The applicant pleads before the High Court of Gujarat against the ban on alcohol
Gujarat High Court hears batch of DIP challenging state ban on the manufacture, sale and consumption of alcohol, under the 1949 Gujarat Prohibition Act, for “manifest arbitrariness ”And violation of the“ right to privacy ”.
Responding to preliminary objections raised by the state, lead lawyer Mihir Thakore argued today that the challenge to the legislation in the Supreme Court was only about the limited extent of medication and toilet preparation.
“The procedure was limited to the ban on the use of medicines and toilet preparations. The challenge was not absolute. The dispute of other parts of the supply has been set aside,“he submitted.
Advocate General Kamal Trivedi argued on Monday that the request is not sustainable as the question in question has already been settled by the Supreme Court in Bombay State & Anr. against FN Balsara where the validity of the 1949 law was confirmed.
He argued that the emergence of a new ground for challenge cannot be the basis for challenging the sanctity of the Supreme Court judgment.
Thakore argued that the issue of the validity of the ban on alcohol consumption had not been decided by the Supreme Court and it is in this context that the High Court of Gujarat has jurisdiction to rule.
“What is the basis of the differentiation between different people? My challenge is in the area of privacy. If I want to consume alcohol inside my house, you cannot control this right. If I abuse it, go out and behave badly, then you can definitely catch me,” he said.
Lawyer Mihir Joshi linked the right to privacy with the right of citizens to eat and drink as they choose and noted: “What will stop the state from coming into our homes and saying, no non-vegetarian from tomorrow?” He asked.
Thakore said several provisions challenged by the petitioners had not been challenged in the Supreme Court. Some provisions the validity of which was decided by the Supreme Court in 1951 have since been “substantially amended” and some provisions have been added by subsequent amendments.
“The Supreme Court considered Articles 12 and 13 (prohibition of the sale and manufacture of alcohol) only to the extent of medicinal preparation and toiletries. Article 24-1B (ban on entering the State while intoxicated) did not exist at the time. Article 43 (regulation of the use / consumption of foreign alcohol by license holders) was not challenged in the Supreme Court,“Thakore pointed out.
“The judgment of the Supreme Court does not mean that the request is unsustainable. Independently, your seigneuries can decide on these sections. They have undergone significant changes.“
He said the judgments cited by the GA relate to cases where the same section has been challenged again. “It must be the same section that is contested on different ground. Here, only part of the Section has been contested,“he submitted.
Adding to this, lawyer Saurab Soparkar said: “Alcohol consumption was not the controversy in the Supreme Court. It is therefore obvious that what is not contested before it cannot be judged by it.“
Lawyer Devan Parikh argued that there is a distinction between the principle of precedent and the principle of res judicata. He said the Supreme Court judgment which decides the jurisdiction of the legislature is limited and it is always possible for other parties to challenge it as violating their fundamental rights.
“If the SC has held that the legislature has power by virtue of a particular entry for the purpose of enacting a law, then its ratio decindi is for the purpose of the entry in question. The power to legislate is decided.
Tomorrow if within the framework of the same legislation, I come to say that I am not arguing within the framework of legislative competence. I am going to argue on the basis of Article 14. The principle of precedence does not say that you cannot judge,“said Parikh.
“In the context of constitutionality, the principle of precedence does not have to be respected so rigorously. If the court thinks at some point that the law has changed and needs to be revised, it can be done.“
Lawyer Mihir Joshi argued that their challenge is primarily based on the right to privacy, which was expressed by the Supreme Court in 2017 in the Puttaswamy judgment.
“This could not have been taken into account 60 years ago. Mr. Trivedi’s argument that new grounds cannot be invoked is that “new grounds that were available” cannot be invoked. New grounds where new fundamental rights have been exposed by the Supreme Court …” he said.
“A law once found to be valid can be declared unconstitutional over time. The constitution cannot be static otherwise it becomes a dead letter.“
Joshi added that the state objection cannot even qualify as a preliminary objection and the same should be decided when considering the merits of the case.
However, the Chamber said it had heard counsel at length and would first decide whether the preliminary objections were upheld or not, before proceeding further.
The case is set aside for the hearing of counter-arguments tomorrow.
Read full updates here.
Case title: Rajiv Piyush Patel v. Gujarat State