Is There A Fundamental Right To Drink Liquor? What Courts Have Held?

The Gujarat HC recently reserved its order on the maintainability of a petition against the decades old liquor prohibition within the state. The challenge is formed on the ground of emergence of the right to privacy within the year 2017, which the Petitioners argued was unavailable when the ban was first challenged in 1950.

It is their primary contention that the privacy includes the proper to be left alone and therefore the right to consume liquor within the precincts of one’s home.

In 1951, the Supreme Court discussed the vires of the Bombay Prohibition Act, 1949, within the case of State of Bombay v. FN Balsara.

Section 12 and 13 thereof contemplate prohibition on sale, manufacture, consumption. etc. of liquor within the State. The Act was later adopted by the state of Gujarat in 1960, when Bombay was reorganized into the linguistic states of Maharashtra and Gujarat.

The Court was of the opinion that to achieve the Object of Article 47, the State is required to cause prohibition on the consumption of Intoxicating drinks and medicines which are injurious to health. Such a prohibition could also be complete or partial and it might also include regulation.

It added that certain professions/ occupations/ trades/ businesses which aren’t within the interests of the overall public could also be completely prohibited while others could also be permitted with reasonable restrictions on them.

Do citizens have a fundamental right to consume alcohol?

The Bihar Government had announced a complete ban on the sale and consumption of liquor with effect from April 5, 2016. the choice was however scrapped by a Division Bench of the Patna supreme court vide order dated September 30, 2016.

This is the same day when the Supreme Court had refused to entertain a PIL seeking complete ban on liquor consumption across the country.

Right to privacy and reasonable restrictions On August 24, 2017, a nine-Judge Constitution bench of the Supreme Court held that right to privacy is a Fundamental Right and it’s protected under Article 21 of the Constitution.

The Attorney General for India, while opposing the popularity of right to privacy as a fundamental right, relied on cases holding that there no fundamental right to trade liquor, to submit by analogy that there are often no absolute right to privacy.
Rejecting such apprehensions, the highest Court had clarified that the declaration of a right can’t be avoided where there’s “good constitutional ground for doing so.

It had ruled that the State can always legislate an inexpensive restriction to guard and effectuate a compelling state interest, like it may while restricting the other FR.

The three-fold test is of:
(i) legality, which postulates the existence of law;

(ii) need, defined in terms of a legitimate state aim; and

(iii) proportionality which ensures a rational nexus between the objects and therefore the means adopted to realize them.

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