Gujarat anti-liquor law can be judicially scrutinised in wake of SC's privacy judgement: HC

Over six decades after coming into existence, the state government's liquor prohibition law is set to undergo a judicial scrutiny with the Gujarat High Court on Monday holding as maintainable a set of petitions challenging the laws.

The court held that the anti-liquor law will have to be examined in view of recent Supreme Court judgements on "right to privacy" as a fundamental right.

The petitioners have challenged the legal validity of the law on several grounds including it being violative of right to equality, privacy, among others. The prohibition law, known as Gujarat Prohibition Act 1949, bars citizens from purchasing, possessing and consuming alcohol. Over the past two decades, however, the government has lifted the curbs by allowing special permits on medical grounds to the locals and tourists to buy and drink in the state.

The division bench of chief justice Vikram Nath and justice Biren Vaishnav passed the order, allowing the clutch of petitions filed by citizens, including a practicing doctor and a journalist, for lifting the liquor law. The preliminary order was passed after the state government objected to the petition on maintainability on the grounds that the validity of the law had been dealt with by the Supreme Court back in 1951 and it can't be challenged before the high court.

The advocate general Kamal Trivedi had argued that "any new ground of challenge by the petitioners may be appropriately raised, contended and dealt with by the Supreme Court alone and not by this Court." He argued that even if new grounds have come up over the course of the last seven decades, it would be only the apex court which can deal with the matter and not the high court.

The petitioners countered this argument by stating that since 1951, when the apex court decided the matter, the prohibition law has gone through several changes and many new provisions have been added which were not challenged. They also said that the challenge to the provision of the 1949 Act back then was mainly on the ground of lack of legislative competence when the right to privacy had not been declared to be a fundamental right.

They have argued that over the years, fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution have been expanded by various constitution bench judgments, and the prohibition act should be tested in accordance with those changes. The petitioners have argued they can't be prohibited from their choice of "within the confines of private space, subject to orderly behavior, of privately possessing, transporting and consuming liquor."

The division bench led by chief justice Nath held that the petitions challenging prohibition of import, transfer, possession, buying liquor, consuming, prohibition of entry in state of intoxication, among others, were not under challenge in the Supreme Court and some of these sections were introduced by way of amendments.

The court brushed aside the state's argument that these contentions were "cosmetic" in nature as the "substance" of the act has not changed. It opined that "the newly added provisions in our opinion are not mere cosmetic in nature but they confer valuable rights." It adds, "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 bench has stated that for the first time, Supreme Court in the case of Justice K S Puttaswamy VS Union Of India recognised the "Right to Privacy” of the citizen as a fundamental right in 2017 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 the context of personal food preferences weaved within the right to privacy."

Final hearing on the petitions will start from October 12. Meanwhile, the state hinted in the court that it may move to the Supreme Court against the order.