The Big Ban Theory?

The Supreme Court’s decision to stop all outlets from serving alcohol within 500 metres of highways has created much surprise and consternation, including, from within the government. While the purpose behind this action is noble enough, the action itself has been seen as being precipitate and too casually dismissive of the impact it will have on business.

There is a reason why the role of the courts is not to make laws but to enforce them. However flawed and dissatisfying our law-making process can be at times, it is designed to consider all aspects of an issue. The legislative process imagines laws not as one-off actions, but as junctions where a certain legislative need gets located in a larger ecosystem of competing interests, and a way forward is negotiated after accounting for all the complexities involved. The result can often be imperfect, but the process tries to ensure that the consequences of the proposed action are understood in a systemic sense. Laws cannot be so blinded by a single desirable outcome so as to ignore all the consequences that ripple outwards nor can they overlook the differential impact they can have on different constituencies.

That kind of perspective seems missing here. No allowance has been made, for the fact that hotels and liquor vends cannot be lumped together in one category or that that in many cases highways run through cities and hence hotels within cities need to seen with a different lens. Also, there is the question of honouring the promise that governments make implicitly when they make businesses go through a tortuous process of approvals before allowing these to be set up. To change the rules of the game abruptly midway that makes the business itself unviable is to create an environment of extreme uncertainty.

Also, an extreme action of this kind is an open invitation to devious ways of circumvention. We are already seeing these in action, with many states de-notifying highways and individuals establishments find innovative ways to put 500metres between themselves and the highways. A ruling like this which is blind to context will inevitably create a mini-industry in evasion and avoidance. It will also create a new pattern of illegality with there being a strong incentive to sell liquor in an unlicensed and unregulated form.

Finally, for the person who wants to drink and drive, this ruling will be an inconvenience at best. 500 metres is hardly a long distance when one is travelling on highways, and besides what is to stop people from stocking up on alcohol for a journey or drinking before setting out?

An uncertain benefit is being traded off against a certain loss. 500 metres is an arbitrary number that may or may not reduce drunken driving but it certainly put many restaurants and bars out of business. The rights of the people who set up businesses, derive their living from working there or who use the establishments as consumers are all overlooked in one single-minded pursuit that may or may not be attained. Surely, a more nuanced solution that took more variables on board could have been adopted instead of a single sweeping ruling of this kind.

There is a larger problem here. A law of this kind is an admission of our inability to provide everyday unspectacular governance. We constantly impose flashy regulatory solutions on routine administrative problems. In this case, a law exists against drunken driving. As Mumbai has shown, when local authorities are determined to crack down on drunken driving, they can achieve dramatic results. On highways, it is hardly difficult to set up check posts that monitor alcohol levels of drivers randomly.

Since our system does not function efficiently, we find ways around it. Decisions of this kind are short-cuts, little more than acts of Jugaad. The use of legislative or judicial brahmastras has become rampant today. The problem is that in the absence of an administrative process that works as it is meant to, the use of more and more powerful actions ends up creating a new pattern of disorder. The intended consequences don’t quite materialize while unintended consequences abound. Of course, as is common in such cases, every action intended to bypass an extractive bureaucracy creates more of it. After this ruling, the police still need to check for drunken driving but excise and other officials now need to ensure that no one is serving alcohol within 500 metres of highways all over the country. A case by case review will now be needed to determine which businesses are exempt and which ones need to shut down.

This is a common pattern. We prefer to ban a Maggi rather than get our food licensing right. We ban a film rather than provide protection against the unruly protestors. The ban is the lazy way and undemocratic way out. By avoiding doing anything to make our everyday systems work better, we are constantly ruling by exception. We focus on individuals rather than mechanisms and processes. Media coverage too focuses compulsively on specific instances rather than general principles. The fondness for big solutions that do not require messy everyday management makes us inept when faced with more complex problems. Traffic, pollution, public sanitation – these are issues that become intractable in the absence of a functioning system of everyday governance. A problem like dengue, for instance, defeats us for there is no legislative tantrum we can throw, nothing that we can ban with immediate effect.

Without an administrative overhaul, we are condemned to live day to day buffeted around by the last loud voice we have to listen to. Last week, it was that of the Supreme Court, that with all good intentions, ended up hurting about a million employees. . A few months ago, it was the move to demonetize 85% of our currency. We await the next loud voice to ban something big. It gives us the illusion of action, and it is a good substitute for real governance.

(A version of this article has appeared previously in the Times of India)