Judicial Overreach

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What is the issue?

The Supreme Court, ruling on a PIL about road safety, has banned the sale of liquor at retail outlets, as also in hotels, restaurants and bars, that are within 500m of any national or state highway.

What are the impacts?

• For state governments, there is a massive loss in revenue. The auction fees raised from licences to sell liquor will contract sharply. Revenue from taxes on alcohol will also diminish.
• Tourism will be hurt badly. Existing regulations stipulate that hotels in the four-star and five-star categories, or above, must have a licensed bar; many of them will now lose their premier status with a star-downgrade.
• Employment and livelihoods are bound to be a casualty.
• The multiplier effects of the contraction in employment will be considerable at the macro-level, particularly as the services sector is the primary source of job creation, and one million people could lose their jobs. 
• Now, the tourism sector and the hospitality industry are up in arms.
• State governments are issuing notifications that many roads in and around their cities are no longer state highways.

What is the cost of drunken driving?

• Data compiled by the NCRB shows that of the total road accidents in 2014, over-speeding accounted for 48%, reckless driving for 42%, poor weather conditions for 5%, mechanical defects for 2.5% and drunk-driving for 2.5%.
• More than 40% of the drunken driving victims died, but the fatality proportion was not much lower, at around 33%, among victims of over-speeding and reckless-driving.
• And, even if the Supreme Court decision is implemented perfectly, anyone can drive 500m to buy liquor and then return to the highway.

What can be an effective solution?

• The only effective and sustainable solution to the dangers posed by drunk-driving is strict enforcement and punishment that becomes a deterrent.
• For this purpose, the law can be strengthened further.
• In fact, the Union cabinet has recently approved amendments to the Motor Vehicles Act, which raise the fine for drunken driving to Rs 10000, and if such driving results in death, it would be treated as culpable homicide under Section 299 of the IPC, punishable with imprisonment of up to 10 years.
• Even stronger penal action is necessary. The fines can be escalated and driving licences can be suspended for longer durations, particularly in repeat offences.

Is this a matter for the Supreme Court to decide?

• It is an administrative matter where the decision rests with state governments. It is not just about the appropriate authority for such decisions.
• The problem with Supreme Court decisions is their binding nature, much like law, which cannot be changed unless the concerned bench reviews its decision or a constitutional bench sits and decides.
• The Constitution of India sets out a separation of powers between institutions of the state — executive, legislature and judiciary, to ensure the checks and balances so essential in a political democracy.
• Of the three, if any one institution of the state attempts to perform a function that essentially belongs to another institution of the state, under the Constitution, this can be described as overreach.

What are the asymmetries?

• First, the judiciary has the constitutional right to check the overreach of the executive and the legislature, but there is no such check on the judiciary or its accountability.
• Second, the judiciary does not always check the underperformance of the executive. Example: It has failed to check government inaction against vigilante groups taking the law into their hands - which can be described as judicial under-reach.

What is the way ahead?

• An independent judiciary is of critical importance in a political democracy, for it provides checks and balances vis-à-vis the executive and the legislature.
• But there must be some institutional mechanisms that check judicial overreach or judicial under-reach to make the judiciary accountable, particularly to citizens.
• The answer might lie partly in self-regulation.

Source: Livemint