Right to Privacy is not like a bull in a china shop, AG says as Gujarat HC reserves orders on maintainability of pleas against Prohibition Act

After hearing arguments on preliminary objections by the State for three days, the Gujarat High Court today reserved its order on maintainability of the plea challenging the constitutional validity of the Gujarat Prohibition Act, 1949 (Peter Jagdish Nazareth v. State of Gujarat)..The order was reserved by a Division Bench of Chief Justice Vikram Nath and Justice Biren Vaishnav..The petitioners collectively urged the Court to take up the matter on merits, arguing that the instant challenge to liquor prohibition in Gujarat was different to the challenge mounted in State of Bombay & Anr v. FN Balsara, in which the Supreme Court upheld the Act in 1951. .Advocate General Kamal Trivedi argued that in the case of Balsara, the Supreme Court only struck down two provisions of the Act. Sections 12 and 13, which form the essence of the Act, were held invalid only to a certain extent and the rest of the legislation was upheld, he said.“Reading a judgment requires discipline. One cannot pick parts of a judgment without context. The Supreme Court found the restrictions imposed by the Act reasonable in nature. Wherever changes have been affected in the Act, they are cosmetic in nature. The substance of the Act is preserved.”.Advocate Prakash Jani, arguing in favour of the legislation, insisted that the people of the State were happy with prohibition, and that it acted in favour of the disadvantaged,“People in the State of Gujarat are very happy with prohibition; you ask those helping the disadvantaged sections of the society. Prohibition is the reason that Gujarat has highest per capita income.”Jani appeared for an NGO that works with downtrodden women..Responding to arguments made by Senior Advocate Mihir Joshi in yesterday’s hearing, the AG submitted,“The right to eat non-veg within four walls of one’s home cannot be compared to drinking intoxicating substances that are injurious to health. Tomorrow someone may argue that I am consuming psychotropic substances within my home and the State cannot impose control.”.He further argued that the right to privacy is subject to reasonable restrictions under the Constitution.“This concept of Right to Privacy is not like a bull in a china shop. It is subject to reasonable restrictions based on the social environment. These restrictions are also contemplated in the judgments being cited by the petitioners such as KS Puttaswamy v. Union of India.”.Advocate Devan Parikh, appearing for one of the petitioners, submitted that a challenge is only required to go to the Supreme Court if the prayer is regarding a review of the Supreme Court’s previous judgement.“There is no precedent or ratio decidendi on what we are arguing. It is a fresh challenge.".In support of this submission Mihir Joshi submitted,“Constitutional Rights and Right to Privacy are not issues where the State should insist that the plea goes out at the threshold.”.Further, he argued that a new right under the generic umbrella of Article 21 has been conferred on the citizen by way of KS Puttaswamy etc. and the Supreme Court in 1951 could not have decided in the negative on rights that came into existence in 2017..Senior Advocate Percy Kavina stated,“Reliance is being placed on judgments more than half a century old and this must always give way to a new look at the matter. Otherwise, Constitutional progress will never take place.”.Yesterday, counsel for the petitioners raised questions surrounding the right to privacy of citizens vis-a-vis the right of the State to interfere with the same. Senior Advocate Joshi had argued,“What’s to stop the State from coming into our homes and saying, 'no non-veg from tomorrow'?”.Senior Advocate Mihir Thakore extended the argument that the provisions under challenge in the current pleas have been amended over the years and are materially different from what they were in 1951.Thakore also argued that the State cannot intervene in activities being carried on in the privacy of citizens' homes.“My primary submission is that if I want to consume liquor in my home, the State does not have a right to curb my actions. The State can only curb if I am causing public nuisance such as drinking & driving.”.Advocate General Kamal Trivedi on the other hand, argued that the High Court cannot sit in appeal over the Supreme Court’s decision in State of Bombay & Anr v. FN Balsara, in which it upheld the vires of the 1949 Act..What’s to stop the State from coming into our homes and saying, "no non-veg from tomorrow?” Sr Adv Mihir Joshi in Gujarat liquor prohibition case