When SC imposed highway liquor ban, many questioned principle of ‘separation of powers’

"The pernicious nature of the sale of liquor along the national and state highways cannot be ignored. Drunken driving is a potent source of fatalities and injuries in road accidents," it had said.

New Delhi: The Supreme Court, on March 31, 2017, partially modified its order banning liquor vendors in the vicinity of 500 metres on national and state highways, but declined to grant any relief to restaurants and hotels.

A bench comprising of then Chief Justice of India J.S. Khehar and Justices D.Y. Chandrachud and L.N. Rao (now retired) said a balance has to be drawn between protection of public health and safety and the need to protect road users from the menace of drunken driving (on the one hand) and the trade in liquor (on the other hand) — the interests of the latter must be subordinate to the former.

“The pernicious nature of the sale of liquor along the national and state highways cannot be ignored. Drunken driving is a potent source of fatalities and injuries in road accidents,” it had said.

Critics said the court order was well-intentioned, however it was a questionable form of judicial law-making, which hurt revenue generation. The court’s order also made critics question whether it is a breach of the basic constitutional principle of separation of powers between the legislature, executive, and the judiciary.

On December 15, 2016, the top court had stopped the grant of licences for the sale of liquor along national and state highways and over a distance of 500 metres from the outer edge of the highway or a service lane alongside. However, Meghalaya and Sikkim were exempted from this order.

In March 2017, modifying the order, the top court said: “We accordingly direct that the following paragraph shall be inserted, after direction (v) in paragraph 24 of the operative directions of this Court in the judgment dated 15 December 2016 namely: In the case of areas comprised in local bodies with a population of 20,000 people or less, the distance of 500 metres shall stand reduced to 220 metres.”

It was apparent that the top court acted in public interest to protect road users from the menace of drunken driving and also protect the interests of the state. However, many saw this as the judiciary stepping onto the domain of governance, and also a case where good intentions were missing the mark.

In 2017, the applicants had then argued that the expert committee appointed by the top court (chaired by Justice S. Radhakrishnan, a former Supreme Court judge) had recommended a distance of 100 metres with reference to highways. However, the top court said: “We are of the view that a distance of 100 metres with reference to the highway is not adequate to ensure that users of the highway do not seek access to the sale of liquor in close proximity to the highway. A distance of merely 100 metres will not serve the purpose which is sought to be achieved.”

Although the court emphasised on the menace of drunken driving, the ruling impacted thousands of valid businesses employing lakhs of people. For example, Gurugram, a city which has flourished along the highway and houses several restaurants, bars, and hotels, which is extremely popular among the tourist and the youth, and also generates employment for thousands — suffered most due to this ruling.

The city’s businesses were hit hard and many bars and hotels became defunct. Critics argued that drunken driving menace can be countered by effective policing, which is under the state, and such orders from the top court hurt businessmen, impact jobs, and also deplete state government’s revenue.

A blanket ban – either from the judiciary or legislature – worsens the problem.

On May 8, 2020, during the first wave of coronavirus, the Supreme Court declined to pass an order to ban liquor sales in the middle of the coronavirus lockdown, which triggered large crowds across states.

The top court suggested state governments should consider online sale or home delivery of liquor to curb overcrowding at liquor vends. It also refused to interfere on the issue of liquor sales, saying it is a policy decision. it made these observations while declining to hear a PIL seeking to ban liquor sales citing overcrowding at liquor shops, which will facilitate the spread of the virus.

As the lockdown was eased on May 4, 2020, liquor shops across the country were allowed to open, except those falling under containment zones. Delhi witnessed long queues and overcrowding at many liquor shops.

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