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IASbaba’s Daily Current Affairs – 5th April 2017

NATIONAL

TOPIC: General Studies 2:

Separation of powers between various organs , dispute redressal mechanisms and institution

Structure, organization and functioning of Executive and Judiciary.

Supreme Court’s highway liquor ban: Judicial overreach or not?

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.

Assessment: In below article, we shall assess four aspects –

One, whether judiciary can best resolve polycentric problems?
Two, do the top court’s orders banning liquor sale on highways encroach upon the executive’s domain of policymaking?
Three, why Supreme Court’s highway liquor shop verdict is not judicial overreach?
Four, why Supreme Court’s highway alcohol ban is judicial overreach?

Concept of polycentric situation

Decades ago, Lon Fuller, the famous American legal philosopher, coined the term “polycentric problems”.

According to Fuller, certain social issues 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.

Fuller argues that with regard to complex polycentric disputes, which involves many affected parties and a somewhat fluid state of affairs, the Judiciary should restrain itself from developing the law because “it would be impracticable to foresee all the consequences and predict the actual ramifications of the decision tampering with it”.

Therefore, the Supreme Court’s order 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.
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.
Some states are even denotifying state highways as municipal roads to get around the judgment.

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

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”.

Why Supreme Court’s highway liquor shop verdict is not judicial overreach?

Supreme Court gave five reasons why the decision did not come in the realm of the judiciary making policy.

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 ago.
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.

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.

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.

Enforcing the right to life under Article 21 of the Constitution

The court observed that it was “not fashioning its own policy but enforcing the right to life under Article 21 of the Constitution based on the considered view of expert bodies.”
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.
The state’s failure to prevent such loss of life 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.

Article 47 and Article 142

The moral case for prohibition comes from the Directive Principles of the Constitution (Article 47) and Article 142 empowers the Supreme Court to do “complete justice” in any case before it.

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

Why Supreme Court’s highway alcohol ban is judicial overreach?

From the point of Fuller’s argument about polycentric problems. (as discussed above)
All directive principles of state policy are ‘policy issues’ which should be left to the government. It is not the job of the court to force the government to implement them. In fact at times such orders are against the spirit of ‘separation of powers’.
Article 47 of Indian constitution says that the state shall endeavour to bring about prohibition of consumption of intoxicating drinks, except for medicinal purposes . It may be noted that this ‘directive principle’ is talking about total prohibition and not just prohibition on national highways.
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, does not confer complete freedom to act as one wishes 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.

Connecting the dots:

The role of the Judiciary in India has recently come under considerable attack, particularly from the Legislative branch, which feels that the courts have been exceeding their authority in interpreting the law, and that they have become an extra constitutional lawmaking body. Elucidate with suitable examples.
Do you think that judicial activism or judicial overreach is crossing its limits in India? Critically comment.
The question of judicial overreach has cropped up yet again with Supreme Court’s highway alcohol ban. What is your opinion on this matter? Substantiate your views.

Minority report

TOPIC:

General Studies 1

Effects of globalization on Indian society Social empowerment, communalism, regionalism & secularism.

General Studies 2

Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

Minorities in India

Introduction

India is a country of diversities and especially since independence the treatment of minorities has been a matter of debate. Indian state has continuously emerged strong with multiple governance measures to ensure inclusive growth. Minority rights are essential in a democratic, pluralistic polity.

Issue:

Minority rights are essential in a democratic, pluralistic polity because as Franklin Roosevelt reminded us, “no democracy can long survive which does not accept as fundamental to its very existence the recognition of the rights of minorities”.

There have been multiple statements and observations:
- The former Prime Minister, had said that minorities have the first claim to national resources.
- Former Minority Affairs minister, in her very first statement had refused to even accept Muslims as a “minority”.
- Some years ago, the Allahabad High Court held that Muslims are not minority in Uttar Pradesh as there is “no threat to their extinction”.

It said there is no minority in India.

Even as to the Jains’ minority status, the Supreme Court (SC) had held that minority-majority is a legacy of past and no new community may now be recognised as a minority.

Last year, the present government asserted in the SC that a secular government cannot set up minority universities.
- The National Minority Commission is now headless and has just one out of the eight stipulated members.
- The National Commission for Minority Educational Institutions has been similarly headless for the last three years or so.
- The government has now asserted in the apex court that Hindus are a minority in the state of Jammu and Kashmir.
In a rare move of unanimity, both the Centre and the state government have agreed to resolve this issue together.
- J&K is currently ruled by the PDP-BJP alliance, so there is nothing surprising in this consensus particularly when Hindus are to be given minority status.

Constitutional position:

The expression “minorities” has been employed at only four places in the Indian Constitution.

The head note of Article 29 uses “minorities”.
- Then the expression “minorities or minority” has been employed in the headnote of Article 30 and in clauses (1) and (2) of Article 30.
- Interestingly, no definition of the term is given in the constitution.
Under International law, minorities are groups that possess distinct and stable ethnic, religious and linguistic characteristics.
- The crucial point is that these characteristics differ from the rest of the population, and that these groups wish to preserve their distinctive identity even if this identity does not conform to the norms and the values of the majority.
- Thus, a minority is a group that is numerically smaller in relation to the rest of the population, it is non-dominant to the extent that its values are either inadequately or not represented in the public sphere or in the constitution of societal norms, it has characteristics which differ from the majority group and more importantly, it wishes to preserve these characteristics.
- Thus, numerical inferiority or powerlessness is the test to determine minority status.

Supreme Court Position:

The SC has consistently maintained that minorities are to be defined on the basis of “numerical inferiority”.

Since the constitution talks of both religious as well as linguistic minorities, courts have held that minorities are to be defined at the level of the state, as states were carved out on a linguistic basis.
- Thus, Hindus are certainly minority in J&K and no one should deny them this status. The current case is unnecessary as the law is well settled.
- The SC, in the D.A.V. College case did hold Hindus as a minority in Punjab. Hindus also have minority status in several Northeastern states.
Since the linguistic basis of state creation is no longer valid after the creation of Telangana, the apex court may re-examine this issue in the context of religious minorities.
- One approach can be to define religious minorities nationally and linguistic minorities on the basis of the state.
- But a better approach would be to accept the dissenting opinion of Justice Ruma Pal in the TMA Pai case under which minority status should be determined in relation to the source and territorial application of the particular legislation against which protection is claimed.

Conclusion:

If it is a parliamentary law, minorities must be defined nationally. On the other hand, if it is state law, minorities may be defined on the basis of numerical inferiority in the state. Hence any law should be taking care of diversity and reality of the current. A majority government or a swayed public opinion should not be basis for a sustainable law.

Connecting the dots:

The debate around definition of minorities and majorities is constitutionally settled. Critically analyse the demand to grant Hindus minority status in Jammu and Kashmir and the ramifications it can have on others.