The petition has argued that the government cannot decide what a person will eat or drink inside the premises of one’s house. The petition has invoked the ‘Right to Privacy’ in challenging the prohibition law. The Gujarat government’s Advocate General Kamal Trivedi said the petition should be filed in the Supreme Court as the apex court had upheld the Act in its 1952 judgment. He contended that the law validated by the apex court cannot be overturned by the High Court.

Petitioners say matter should be heard on merits

The petitioners, however, argued that the matter should be taken up on merits, as the provisions challenged in the pleas are materially different from what they were in 1951 as they have been amended over the years. They added that the right to privacy was not recognised as a fundamental right in 1951 when the Supreme Court upheld the validity of the provisions in the prohibition law.The batch of petitions have challenged the constitutional validity of sections section 12, 13 (total prohibition on manufacture, purchase, import, transportation, export, sale, possession, use and consumption of liquor), 24-1B, 65 of the Gujarat Prohibition Act, 1949, and sought them to be declared as ultra vires Article 246 of the Constitution.The provisions are “arbitrary, irrational, unfair, unreasonable, and discriminatory…and despite prohibition being in place for more than six decades, a steady supply of liquor continues to be available through an underground network of bootleggers, organised criminal gangs and corrupt officials”, the petitioners who were represented by senior advocates such as Mihir Thakore, Mihir Joshi, Devan Parikh and Saurabh Soparkar said.“With expanding interpretation of the right to life, personal liberty and privacy, as contained in Article 21 of the Constitution, a citizen has a right to choose how he lives, so long as he is not a nuisance to the society. The state cannot dictate what he will eat and what he will drink,” one of the pleas said.

‘Right to privacy is a fundamental right’: SC

The Supreme Court in another judgment had held that the right to privacy is a fundamental right and is an integral part of the right to life and liberty. Privacy is a right to be enjoyed by every human being by virtue of his or her own existence. It also extends to bodily integrity, personal autonomy, compelled speech and freedom to dissent or move or think. The right to privacy is to restrain government and private actions that threaten or hinders the privacy of individuals.

Regulation, and not prohibition, is what Gujarat needs: Devan Parikh, advocate

Devan Parikh, one of the advocates to the petitioner in a YouTube post by Vibes of India, has put forth the argument that the petitioners are not “asking for the removal of the prohibition policy lock, stock and barrel. We are asking the government to draw a fine line.”He pointed out that advertising of liquor in many parts of the world is not based on the alcohol content or intoxication. “Alcohol is sold basically for its refined taste. The kind of liquor that was available (when prohibition was introduced in 1961), there was some justification to have a rider. But after all these years and the knowledge base we have, the law needs a relook. Petitioners are saying balance the liberty a person can have, the choice a person can have. If it has an ill impact, then deal with those issues. You cannot throw the baby with the bath water.”

Four walls concept clarified

He further mentions that the petitioners are clear that you cannot do anything within the four walls. “If that is the case, I can consume drugs, I can commit any crime within my four walls. The four walls concept is not very well understood in this case.” The petitioners believe that one should have the liberty to drink in a manner that does not impact society at large or have adverse social repercussions. Devan Parikh referred to the Constitutional provision of principle of proportionality. “The Constitution permits you to put reasonable restrictions on the exercise of your rights, in public interest, in the society, and in your own interest… those interests have to be balanced. There is justification to put restrictions, put it, but in present times, does it make sense to have total prohibition. There is need for regulation not prohibition.”

Prohibition needs a relook

Taking the argument further, he said the rest of the country where there is no prohibition, are there problems or not. Will Gujarat have more problems if prohibition is lifted? “We are saying with the passage of time, people are more entitled… Constitution is a live organ and that this issue needs a relook. When prohibition was introduced look at the kind of liquor that was available then and look at the fatalities at that point of time.”Terming it as contradictory, government giving liquor permits on medical terms, he asked “a person consuming liquor for health reasons, will he or she not get intoxicated.” A person can permit in Gujarat for an annual fee of nearly ` 4,000 and the eligibility is that he or she should be above the age of 40 and should have some medical condition. Visitors too can apply for a temporary permit, but not the residents of the State.

Gujarat in a Gandhian-bind

The problem with Gujarat is that it has a perception problem. Gujarat is a state from where Mahatma Gandhi came who considered alcohol consumption as a social evil. Gujarat is caught in a Gandhian-bind. Devan Parikh asks the logic behind the prohibition in the name of Mahatma Gandhi. “With no disrespect to Mahatma Gandhi, I would like to state that Gandhi died in 1948 and at that time there was no prohibition in Gujarat till 1961. What happened during this interim period to Gandhiji’s advocacy?Till such time the High Court gives its verdict, we are going to see a lot of heightened activity from both sides espousing their causes and social media is going to flame it further. Meanwhile, liquor (including spurious) will be available through various ‘underground’ channels in Gujarat, a state which has seen many deaths due to illicit liquor. In 2012, 143 deaths were reported from Gujarat in a hooch tragedy.