After the Gujarat government argued in the High Court that legal challenges to the state’s prohibition Act were not maintainable because the Supreme Court had upheld those sections in 1951, the petitioners on Tuesday contended that several such provisions have seen “material changes” over the years.
Advocate General Kamal Trivedi on June 21 had argued that except for two sections, the remaining sections of the Act being challenged by the petitioners have already been upheld by the Supreme Court in 1951, and thus a fresh challenge on two new grounds — ‘manifest arbitrariness’ and right to privacy — cannot be entertained before the Gujarat HC and can only be looked at by the SC.
Six petitions are before the Gujarat HC, including a PIL, challenging the Act, primarily on the grounds of right to privacy and of ‘manifest arbitrariness’, as has been laid down in cases such Shayara Bano versus Union of India (which criminalised triple talaq) and Navtej Johar versus Union of India (which decriminalised homosexuality).
Senior advocate Mihir Joshi, representing one of the petitioners, Tuesday submitted three key arguments on why the Gujarat HC can look at the challenge afresh.
First, he argued that the preliminary objections raised by the state on the maintainability of the petitions cannot be termed ‘preliminary objections’, as they go into the very merit of the case.
“Two, one of the principle grounds raised in the petition is right of privacy….ultimately what a citizen or an individual or a human being does within the confines of his four walls… and the state has no right to peek into that window. That is the principle challenge that has been raised…This right of privacy has been given voice by judgments of 2017 and onwards. Therefore this never fell for consideration, could not have fallen for consideration, 60 years back,” Joshi argued.
Joshi said new grounds, “which have come up by constitutional interpretation where new fundamental rights have received exposition and recognition by the SC” can be taken up.
“In this case, we are expressly saying that we are questioning this right not to drink in the privacy of my home without state interference, is an intrinsic element of right of food and drink of an individual. What stops the state from coming and saying, ‘no non veg food in your house’ from tomorrow? So we are testing that right, that parens patriae (parent of the nation) feeling of state should be extended to which extent and that is a right which finds expression in (retd Justice KS) Puttuswamy (and Anr versus Union of India and Ors, SC judgment of 2017 that held right to privacy as a fundamental right) onwards,” he said.
The case is being heard before a division bench headed by Chief Justice Vikram Nath.
“Third, the judgments of Joseph Shine, Navtej Johar (by SC) etc, have taken the view that the law which may be held constitutional at one point of time, may with the changes in society, changes in morality, changes in morales be held as unconstitutional…there’s a principle which is recognised that if the reasoning or rationale of the law goes, then the law itself must go…a law once held valid, can become unconstitutional with the passage of time,” argued Joshi.
The matter has been posted for further arguments on the maintainability of the petitions for Wednesday.