safeguards on the fundamental rights and protected citizen’s rights by ensuring that only elected legislature could make a law and the courts could be called to test the constitutionality. I need to also mention that this court has evolved the ‘basic structure doctrine’, a proposition that deals with separation of powers i.e., Legislative, Executive and Judiciary. This doctrine has been vividly followed in some of its ecclesiastical cases to address the pure questions of law, one being Keshavnanda Bharati case pronounced in 1973 by 13 judge Constitution bench by the majority of 7:6.

  1. I need to bring in here that the fundamental rights conferred under the constitution are negative obligations on the state which do not permit encroachment on individual liberties and Article 21 is one of them. The Article 21 deals with the individual liberty and freedom and therefore by application of the same proposition, consumption of alcohol also falls in the ambit of individual liberty and freedom. If the court has to invoke Article 21 against state inaction resulting in deaths due to alcohol consumption, then it should also ban junk food which is one of the primary causes behind cardiac arrest or myocardial infarction.

 

  1. I also like to submit that the escalating trend of the summit court’s intervention in matters such as playing national anthem in cinema halls, attempt to examine ban on watching porn, number of cuts to be exercised in a film, racy pictures on condom packets is only bringing a sense of perception that the apex court is transforming from Supreme Court to Supreme censor which is an unpleasant shock.

 

  1. Lastly, the court invoked Article 142 of the constitution that empowers the Supreme Court to do complete justice but with a rider and that is ‘within its jurisdiction’ thereby implying that the Article 142 is not a carte blanche. Therefore, the court has encroached upon the executive domain abrogating its own laid down basic structure doctrine and exhibiting judicial overreach and activism. The polycentric consequences are emerging gradually and its just case for SC to review its order.

 

  1. Before I part, wish everyone happy reading. Talk to you soon. Be good and be happy. God bless.

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