India’s Supreme Court decided in December 2016 that the presence of shops and restaurants selling liquor near highways was leading to drunken driving, which cause the vast majority of fatal road accidents in the country. So it banned them. Specifically, it ordered that no establishment is permitted to sell alcohol if it is within 500 metres of a national or state highway. On April 1, after some slight alterations to the judgment, that rule came into effect, leading to confusion and concerns from parties all over the country.

Five- and four-star hotels, which often are located on highways, are concerned about a loss of star-rating and subsequently business. Government-owned alcohol shops, such as Tamil Nadu’s TASMACs, are worried they will not be able to get land to set up new stores soon enough. In Maharasthra, the government is hoping it can simply denotify some state highways to get around the judgment. The words “judicial overreach” keep coming up.

Judicial policymaking?

On the face of it, and thanks to much of the reporting, it may seem like exactly that. A petitioner who became disabled because of a road accident decided to to take his battle against drunken driving to court, which promptly decides that it needs to ban liquor shops near major roads.

On March 31, a day before the judgment was to come into effect across most of the country, a bench headed by Chief Justice JS Khehar took on additional concerns raised by states in the aftermath of the decision. Among those was senior advocate Rajeev Dhawan, who said that the December judgment was unconstitutional because it is in the nature of “judicial policy making”.

The court addressed this question of overreach right off the bat. “We must at the outset notice that this Court while exercising its jurisdiction has neither formulated policy nor (as we shall indicate) has it assumed a legislative function,” the court said.

It gave four reasons why the decision did not come in the realm of the judiciary making policy.

  1. It was the Centre’s idea
    The court pointed to a model policy for alcoholic beverages and alcohol prepared by the Centre more than a decade, which includes in paragraph 92(2), a provision suggesting no licence for sale of liquor should be granted to shops within 100 metres from a state or national highway.

    That model policy permitted exceptions for portions of highways that come within city limits. The court said the model policy made clear the Centre’s approach, but it dismissed the exception, saying allowing liquor shops along highways within cities and towns would defeat the purpose of the policy altogether and also violate Article 14 of the Constition promising equality under the law.
  2. The expert body agreed
    The National Road Safety Council is an advisory body set up by the Centre to help guide policy on road safety. The council features representatives from state governments, various ministries and external experts. According to the court, the NRSC unanimously agreed in a meeting on January 15, 2004, that licences for liquor shops should not be given along national highways.
  3. The Centre continued to push its idea
    “Since 26 October 2007, when an advisory was issued, MoRTH has consistently advised all the state governments to remove liquor shops and not to issue fresh licences to liquor vends along national highways,” the December judgment says. These advisories were confined to national highways, not state ones, only because the Centre has no jurisdiction over state highways. Additionally, because liquor is a state subject, these could only be advisories and not mandates.
  4. Parliament indicated zero tolerance for drunken driving
    The Court also pointed to Section 185 of the Motor Vehicles Act, 1988, which lists out punishments for whoever has “in his blood, alcohol in any quantity, howsoever small the quantity may be”. Since the Centre also pointed to this section as its reason for advising a ban on liquor shops along national highways, the Court took this as Parliamentary intent suggesting zero tolerance for drunken driving.

Based on these four grounds – the Centre’s policy, an expert opinion, repetition of Centre’s advisory and an indication from Parliament – the court concluded that its decision does not count as judicial overreach.

None of those reasons actually make any reference to “500 metres” being the distance within which liquor shops should be disallowed. The model policy from more than a decade ago uses 100 metres as its threshold, while all the other policies simply seek to ban shops “along” the highways. An expert committee earlier appointed by the Court also recommended keeping the limit at 100 metres, but the court dismissed this saying that distance is “not adequate” to stop people on the roads from getting access to alcohol.

“A distance of merely 100 metres will not serve the purpose which is sought to be achieved. Hence, we have not accepted that part of the recommendation of the Committee but have considered it appropriate to enhance the minimum distance.”

The court did give a few concessions on other matters after interventions from states.

Its March 31 order lowered the threshold from 500 metres to 220 metres for towns of fewer than 20,000 people. It also exempted Meghalaya and Sikkim from the ban, since hilly terrain would mean more than 90% of shops would have been forced to close down. But it finally refused to give more time to other states to enforce the order, and made it clear that the ban, which applied starting April 1, would apply to pubs and restaurants as much as liquor stores.