Liquor Prohibition Yet To Be Tested In Context Of Personal Food Preferences Within Right To Privacy: Gujarat High Court

The Gujarat High Court has observed that the law prohibiting the use and consumption of intoxicating liquor has never been put to judicial scrutiny before in context of "personal food preferences weaved within the right to privacy".

Observing thus, it held as maintainable a batch of writ petitions challenging the prohibition on manufacture, sale and consumption of liquor in the state as per the Gujarat Prohibition Act, 1949.

A division bench comprising Chief Justice Vikram Nath and Justice Biren Vaishnav rejected the preliminary objection raised by the State of Gujarat against the maintainability of the petitions and observed thus:

"The challenge as to the prohibition of intoxicating beverages for human consumption being violative of Part III of the Constitution was never under challenge or was under examination before the Courts before.

The petitions challenge new provisions like the validity of Section 24-1B and other newly added provisions and therefore the petitions have to be heard on merits and cannot be severed as part maintainable and part not-maintainable."

The bench had reserved orders on the preliminary question of maintainability on July 23. The petitions challenged the liquor prohibition law as "manifestly arbitrary" and as a violation of right to privacy, which has been recognized as a fundamental right as per the 2017 judgment of the Supreme Court in the KS Puttaswamy case.

"A law once held valid can be held unconstitutional with passage of time. Constitution cannot be static otherwise it becomes dead letter," it was argued. The Petitioners also claimed their 'right to privacy' ,'right to be left alone' and 'right to consume liquor within four walls of one's home'.

Thus, the question before the High Court was whether by the said Judgment, the Supreme Court had decided the validity of the entire Act so as to render as non-maintainable the instant petitions.

"Before us in the present petitions, the main challenge is of possession, use and consumption of intoxicating drinks which was not the subject of challenge before the Bombay High Court in the case of F.N.Balsara(supra)," the High Court concluded.

The High Court also noted that the right to privacy was recognized as a fundamental right for the first time in 2017 in the KS Puttaswamy case.

It emphasized that each case presents its own features and it is important to analyse a decision and isolate from it the ratio decidendi.

It added,

"The challenge before the Bombay High Court and the Supreme Court in the case of F.N.Balsara (supra) was to the validity of Sections 12 and 13 of the Bombay Prohibition Act, 1949 as being violative of Article 19(1)(f) of the Constitution Of India. Moreover, the challenge was in relation to the liquids containing alcohol not being intoxicating liquors in context of medical and toilet preparations and the provisions which prevented the use of liquids containing alcohol that are not beverages but are medicinal and toilet preparations. Keeping in mind the basic pleading and submissions so made by the Counsels for the petitioners what is under the scrutiny of this Court in the petitions before us are the 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 F.N.Balsara (supra).

A Bird's eye view of the Act and the provisions which are a subject matter of challenge in the petitions under consideration are pertaining to prohibition of import, transfer, possession and buying of liquor, consumption and use thereof, prohibition of entry in state of intoxication, prohibition of vendor to sell liquor to anyone except permit holders, permit to use or consume liquor on warships, troopships and in messes and canteen of armed forces and various provisions pertaining to permits. Before the Courts in the case of F.N.Balsara (supra) these Sections were not under challenge and further some of these sections had been introduced by way of amendments."

The Court has posted the cases for final hearing on October 12.  It clarified that the grounds raised by the State in terms of the objections raised in context of maintainability are the ones which can be raised and canvassed at the time of final hearing of these petitions on merits.

Case Title: Peter Jagdish Nazareth vs State of Gujarat(SCA 799/2019) and connected cases

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