The Supreme Court’s Judgment on the Sale of Liquor along National Highways

In a judgment delivered earlier this week, a three-judge bench of the Supreme Court issued directions to the states and union territories to desist from granting licenses for the sale of alcohol along national and state highways, and also directed that no liquor shop be located within five hundred metres of the highway. Although the Court began its judgment with a nod to judicial review, in my view, it failed to demonstrate the legal source of its power to pass the directions that it did. This is evidenced by its reference, in paragraph 24(vii), to the constitutional catch-all:

“These directions issue under Article 142 of the Constitution.”

As I have argued before, however, Article 142 is not a carte blanche; it specifies that “the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.” A preliminary condition for the applicability of Article 142, therefore, is that the Supreme Court act within its jurisdiction. One aspect of this, surely, is that the Court act in accordance with the separation of powers, even if it is the loose and flexible separation of powers that exists under the Indian Constitution. Now, under the Constitution, the power to grant liquor licenses rests with the states (under List II of the Seventh Schedule), and indeed, this legal fact was admitted by the Court  in paragraph 13. Directions to the state governments not to grant licenses for alcohol shops appear to encroach directly upon the legislative function, and therefore – prima facie – fall outside the “jurisdiction” of the Court.

The Court made two arguments to justify this exercise of power. First, it referred to a number of government policy documents that drew a correlation between alcohol consumption and road accidents. It also referred to the fact that the union Ministry had issued circulars “advising” the State governments not to grant any new licenses to liquor shops along the highways. However, at no point did the Court hold or observe that these policy documents or circulars had any kind of statutory or legal force. And in any event, as the Court itself admitted, the circulars were limited to the national highways, since the Union had no jurisdiction over state highways. In its judgment, however, the Court extended its directions to both national and state highways, and provided this by way of justification:

The power of the states to grant liquor licences is undoubted. The issue is whether such liquor licences should be granted on national and state highways at the cost of endangering human lives and safety. In our view, which is based on the expert determination of the Union government, we hold that the answer should be in the negative.”

With respect, this is not the issue. The issue is whether the Court is acting within its jurisdiction by taking over the function of the state legislatures to regulate liquor licenses, and on that question, the judgment remains silent. While the reasoning would be unexceptionable if it was in the Statement of Objects and Reasons of a Bill being tabled in a state assembly, it fails to address the essential issue of the Court’s jurisdiction, which is the precondition to the exercise of Article 142 power. Reference to the “expert determination” of the Union government does not help, because the question is not whether the Union government’s determination was correct or incorrect, but which body is authorised to act upon that determination.

Secondly, the Court made a brief mention of Article 21, observing that “… the court [is] not fashion[ing] its own policy but enforc[ing] the right to life under Article 21 of the Constitution based on the considered view of expert bodies.” While this pithy formulation is not developed further, an argument could be made that in granting liquor licenses along state highways, the state governments are failing in their positive duty to protect the fundamental right to life under Article 21 of the Constitution. Consequently, the Court’s directions – under Article 142 – are within its jurisdiction, since the Court is only performing its constitutional duty to ensure that the State abides by fundamental rights (whether in their negative or their positive aspects).

However, if this was the legal foundation of the judgment (and I can see no other), then the Court – I would suggest – was required to rest it on firmer evidentiary foundation than it did in the present case, and also, to provide a legal test for the degree of proximity required between State (in)action and the loss of life, for Article 21 (in its positive aspect) to be attracted. There are a lot of things that the State does or does not do, that ultimately affect peoples’ lives. For instance, people would probably live longer, and there would be fewer deaths by heart attacks, if the State was to ban all junk food. That, however, would not justify the Court invoking Article 21 and directing the State to ban all junk food.

The Court – as pointed out above – referred to the Union’s circulars and policy documents, which had found a correlation between access to liquor along highways and road deaths, and then observed that it would defer to these findings. However, this was not a case where the Court was adjudicating upon the validity of administrative action, where a simple, deferential approach would be appropriate. Here, the Court was using the Union’s policy documents to make a finding that the states were in breach of their obligations under Article 21. This, I would submit, requires more exacting scrutiny (and a legal test of causation) than what the Court engaged in.

Lastly, although the Court correctly followed precedent in holding that there was no fundamental right under Article 19(1)(g) to trade in alcohol, in my view, it missed an important aspect: while the right to trade in alcohol might not be a fundamental right, surely the right to consume alcohol – as an aspect of personal choice – is a fundamental right (Article 21). The Court may still have returned a finding that the limited removal of access to alcohol along highways did not affect the content of the right in any meaningful way, but it at least ought to have acknowledged the existence of the right, and engaged with the fact that there was some interference with it.

