After hearing arguments on preliminary objections by the state for three days, the Gujarat High Court on Wednesday reserved its order on maintainability of the plea challenging the constitutional validity of the Gujarat Prohibition Act, 1949.
Counsel of the petitioners collectively requested the division bench of Chief Justice Vikram Nath and Justice Biren Vaishnav to take up the matter on merits, arguing that the current challenge to liquor prohibition in Gujarat was different to the challenge mounted in State of Bombay & Anr v. FN Balsara, in which the Supreme Court upheld the Act in 1951.
Advocate General Kamal Trivedi, appearing for the state, raised preliminary objections to the challenge.
"The High Court cannot sit in appeal over the Supreme Court's decision in State Of Bombay & Anr. v. FN Balsara where validity of Sections 12, 13 of the Act (prohibition on manufacture, sale and consumption of liquor) was upheld.
"Even on the basis of approach made in later decisions of the Supreme Court, a new ground of challenge is not available," he argued.
Senior Advocate Mihir Joshi on Wednesday argued that the apex court had itself noted in its judgment that the restrictions imposed by the legislation on the right of a citizen to possess, sell or consume alcohol, was not been disputed before it in view of the directive principles of state policy.
The Contemporary Argument of ‘Right to Privacy’
He said that a new right to privacy, under the generic umbrella of Article 21, was conferred on the citizens in 2017. Therefore, the Supreme Court had no occasion to have deemed to have heard the matter in 1951.
"Constitutional rights are not issues which the State should insist to be thrown out at the threshold. In this case, the court will be examining whether the right to privacy recognized in 2017 includes a choice of intoxicating drinks. This cannot be held to have been answered in negative in a Judgment of 1951," Joshi submitted.
Joshi, during the hearing on Tuesday, had linked the right to privacy with the citizens' right to eat and drink as per their choice and had remarked, "What's to stop the State from coming into our homes and saying 'no non-veg from tomorrow'?" he had asked.
Trivedi, objecting to this argument, submitted on Wednesday, June 23, said, "The right to eat non-veg cannot be compared with consuming intoxicating drinks. Tomorrow, someone may say you cannot object if I'm taking drugs within my four walls."
He argued that the Right to life under Article 21 can be regulated by procedure established by law, and the Prohibition Act is that procedure.
“This concept of right to privacy is not like a bull in a china shop. It may be subjected to reasonable restrictions in context of social environment, public interest. These restrictions are contemplated in the Puttaswamy judgment cited by etitioners. They cannot do selective reading.
"Tomorrow someone may argue that I am consuming psychotropic substances within my home and the state cannot impose control.
"Reading a judgment requires discipline. One cannot pick parts of a judgment without context. The Supreme Court found the restrictions imposed by the Act reasonable in nature. Wherever changes have been affected in the Act, they are cosmetic in nature. The substance of the Act is preserved," Trivedi submitted.
Advocate Prakash Jani, in favour of the legislation, argued that the people of the state were happy with prohibition.
"People in the state of Gujarat are very happy with prohibition; you ask those helping the disadvantaged sections of the society. Prohibition is the reason that Gujarat has highest per capita income," Jani, appearing for an NGO that works with downtrodden women, said.
Supporting the sentiments, the AG too said, "The state is committed to principles of Mahatma Gandhi and firmly intends to eradicate the menace of drinking liquor. Its consumption has ill effects on down-trodden."
On the other hand, advocate Devan Parikh, appearing for one of the petitioners, submitted that a challenge is only required to go to the Supreme Court if the prayer is regarding a review of its previous judgement.
"There is no precedent or ratio decidendi on what we are arguing. It is a fresh challenge."
Senior Advocate Percy Kavina stated, "Reliance is being placed on judgments more than half a century old and this must always give way to a new look at the matter. Otherwise, Constitutional progress will never take place."
(This story has been published in an arrangement with IANS)
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