[Ed Note: In this post, our analyst Mrityunjoy Roy, writes about Gujarat High Court’s decision holding the petition challenging the Gujarat Prohibition Act, 1949 maintainable as part of the explainer series by LAOT analysts.]
Recently, in the case of Peter Nazareth v. State of Gujarat, the Gujarat High Court (“HC”) held that a writ petition challenging the constitutionality of the Gujarat Prohibition Act, 1949 (“the Act”) was maintainable. The petition seeks to challenge the “provisions that deal with prohibition on purchase, possession and consumption of potable liquor and/or alcoholic drinks”, primarily for violating the right to privacy under Article 21, and Article 14.
The High Court held that the mere fact that an Act had been upheld by the Supreme Court (“SC”) in the past did not preclude the HC from a hearing on merits on issues not considered by the SC. This may become relevant on when a HC may re-look at laws already upheld by the SC.
This piece seeks to explain the context behind the judgement, and its relevance. It also gives a brief overview of prohibition laws in India and the newly emerging Article 21 challenges to them.
The petitioners have challenged the Prohibition law for violating the right to autonomy and privacy, which were held to form part of Article 21 in the 2017 judgement of K.S. Puttuswamy v. Union of India. They’ve argued that prohibition on consumption of alcohol amounts to moral policing which violates an individual’s right to self-autonomy, and that a restriction even in one’s home or a private space violates the citizen’s right to privacy. Further, exceptions to grant liquor permits to certain persons for ‘health reasons’, ‘tourist permits’ etc. have been challenged as manifestly arbitrary under Article 14, violating the right to equality. (further background)
In reply to this, a preliminary objection was raised by the Gujarat government on the petition’s maintainability. The State argued that the Act had already been upheld by the SC in its entirety in the case of FN Balsara v. State of Bombay in 1951. The judgement in Balsara constitutes law declared under Article 141 of the Constitution, and binding on the HC which therefore could not re-examine the issue. Therefore, the Act having been upheld by the SC, the petition was liable to be dismissed at the threshold. They asserted that if a new issue did exist, it could be examined only by the SC.
The High Court’s reasoning allowing the petition: (see para 1,2 & 14 of order)
The Court examined the doctrine of precedent under Article 141, especially how it applied to cases concerning fundamental rights. The Court relying on decisions such as State of Orissa v. Md. Illiyas, held that a judgement is binding only insofar as the issues it decides, and on considerations it makes to arrive at its decision.
The Court distinguished the Balsara judgement by pointing out that the reasons therein were entirely different to the grounds raised by the present petitioners. In Balsara, the Act had been challenged only on grounds of legislative incompetence, and Articles 19 &14. Further, provisions challenged were also different or had been substantially modified since with the prime issue there being the definition of liquor under the act itself, being violative of Article 19(1)(f). Whereas in the present case the entire regime of prohibition had been challenged. The HC held that a Court doesn’t uphold a law on all possible grounds for all time, but only on the grounds raised before it as they stand at that time. They argued that simply because the SC upheld the Act on those grounds did not indicate that, even though the judgement was silent on Article 21, it upheld the law on Article 21 or other potential issues as well.
The state of Gujarat tried to rebut this by arguing that the new grounds would have to be ‘deemed to be considered’ (see para 14 – F, G, H of order). They argued 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. Therefore, they pleaded that even though Balsara was silent on Article 21, the same would have to be assumed to have been considered and adjudicated upon since the act was upheld in its entirety. However, the HC pointed out that such an argument could only apply to those grounds that ‘could’ve been raised’ at the time of adjudication. Right to privacy was made a fundamental right under Article 21, and therefore a ground, only in 2017 by the Puttuswamy judgement. Therefore, this ground could not have been considered or urged in 1951, and thus the HC could examine this issue on merits and not dismiss it at the threshold. The Balsara judgement was held not to be binding law so far as right to privacy was concerned.
The HC also agreed with the petitioners that the Act had been substantially modified since 1951, such that Balsara’s enquiry may no longer be relevant and needs to be relooked. However, what also must have weighed on the Court seems to have been the need for a dynamic and evolving interpretation of fundamental rights.
Relying on Navtej Singh Johar v. Union of India, the Court reasoned that the scope of constitutionality under fundamental rights is linked to the prevalent socio-legal context. Therefore, Courts must always hope to broaden the scope of fundamental rights, and be willing to re-examine precedent over time. They acknowledged that frequent re-examination of settled law would cause confusion, and therefore the same should be discouraged. However, they reasoned that the present Act had been last examined by Courts in 1951. There had been a substantial change in society, the Act, and the reading of Part III of the Constitution since 1951. They concluded that in such a situation, especially since it concerns fundamental rights, Courts should favour a full trial to hear the matter on merits. Accordingly, the state was allowed to raise the same issues during hearing on merits, but the Court refused to dismiss the petition at the threshold.
For these reasons, the Gujarat High Court held the challenge to the Gujarat Prohibition Act, 1949 before it to be maintainable.
New strands on evaluating liquor laws and Prohibition under Article 21
Balsara was the first case to consider the constitutionality of prohibition and whether there was a fundamental right to consume or trade in liquor. That case and all cases since have considered liquor laws only from the perspective of Articles 19 & 14.
