In its recent order banning liquor sale and consumption in three districts in the State, the Uttarakhand High Court has drifted outside the confines of law and entered the domain of morals and desired behaviour.
The court has crossed its legal remit by extending a government policy of prohibiting liquor outlets in the vicinity of places of worship, to cover Rudraprayag, Chamoli and Uttarkashi from April 2017. It has also banned tobacco products within a five-km radius of three gurdwaras.
The court has assumed the power to make regulations on its own even after observing that the State government “has taken laudable measures to prohibit the sale of liquor in specified areas”.
The petitioner had not sought any such ban. The court has used a petition challenging the grant of a bar licence at a location near Haridwar as an opportunity to moralise on the evils of drink.
Ironically, the Division Bench has found no illegality in the grant of licence as the bar concerned is situated outside the municipal limits where the prohibition operates. However, it has clothed itself with the power to give “sanctity” to the government order that prohibits liquor in the vicinity of the Char Dham (four holy shrines) by clamping judicial prohibition in the whole of the three districts.
The court has cited Article 47 of the Constitution, which says it is the duty of the state to raise the level of nutrition and standard of living of the people and improve public health, and to prohibit the consumption of intoxicating drinks and drugs.
In general, courts refrain from enforcing Directive Principles, though some judicial decisions are based on combining their underlying goals with aspects of Fundamental Rights.
The Bench cites several judgments that hold that engaging in the liquor business is not a Fundamental Right. However, these precedents invariably arise from challenges to government policies regulating or prohibiting the manufacture, sale and consumption of alcohol.
In fact, earlier this year the Supreme Court refused to entertain a petition seeking a nation-wide ban on alcohol, observing that this was a matter of policy into which it cannot venture.
It is one thing to cite constitutional goals to justify state action against liquor or drugs; it is quite another to cite them as a justification for judicial directions.
Earlier this year the Supreme Court cautioned judges against assuming powers based on individual perceptions or notions. Howsoever noble an idea may be, courts should be wary of making rules on their own, as it would amount to transgressing into the policy domain.