Prohibition law challenge day 3: Arguments concluded on maintainability, order reserved

The division bench headed by Chief Justice Vikram Nath has reserved its order on the specific aspect of maintainability following conclusions of argument.

Continuing arguments for the third consecutive day on the maintainability of a bunch of petitions before the Gujarat High Court which are challenging the liquor law in Gujarat, the state government on Wednesday submitted that right to privacy is not “like a bull in a china shop” and comparing state interference in controlling consumption of liquor cannot be equated to a hypothetical similar interference in individual food habits.

The division bench headed by Chief Justice Vikram Nath has reserved its order on the specific aspect of maintainability following conclusions of argument.

Meanwhile petitioners who are challenging the prohibition law also submitted that in an issue concerning constitutional issues, the state should not insist that the matter be thrown out in the initial stage itself and rather the state should “grapple with the merits and assist the court in coming to the right decision.”

Responding to an argument put forth by the petitioners on June 22 that if the state controls consumption of liquor in the privacy of homes, it my as well control consumption of food in homes in the future, advocate general Kamal Trivedi, who was representing the state government, registered his “serious objection on an attempt by petitioners to draw a comparison between two incomparables”

“Their argument sounds like a plea of aristocracy…a right to eat non-veg within the four walls of your home can never be equated with right to consume intoxicating drink which is injurious…otherwise tomorrow somebody may say that you should not trouble me or harass me if I’m taking drug within the four walls of my house, taking psychotropic substances within my four walls…This concept of privacy right is not like a bull in a china shop…it may also be subjected to reasonable restrictions, depending upon social environment, moral background, public interest…and these are propositions laid down by the judgments (of the SC) relied upon by the petitioners.”

The petitioners challenging the law are primarily relying on the grounds of manifest arbitrariness and right to privacy via judgments such as retd Justice KS Puttuswamy versus Union of India and Ors, Shayara Bano, Navtej Johar and Joseph Shine.

AG Trivedi further submitted that while a law which was declared valid years back can indeed be declared invalid years later, it has to be however done “before the very authority which declared it valid with a request that ‘see, much water has flown under the London bridge, it requires reconsideration’”

“So long that is not done, there’s a law which binds this court under Article 144 of the Constitution and therefore it cannot be divorced from it,” added AG Trivedi.

According to Trivedi, wherever the changes have been effected in the Gujarat Prohibition Act over the years, “they are cosmetic in nature,” and “the substance of the original section has been kept intact,” with “no change whatsoever” to sections 12 and 13 of the Act, which deals with manufacturing, possession and consumption of liquor.

Supporting AG Trivedi’s case, senior advocate Prakash Jani, who is representing Ahmedabad Women’s Action Group, added, “Substantially every provision has remained intact after the judgment of Balsara. So far as other provisions which were brought, they were consequential or in aid of section 12 and 13 of the Act.” With regard to other provisions which were added such as section 24-IB that prohibits entry of a person in an intoxicated condition in the state, Jani added, “Large number of persons were going to Abu, Udaipur (both in Rajasthan), Daman, Diu (neighbouring union territories) or some other places and they were heavily intoxicated themselves and they would then say that we have not consumed liquor in state of Gujarat, consumption was outside (Gujarat) and therefore we should not be prosecuted. Legislature found this lacuna in the Act and corrected it by introducing relevant amendment (section 24-IB). This is how different amendments with regard to medical permits, with regard to tourist permits (happened)…a view came to be taken that foreign and other tourists are suffering because of non-availability of certain facilities. So the legislature felt it is time to balance the competing equalities…therefore an amendment came to be made. Essentially, the entire prohibition law centres around section 12 and 13 which is held to be constitutionally valid and has remained enforced since the past 70 years and people of Gujarat are extremely happy with the Prohibition law, barring certain petitioners. Women organisation which does ground work for the welfare of women, would earnestly urge not to accept submissions of petitioners and I support the submissions of the state.”

As per Jani, Ahmedabad Women’s Action Group is a society doing work for women and did social service to women affected by 2009 hooch tragedy. 147 persons had died of methanol poisoning.

Contending the arguments put forth so far by the state and others supporting the prohibition law, senior advocate Mihir Joshi, who is representing the petitioners, submitted that “if it is accepted that various sections are new sections and have never been tested, rejecting the petition as not maintainable is not permissible as these new sections were never under challenge.”

Joshi also argued that right to privacy is a new right only recognised 2017 onwards and that “the SC could have had no occasion to consider the matter or deemed to have considered the matter (in 1951, when SC upheld the liquor law).”

“The judgments (cited by state and others supporting prohibition and objecting to maintainability) proceed on the basis that it is assumed that the SC knew the other provisions…The case which we are pleading before the court is…whether there is a right of privacy, whether it includes a choice of intoxicating drink…whether that right is newly conferred, it involves an examination on merits and if that be so, that right newly conferred in 2017, cannot be held to have been answered in the negative in a judgment of 1951. This involves an entry into the merits of the matter, taking it out of maintainability…We are saying that there is a very stark distinction, where if we are right — and that involves adjudication on merit — a substantive new right in no judgment has been covered…Constitutional issue, issue of privacy, applicability of the rights — these are not issues where the state should insist that it goes out at the threshold.”

Supporting Joshi’s arguments, senior counsel Percy Kavina, also representing the petitioners, added, “The reliance being placed upon judgments (by the state and others supporting the law and objecting to the maintainability) which are more than half a century old, must always give way to a new look at a matter. Otherwise constitutional progress will never take place. There is a vital dispute left to be adjudicated, I would expect the state government also to grapple with the merits and assist the court in coming to the correct decision with regard to constitutionality and not with regard to maintainability.”

Contending the argument of AG Trivedi that the SC had upheld the ‘Act as a whole’, Joshi also pointed out that the ‘Act as a whole’ interpretation was in the context of three issues (of encroachment on a field which is of Central legislature, interference with inter-state trade and provisions of section 297 of Government of India Act), only. “‘The Act as a whole’ is not a general rubric or a shield to say ‘Act as a whole’ is upheld, it is upheld in the context of what the SC called upon itself to decide…SC itself leaves it open…even on that shield, there is a hole left by the SC itself…”

Meanwhile, senior advocate Devan Parikh, representing the petitioners challenging the law, added that the matter would not have been maintainable before the Gujarat HC and could have only been heard by the SC if what the petitioners were seeking were in the nature of review. “There is no precedence on what we are arguing. If there’s no precedence…we are entitled to come before this court to argue this point,” Parikh submitted.

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