'State Can't Control Right To Consume Alcohol Within One's Home' : Petitioner Argues In Gujarat High Court Against Liquor Prohibition

Responding to the preliminary objections raised by State, Senior Advocate Mihir Thakore today argued that the challenge to the legislation before the Supreme Court was only to the limited extent of medicinal and toilet preparation.

"The proceedings were confined to prohibiting the use of medicinal and toilet preparation. The challenge was not absolute. Challenge to other parts of provision was kept aside," he submitted.

Advocate General Kamal Trivedi on Monday argued that the petition is not maintainable inasmuch as the issue called into question has already been settled by the Supreme Court in State of Bombay & Anr. v. FN Balsara where validity of the 1949 Act was upheld.

He argued that emergence of a new ground for challenge cannot be the basis for disputing te sanctity of the Supreme Court judgment.

Thakore has argued that the 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.

"What is the basis of differentiating between various people? My challenge is on ground of privacy. If I want to consume liquor in the precincts of my home, that right you cannot control. If I misuse it, go out and misbehave, then certainly you can catch hold of me," he said.

Advocate Mihir Joshi 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 asked.

Thakore stated that several provisions that the Petitioners have challenged were not called into question before the Supreme Court. 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.

"Supreme Court considered Section 12 & 13 (prohibition on sale & manufacture of liquor) to the extent of medicinal and toilet preparation only. Section 24-1B (prohibition on entry in State in intoxicated condition) was not in existence then. Section 43 (regulation of use/ consumption of foreign liquor by permit holders) was not under challenge before Supreme Court," Thakore pointed out.

He added,

"Judgment of Supreme Court does not have the effect that petition is not maintainable. Independently your Lordships can decide upon these Sections. They have undergone material change."

He stated that the judgments cited by the AG pertain to cases where same Section was challenged again. "It has to be same Section being challenged on a different ground. Here, only a part of Section was challenged," he submitted.

Adding to this, Advocate Saurab Soparkar said, "Liquor consumption was not the controversy before Supreme Court. So obviously, what is not in dispute before it, cannot be expected to be adjudicated by it."

Advocate Devan Parikh submitted that there is a distinction between Principle of precedent and Principle of Res Judicata. He 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.

"If the SC has taken a view that Legislature has power under a particular Entry for purpose of enacting a law then its ratio decindi is for purpose of Entry in question. The power to legislate is decided.

Tomorrow if in context of same legislation, I come and say that I am not arguing in context of legislative competence. I will argue on basis of Article 14. Principle of precedence doesn't say that you cannot adjudicate," Parikh said.

He added,

"In the context of Constitutionality, the principle of precedence does not have to be adhered to with that amount of strictness. If the Court at a point of time thinks that law has changed requiring a re-look, that may be done."

Advocate Mihir Joshi argued that their challenge is principally based on Right of privacy, which given voice by the Supreme Court in 2017 in Puttaswamy Judgment.

"This could not have fallen for consideration 60 years back. Argument of Mr. Trivedi that new grounds cannot be taken is "new grounds that were available" can't be taken. New grounds where new fundamental rights have received exposition by Supreme Court..." he said.

He added,

"A law once held valid can be held unconstitutional with passage of time. Constitution cannot be static otherwise it becomes dead letter."

Joshi further said that the objection raised by the State cannot even be called a preliminary objection and the same should be decided while hearing merits of the case.

However, the Bench said that it has heard the counsels at length and it will first decide whether preliminary objections are sustained or not, before proceeding any further.

The matter is kept for hearing counter-arguments tomorrow.

Read full updates here.

Case Title: Rajiv Piyush Patel v. State Of Gujarat