BY R.K.MISRA
Gujarat was born liquor ‘dry’
and remains so till this day. That is for the record. In actual fact it remains
as’ wet’ as a watermelon fuelling a multi-crore rupee, wholly illegal, black
money spewing industry that oils cop capers and political ‘padrones’ besides
lots others.
But this is not about the
shenanigans of the politically muscular and the administratively adroit. It is
more about the legality of lots that has gone on unchallenged for long. A
division Bench of the Gujarat High Court has scheduled a hearing on October 9, 2023
for the adjudication of several petitions that contest the constitutional
validity of the Gujarat Prohibition Act of 1949.
As published details aver, the
petitions ,filed in 2018 and 2019,are grounded on two principal legal tenets,
i.e. the Right to privacy guaranteed under Article 21(Right to life and
personal liberty) of the Indian Constitution and the doctrine of manifest
arbitrariness which is against the essence of
Article 14(Right to equality) of the Indian Constitution.
The first petition challenging
the prohibition law was filed in 2018 in which
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 in
this regard. The two main grounds for the challenge was the right to privacy
which has been termed as a fundamental right by the apex court in many
judgements since 2017 and the manifest arbitrariness in as much as who gets to
drink and who does not. This pertains to health permits and to temporary
permits given to out-of-state tourists
which is violative of the Right to Equality under article 14 of the
Constitution, it has been made out.
The October 9, hearing is a
sequel to the August 2021 decision of
the Gujarat High Court Bench comprising
the then Chief Justice Vikram Nath and Justice Biren Vaishnav that held
the petitions to be maintainable and therefore to be heard on merits.
The preliminary objection
then raised by the Gujarat government on
the petition’s maintainability was that the Act had already been upheld by the
Supreme Court in its entirety in 1951. The judgement constitutes law declared
under Article 141 of the Constitution and is therefore binding on the High Court
which could not re-examine the issue. If a reasoned cause for it has
come into being, the same can be examined only by the apex court.
The Court which examined the
doctrine of precedent under Article 141 in its application to cases concerning fundamental
rights held that a judgement is binding only insofar as the issues it decides
and on considerations it makes to arrive at its decision. Its reasoning was
that a Court does not uphold a law on all possible grounds for all time, but
only on the grounds raised before it as
they stand at that time.
The state took the plea that for precedent, an
issue must be deemed to have been decided and binding on all grounds that could
have been raised, regardless of whether they were actually raised. The Court’s
stand was that the Right to privacy was made a fundamental right under article
21 only in 2017 and thus could not have been considered in 1951. Thus the 1951
judgement was not held to be a binding
law as far as right to privacy was concerned.
The Court also took cognisance
of the fact that the present Act had been last subjected to judicial scrutiny
only in 1951.Since there had been a substantial change in society, the Act and
the reading of Part three of the
Constitution in the interregnum, Courts should
favour a full trial to hear the matter on merits, especially since it
concerns fundamental rights . This, in brief, is how the Gujarat High Court
held the challenge to the Gujarat prohibition Act ,1949 to be maintainable.
The hand -heart battle between
political ideology and practical compulsions in the matter of liquor
prohibition in Gandhi’s Gujarat is as old as the state itself. The heart
professes Gandhi but the hand is in the till. In the 1980 State assembly elections the Congress(I) had
promised to make the policy ‘practical’ following demands to exempt toddy and beer from the purview of the dry
law.
After the elections, the Madhavsinh
Solanki government had appointed a commission
under former Gujarat High Court Chief Justice N. M. Miyabhoy to study the prohibition policy and give
its recommendations. His report tabled
in 1984 was a virtual indictment of the state police and suggested further tightening of
prohibition laws and its stricter
enforcement.
After Narendra Modi came to
power in Gujarat and began pursuing global investment to industrialise the
state further, there was a move for a modicum of relaxation in liquor laws
for industrial/business gatherings
through liberal granting of ‘permits’
for the same. However a major hooch tragedy in Ahmedabad in 2009 that left over
a hundred people dead put paid to the efforts.
Soon after, the Modi
government made amendments in the
prohibition laws introducing capital
punishment for hooch criminals. That no one to date has received the death
penalty for such a crime is a different
matter!.
This syndicated
news column was published in the respective newspapers edition dated September 26, 2023 whose links are given
below:-
http://odishapostepaper.com/edition/4654/orissapost/page/9
http://epaper.lokmat.com/lokmattimes/main-editions/Nagpur%20Main/2023-09-26/6
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