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My way on the highway (Hindu.)

The top court’s orders banning liquor sale on highways encroach upon the executive’s domain of policymaking

Decades ago, Lon Fuller, the famous American legal philosopher, coined the term “polycentric problems”. Certain social issues, according to Fuller, involved a complex set of interdependent relationships, where changing one feature could result in unforeseen and far-reaching changes to other features. A polycentric problem was like a spider web, where “a pull on one strand will distribute tensions after a complicated pattern throughout the web as a whole”. Fuller argued that the judiciary was particularly ill-suited to resolve polycentric problems. The structure of the judicial process was not oriented towards taking into account the effect that a ruling would have on the many interdependent strands of a polycentric situation. Furthermore, the judiciary did not have the time, the resources, or the institutional expertise to engage in the kind of fine-grained, evidence-based, compromise-requiring balancing act that was required to prevent the web from snapping altogether.

The Supreme Court’s order on December 15, 2016 — which it modified and expanded on March 31, 2017 — prohibiting the sale of alcohol within 500 metres of national and State highways highlights the perils of polycentric adjudication. While the stated reason for this order is the overriding imperative of preventing road accidents due to drunken driving, already there are reports about the collateral consequences: lost livelihoods and a substantial hit in tourism for States such as Goa, to name just two. The court’s clarification — that its initial order applied not merely to “liquor vends”, but also to bars, hotels, and restaurants — has led to the paradoxical consequence of even members-only clubs being forced to go dry because of their proximity to a highway.

Fuller’s argument about polycentric disputes is reflected in the scheme of the Indian Constitution, which, like most other Constitutions, mandates a separation of powers between the executive, the legislature, and the judiciary, and places policymaking firmly in the domain of the executive. For this reason the Supreme Court’s order has come under criticism in the last few days. Apart from its polycentric consequences, it has been argued that banning alcohol — and micromanaging the distance from the highways where alcohol cannot be sold — is a classic example of policymaking, and that the Supreme Court has indulged in “judicial overreach”.

The court’s reasoning

Importantly, however, unlike many other cases in which the Supreme Court has passed far-reaching orders in the course of “public interest litigation”, in this case, the court has gone to some lengths to defend its alcohol-banning order against claims of judicial overreach. We must therefore engage with the court’s reasoning, and examine whether it is persuasive on its own terms.

In its December 15 order — which it then reiterated on March 31 — the court referred to a number of government policy documents that drew a correlation between alcohol consumption and road accidents. It also referred to the fact that the Central government had issued circulars “advising” State governments not to grant any new licences to liquor shops along the highways. On this basis, the court observed: “The issue is whether such liquor licences should be granted on national and state highways at the cost of endangering human lives and safety. In our view, which is based on the expert determination of the Union government, we hold that the answer should be in the negative.”

This formulation, however, elides two different questions: what should be done about a problem, and who should do it. The point of Fuller’s argument about polycentric problems, and the point of a constitutional scheme of separation of powers, is precisely that certain questions — in this case, the question of whether the government should grant liquor licences in the proximity of highways — should not be answered by a court, whatever the answer may be. For this reason, the Supreme Court’s reference to the “expert determination” of the Union government does not help, because the question is not whether the government’s determination is correct or incorrect, but which body is authorised to act upon that determination.

That the court was itself aware of the insufficiency of this argument is clear from the fact that it went on to justify its order under Article 21 of the Constitution, which guarantees the right to life and personal liberty (this argument was reiterated in the March 31 order). The court observed that it was “not fashion[ing] its own policy but enforc[ing] the right to life under Article 21 of the Constitution based on the considered view of expert bodies”.

Article 21 and weak evidence

Now, it may be argued that Article 21 is not merely a right against state action that deprives an individual of her life, but also against state inaction that results in loss of life. In other words, the argument might be that road deaths could be prevented if the state was to refuse to grant liquor licences in the proximity of highways. The state’s failure to do so is a breach of its obligations under Article 21, and the court’s order merely enforced a fundamental right by requiring the state to act.

If this is the legal foundation of the judgment, however, then it misses two crucial building blocks. First, the court ought to have provided a test for the degree of proximity between state (in)action and loss of life, for a finding that Article 21 had been breached. There are a lot of things that the state does, or does not do, which ultimately affect peoples’ lives. For instance, people would probably live longer, and there would be fewer deaths by heart attacks, if the state was to ban all junk food. That, however, would not justify the court invoking Article 21 and directing the state to ban all junk food, on the ground that it was failing in its obligations under Article 21 through its inaction.

And second, the court’s conclusion ought to have rested on firmer evidentiary foundations than it did. The court did — as pointed out above — refer to the Union’s circulars and policy documents, which had found a correlation between access to liquor along highways and road deaths, and then observed that it would defer to these findings. However, this was not a case where the court was adjudicating upon the validity of administrative action, where a simple, deferential approach would be appropriate. Here, the court was using the Union’s policy documents to make a finding that the States were in breach of their obligations under Article 21. This, I would submit, required more exacting scrutiny (and a legal test of causation) than what the court engaged in.

Complete justice

Lastly, the court concluded by clarifying that it was passing orders under Article 142 of the Constitution. Article 142 empowers the Supreme Court to do “complete justice” in any case before it. However, this power is bounded by the further requirement that the court act “within its jurisdiction”. Article 142, therefore, is not a carte blanche for the Supreme Court to implement its vision of justice, without regard to issues of institutional competence and legitimacy. In the liquor ban case, despite its efforts to do so, the court has failed to make out a compelling case for why its orders do not encroach upon the executive’s domain of policymaking. Its polycentric consequences — which are only now emerging — lend further credence to the view that the court has, indeed, overreached.

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