The present position is shaped by Khoday distilleries v. State of Karnataka. In Khoday distilleries the Court denied that there was a fundamental right to trade in or consume liquor. The Court declared trade in alcohol to be “Res extra Commercium” i.e., beyond commerce. It held that trade in liquor could not be considered ‘trade or business’ within Article 19, and the state had exclusive right to manufacture and sell liquor. The implication is that the liquor trade is entirely a privilege, to which even the ‘non-arbitrariness’ requirements of Article 14 do not apply. This meant that the state could make any law it wanted with respect to liquor. However, if the state allowed citizens to sell liquor, then it could not discriminate between who could get this right, even though this was not an Article 14 right. The position on this point has remained largely unchanged since then.
However, in recent years new grounds under Article 21 have emerged in Courts to challenge prohibition laws. In 2016, the State of Bihar enforced prohibition. This was challenged in the Patna High Court in CIABC v. State of Bihar, inter alia for being violative of fundamental rights. The Court struck down the Prohibition order on grounds of excessive delegation, but the division bench differed on the aspect of fundamental rights. Justice Nanavati Prasad in his opinion held that there is a fundamental right to trade in and consume liquor.
In the past, Courts had taken the approach used in Balsara’s case, to determine whether prohibition was a reasonable restriction under Article 19, in light of Article 47 (a directive principle). They reasoned that since Article 47 placed a duty on the state to strive towards eventual prohibition, the Constitution must have contemplated for prohibition as a reasonable restriction, since otherwise, the two articles would conflict with each other.
However, Justice Prasad reasoned that using Article 47 to read in restrictions to fundamental rights would be to make fundamental rights subservient to directive principles, an anathema as per Minerva mills v. Union of India. He reasoned that if on an independent analysis it was found that there was a fundamental right to trade in or consume liquor, then the same would trump Article 47. The judge held that there existed a fundamental right to liquor under Article 21 right to privacy. He found support in cases around cattle slaughter to hold that what one eats or drinks is one’s personal affair, and it is a part of his fundamental right to privacy. His judgement appreciated that consuming liquor responsibly and privately is not the problem, it is the abuse of liquor that is the concern. The state could not ban liquor for everyone on the mere possibility of abuse by some. Accordingly, he concluded that banning private consumption of liquor would violate Article 21 of the Constitution. The Bihar government appealed this judgement, and the Supreme Court has presently stayed it.
This judgement is a welcome one. By holding that High Courts can under certain circumstances explore new grounds in writ petitions, and re-examine otherwise settled issues, the Court has given encouragement to the advancement of fundamental rights. The SC has often re-iterated that writ petitions should ordinarily be made in the local HCs at first instance, since HCs are the first constitutional courts of their jurisdictions. Thereafter the SC on appeal would provide a second opportunity for thorough inquiry of the issue. Further, by not forcing petitioners to directly urge every new ground before the SC, the decision makes it more convenient for petitioners to take recourse to their local HC first, and frees up the caseload of the SC.
By agreeing to hear this petition, the Court will provide another examination of liquor laws and prohibition from an Article 21 perspective. It is also very likely that should this decision go in appeal, it will be clubbed with the pending appeal from the Patna High Court, and become the basis for Supreme Court’s next authoritative pronouncement on liquor laws in India, now in light of Article 21 of the Constitution.
The case was last listed on 12th October, 2021. The next hearing is not announced since Justice Vikram Nath was elevated to the Supreme Court and hence bench has been reshuffled.
Suggested reading list for further learning on some topics discussed in the explainer
- For in depth analysis of the Patna High Court judgement and Article 21 argument for liquor, see:
- Gautam Bhatia, The Bihar High Court’s Prohibition Judgment: Key Constitutional Issues – II: The Fundamental Right to Privacy, Indian Constitutional Law and Philosophy.
- Alok Prasanna Kumar, ‘Right to Choose’ as a Fundamental Right, Economic and Political Weekly- Vol. 51, Issue No. 43, 22 Oct, 2016.
- On history of prohibition laws in India, and litigation related to liquor laws and prohibition see:
- Chapter 1: Case of the Constable’s Nose: Policing prohibition in Bombay in Rohit De’s Book “A people’s constitution: Everyday life of law in the Indian Republic” .
- On the idea of res extra commercium and legal history of liquor prohibition in India see:
- Arvind P. Datar, Privelege, Police Power and Res Extra Commercium – Glaring Conceptual Errors, National Law School of India Review, Vol. 21(1).
- On the debate around prohibition and Article 47 of DPSP in the constituent assembly, see:
- Transcript, Constitutional assembly debates, 24th November, 1948, constitutionofindia.net.
- Surya Rajkumar, Responsible Drinking rather than Prohibition: Debates on Alcohol in the Constituent Assembly in India, International Association of Constitutional Law Blog.
- On the doctrine of precedent under Article 141, see:
- V.S. Deshpande, Precedent in the Indian legal system by A. Laxminath, Journal of the Indian Law institute.
Mrityunjoy Roy is a third year student studying law at NALSAR University of law Hyderabad. His main fields of interest are criminal law, constitutional law and arbitration law.