Challenges To Gujarat Prohibition Act, 1949: Contentions And Arguments

KEY TAKEAWAYS

• The Gujarat Prohibition Act, 1949 puts a total ban on activities such as manufacture, sale, production, and consumption of liquor in Gujarat.
• The Act has been challenged before the Gujarat High Court.
• It has been challenged on the ground that it is violative of the Fundamental Right of Privacy and Articles 14 and 21 of the Constitution.
• The Act has been supported on the ground that aims at maintaining health standards and law and order in the state.
• The HC Bench reserved its judgment on the maintainability of the petitions before the Court.

INTRODUCTION

The manufacturing, consumption, and selling of alcohol have been in existence for a very long time in Indian history. Starting from the Hindu epics like the Mahabharata to the Holy Bible and continuing through ages of trade and the current Indian society, alcohol has been a continuous existence in all parts of history. In many societies and cultures, it has been seen as a way of socializing and bringing people together and with modernisation, it has become an integral part of many gatherings and meetings, official or unofficial.

Statistics have shown that alcohol consumption in India has reached 6.5 billion litres in 2020 and is expected to increase in the coming years. The revenue from the alcoholic drinks market amounted to US$1,371,385 Million in 2020 and is expected to increase by a rate of 8.7% annually and few states have collected revenue of up to Rs 25,000 Crore from the alcohol market contributing significantly to the revenue.

When almost all the states across the country have legalized alcohol consumption for adults at the age of 18 or 21 years, there is one state that had prohibited the manufacturing, production, sale, and consumption of liquor for the past 70 years and that state is Gujarat, often referred to as the ‘dry state’. There are strict laws in the state against alcohol consumption and can be penalized if found violating those laws but with the increase in awareness of Fundamental Rights and convenient approach to the Judiciary, these laws have been challenged before the courts many times and the battle between the defenders and critics of the law continues.

HISTORY

The inception of liquor in the country was brought up through the Bombay Akbari Act, 1878 which dealt with levying duty on intoxicants and many other things and aspects of prohibition were added through 1939 and 1947 amendments. The statement of objects and reasons published in Bombay Government Gazette, 1948 mentioned that the policy of prohibition was decided in 1939 but due to the removal of the Government from the office, it could not be implemented. In 1940, the Government reconsidered the question of prohibition and decided to enforce total prohibition in the whole province of Bombay on basis of four years plan.

The report also stated that the Bombay Akbari Act, 1878 had ‘many lacunae’ and from the Government’s point of view to implement total prohibition. To remove the defects of the Bombay Akbari Act, 1878 and for the effectual enforcement of the prohibition policy, the Legislature formed the Bombay Prohibition Act, 1948. In the case of State of Bombay and Ors Vs. F.N Balsara, the question of the validity of the Prohibition Act came before the Supreme Court and in 1951, it upheld the validity of the impugned Act barring only a few Sections of it.

The year 1960 witnessed the reorganization of Bombay province into the states of Maharashtra and Gujarat. The Maharashtra Government took the more liberal approach and amended the Prohibition Act with a focus on the control of illicit liquor, the Gujarat Government, on the other hand, adopted the prohibition policy in 1960 and enforced it with much greater stringency and rigidity. The Bombay Prohibition Act, 1948 was renamed as Gujarat Prohibition Act in 2011, and then around 2016, the Government was of the view that policy was not working effectively and therefore it amended the Act in 2017, making it stricter by adding a jail term of 10 years for anyone who was found manufacturing, purchasing, selling and transporting liquor in the state.

RECENT DEVELOPMENTS

In recent years, alcohol consumption has become popular among the younger generations and they have started questioning the alcohol prohibition laws on the ground that they curtail the individual’s right to choose what they want, forces them to abstain from liquor against their will, leaving them with no option other than challenging the Gujarat Prohibition Act.

The very first petition against the Gujarat Prohibition Act was filed in 2018 by Vadodara and Ahmedabad residents including a doctor. The petition not only challenged several sections of the Prohibition Act, but it also challenged several rules of Bombay Foreign Liquor Rules, 1953. In 2019, five more petitions were filed challenging the Act that included a petition by a journalist, public interest litigation filed by Ahmedabad-based vascular and endovascular surgeon Dr. Malay Devendra Patel, two individual petitions, and a joint petition by several businessmen from Ahmedabad and Gandhinagar.

In 2020, two civil applications were filed before the Gujarat High Court supporting the state in the continuation of liquor prohibition laws. The first petition was filed by 81-year-old Prakash Navinchandra Shah who is a retired lecturer of political science and presently as chairman of People’s Union for Civil Liberty, Gujarat, and the second applicant was Neeta Mahadevbhai Vidrohi who stated that she had actively participated in the closing of liquor shops between Gujarat and Rajasthan borders

The second application was filed by Ahmedabad Women’s Action Group (AWAG) who was also involved in the legal battles that took place after the liquor incident in 2009 in Gujarat where around 150 people lost their lives due to consuming fake alcohol.

