NE LEGAL BUREAU
AHMEDABAD, AUG 23
The Gujarat High Court on Monday held as maintainable a batch of petitions challenging the provisions of Gujarat Prohibition Act, 1949 that ban the manufacture, sale and consumption of liquor in the state.
The HC gave the ruling to hear afresh the prohibition law overruling the contention of the state government that the high court cannot hear this case as the Supreme Court had upheld it in 1951.
A division bench of Chief Justice Vikram Nath and Justice Biren Vaishnav held the petitions as “maintainable and be heard and decided on merits,” and kept them for final hearing on October 12.
While holding the maintainability of the petitions, the court observed that the petitioners had assailed some of the provisions of the Act on the grounds of them being violative of the ”right to privacy” that had been recognised by the Supreme Court as a fundamental right for the first time in a 2017 judgment.
“The same has never been tested before in the context of personal food preferences weaved within the right to privacy,” the HC said.
While raising preliminary objections with regards to maintainability of the petitions, the government had, in previous hearings. said it was not permissible for this court to examine the validity of any law or any new law or additional grounds when it has been upheld by the apex court in the past.
In his submission, Advocate General Kamal Trivedi had said a law made valid by the Supreme Court today can be held invalid tomorrow, and the apex court is the right forum to decide the same and not the Gujarat High Court. The Supreme Court had upheld the Gujarat Prohibition Act in its judgment in 1951.
In its order rejecting the government’s objections, the HC on Monday said the Act challenged in the Supreme Court dealt with sections 12 and 13 of Bombay Prohibition Act, 1949 as being violative of Article 19(1)(f) of the Constitution, and was in relation to the liquids containing alcohol not being intoxicating and are not beverages but are medicinal and toilet preparations.
Under the scrutiny of court are provisions that deal with purchase, possession and consumption of potable liquor and/or alcoholic drinks, which was not the subject matter of challenge before the Bombay High Court or the Supreme Court in the case of FN Balsara, it said.
What are being challenged now were not challenged in the FN Balsara case before the Supreme Court, as some of the sections were introduced later by way of amendment, it said.
The court said the objections raised by the state government are those that can also be raised during the final hearing of the petitions on merits.
Advocate General Kamal Trivedi hinted before the court that the government may decide to approach the Supreme Court against the order.
The court had, on June 23, reserved its order on the maintainability of a batch of petitions challenging the provisions of the state’s liquor prohibition law as contrary to the citizen”s right to privacy, life and personal liberty as enshrined in the Constitution.
The petitioners had argued that the matter should be taken up on merits, as the provisions challenged in the pleas are materially different from what they were in 1951 as they have been amended over the years.
A batch of petitions have challenged the Constitutional validity of sections section 12, 13 (total prohibition on manufacture, purchase, import, transportation, export, sale, possession, use and consumption of liquor), 24-1B, 65 of the Gujarat Prohibition Act, 1949, and sought them to be declared as ultra vires Article 246 of the Constitution.
One of the petitions argued that the provisions are ”arbitrary, irrational, unfair, unreasonable, and discriminatory” and “despite prohibition being in place for more than six decades, a steady supply of liquor continues to be available through an underground network of bootleggers, organised criminal gangs, and corrupt officials.”
“With expanding interpretation of the right to life, personal liberty and privacy, as contained in Article 21 of the Constitution, a citizen has a right to choose how he lives, so long as he is not a nuisance to the society. The state cannot dictate what he will eat and what he will drink,” said one plea.