Unlike some recent orders delivered by other benches, the Supreme Court’s judgment in this case made a substantive attempt to ground itself within the parametres of the Constitution. In my view, however, in order to be persuasive, its reasoning needed to be substantially stronger than what it was.

 

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8 Comments

Filed under Article 21 and the Right to Life, separation of powers, The Judiciary

8 responses to “The Supreme Court’s Judgment on the Sale of Liquor along National Highways

  1. Would certainly be interesting to compare this reasoning of the Court in arrogating overbroad jurisdictional powers with another decision by the same bench on frisking exemptions to HC judges. That one was on scope of review under 226. The obvious distinctions b/w 142 and 226 notwithstanding, the observations of the Court there are rife with hypocrisy, castigating the HC for stepping out of its jurisdictional bounds and suo moto ordering policy change. Physician heal thyself, surely.

  2. Would it apply to restaurants alongside NH and SH?

  3. Aditya Gor

    It is difficult to agree with you after reading ‘Vineet Narain and others v. Union of India and another’. This judgement would be a good read for you too.

  4. Pingback: Weekly Roundup: December 13-20, 2016 – Centre for Constitutional Law, Policy, and Governance

  5. Shivaraj

    If in case all the retail shops move away 500meters from national and state highways there is all the chances that the legal liquor shops do lesser business than the illegal road side dhabas and small hotels mint money by making the liquor easily reach illegaly the hands of the consumers in smaller towns and also along the highways. The road accidents occurs due to many reasons.In order to control the alcoholic accidents let every vehicle be fitted with the liquor sensing devices which should turn off the vehicle engine if found positive (drunk and driving the vehicle)
    One of the sleep detecting device is installed in the state government owned buses recently, which detect the sleep of the driver and the bus stops at once which reduce the rate of the accidents.As per my knowledge the purpose of supreme court would not serve the mankind even the shops are relocated more than 500 meters away from the highways. The habitual driver takes the turn and start searching the liquor in the available places and try to stock more due to scarcity of availability and also may drive more speeder and recklessly than earlier to makeup (recover )the time he spent in hunting the liquor.
    I also opine that curbing the illicit liquor is very difficult task and would be most difficult task to handle the illegal ways of making money with the genuine liquor.
    The ultimate sufferers would be the license holders who in spite of investing huge money earns less and the one who sells illegally without investing earns more.
    This supreme court order will be a hindrance to the tourism industry as well throughout the country and the people visiting India.

    • kalpeah

      At least show some respect for supreme court its people like you who find even such public intrest orders annoying ……..i stand by supreme courts order …..

  6. gauravgupta3093

    A. In reply to the plausible argument that Court derives its jurisdiction from Article 32 :-

    Article 142 being a penal provision, is a procedural rule that sanctions the enforcement nature of orders/directions passed by Supreme Court of India in pursuit of its writ/appellate Jurisdiction of any case.

    What is the positive duty of State? Clearly shelter, food et al are basic necessities of life being brushed under the rubric of “human dignity, beyond animal existence”. The State can not be sued for every accident that happens on roads simply because operation of roads is in State List of the Constitution? In other words, not everything under the sun falls under the purview of “positive duty”. Only when state of affairs reach menacing proportions or when the executive and legislative machinery is unable to protect the inherent rights of citizens does the Court interfere and issue various directions. Road Traffic Injuries is one such phenomenon where Supreme Court has assumed the mantle of changing the scenario as is prevalent now (see observation that India’s “retarded” policy making has been faulted, making Indian roads the most unsafe in entire World- compared to China) (see Rajaseekran v Union ) (see Rattann Singh: Driving on Indian roads is a tryst with Death (J IYER) )
    (Beneficially see Law Commission Report 234th).
    Upon understanding the poor level of legislative foresight and wisdom depicted in the existing Motor Vehicles Act and other political reasons underlying the logjam in the Parliaments as contrasted to Constitution of India, Judiciary has been consistent and uniform in issuing directions cum writs to all the Governments in Union of India (See: constitution of Road Accidents Prevention Committee, headed by KS Radhakrishnan, J. vide SC Directive issued in case of Rajaseekran).
    Punjab and Tamil Nadu Governments respectively vide certain enactments (referred to in the Judgment of Supreme Court in State of Tamil Nadu v K Balu) have as a matter of record deemed it fit to prohibit issuance of licenses of business of liquor on highways, but there was apparent lacuna in that there were issues of enforceability. In State of Tamil Nadu there was visible conflict of interest on part of enactment of laws or policy guidelines and their enforcement since most liquor shops on highways were managed/operated/licensed by State functionary.

  7. P.R. Renganath

    Why hasn’t (assuming reasonably that it hasn’t) the SC (and has it ever) referred to the Hindi version of the statutes (or the Constitution) for resolving grammatical issues?

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