Gujarat High Court to decide whether Gujarat Prohibition Act is violative of right to personal food preference weaved within right to privacy

The Gujarat High Court on Monday held that five petitions challenging the Constitutional validity of the Gujarat Prohibition Act of 1949 claiming violation of fundamental rights under Articles 14, 19 and 21, are maintainable (Peter Jagdish Nazareth vs. State of Gujarat).

A Bench of Chief Justice Vikram Nath and Justice Biren Vaishnav decided to hear the petitions on merits holding that the law is open to examination under the dictum laid down in Justice KS Puttuswamy vs. Union of India that first recognised right to privacy as a fundamental right.

The Court observed that the law has not been tested in the context of personal food preferences forming a part of right to privacy.

“For the first time, the Supreme Court in the case of Justice KS Puttuswamy (Privacy-9J) VS Union Of India (2017)10 SCC 1 recognised the “Right to Privacy” of the citizen as a fundamental right and the petitioners have assailed some of the provisions of the 1949 Act on the ground that they violate the Right to Privacy. The same has never been tested before in context of personal food preferences weaved within the right to privacy,” the Court said.

The State government through Advocate General Kamal Trivedi had placed reliance on the 1951 judgment of the Supreme Court in State of Bombay vs. FN Balsara in which the apex court had upheld the validity of the law. Hence, Trivedi contended that any new ground of challenge could be raised only before the Supreme Court and no other Court.

The Court, however, opined that the above argument has to fail since the current plea concerned provisions dealing with purchase, possession and consumption of potable liquor and alcoholic drinks, which was not the subject matter of challenge before the Bombay High Court or the Supreme Court in FN Balsara.

In fact, the Court pointed out that some of the provisions under challenge were added by subsequent amendments and have thus, never been scrutinised.

“The newly added provisions in our opinion are not mere cosmetic in nature but they confer valuable rights,” the Division Bench further observed.

The Court also recalled the judgement of the Supreme Court in Navtej Singh Johar vs. Union of India in which the top court had struck down validity of Section 377 of Indian Penal Code which criminalised consensual homosexual acts.

“Through its dynamic and purposive interpretative approach, the judiciary must strive to breathe life into the Constitution and not render the document a collection of mere dead letters.”

Considering it as binding precedent, the Court observed that the decision regarding the maintainability of these petitions would be taken keeping in view the living nature of the document that our Constitution is which adapts to the ever-changing circumstances.

The Court had reserved orders on arguments regarding maintainability of the plea on June 23.

It will now hear the matter on merits on October 12.

[Read Order]