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From One for the Road to None for the Road:

A case of Judicial Overreach!

J. Shriyan

Disposing off petition to ban liquor vending on highways, the Supreme Court on 15th Dec. 2016, passed an order of around 8000 words running into 21 pages, while taking into account the unexpired period of vending licences. Quote “The states apprehend that premature termination may lead to claims for refund of licence fee for the unexpired term, with large financial implications. Hence we would direct that current licences may continue for the existing term but not later than 1 April 2017.

We accordingly hereby direct and order as follows:

(i) All states and union territories shall forthwith cease and desist from granting licences for the sale of liquor along national and state highways;

(ii) The prohibition contained in (i) above shall extend to and include stretches of such highways which fall within the limits of a municipal corporation, city, town or local authority;

(iii) The existing licences which have already been renewed prior to the date of this order shall continue until the term of the licence expires but not later than 1 April 2017;

(iv) All signages and advertisements of the availability of liquor shall be prohibited and existing ones removed forthwith both on national and state highways;

(v) No shop for the sale of liquor shall be (i) visible from a national or state highway; (ii) directly accessible from a national or state highway and (iii) situated within a distance of 500 metres of the outer edge of the national or state highway or of a service lane along the highway.

(vi) All States and Union territories are mandated to strictly enforce the above directions. The Chief Secretaries and Directors General of Police shall within one month chalk out a plan for enforcement in consultation with the state revenue and home departments. Responsibility shall be assigned inter alia to District Collectors and Superintendents of Police and other competent authorities. Compliance shall be strictly monitored by calling for fortnightly reports on action taken.

(vii) These directions issued under Article 142 of the Constitution.

We dispose of the appeals and transfer petitions in the above terms. There shall be no order as to costs. – CJI (T.S. Thakur) J (Dr. D. Y. Chandrachud) J. (L.Nageshwar Rao)

New Delhi- Dec. 15, 2016

In one stroke, the apex court dealt a death blow to a commercial activity that employed at least a million people across the country and put thousands of outlets out of business worth hundreds of crores every day. So also the huge revenue that states were earning. Naturally appeal and petitions came up and heard. But court insisted saying “Highway liquor vends must close”, on 31st March 2017, as the apex court was disposing the PIL of Chandigarh based activist Harman Sidhu.

Clearly, the authorities in respective affected states had some three and half months to plan their action to save themselves but they thought, a petition to the highest court of the land shall have the desired result. But that did not happen.

Why did the Supreme Court do it!

Its arguments are quite cogent. The backdrop to the case is the alarming statistics of death and injuries due to the on-road accidents involving vehicles, 2 wheelers to 4 wheelers and to even 6 wheelers. It has to be recognized that, in terms of personal suffering caused to individuals and families as well as in terms of deprivation caused to society of its productive social capital, road accidents impose unacceptable costs. Thus according to courts, facts of the case are certainly not in dispute and therefore becomes foundation for any policy initiative to regulate and control those causes which leads these avoidable accidents on the roads.

According to the statistics available within the ‘fault of driver’, persons killed in accidents ‘exceeding lawful speed accounted for 61% of all deaths (106,021) due to road accidents of which due to intake of alcohol/drug accounted for 4.2% and 6.4% respectively.

Available information from road transport sources the world over, informs that India has the highest rate of road accident casualties in the world. Local sources inform that India’s national highways and state highways share a common experience of an unacceptably high number of accidental fatalities, are largely due to drunken driving.

The concerned central government over these avoidable deaths due to alcohol consumption related road accidents, way back in 2004, constituted National Road Safety Council, which unanimously agreed that licences for liquor shops on highways should not be given. Accordingly Ministry of Road Transport & Highways (MRTH) issued a circular to all state governments advising them to remove liquor shops situated along national highways and not issue fresh licences.

Thus, the move to regulate liquor vending along the highways has been there since some time. But then we Indians act only when we are cornered, always hoping for the best, that situations can always be managed. So despite advisories from central government, states didn’t take any action or had any road map about the regulation of liquor vending along the highway. And businessmen, being what they are, always find shorter and lucrative ways of making money and more money, kept on getting licences and kept on opening liquor bars and shops along the highways, which provide ready buyers and consumers, round the clock/round the year.

Come 1st April, its curtains down! But is it really so!

So suddenly the state governments and even central government are waking up to a new reality. Maharashtra government is toying with the idea of changing names of both Western Express Highway (WEH) and Eastern Express Highway (EEH). WEH, which runs from the suburb of Bandra in Central Mumbai to Dahisar in the North, is likely be renamed as Western Urban Road, and EEH which starts from city centre at Victoria Terminus or Chatrapathi Shivaji Terminus to Thane, a suburb in the north, shall be called Eastern Urban Road. Both these roads have been handed over to Mumbai Metropolitan Region Development Authority (MMRDA) for maintenance. Similar actions are being planned by all states, which earlier did not have prohibition. Besides, the local bar owners, liquor shops, restaurants selling liquor, all found different ways to remain in business, some overt-some covert. Hence truly speaking, did the Supreme Court order change things! Prima facie, it is appearing to be status quo on the ground.

While, there is no doubt that apex court had its noble intention, what about the experience of some of the Indian states which have prohibition in place? What about the experience of other countries where prohibition was tried and given up? Besides, regulation of sale and consumption of liquor is purely a governance issue, how the apex court in its wisdom thought that it is right for it to take the call!

Questions are many and we at I&C thought of finding some answers from the public space.

According to one writer, “The court may seem to believe that acting in public interest, as guardian of people’s rights, its powers are unfettered. However such outright overreach can prove to be highly problematic for the entire system of governance in the country”. Although this particular order is well intentioned, it is a breach of basic constitutional principles of separation of powers among the three pillars of our democratic polity- Legislature, Executive and Judiciary. What the court has done is, they made a law, which is truly the function of legislature.

