Does Right To Privacy Include Right To Drink Alcohol? Gujarat High Court Reserves Judgment On Maintainability Of Pleas Challenging Liquor Prohibition

A Division Bench of Chief Justice Vikram Nath and Justice Biren Vaishnav reserved the order after hearing both the sides over a course of 3 days.

The State had raised preliminary objections to the challenge. It stated that 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.

"A new ground of challenge even on the basis of approach made in later decisions of the Supreme Court are not available," Advocate General Kamal Trivedi argued.

The Petitioners however contended that challenge to the legislation before the Supreme Court was only to the limited extent of medicinal and toilet preparation. It was stated that question of validity of prohibiting consumption of alcohol was not decided by the Supreme Court and it is in this context that the Gujarat High Court is competent to adjudicate.

Joshi also argued 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 be 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. Your Lordships in this case 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.

Yesterday, Joshi had linked the right to privacy with the citizens' right to eat and drink as per their choice and remarked, "What's to stop the State from coming into our homes and saying, no non-veg from tomorrow?" he had asked.

Taking objection to, AG Trivedi today submitted,

"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.

"It regulates drinking of alcohol within four walls by law. 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 Petitioners. They cannot do selective reading," Trivedi said.

He conceded that law in general is dynamic and may require reconsideration at times in context with changing dynamics of the society, however, the same has to be done before a forum that declared the law as valid.

Trivedi repeatedly argued that the Supreme Court had decided validity of the Act as a whole in the Balsara judgment, and therefore the High Court is bound by it under Article 141. He said that the Top Court not only examined the Act from one point of view of 'legal competus' but also touched Article 14, 19(1)(f) in its Judgment and finally held that restrictions imposed by Prohibition Act are reasonable.

"Section 12 & 13 form whole edifice of the Act. If these go, whole Act should fall flat. But my learned friend says that SC examined validity of these provisions from point of legislative competence alone. I say it has been examined in all respects...Ultimately the Supreme Court held that if Sections 12 & 13 include prohibition on toilet and medicinal preparation, then it is bad. So long as it is not included, those Sections are upheld," Trivedi argued.

He also cited List II Entry 8 to argue that State is competent to regulate production, possession, purchase, sale, etc. of intoxicating liquors. He further cited Entry 51 thereof whereby State is excluded from regulating medicinal and toilet preparations containing alcohol.

The Petitioners had also argued that some provisions whose validity was decided by the Supreme Court in 1951 have been "materially amended" since and certain provisions have been added by way of subsequent amendments.

Responding to this, Trivedi claimed that the amendments are 'cosmetic' in nature and substance of original provisions has been kept intact. "So far as Sections 12 and 13 are concerned, there is no change," he claimed.

"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," he added.

Advocate Devan Parikh, appearing in support of the Petitioners, argued that not everything said by a Judge is ratio decidendi. "Ratio decidendi is a statement of law, applicable to legal problem raised by facts. Other elements of a Judgment are not binding" he said.

He further submitted that the case is not 'per incuriam' because the Petitioners in Balsara Judgment did not argue on validity of prohibition on consumption of liquor. "There is no precedence on what we are arguing," Parikh remarked.

Advocate Saurabh Soparkar, also appearing in support of the Petitioners, argued that the judgments cited by the AG in support of his case were given at end of a full-fledged Trial. "No matter was dismissed summarily on the ground that issue is settled," he said.

"This is the first Constitutional Court of our State, also the first court of recourse. If an interpretation is to be given in a proceeding, it must be in favor of a full-fledged herein rather than a truncated one. Please give new look to the matter otherwise Constitutional progress will never take place. I expect State to grapple with issue on merits and assist the Court in coming to an authoritative finding," Advocate Percy Kavina submitted.

Chapter 3 of the impugned Act deals with prohibition on manufacture, sale and consumption of liquor vide Sections 12, 13 and 13B of the Act.

Chapter 4 provides for Control, regulation and exemptions. These, inter alia, include Section 40: Temporary resident's permits, Section 40A: Health Permits, Section 40B : Emergency Permits, Section 41: Special permits to foreign sovereigns etc., Section 46 : Visitor's permit, Section 46A: Tourist's permit, Section 47: Interim permits.

The Petitioners had moved the High Court stating that two new grounds for challenging the Act have been laid down by the Supreme Court post 2017, in several cases.

The first new ground is 'manifest arbitrariness' laid down in the cases of Shayara Bano, Navtej Singh Johar and Joseph Shine.

The second ground is based on 'right to privacy' ,'right to be left alone' and 'right to consume liquor within four walls of one's home'— which they argue is a facet of right to privacy that was recognized by the Supreme Court in KS Puttaswamy v. Union of India.

Advocate Devan Parikh stated that the judgment of Supreme Court which decides on competence of legislature, is limited and it is still open to other parties to challenge it as violative of their fundamental rights.

The State had raised preliminary objections to the challenge. It stated that the High Court cannot sit in appeal over the Supreme Court's decision in State Of Bombay & Anr. v. FN Balsara where validity of the 1949 Act was upheld.

Case Title: Rajiv Piyush Patel v. State Of Gujarat