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My way or the highway: As SC deadline on liquor outlets nears, states scramble for a solution

Gajanan Khergamker | Updated on: 24 March 2017, 18:30 IST

The Legislature has found itself in a Catch22 situation with having to contend with the Judiciary’s interpretation of the Union Government’s concern for ‘Drunken Driving and Road Safety’ issues. The Supreme Court order struck down a Union Government ‘Model Policy’ created to put into place rules to assuage the Central government’s caution for public health while dodging clear of States’ excise earnings.

The Supreme Court has held that there is no fundamental right under Article 19(1)(g) to trade in liquor: Liquor has been regarded as res extra commercium as decided in several judgements that include State of Bihar v. Nirmal Kumar Gupta, (2013) 2 SCC 565 and a series of others.

The Supreme Court passed an order on 15 December to remove liquor outlets from all highways - State and National – including those along stretches that fall within the limits of a municipal corporation, city, town or local authority and expiry of all licenses by 31 March, kicking up a storm across India.

Union territories, like Daman, and states such as Telangana, Punjab, Haryana, Goa and Kerala have already requested the Ministry of Road Transport and Highways to denotify National Highways within their borders to District Roads sending the Central Government’s lofty plans, to build 41 km of National Highways every day in 2016-17, for a toss.

The Supreme Court ruled that 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

(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

The order comes following a series of advisories issued by the Union government through the ministry to the state governments asking them to remove liquor shops situated along national highways. And now, with the 31 March deadline approaching swiftly, the states are in a tizzy.

What now?

The Union Government had formulated, for consideration and adoption by the states, a document titled Model Policy/taxation/act/rules for alcoholic beverages and Alcohol in which it had general provisions relating to liquor vends. Para 92(2) of the Model Policy inter alia provides as follows:

(2) No licence for sale of liquor shall be granted to a retail vend selected within a distance of 100 metres from any religious or educational institution or hospital or outside the inhabited site of village /town/city or any Office of the State/Central Government or Local Authorities or within a distance of 220 metres from the middle of the State/National Highways.

For the purpose of this rule:

(a) ‘National Highway’ or ‘State Highway’ shall not include such parts of the National Highway or State Highway as are situated within the limits of Municipal Corporation, City or Town Municipal Council or such other authority having a population of twenty thousand or more.”

The ‘exclusion’ was a convenient arrangement that worked for the Union government and the state governments. That way, suggested prohibition would not affect liquor outlets and concurrent sale in roads and areas adjoining smaller towns and cities.

However, the Supreme Court decided, and rightly so, the policy that excluded stretches of national highways and state highways that fall within the limits of a municipal or local authority from the ambit of the suggested prohibition, was arbitrary and violative of Article 14 guaranteeing equality before the law.

The Supreme Court, bound by the Constitution of India and – particularly Article 14 – has little option but to include all excluded sections much to the chagrin of the state governments.

With the string of petitions before the judiciary based on the plethora of reports and studies squarely blaming drunken driving for road accidents, the Legislative finds itself in a corner.

By asking the Judiciary to intervene and on an issue that should have been legislated instead, the Legislative had placed the onus of interpretation on the Supreme Court. And now it finds itself struggling to digest the verdict.

No alcohol please, we are Indians! But then...revenue?

On the heels of prohibition arrive issues that directly and adversely affect the states. For one, they directly affect revenue earned through excise and tourism. And, there is the issue of shifting licenses from highways to residential zones which are highly resistant to the move.

Why, Kerala moved three petitions on 2 February to review the order but went on to withdraw them on the same day!

It stated that it was facing difficulty in shifting outlets alongside highways to thickly populated residential areas, which would annoy the public and trigger local protests. Also, tourism, in the face of prohibitive laws and policies, would drastically be affected.

In supporting the prohibition, the Supreme Court maintained that Section 185 of the Motor Vehicles Act, 1988, which prevents drunk driving, is indicative of a Parliamentary intent to follow a zero-tolerance policy towards driving under the influence of alcohol.

The Supreme Court took into reference a publication Road Accidents in India – 2015 brought out by the Transport Research Wing of the ministry. The cover depicts in rather graphic terms vehicles involved in crashes. There is a large group of persons assembled in the foreground, an ambulance bearing the ‘108’ logo and a police car.

The issue here is one of development and an examination of what comprises it.

Is Development about the national and State highways or is it about public health and road safety? The Judiciary has passed an order based on the law, the Legislature will move in accordance with the will of the people.

With denotification of highways imminent as it is mooted as the only way out, India may stand to lose out in the numbers game but manage to keep its states happy.

‘Drunken driving’ will be put on the back-burner, for now. The world’s largest democracy will find a way to have its cake and eat it too.

The author is an independent editor, solicitor and film-maker and heads DraftCraft

First published: 24 March 2017, 18:30 IST