Besides, court did not take into consideration, the huge loss of revenue for states and employment of lakhs people who were dependent on those vending joints. There has been no alternative model proposed for revenue. Similarly no proposal to absorb the people rendered unemployed by this closure of highway vending joints, has been put in place.

What probably should have happened is to give notice to the Central government that instead of advisories, come up with some effective legislation that would try to address the public interest concerns. This would have given an opportunity for the government to come up with some alternative model without being as painful as it is now.

Of course, the considered stand of the court has been, that despite years of advisories, the central government could not do the job, hence this intervention became necessary for safeguarding the fundamental right to life. But, asks a constitutional expert, “Does this give licence to courts to go into legislative overdrive at the expense of constitutional principles?!” It’s a good question.

Coming to the experience of other Indian states or the other parts of the world, there are enough material to learn from their experience.

In India, officially there is complete prohibition in states of Gujarat, Nagaland, Lakshadweep. Some parts of Manipur and Maharashtra too has this ban. Kerala has a phased banning of liquor vending since 2014. Mizoram and Haryana had imposed prohibition but later have lifted it.

Gujarat is officially a dry state since the formation of the state in 1960. But, it is a well known fact, that with right contact, getting booze is no big deal. Those with no contact have to travel to Abu Road in the north and to Silvassa, Diu and Daman in the south, to have a kick.

However what is important and therefore needs consideration is, prohibition has never stopped liquor consumption. Not only states have lost thousands of crores of revenue for the state, it has also encouraged manufacture of illicit and spurious liquor, which played havoc with the lives of ordinary people. In fact Mizoram lifted the prohibition for exactly the same reason in 2014, after 18 years of failed experiment.

Recently there was a story in the media, datelined Nashik in Maharashtra, “Killer Hooch brewed in govt. hospital canteen”. There was a ban during Zilla Parishad electioneering in Ahmednagar district. But then, those who are addicted to drink, will somehow manage to drink. And bootleggers know that whatever is concocted in the name of liquor will be sold. Reportedly close to a dozen have succumbed to the killer brew. If for some brief temporary period, the ban cannot be enforced fully, how the permanent ban can stand the test!

Illegal concoction, the killer hooch has killed some 140 people in Gujarat in July 2009. Like Gujarat, Nagaland too has been a dry state since 1989. Assam being at the border, has kept the uninterrupted flow of alcohol into the state. Just outside Dimapur, inside Nagaland, there are rows of liquor shops and make-shift bars on the Assam side. Inside Dimapur too, reportedly it’s not difficult to find hidden pubs in residential complexes. In Bihar too, people are crossing over to Nepal or to Jharkhand to quench their thirst.

Banning the sale and consumption of alcohol has, in this country’s experience, not been an effective check against its use. It has only criminalised the activity, with disastrous consequences for individual health, the economy and the administration — these include besides bootlegging, liquor mafias, spurious liquor, a complicit police too. It also deprives States of an important source of revenue. For instance, in Tamil Nadu nearly Rs.30,000 crore, or over a quarter of its revenue in 2015-16, came from taxes on the sale of alcohol and excise on manufacturing spirits. This income has enabled successive regimes from 2006 onwards to splurge on social sector schemes, especially the trademark programmes to supply free rice to nearly all ration card holders, distribute consumer goods and maintain its pioneering nutritious noon meal scheme for all children in government and aided schools and anganwadis. Certainly, alternative sources of revenue must be found if prohibition can virtuously, magically transform society. That case has, however, not been made, in argument or by experience.

It is a fact that Gujarat, Nagaland and Mizoram are examples of how prohibition gave rise to bootlegging, corruption and crime.

If Indian experience is bad, when it comes to prohibition, the experience of America was equally bad. A policy analysis by economist Mark Thornton, “Alcohol Prohibition in America was a failure”, reportedly mentions that, ‘prohibition was undertaken to reduce crime and corruption, solve social problems, reduce tax burden and improve health and hygiene in America’. Instead, he says, ‘it was a miserable failure on all counts’.

In fact it may not be wrong to say that criminalization of American society was, for a fair measure, was due to illegal production, distribution and consumption of liquor post prohibition, which also led to the emergence of underworld mafias like Al Capone and others.

Thus, it is nobody’s case that, while the positive expected impact due to the court order may be marginal, as the Times of India says “the ban puts thousands of valid business employing lakhs of people at risk”. Besides loss to the government by way of excise duty running into thousands of crores which in turn was available for government welfare schemes or even development projects.

Thus, the long and short of this entire debate is, the ban is not only not expected to deliver, it can truly disturb the life of a large section of citizens, directly or indirectly and make life difficult, at least for a good chunk of citizenry.

So, what is the solution to the deaths of thousands due to alcohol triggered accidents?

In the immediate short run, state government must increase its budget outlays for policing, drunk driving monitoring and more importantly courts must act with honesty, purpose and speed to dispose off drunken driving related cases. Do we remember the Salman Khan’s Hit & Run case of Sept 28, 2002! It’s now 15 years and no final words have been said. It was an open and shut case. Both political class and legal fraternity including judiciary helped this film actor remain free, while he should have been inside the jail for at least 5 years since 6th May 2015. It was purely money that played its role. Come to another spoilt brat Alistair Pereira, who got 6 months jail for killing 7 people under his limousine on the night of 12th Jan 2006. The session court punished him with 6 months in jail. Not even 1 month per person. While he deserved 10 years under culpable homicide. Then the infamous Sanjeev Nanda case, the political connection and money power put paid to his legitimate imprisonment. Yes, a positive  change is possible only through the prism of governance, where everyone plays his role as expected and duty bound within the four walls of law, applicable pari passu to all and sundry.