The Gujarat High Court on Tuesday continued hearing, for the second day, six petitions, including a PIL, challenging the state Prohibition Act, 1949, mainly on the grounds of Right to Privacy and “manifest arbitrariness”, as has been laid down in several cases in the Supreme Court.
On Tuesday, the petitioners argued on the question of validity of prohibiting consumption of alcohol, which was not decided by the Supreme Court, whereas the government questioned the maintainability of such petitions.
A division bench of Chief Justice Vikram Nath and Justice Biren Vaishnav is hearing the matter.
On Monday, state Advocate General Kamal Trivedi argued that the petition was not maintainable as the issue called into question was already settled by the Supreme Court in State of Bombay & Anr v F.N. Balsara where validity of the 1949 Act was upheld in 1951.
Appearing for a petitioner, senior advocate Mihir Thakore on Tuesday argued that the challenge to the legislation before the Supreme Court was only to the limited extent of medicinal and toilet preparation. “The challenge was not absolute and the challenge to other parts of provision was kept aside,” he submitted.
Thakore also contended that the Gujarat High Court is competent to adjudicate the matter as the question of validity of prohibiting consumption of alcohol was not decided by the Supreme Court in 1951. “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.
Senior advocate Mihir Joshi associated the Right to Privacy with the citizens’ right to eat and drink as per their choice. “What’s to stop the state from coming into our homes and saying no non-veg from tomorrow?” he asked.
Joshi argued that their challenge is principally based on the right of privacy, which was given voice by the Supreme Court in 2017 in Puttaswamy judgment.
Advocate Saurab Soparkar said: “Liquor consumption was not the controversy before Supreme Court (then). So obviously, what is not in dispute before it, cannot be expected to be adjudicated by it.”
However, Trivedi’s argument that most of the sections being challenged by the petitioners, have been upheld by the Supreme Court and the provisions which were found to be ultra vires were removed from the 1949 Act.
The HC will continue hearing the case on Wednesday.