A blanket ban on the sale of liquor near highways is a smokescreen for poor enforcement of existing traffic laws meant to deter drunken driving. Horrendously, it is akin to banning the presence of women in public in order to curb the rising offences against them!Many countries have successfully battled the menace of drunken driving with strict laws and effective enforcement. Even Chandigarh seems to have followed suit –curiously managing to impress the same judges of the Supreme Court who delivered the liquor ban judgment, tacitly reigniting the debate – whether to ban the sale of liquor or to enforce stricter traffic laws?
A division bench of Punjab and Haryana High Court on 29th March 2017, while deciding whether to allow the de-notification of state highways in Chandigarh(an ingenious mechanism devised by the Indian jugaad mindset to circumvent the liquor ban judgment), observed as follows:
“…As regards drunken driving, it has specifically been claimed in para 2 of the reply, that drunken driving is regularly checked in the City with setting up of regular check post/ nakas, especially at late evening times. The teams are equipped with breath analyzers. Special check posts are formed on all major roads. CCTV cameras have been installed at busy junctions. Surprise checking with alcometer is conducted during nights on regular intervals. As a result of strict enforcement of traffic rules and checking of drunken driving, the Administration has been able to prevent several motor vehicular accidents in the City.”
The High Court went on to allow the de-notification of state highways, holding “…For the reasons mentioned above, we do not find any merit in the present petition. The same is accordingly dismissed.”
Haphazard judicial application of anover-simplified solution cannot address a diverse and complex issue, especially when it pertains to a deep-rooted social evil.Moreover, the resulting outcry from different sections of society has blurred the controversy. The froth having settled, it is perhaps time for reflecting on the various means available to achieve the end of curbing drunken driving. Specifically, whether a total ban on the sale of liquor in the vicinity of highways is a reasonable prohibition in a free society, or whether there are better alternatives worth considering?
The Supreme Court erred in imposing a blanket ban on two basic counts. Firstly, it directed equal treatment to unqeuals. Ubiquitous liquor vends, aka thekas, on remote sections of highways primarily serve & entice the users of the highways, hence the argument to ban such vends. However, restaurants & hotels are generally located within urban areas, where the intent is to serve local guests & tourists and not long-distance drivers. Moreover, these establishments have an altogether different and much wider target audience: wedding guests, families, business clientele and in-house guests,who are clearly not at risk of drunken driving. Their motivations cannot be compared to the highway truck driver faced with a moral dilemma at the sight of a desitheka or the flashy display signyelling “CHILLED BEER AVAILABLE.”
Secondly, the Supreme Court did not provide an opportunity to the hotels & restaurants to assist the Court in considering whether such a blanket ban is well reasoned. The entire tourism industry of the country fell to the brazen wrath of the Supreme Court, which summarily declined to appreciate the differences as noted above. At the very least, the industry deserved an audience before a decision. As they say, “Before you slaughter the goat, at least let it bleat.”
There are several unique ways to address drunken driving emanating from “service” establishments versus “sale” shops & vends; the primary difference in the two being that hotels & restaurants are only allowed to “serve” liquor for “on-site consumption” as a condition of their license. For instance, such establishmentscan offer “call-a-cab” service to its guests who may not be chauffeur driven. Further, they can report on possible violators to assist the enforcement of laws more effectively;the necessary consequence of an active role by establishments in ensuring effective enforcement being the deterrence of drunken driving. In USA, over half the states have “dram shop” laws that impose responsibility on commercial servers by making them liable for the damage done by "obviously intoxicated" patrons to whom they serve alcoholic beverages.
In principle, it may be better to protect the freedom of choice of individuals while promoting responsible decision-making. Stricter laws for drunken driving and stricter enforcement are a proven method world-over, much in consonance with the High Court observation quoted above. The classic example is the British Road Safety Act of 1967 that had a dramatic impact on Britain's drivers. Three months after it took effect, traffic fatalities dropped 23% and in the first year the percentage of drivers killed who were legally drunk dropped by37%.
In the Australian experience, rigorous & strategic implementation of “Random Breath Testing” and effective publicity thereof yielded startling & lasting results. Upon introduction in New South Wales, there was an immediate 90% decline in road deaths, which soon stabilised at a rate of approximately 22% lower than the average for the previous 6 years. The decline in alcohol-related fatalities relative to the previous 3 years stabilised at 36%, an even greater drop for total road fatalities.
Ohio, USA has deterrent criminal penalties, such as a mandatory 72-hour jail sentence for a first offence conviction. Minnesota and Ohio, USA issue special number plates to offenders to indicate limited driving privileges.
Many states in USA have innovatively experimented with imposing the installation of affordable ignition interlock devices that detect an intoxicated driver and keep the car from starting or make it very conspicuous, say, by flashing its lights or honking the horn. This was done in cases of repeat offenders or heavily impaired drivers. One such device is an analyzer that would sniff the air around a driver's head for any trace of alcohol. Another would detect errors characteristic of drinking, such as over steering. More commonly seen is a device that requires the driver to blow into a mouthpiece on the device to ensure sobriety before starting the vehicle.
Unfortunately, our poor enforcement of existing laws has become grounds to create additional laws, much worse, irrational ones by way of judicial legislation. Article 142 of the Constitution, invoked in the liquor ban judgment, gives the Supreme Court unbridled power to do “complete justice.” In light of the significant intricacies that the Supreme Court ignored before passing this judgment, I wonder whether it will re-tailor its “one-size-fits-all”directions to, in fact, do “complete justice.”
Viksit Arora is an Advocate practicing at the Supreme Court of India.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same].