The Supreme Court of India recently passed far-reaching orders directing closure of liquor shops on or near highways across the whole country.  All states were mandated to strictly enforce these directions,  even though sale of liquor is a state subject.  Arvind Datar, SC advocate, says “Our Constitution does not have strict separation of powers.” And that “it is time for sobering reflection on the need to demarcate these lines with greater clarity.”

Here are excerpts from his column recently published in The Indian Express…

By Arvind P. Datar

 

To impose prohibition, fully or partially, is the sole prerogative of each state under Entry 8 of List II of Schedule VII of the Constitution and even Parliament cannot direct any state as to when and where liquor can be sold. Several states have formulated their own rules — Karnataka has imposed a 220 metre limit while West Bengal continues with a 720 feet rule. By imposing a nation-wide uniform ban of 500 metres with minor exceptions, the Supreme Court has really substituted all state laws with its own limits and other directions.

 

The judicial ban on alcohol sales is unfortunately not unique. Last year, we had a sudden ban on sale of diesel vehicles, later limited to cars above 2000 cc. When the Motor Vehicles Act, 1988 permits diesel vehicles of certain specifications to be sold and licensed, can the Supreme Court or high courts impose additional conditions or restrictions on the ground that they will subserve public interest? The banning of diesel vehicles had serious economic consequences for manufacturers and dealers who had made plans based on Parliamentary legislation.

Judicial directions, based on PILs, but contrary to the existing laws, introduce a dangerous element of uncertainty and can often be counter-productive as courts do not have the luxury of time to consider the overall consequences of their orders. These are what Lon Fuller calls “polycentric issues” that should be outside the realm of the judiciary. He likens such problems to a spider’s web. A pull on one strand results in a complicated pattern of tensions throughout the web, causing one or more of the weaker strands to snap (‘The Forms and Limits of Adjudication’, Lon Fuller and Kenneth Winston, (1978) 92 Harvard Law Review).

Far-reaching decisions are made by the Supreme Court under Article 142 of the Constitution — a provision which enables it to pass orders to do “complete justice”. Our Constitution does not have strict separation of powers — the legislature, executive and judiciary sometimes overlap — but there are certain lines that ought not to be crossed. In the absence of alcohol, it is perhaps time for a sobering reflection on the need to demarcate these lines with greater clarity and certainty.

The writer is a senior advocate practicing in the Supreme Court.
This article was first published on The Indian Express on 11/04/2017.
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