For reasons obscure, the Supreme Court has declared that trade in alcohol is res extra commercium, that is, beyond commerce, and therefore, not entitled to protection under constitutional and fundamental rights. But the SC has provided enough loopholes to recognise the liquor trade constitutionally.

In the famous Khoday case (1995), the 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 case (2015) went further to say that if the trade is permitted, it is constitutionally legitimate. This confusion in the Supreme Court decisions tries to bridge the gap between constitutional diktat and reality.

The moral case for prohibition comes from the Directive Principles of the Constitution (Article 47). The issues raised by it are indeterminate.

Prohibition and control

Some states have declared prohibition for different reasons. For example, Gujarat and Bihar have declared prohibition. The Bihar prohibition case is before the SC. The reason for prohibition is socio-economic. Families, especially women, complain that family incomes are soaked up by alcohol.

In Delhi, alcohol could not be sold on Friday (pay day). As a token, liquor is not sold on October 2. Both practical and moral reasons are projected for prohibition and control. The moral intuition is strong. In 1957, the SC declared gambling constitutionally unprotected. The venerable Krishna Iyer in 1977 declared his animadversions to the rural debt trade by declaring it constitutionally unprotected — an entirely moral decision.

The SC has provided enough loopholes to recognise the liquor trade constitutionally.

There is something seriously wrong with this constitutional unprotected doctrine of res extra commercium as applied to gambling, liquor and rural debts. The court seems to be saying, “We abhor these things, you can ban them if you want. But if you permit them, they can be regulated as legitimate. (i.e. commercium).”

This dissonance between doctrine and reality is involuted, but regulation is not.

Highways case (2016)

The Highways case emanates from a judgment of Justice Chandrachud on December 15, 2016. Its watchword was “public safety” — a serious issue in the light of drunk driving on highways. But the Chandrachud judgment went well over the top. As one lawyer in the 2017 proceedings put it: “Intoxication is a matter of the mind.” It was a pun covering alcohol as well as power.

The essence of the judgment is based on statistics that alcohol-related accidents and deaths on highways are 3.3 per cent and 4.6 per cent, whereas speeding figures are 47.9 per cent and 44.2 per cent. Even drunken driver fault cases were 4.2 per cent and 6.4 per cent.

No one can argue that drunken driving on highways is a menace and steps have to be taken to tackle it. The first and obvious step is better enforcement. This is totally lax. The second is to control access to alcohol. The Union government reported that road fatalities are highest in India and an accident occurs every four minutes.

In 2004, the National Road Safety Council agreed that there should be no licensed liquor shops near national highways. Section 188 of Motor Vehicles Act makes drunken driving an offence. The Union government has been issuing advisories to state governments to shut liquor vends near highways — with states laying down 100-200 metre limit.

Chandrachud’s judgment prescribes 500 metres with “no exception”. Why was the Chandrachud judgment questionable?

First, it wholly misinterprets constitutional law relating to alcohol. Second, and most important, national highways are within the jurisdiction of the Centre, while the rest of the roads come under states. How could the SC with one stroke wipe out all legislations of states? All the states were not present either. Third, the 500-metre limit came totally out of Chandrachud’s imagination — lacking balance and perspective.

Former SC Judge Radhakrishnan had recommended 100 metre. Eight states protested. Liquor retailers came to SC to say the judgment was wrong. With all its flaws, the case should have been reheard. But few judges repent on their mistakes. In two instances, Hidayatullah plainly admitted he was wrong.

Senior Chandrachud regretted his Emergency decision. Chief Justice Khehar came to Chandrachud Junior’s rescue — with unwarranted aggression. There was to be no rehearing. What was permitted was to rewrite the judgment.

The outcome

Chandrachud’s second highway decision on (March 31, 2017) found his previous unconstitutional judgment constitutional. According to him, constitutionality was “trammelled with technicality”. Strangely, the busy town through which state highways run had to comply by the 500-metre criteria. Existing licences could continue till September 30.

An exception was made of Meghalaya and Sikkim because they were hilly states with uneven terrain. Why not other hill states? What the court should have done is leave it to the states.

Such judgments lack principle and perspective — judicial overreach contrary to law.

(Courtesy of Mail Today.)

Also read - Highway liquor ban: The man behind it and the story of his long drive

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