None for the road
The SC should examine the consequence of its order on the liquor trade — and amend it
The liquor trade, as the Supreme Court has emphasised, is indeed res extra commercium, something outside the idea of commerce. It exists solely at the discretion of policymakers without any concomitant fundamental right that other businesses enjoy. The point was cited by the court while ordering that liquor sales be prohibited within 500 metres from national and State highways. In a different sense, it only underscores how much the executive is, and ought to be, involved in policy-making on the subject. Imposing restrictions on the location of liquor outlets, applying them in a differential manner to vends, hotels and standalone bars is undoubtedly an executive decision. It is possible to argue that the executive will be lax in enforcement, corrupt in licensing or too revenue-centric to worry about the social costs of its decisions. However, is that reason enough for the judiciary to impose norms without regard to the problems that they may give rise to? Frankly, the answer is no. The court’s ill considered order is wholly concerned with the availability of liquor — to the point that it bans sale of liquor on highway stretches even within city and town limits, where police checks are quite common — and does not touch upon strengthening the enforcement of the law against drunk driving. With the same moral outrage against high fatalities on our roads, and with much less economic cost, the court could have ordered stricter patrolling on highways and regular check-points.
The order has come down like a sledgehammer not only on the liquor vends and the hospitality sector but also on the revenues of State governments, on the business of hotels and bars, and the tourism potential of many parts of the country. The inventive responses of State governments and the industry give an idea of how much they are affected by it — and indeed how absurd the court’s order is. States are downgrading highways into ‘urban roads’ or ‘major district roads’, moves fraught with consequences as safety and quality norms may be compromised; local bodies, which now have to maintain them, may not ind the required resources.
Some luxury hotels situated on highways are creating alternative entrances to claim that their bars are located beyond 500 metres. An enterprising owner has built a maze of sorts to create a longer walking distance from a highway to his bar. It is not clear how the 500-metre distance is to be measured — as a straight line from the highway in any direction or along the paths leading to an outlet. One may denounce or laugh away these moves to circumvent the order; but they can be also seen as desperate responses from those fearing loss of income, jobs and business. The court should have the wisdom and the humility to examine the consequences of its order and do the necessary thing — amend it.
Clarity and facts on the ground
There are several conflicting accounts of precisely what transpired when senior advocate Shyam Divan made a re- quest late in March for an early hearing of a batch of petitions that question the validity of the unique identification scheme, implemented through the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 — or the Aadhaar Act. The next morning’s newspapers each produced their own versions: in the narration of some, the court made it clear that Aadhaar ought not to be made mandatory for welfare schemes; others reported that the court had also expressly clarified that Aadhaar could, in fact, be imposed in relation to certain state directives.
“Let us take Income Tax returns. Is this a benefit? No, we don’t think so,” the Chief Justice of
India, J.S. Khehar, sitting along with Justices D.Y. Chandrachud and S.K. Kaul, said, according to The Indian Express. “You can ask someone to have a bank account on the basis of Aadhaar. That is not a benefit. But if you want to make it mandatory for a poor person in a village to get his meagre pension, that could mean extending a benefit… For benefits, it (Aadhaar) cannot be pressed… for non-benefits, it can be done.”
These statements, regardless of their exact import, understandably raise legitimate concerns.After all, they were made by the CJI, barely a day after the Lok Sabha had passed amendments to the Finance Bill making Aadhaar mandatory for securing a permanent account number (PAN), and consequently for filing income tax returns. But in attempting to comprehend the significance of these remarks, we must be careful not to ascribe any excessive value to them; indeed, there’s practically no utility to be gained in trying to put different news reports together to try to ascertain what the CJI may have really meant. For these statements were just oral ripostes, which don’t bear the force of a judicial order. Point of no return What was more telling, however and ultimately more damaging about this entire episode was the result: the denial of Mr. Divan’s plea for a speedy inquiry into the validity of Aadhaar. It is now entirely likely that by the time the court gets around to hearing the challenge, the government will render Aadhaar a fait accompli, with its destiny, in this case, having been sealed by successive CJIs who have failed to so much as constitute a bench to hear the petitions. This lapse also highlights a deeper malaise in our judicial structure: where one person, the CJI, as the sole master of the Supreme Court’s roster, decides the composition of benches, and, as a result, wields enormous administrative power over which cases get heard and which cases get placed on a seemingly never-ending back burner.
