Gujarat Liquor Prohibition Challenged In High Court Invoking 'Right To Privacy'

The petition challenges the said law on grounds of 'manifest arbitrariness' and violation of 'right to privacy'.

A Division Bench of Chief Justice Vikram Nath and Justice Biren Vaishnav will continue hearing the matter tomorrow.

Today, Advocate General Kamal Trivedi raised preliminary objections to the challenge. He 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.

"We are in 71^st year since the whole Act, barring few sections, came to be upheld by the Supreme Court on 25 May 1951. So, one can say with authority— since that date the decision has been holding field and there is no scope for interference," he said.

Significantly, the Petitioners have challenged the Act on the ground 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.

"Is such a plea available to be taken before a High Court? The answer is no. There may be additional grounds now. There may be new grounds that one can think of but, that cannot be the basis of challenging a law before the High Court which has already been upheld by the Supreme Court," Trivedi argued.

He stated that the High Court is bound by the Supreme Court's decision under Article 141 of the Constitution.

He cited the case of Sarjubhaiya Mathurbhaiya Kahar v. Deputy Commissioner Of Police, where the Gujarat High Court refused to re-look into validity of Sections 56 and 59 of the Bombay Police Act, 1951 on the ground that a new ground for challenge emerged subsequently.

"It is not open to this Court to go into this plea since the Supreme Court has spoken on the validity of the section and that is law under Article 141 of the Constitution. That cannot be overlooked by this Court on the ground that the Supreme Court had no occasion to test the validity of the sections impugned, in the light of Article 21 of the Constitution.

A new ground of challenge even on the basis of approach made in later decisions of the Supreme Court may not be available before this Court to the petitioner in this case," the High Court had held.

Trivedi stated that barring two sections, i.e. 24(1)(b) and 40A, all provisions of the impugned Act have been considered by the Supreme Court and those cannot be challenged before the High Court.

Senior Advocate Mihir Thakore on the other hand argued that the validity of the provisions under challenge before the High Court were not under challenge before the Supreme Court.

"Judgments cited by them were passed in cases where same provisions were under challenge. That is not the case here," he said.

The Bench has kept the matter for hearing tomorrow, and meanwhile the Petitioners have been directed to serve copy of their arguments on the State.

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.

Trivedi has argued that the main aim of the Act is to (i) raise health standard of people at large; and (ii) maintenance of public order by regulating intake of intoxicating alcohol.

Case Title: Rajiv Piyush Patel v. State Of Gujarat