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 find 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.