The Gujarat High Court in June 2021 heard the arguments in favor and against the Gujarat Prohibition Act and reserved its judgments after the hearings.

ARGUMENTS CHALLENGING THE ACT

The petitioner took up two main grounds challenging the Act, that is Right to Privacy and the Act manifests arbitrariness. The Supreme Court in Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India and Ors held that the Right to Privacy is a Fundamental Right and the petitioners here have contended that the Act infringes the individual’s Right to Privacy. The counsel of the petitioner stated that it is every individual’s choice of food and beverage that he would consume within the four walls of his home and it does not affect any individual unless it causes inconvenience to any other person and the restrictions and prohibitions enforced by the Gujarat Prohibition Act are unreasonable, against the spirit of the Constitution and infringe upon the individual’s Right to Privacy. It was also contended that putting such restrictions interferes with an individual’s life and liberty to live according to his will, hence violating his Fundamental Rights mentioned under Article 21 of the constitution.

The second ground that challenged the Gujarat Prohibition Act was that few provisions of the Act manifest arbitrariness. It was mentioned that the Act grants health and other temporary permits to foreigners and visitors in the state under Sections 40, 40A, 40B, 41, 46, 46A, 47, and 48 but the Legislature has not laid down any intelligible differentia to discriminate among the people living in the states who are prohibited under the Act and others who have permits. This discrimination among the people is a clear violation of the Right to Equality under Article 14 of the Constitution.

The counsel of the petitioner informed the Court that even though the Supreme Court had upheld the validity of the challenged Act in 1951, the scenario has changed significantly from 1951 to 2021. He mentioned the cases of Joseph Shine and Navtej Johar and argued that laws that had been held constitutional at one time can be held unconstitutional later as they can evolve with the change in society, change in morality, developments and amendments of Constitution and other significant laws, therefore, the validity of said Act can also be challenged with change in time.

ARGUMENTS FAVOURING THE ACT

The state of Gujarat was represented by Advocate General Kamal Trivedi and he opposed the argument of the Right to Privacy made by the petitioner. He argued that the right to eat non-veg or any kind of food within the four walls of ones’ home cannot be compared to consuming alcohol that causes serious injury to one’s health. He also stated that the state has the right to impose reasonable restrictions even on the Right to Privacy considering the social environment mentioned. He mentioned for instance that if one sudden day, a person demands to use psychotropic and narcotic substances within the four walls of his home, the state will have to impose control on him by interfering with his Right to Privacy.

While presenting his argument on the maintainability of the petitions, he stated that the intention of the Government was not to impose total prohibition and is aimed at increasing the standard of health in the state. The Advocate General also brought up the point that the Supreme Court in the F.N Balsara case in 1951 had upheld the validity of the Gujarat Prohibition Act except for two Sections and therefore the Gujarat High Court does not have jurisdiction to hear these petitions and the Apex Court have the authority to decide the matter in hand.

The counsel for AWAG focused on the social evils relating to alcohol consumption and mentioned that setting aside the Prohibition Act will increase the cases of violence as alcohol tends to aggravate the sense of violence. He also countered the view of petitioners that an individual can drink within the privacy of his four walls by stating that consumption of violence also leads to an increase in the cases of domestic violence and violence against children which generally take place within the four walls.

It was also argued that the Gujarat Prohibition Act, 1949 has been in existence for the past 70 years and the people of Gujarat have accepted it and are happy with the provision.

CURRENT SITUATION

The arguments were being heard by the Gujarat High Court Bench of Chief Justice Vikram Nath and Justice Biren Vaishnav and it has reserved its order to decide the maintainability as to whether the Gujarat HC has the authority and jurisdiction to go into the merits of the case and examine it or not. If the Court finds it to be maintainable, then it will adjudicate the matter and if it is found the opposite, then the petitioners will be left with the option of approaching the Supreme Court.

CONCLUSION

It can be concluded that the Gujarat Prohibition Act, 1949 is an Act that was made 70 years ago and since then a lot has changed in society and an individual’s perspective. Old laws such as this Act cannot remain stagnant forever and the Legislature should amend or strike them according to the need and change in the country. In the present scenario, the alcohol market is not just a way to enjoy and live a leisure life; it also generates huge revenue and employment in the state. Rather than focusing on a total ban of liquor in a state, the Government should focus on combating the problems that come up due to excessive alcohol consumption.

Even though the Government has put a total prohibition on any kind of activity relating to alcohol, it has led to the upcoming of illicit markets that provide alcohol to people without getting penalized and this not only affects the social environment, it also affects the revenue of the state due to existence of black-market activities. The Government should lift the total ban and make stringent laws to contain alcohol consumption within the population of a particular age and govern offences relating to alcohol such as drunken behaviour in public, drinking, and driving, etc., with stricter laws.