The Supreme Court’s (SC’s) ban of liquor sale within 500 meters of national and state highways is a classic case of unwarranted judicial law making and flagrant violation of the well established doctrine of separation of powers among the organs of governance. It is a ludicrous judicial encroachment on the pristine powers of the legislature.
The ban brings to the fore some procedural flaws of the judiciary as well. The ban was brought in by invoking Article 142 of the Constitution which vests unfettered jurisdiction on SC to pass any order in public interest to do “complete justice”. The article is a residuary provision which should be invoked only in rare cases to address apparent injustice or illegality. The use of the article by the court liberally in every issue, when there exists no unanimity among legal experts about its use, is a unwelcome one. Nowadays the court, when confronts a void in law, prefers to embark on unacceptable judicial law making, probably for the sake of populism or with an eye on getting itself onto media headlines.
No doubt, the increase in vehicle accidents and deaths due to illegal liquor use by injudicious drivers is a matter of serious concern for all. But that is to be sternly dealt with both by the legislative and executive branches of government rather than by the court. This is because the court is not endowed with the capacity to deal with such issues of complex and multi focal nature and therefore such extraneous judicial efforts will end up in the weakening of already infirm judiciary itself in the long run. If the court has a preposterous preference to engage in every aspect of law making whenever it confronts a legal void, then one would reasonably doubt the valid reason for us to retain expensive legislative forums.
Every instance of policy formulation or law making requires long drawn out consultative and iterative deliberations of complex nature for which the courts are wholly ill-equipped. Its procedural patterns, meant for almost unidirectional adjudication between opposing contentions, are ill-suited for the purpose. That is why our constitution makers have kept legislative and adjudicative processes in governance as separate but complementary ones.
Let us not forget that even though provisions are there in the Constitution, the exercise or promulgation of ordinance which devours the legislative deliberations and when used in occasions other than extreme or precarious ones, is declared an unconstitutional act, probably using the same logic. The legislature is the right forum to legislate even though incidental legislative powers are given to other organs to address unforeseen eventualities. However, neither the executive nor the court has the right to usurp the inherent powers of the legislature.
By callously encroaching upon the domain of government or legislature, the judiciary quite often shows its undue and unacceptable gallantry. It is well settled that the court is not expected to add words which are not there in the statutes or read words into the legal provisions, during adjudication. The court should not tend to play the role of a law maker. It must not forget that there exists a thin line between the three organs of governance even though the demarcation is not as rigid as in the US. But the line should not be crossed or erased except in extreme cases where the fundamental rights of the citizen are infringed by the State action amounting to grave injustice.
The court, when deciding a case, cannot go on according to the individual will of the presiding judge but only in tune with the provisions of law enacted by the legislature. The SC in this case says it has neither formulated any legislative policy nor enacted any law but what it did was nothing else. It has indirectly done what it cannot directly do, which is absurd by all means.
Imposing prohibition or restricting liquor use is a prerogative of the state under Entry 8 of the State List coming under the Schedule VII of the Constitution. But by this ban the SC curtailed the license of the liquor outlets valid for a further period from March 31 as against everyone’s expectation and by ignoring every cannon of jurisprudence and governance. No report has ever proved that it would be possible to reduce accident deaths on account of drunken driving by shifting liquor shops from the roadsides to a distant place. But the court, with no testimony whatsoever, got convinced of a delusive connection between both.
The court has great many responsibilities – such as ending judicial delays and backlog of cases – to do to ensure speedy justice to all. If it engages in well planned judicial reforms remaining within the bounds of separation of powers it can improve judicial functioning far better. If so the judiciary will become more independent, powerful and prestigious. Doing the right things assertively and distancing from the unwarranted things should be the motto that our judiciary should stick on to in order to engage in better dispensation of justice. The ban order – that create more problems than it solves – may not make the judiciary more sacrosanct.
Published at indiaopines blog
The article was originally published here