For close to 19 months, the petitions challenging Aadhaar have been stuck in an administrative logjam. In August 2015, at the bidding of the Union of India, a three judge bench headed by Justice J. Chelameswar ruled that there was substantial confusion on whether the Constitution guaranteed citizens a right to privacy, and therefore that the case had to be placed before a larger bench, of an appropriate strength to be determined by the CJI. The bench also added(something which the court reiterated again in October that year) that it would be desirable to have the case finally heard at the earliest, having regard to its importance. But, all these months later, with Aadhaar becoming more and more entrenched in the Government’s grand plan, we are no closer to having a bench constituted to decide the legal challenge to the scheme.
Consider the consequences. In a few months’ time, millions more would have enrolled with the Unique Identification Authority of India, submitting their biometric data, with a view to staying clear of the long arm of the country’s punitive laws. Given that there is still no authoritative ruling from the Supreme Court on whether the state’s present acts in extending the use of Aadhaar constitutes a contempt of the court’s previously granted interim orders, it is also quite plausible that the government is far from finished. As a result, when the court finally gets around to listing the petitions before a freshly minted seven-judge
Constitution Bench — let’s say sometime in the year 2021 — the damage wrought by Aadhaar will be incapable of being undone. By then, India would have taken an irredeemable step towards becoming a surveillance state, and the question of whether we actually have a constitutionally protected right to privacy would be all but moot.
This failure of the Supreme Court, needless to say, wouldn’t be unique to the Aadhaar challenge.
There were a number of false dawns before the court had, on December 16, referred the challenge to the demonetisation policy to a Constitution Bench. Now, several weeks later, given that the court had explicitly refused to grant a stay of the policy, even if a bench is indeed constituted to hear the petitions, it’s unlikely to matter much: for the state has already thrust the policy on us, and its impact is now permanent.
Today, were the court to hear the petitions challenging Aadhaar, it’s no doubt conceivable that, on an examination of the merits, it might conclude that India’s citizens possess no fundamental right to privacy, or that Aadhaar does not infringe on this right in a constitutionally unsustainable manner. Whatever our respective predilections might tell us about such a view, at least we might be able to take heart from the fact that the court would have performed its basic function under India’s democratic structure: of testing legislative and executive acts against the guarantees of the Constitution.
What it’s presently doing, though, is indefensible. It is not only rendering academic these significant constitutional questions but, as the lawyer Gautam Bhatia has pointed out, it’s virtually deciding in favour of the government without actually delivering a judgment.
Perils of delays Delays in constitutional judgment, as K.M. Munshi, a member of the
Constituent Assembly, had pointed out in a draft note in 1947, can have deep and perilous consequences on fundamental rights. “It is of the highest importance that the question whether a law is valid or not must be decided at the earliest moment,” he wrote. “Any uncertainty about its validity will lead to great hardships. The object of the fundamental law will be frustrated if people have to serve sentences, pay fines or deny themselves the privileges given by the Constitution for a long time under an invalid law.”
Most constitutional courts around the world are acutely aware of these dangers. Even re- cently, there are notable examples from other jurisdictions where courts have fast-tracked certain cases with a view to ensuring that the questions they raise aren’t consigned to theory. The U.K. Supreme Court heard in December 2016 and ruled in January this year that British Prime Minister Theresa May must get Parliament’s approval before formally triggering Britain’s exit from the European Union. Also, last month, a South African High Court ruled that the decision by President Jacob Zuma to withdraw from the International Criminal Court was not only premature but was also procedurally lawed. In both these cases, a failure to decide expeditiously would have had irreversible consequences. It was to negate such an impact that the courts made suit-
able arrangements for a quick hearing. Comparing India’s Supreme Court to other constitutional courts around the world can be a difficult and even tedious exercise. There’s no question that our judiciary is fraught with an over lowing docket. But can there really be any excuse for a failure to rule punctually on live conflicts between the state and the citizenry?
The summer proceedings In response, it may well be pointed out that the Chief Justice has established three Constitution Benches that are scheduled to function during the court’s summer vacation.
which the court will begin hearing on April 18. This isn’t to suggest that these cases aren’t important.But given that they don’t encompass disputes that pit the individual directly against the state the consequences that they are likely to have, from a standpoint of public and constitutional law, aren’t as instantly significant as the issues that the Aadhaar challenge presents. That these cases are being prioritised over Aadhaar is therefore curious, at its best, and is, at its worst, seriously damaging to any remaining notions that we might have of the Supreme Court representing a bulwark of freedom and democracy.