Legal Eye : Liquor Ban on National Highways

WHY SHOULD I READ THIS FOR LAW OPTIONAL : This article critically analyses the Judicial activism vis-à-vis Judicial overreach, rationale of Separation of Powers doctrine, SC power to do complete Justice, appearing in news for past 6 months.

CONCEPT OF PP : “Polycentric problems” means that when a social issue involves a complex set of interdependent relationships, then if you change one feature – others will have unforeseen and far-reaching changes. This is the problem which judiciary faces right now.

  • SUPREME COURT ORDER ON LIQUOR PROHIBITION : The Supreme Court’s order on December 15, 2016 — which it modified and expanded on March 31, 2017 — prohibiting the sale of alcohol within 500 metres of national and State highways highlights the perils of polycentric adjudication.

  • SEPARATION OF POWERS IN INDIAN CONSTITUTION : Separation of powers, in Indian constitution - between the executive, the legislature, and the judiciary, and places policymaking firmly in the domain of the executive. But this order a is a classic example of policymaking, and that the Supreme Court has indulged in “judicial overreach”.

  • WHAT DID SC REPLY > It held that this is an “Public Interest Litigation”

  • In both orders, SC referred - number of government policy documents that drew a correlation between alcohol consumption and road accidents. It held that liquor licences should NOT be granted on national and state highways at the cost of endangering human lives and safety. Court came to this conclusion based on the expert determination of the Union government.

NOW : QUESTION IS : what should be done about a problem, and who should do it.

  • Irrespective of whether the government should grant liquor licences in the proximity of highways – This is not something which court should answer.

  • The Supreme Court’s reference to the “expert determination” of the Union government does not help, because the question is not whether the government’s determination is correct or incorrect, but which body is authorised to act upon that determination.

  • The court observed that it was “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”.

ARGUMENT OF THE COURT : Road deaths could be prevented if the state was to refuse to grant liquor licences in the proximity of highways. The state’s failure to do so is a breach of its obligations under Article 21, and the court’s order merely enforced a fundamental right by requiring the state to act.

CRUCIAL ISSUES :

  1. MISSED THE DEGREE OF PROXIMITY : The court ought to have provided a test for the degree of proximity between state (in)action and loss of life, for a finding that Article 21 had been breached. Say an for an example, a person may suffer heart attack after eating junk foods, can the court do the same here?

  2. DOES NOT REST ON FIRM EVIDENCE : The court’s conclusion ought to have rested on firmer evidentiary foundations than it did.

  3. POWER TO DO COMPLETE JUSTICE :

  • The court concluded by clarifying that it was passing orders under Article 142 of the Constitution.

  • Article 142 empowers the Supreme Court to do “complete justice” in any case before it. However, this power is bounded by the further requirement that the court act “within its jurisdiction”. Article 142, therefore, is not a carte blanche for the Supreme Court to implement its vision of justice, without regard to issues of institutional competence and legitimacy.

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