Updated: June 30, 2021 8:37:17 am
The Gujarat Prohibition Act, 1949 is being challenged before the Gujarat High Court, more than seven decades after it came into effect as the Bombay Prohibition Act. The court is to give its verdict soon on the maintainability of the petitions.
What is the origin of the prohibition law in western India and what was the rationale?
The first hint at the prohibition of liquor was through the Bombay Abkari Act, 1878. This Act dealt with levying of duties on intoxicants, among other things and aspects of prohibition via amendments made in 1939 and 1947. As per the ‘Statement of Objects and Reasons’ published in the Bombay Government Gazette on December 28, 1948, the policy of prohibition was initiated in 1939 and soon after its initiation “the popular government went out of office and for various reasons the enforcement of the policy remained dormant”.
Then in 1940, the government reconsidered the question of prohibition and it was decided to undertake and enforce a policy of “total prohibition” in the whole of the Province of Bombay on the basis of a four-year plan.
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As per this document, it was stated that there were “many lacuna” in the Bombay Abkari Act, 1878, from the point of view of the government’s decision to enforce prohibition. The government deemed it fit to “remove the defects and bring within the orbit of the Act many offences which went unpunished under the law,” and in order to enforce the policy of total prohibition “effectually,” it was considered to “overhaul the law relating to intoxicating drugs and narcotics and to embody the same into one legislative enactment,” leading to the birth of Bombay Prohibition Act, 1949. However, the statement does not explain why such a prohibition law was deemed to be necessary in the first place.
Advocate General Kamal Trivedi over the course of hearings on maintainability had submitted that the “that law did not intend to create complete prohibition” and had referred to constitutional debates emphasising on prohibition so as to raise standards of health. The petitioners however highlighted that while there were discussions, the debates were inconclusive and various members of the Constituent Assembly had taken a view that prohibition should not be there and thus the law “has no constitutional prehistory to it.”
While following the reorganisation of Bombay province into the states of Maharashtra and Gujarat in 1960 there was continued amendment and liberalisation in the state of Maharashtra, especially in 1963, on the ground that liberalisation of the law was necessary to check the business of illicit liquor, Gujarat adopted the prohibition policy since 1960 and subsequently chose to enforce it with greater rigidity, but also made processes easier for foreign tourists and visitors to get liquor permits.
In 2011, it renamed the Act as Gujarat Prohibition Act. By the state’s own admission in affidavits before the Gujarat HC, the government found that the policy was not working effectively and thus amendments were made through an ordinance in 2016. In the statement of objects and reasons of this amendment, it was stated that the state government was “committed to the ideals and principles of Mahatma Gandhi and firmly intends to eradicate the menace of drinking liquor.”
Who are the parties challenging the liquor prohibition law?
The first petition in this regard was filed in 2018 by Vadodara residents Rajiv Piyush Patel and Dr Milind Damodar Nene, a practising doctor, and Ahmedabad resident Niharika Abhay Joshi. In their 2018 petition, several sections of the Gujarat Prohibition Act, 1949 and several rules of The Bombay Foreign Liquor Rules, 1953 were challenged.
In 2019, five more petitions were filed challenging the law — among them, one by journalist Peter Nazareth, a public interest litigation filed by Ahmedabad-based vascular and endovascular surgeon Dr Malay Devendra Patel, two other petitions by Ahmedabad-residents Nagendrasingh Mahendra Rathore and Garima Dhirendra Bhatt and a fifth petition by businesspersons from Ahmedabad and Gandhinagar — Sanjay Anilbhai Parikh, Mehul Girishbhai Patel, Sunil Surendrabhai Parekh, Mayank Mahendrabhai Patel and Saurin Nandkumar Shodhan.
In 2020, two civil applications were filed supporting the state in continued imposition of the prohibition law. The first was by 81-year-old Prakash Navinchandra Shah, a retired lecturer of political science who is now working as honorary director at Aacharya Kriplani Center at Gujarat Vidyapith and also working as chairman of People’s Union for Civil Liberty, Gujarat and editor of Neerikshak, a fortnightly publication. The second applicant in this application is Neeta Mahadevbhai Vidrohi, a social activist and secretary of Gujarat Lok Samiti. Vidrohi has stated that she had “actively participated in closing of liquor selling shops at the border area between Rajasthan and Gujarat way back in 1980s”.
