The state government on Wednesday submitted before the Gujarat High Court that right to privacy is not “like a bull in a China shop” and said state interference in controlling consumption of liquor cannot be equated to a hypothetical interference in individual food habits.
The division bench headed by Chief Justice Vikram Nath reserved its order after arguments concluded on the third consecutive day on maintainability of a bunch of petitions challenging provisions of the state’s Prohibition Act.
Petitioners challenging the prohibition law submitted that on constitutional issues, the state should not insist that the matter be thrown out in the initial stage itself and that it should “grapple with the merits and assist the court in coming to the right decision”.
Responding to an argument by the petitioners on June 22 that if the state controls consumption of liquor in the privacy of homes, it might as well control consumption of food in homes, Advocate General Kamal Trivedi, representing the state government, registered his “serious objection” and said, “Their argument sounds like a plea of aristocracy… a right to eat non-veg within the four walls of your home can never be equated with right to consume intoxicating drink which is injurious… tomorrow somebody may say that you should not trouble me or harass me if I’m taking drug within the four walls of my house… This concept of privacy right is not like a bull in a China shop… it may also be subjected to reasonable restrictions, depending upon social environment, moral background, public interest… and these are propositions laid down by the judgments (of the SC) relied upon by the petitioners.”
AG Trivedi further submitted that while a law which was declared valid years ago can be declared invalid years later. According to Trivedi, the changes effected in the Gujarat Prohibition Act over the years, “are cosmetic in nature,” and “the substance of the original section has been kept intact”.
Supporting AG Trivedi’s case, senior advocate Prakash Jani, representing Ahmedabad Women’s Action Group, added, “Essentially, the entire prohibition law centres around section 12 and 13, which is held to be constitutionally valid and has remained enforced since the past 70 years and people of Gujarat are extremely happy with the Prohibition law, barring certain petitioners.” Jani said that women’s organisations “would earnestly urge not to accept submissions of petitioners…”
Senior advocate Mihir Joshi, representing the petitioners, submitted that “if it is accepted that various sections are new sections and have never been tested, rejecting the petition as not maintainable is not permissible”.
He argued, “…whether there is a right of privacy, whether it includes a choice of intoxicating drink… whether that right is newly conferred, it involves an examination on merits and if that be so, that right newly conferred in 2017, cannot be held to have been answered in the negative in a judgment of 1951…”
Senior counsel Percy Kavina, also representing the petitioners, added, “The reliance being placed upon judgments (by the state and others supporting the law and objecting to the maintainability) which are more than half a century old, must always give way to a new look at a matter. Otherwise constitutional progress will never take place.”
Contending the argument of AG Trivedi that the SC had upheld the “Act as a whole”, Joshi also pointed out that the interpretation was in the context of three issues (of encroachment on a field which is of Central legislature, interference with inter-state trade and provisions of section 297 of Government of India Act), only. “It is not a general rubric…”