The Gujarat High Court has decided to hear six pleas challenging Gujarat Prohibition Act, 1949 filed on the ground that not allowing consumption of liquor could be infringing the Right to Privacy of citizens as per the judgment of the Supreme Court in Justice K.S.Puttuswamy'sP case.
While deciding to hear the plea, a bench of Chief Justice Vikram Nath and Justice Biren Vaishnav observed, "the petitioners have assailed some of the provisions of the 1949 Act on the ground that they violate the Right to Privacy. The same has never been tested before in context of personal food preferences weaved within the right to privacy."
The Gujarat Government had objected to the plea by raising arguments that the issue has already been decided by Supreme Court in case of F. N. Balsara arising from the Bombay High Court. However, the bench said, there are distinctions in both cases. Therefore, the petitions are maintainable.
Overruling the objections by the government, the bench ruled that the plea are maintainable and it will hear the issue on its merit. The bench said,
"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 challenge therefore as opposed by the State as being cosmetic in nature and that the substance of challenge has not changed, is a submission not accepted at this stage as the newly added provisions in our opinion are not mere cosmetic in nature but they confer valuable rights.
Moreover, 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.
With regard to the submission of the State opposing the maintainability of the petitions on the ground that once some of the provisions are held valid the whole Act is held to be valid as the provisions of the Act are not severable needs to be examined in the context as observed hereinabove inasmuch as when entirely new sections and the amended provisions of the existing Sections are under scrutiny, the petitioners cannot be ousted on the plea that the whole Act has been held to be valid.
For the first time, the Supreme Court in the case of Justice K.S.Puttuswamy (Privacy-9J) VS Union Of India (2017)10 SCC 1 recognised the "Right to Privacy" of the citizen as a fundamental right and the petitioners have assailed some of the provisions of the 1949 Act on the ground that they violate the Right to Privacy. The same has never been tested before in context of personal food preferences weaved within the right to privacy.
However, the bench kept the issue of maintainability open for the State to raise the grounds at the time of the hearing that is scheduled on October 12.
The bench said,
"We even otherwise are of the opinion that though the State has raised preliminary objections as to the maintainability of the petitions in effect unless and until the Court delves into the merits of the issues raised in these petitions, these petitions cannot be dismissed at the threshold on the ground of maintainability. Of course, we clarify 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. (I) We make it clear that it is open for the learned counsels appearing for the respective parties to raise all the contentions raised in course of their submissions herein at the time when the Court considers the petitions on merits. Any observations made by us hereinabove in this order are only prima facie views."