Judicial overreach in highway bottle ban

Article 142 does not empower the apex court to self assume powers to address 'public safety.'

On December 15, 2016, immediately before the Supreme Court closed for winter break, a three-judge bench empowered under Article 142 and speaking through Justice D Y Chandrachud, passed a ‘cease and desist’ judgement banning sale of liquor along national and state highways having regard to drunken driving being one of the significant causes of road accidents.

It further mandated that no shop for the sale of liquor shall be visible and directly accessible from a national or state highway and must not be situated within a distance of 500 metres of the outer edge of the highway or service lane. April 1, 2017 was fixed as the date for phasing out existing liquor licences.

Interestingly, this order was passed without hearing all states and liquor vendors which were the affected parties. Consequen­tly, almost 70 applications seeking modification/clarification/review/extension of time were filed before the court and a battery of senior advocates pleaded the court to alter the ruling.

Untrammelled by the technicality of maintenance of the applications, the court partially modified the earlier judgement holding that firstly, the limit from 500 metres was reduced to 200 metres for municipal corporation, city, town or local authority provided the population was 20,000 or less.

Secondly, it exempted Megh-alaya and Sikkim and thirdly, in the case of those liquor licences which have been renewed prior to December 15, 2016 and the excise year of the concerned state was to end on a date falling on or after 1 April 2017, the existing licence shall be held to continue until the term of the licence expires but not later than 30 September 2017.

The court also nullified attorney general’s opinion to Kerala that the order dated December 15, 2016 applied only to retail outlets and not to establishments such as bar attached hotels and beer and wine parlours.

The judgement is wrong, in my considered view, on four major counts. First and foremost, ‘excise’ being a state subject (Entry II, Item 51), the order could not have been stretched to liquor licensees on state highways without hearing the states.

Secondly, Article 142 does not empower the SC to self assume powers to address ‘public safety’.

Thirdly, the blanket order has been passed without considering geographical and topographic differences between states and keeping state and national highways at equal footing which is erroneous for practical reasons. Fourthly, the use of the doctrine of Res Extra Commercium as a shield to defend the ban on liquor is incorrect per se.

Starting from the fourth reason, the Supreme Court has arguably borrowed and modified accordingly the US doctrine of ‘police powers’ in form of ‘res extra commercium’. Flowing from the directive under Article 47, the doctrine of Res extra commercium renders certain purportedly immoral or pernicious activities such as gambling, rural money-lending, and selling intoxicating liquor as constitutional outcasts.

Therefore, these activities are not protected by Article 19(1)(g) of the Constitution. The doctrine was introduced in 1957 in the context of gambling in Bombay v R M D Chamarbaugwala (1957) and in subsequent cases was applied to alcohol and declared that trade in alcohol is res extra commercium, that is, beyond commerce, and therefore, not entitled to protection under constitutional and fundamental rights. However, it has also provided enough loopholes to recognise the liquor trade constitutionally.

Constitutional legitimacy
In the famous Khoday Distilleries case (1995), the Supreme Court denied constitutional legitimacy to the liquor trade and allowed it by saying that if a government permits the trade, it is constitutionally obliged to regulate the same in a fair manner. The Kerala Bar case (2015) went one step further to hold that if the trade is permitted, it is constitutionally legitimate.

India is a physically diverse country. While we have states such as Goa where 500 metres from the highway one may find endless ocean, we have Uttarakhand where a highway may be sandwiched between hills. One may find a highway where 500 metres will have dry desert and at some pace else one may find water bodies.

In Gurugram (Gurgaon), the highway runs through posh ma­lls on either sides. Gujarat and Bihar are dry states. Not only this, the Supreme Court has held that liquor shops must not be visible from highway either. Unfortunately, all this has been adjudicated by a blanket order without hearing the states at all.

I don’t advocate permissibility of drunk driving. It is an offence under law (Section 188, Motor Vehicles Act). But to check that nobody drinks and drives, a counterproductive ban on liquor trade on highways is not the solution but an overreach. Indians are quick in responding.

In Gurugram, entry gates have been changed to bring liquor shops outside the limits of 500 metres. Various state governments have started denotifying state highways to district roads and other escape routes have been set in motion. The judgement will soon made redundant due to impracticalities. Hopefully, it is not used as an irregular precedent and another way is found to curb the menace of drunk driving.

(The writer is an advocate, Supreme Court)