The second application has been moved by Ahmedabad Women’s Action Group (AWAG) through its representative Jharna Pathak. AWAG was founded by late Ila Pathak in 1981, and had also fought legal battles in the aftermath of 2009 hooch tragedy where 147 had died after consumption of spurious alcohol.
What are the main grounds raised against prohibition of liquor and in favour of prohibition?
Two key grounds have been taken up by the petitioners, that of the right of privacy, which has been held as a fundamental right by the Supreme Court in several judgments since 2017, and a second ground of manifest arbitrariness. The second ground has been especially highlighted while challenging sections pertaining to grant of health permits and temporary permits to out-of-state tourists on the basis that there is no intelligible differences in the classes thus being created by the state on who gets to drink and who does not and violates the Right to Equality under Article 14 of the Constitution.
The petitioners submit that any invasion by the state in an individual’s right to choice of food and beverage amounts to an unreasonable restriction and destroys the individual’s decisional and bodily autonomy. Touching upon the dynamic and ever-evolving nature of constitutionalism, the petitioners also submit that sometimes a change in the law precedes societal change “and is even intended to stimulate it,” and sometimes, a change in the law is the result in the social reality.
“The law must take cognizance of the changing society and march in consonance with the developing concepts,” the petitioners say. Punishments under Sections 65 and 66, which entail penalty for import, export, manufacture, use, possession, transportation, sale and purchase of intoxicant substances, have also been sought to be deleted by the petitioners for being “excessive and disproportionate.”
AWAG has objected, claiming that if relief claimed by the petitioners of setting aside several sections are granted, it will open Pandora’s box, primarily on the ground that various research and studies have shown that alcohol tends to aggravate the sense of violence. The organisation has also highlighted that though the petitioners say there is no harm in drinking alcohol in the privacy of their homes, “most of the domestic violence crimes against women and children are committed behind closed doors.” To support its assertion, AWAG has cited examples of Nirbhaya gangrape case, Jessica Lal muder case, Unnao rape case and a rape case of a Surat minor. In the second application by Shah and Vidrohi, also opposing the petitioners’ challenge to the liquor law, a number of health-related grounds have been given, and have stated that the law cannot be challenged merely because the original petitioners “want to enjoy the luxury of consuming foreign branded liquor by organising private elegant parties and serving there alcoholic beverages to please their friends and relatives to show off their so-called rich status”.
The applicants have also objected to the plea challenging the law, calling it to be an “attack on the constitutional obligation of the primary duty of the State as the guardian of the population to protect the health and lives of its people”.
What has come out in the arguments before the Gujarat HC so far?
While the state government, in response to the petitioners’ challenge to the law, had filed a detailed affidavit in 2019 dealing in merits of the contentions raised by the petitioners, the state government has now objected to the maintainability of the petitions before the Gujarat HC.
According to the state, since the Supreme Court has already upheld the Act broadly barring a few sections in 1951 in the judgment of State of Bombay and another versus FN Balsara, a fresh challenge on new grounds can only be heard before the SC, and not the Gujarat HC. The petitioners have however argued that firstly, the Act when it was upheld, was part of criminal trial and secondly, the new grounds on which the fresh challenge to the Act is being brought forth, especially with regard to right to privacy, was not available as a right in 1951 and hence could not have been looked at by the SC at the time.
Being the first constitutional court in Gujarat, Gujarat HC thus can indeed hear the challenge on merits, argue the petitioners. It is also the petitioners’ case that the Act has seen ‘material changes’ over the years, either in the form of amendments of existing provisions or by way of introduction of new provisions altogether, such as the one that prohibits a person in an intoxicated condition from entering the state, and thus it cannot be deemed to be not maintainable before the Gujarat HC as such provisions were never under challenge. As argued by the petitioners, the right of privacy, upheld by the SC for the first time in 2017 in the judgment of Justice KS Puttaswamy versus Union of India, also requires to be tested constitutionally as to what degree and under what circumstances can it apply.
What happens next?
The Division Bench of the Gujarat HC has reserved its order, solely to adjudicate on the maintainability, that is, if the Gujarat HC is the right forum which can examine and go into the merits of the challenge to the law. If the court finds it to be maintainable, it will then adjudicate on the challenge based on merits of the case. If in the negative, the petitioners will be left with going to the SC to challenge the law.
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