Written by: Smita Pandey (Intern)
Edited by: Anubhav Yadav (Content Head & Developer)
On 22, June 2021, a petition was filed in the Gujarat High Court challenging the prohibition on the manufacture, sale and consumption of liquor as per the Gujarat Prohibition Act, 1949. The law precludes the use of the grounds of “manifest arbitrariness” and “violation of the right to privacy.”
A division bench of Chief Justice Vikram Nath and Justice Biren Vaishnav were hearing the case and will continue further with it. The two grounds upon which the act is challenged are the cases of Shayara Bano, Navtej Singh Johar and Joseph Shine and the Supreme Court judgement of KS Puttaswamy v. Union of India respectively.
Senior Advocate Mihir Joshi raised doubts about residents’ right to privacy versus the state’s authority to meddle with it in a challenge to the prohibition of liquor before the Gujarat High Court on Tuesday (Peter Jagdish Nazareth v. State of Gujarat).
He even questioned the court, “What’s to stop the state from coming into our houses and declaring, ‘no non-veg from tomorrow’?”, tying the right to privacy to the right to eat and drink as one wishes. It was also seen that the attorneys for numerous petitioners argued against the state’s preliminary objections to the petitions’ maintainability.
Whereas, this challenge was met with preliminary objections from Attorney General Kamal Trivedi. He contended that the High Court could not hear an appeal from the Supreme Court’s decision in State of Bombay & Anr. Vs. FN Balsara, which upheld the legality of the 1949 Act.
He continued, “We are now in the 71st year since the Supreme Court affirmed the whole Act, with the exception of a few portions, on May 25, 1951. So, with authority, one may state that the ruling has been in force since that day, and there is no room for interference. “According to Adv General Trivedi, the High Court is bound by the Supreme Court’s ruling under Article 141 of the Constitution.“It is not available to this Court to consider this argument because the Supreme Court has ruled on the section’s legitimacy, and that decision is binding as per the law.” This Court cannot ignore this fact on the basis that the Supreme Court had no occasion to consider the constitutionality of the challenged parts in light of Article 21 of the constitution.
“Is such a plea admissible in front of the High Court? No, that is not the case. “There may be new grounds to consider,” Trivedi countered, “but they cannot be used to challenge a law that has already been upheld by the Supreme Court and the High Court. “He remarked that under Article 141 of the Constitution, the High Court is bound by the Supreme Court’s ruling.
He referenced the case of Sarjubhaiya Mathurbhaiya Kahar v. Deputy Commissioner of Police, in which the Gujarat High Court refused to reconsider the constitutionality of Sections 56 and 59 of the Bombay Police Act, 1951, claiming that a new ground for challenge had arisen since then.
Senior Advocate Mihir Thakore, on the other hand, maintained that the legality of the clauses challenged in the High Court was not challenged in the Supreme Court.
The action has been adjourned until June 23, 2021, and the petitioners have been ordered to serve a copy of their arguments to the state in the meantime.