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Writ Petition on Bombay Prohibition Act

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN ITS EXTRAORDINARY ORIGINAL CIVIL JURISDICTION
UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
WRIT PETITION NO. [Ω] OF 2011

In the matter inter alia of Art. 21 r/w. Art. 14 of the Constitution; And In the matter of the provisions of the Bombay Prohibition Act, 1949 [as applied to the State of Maharashtra (except Wardha District)]; And In the matter of Part VI-A of the Bombay Foreign Liquor Rules, 1953; And In the matter of Respondent No. 1’s Notification (No. FLR. 1104/CR-21/EXC-2) dated 26th September, 2005, thereby notifying the Bombay Foreign Liquor (Fourth Amendment) Rules, 2005

1. Imran Khan, about 28 years of ) age, an Actor by occupation, ) holding Overseas Citizen Card ) No. [Ω], residing at 24, Pali Hill, ) Bandra (West), Mumbai – 400 050 )

2. Vedant Malik, about 22 years of ) age, a student by occupation, ) residing at 301, Aquamarine, ) 273-B, Carter Road, Bandra ) (West), Mumbai – 400 050 ) … Petitioners

Versus

1. State of Maharashtra, through ) its Home, Finance, Prohibition ) and Excise and Social Justice ) Departments, Mantralaya, ) Mumbai – 400 032 )

2. The Commissioner of ) Prohibition and Excise, State of ) Maharashtra, having his office at ) 2nd Floor, Old Custom House, ) Fort, Near Horniman Circle, ) Mumbai – 400 23 ) … Respondents

TO,
THE HON’BLE THE CHIEF JUSTICE OF BOMBAY AND HIS HON’BLE COMPANION JUSTICES, THE HUMBLE PETITION OF THE PETITIONERS ABOVENAMED
MOST RESPECTFULLY SHEWETH AS UNDER:

1. Particulars of the cause/order against which the petition is made: The subject matter of this Petition is the palpably arbitrary, unreasonable and irrational denial by the State, to persons who have attained full majority under Indian law (but are only not 25 years old), of the equal protection of their settled fundamental and/or legal right(s) of equality, privacy and personal liberty. The specific denial here questioned, is the minimum age requirement (i.e. 25 years) set by Respondent No. 1, for the issuance of permits for the possession, use and consumption of liquor within the State of Maharashtra (outside Wardha District).

2. Particulars of the Petitioners:
2.1 The Petitioners both are residents of India and have attained full majority under Indian law.
2.2 The Petitioner No. 1 is a young and well-reputed actor in the Indian film industry. He has played the lead in such well-received feature films as “Jaane Tu… Ya Jaane Na” (2008), “I Hate Luv Stories” (2009) and “Delhi Belly” (2011). As a popular film actor and one who, by virtue of his work, is regularly in the public eye, Petitioner No. 1 is especially aware of the responsibility resting on him to set a socially pro-active and participative example to the youth. So, although Petitioner No. 1 is not personally affected by the law here challenged, he feels sufficiently strongly about the questions here involved and regarding the State’s recent move to firmly impose its drinking ban on responsible adult persons (citizens or otherwise), he yet comes before this Hon’ble Court. Petitioner No. 1 bona fide believes that this law is an unlawful manifestation of paternalism, unconstitutionally imposed on persons between the ages of 21 and 25, who the law otherwise regards as being fully capable of taking rational, informed and (at times) life-altering decisions.
2.3 Petitioner No. 2 was a student of Management Studies at Jai Hind College and is currently working as an Assistant Director in the Indian Film industry. Not having completed 25 years of age, Petitioner No. 2 is directly and adversely affected by the law here challenged. Petitioner No. 2, like Petitioner No. 1, is aggrieved by what he considers a wholly arbitrary, irrational and unreasonable infraction of his settled fundamental and/or legal right/s of privacy and personal liberty.
2.4 Petitioner No.1 is not a citizen of India. Petitioner No.2 is an Indian citizen. However, being “persons” within the meaning of that term under the Constitution, both petitioners are fully entitled to enforce the fundamental rights under Articles 14 and/or 21 of Part III thereof. Besides, acting bona fide, they are also equally entitled to bring this Petition on behalf of those citizens who are similarly situated.
2.5 The Petitioners reside respectively at the addresses mentioned in the cause-title.

3. Particulars of the Respondents:-
3.1 Respondent No. 1 is a State in the Union of India and although Respondent No. 2 is an authority within its superintendence, he (Respondent No. 2) is charged with superintending the administration and carrying out generally the provisions of the Bombay Prohibition Act, 1949. Both Respondents, thus, in exercise of the powers and functions assigned to them under law, control and regulate the consumption of liquor within the State of Maharashtra.
3.2 Both Respondents No. 1 and 2 are obliged to protect and defend the fundamental rights of all persons, under Part III of the Constitution and are prohibited from making laws which take away or even abridge such rights.

4. Facts in brief, constituting the cause:- A concise statement of the facts and circumstances leading to and/or necessitating the filing of the present Petition is set out below.
4.1 Petitioner No. 1 was born in the United States of America, but has, ever since the late ‘80s, been a resident of India. He schooled in Bombay and in Ooty and was active in films from about the year 1988. Petitioner No. 1 thus, has spent his formative years in India (particularly in Mumbai) and has a deep and intimate connection with the country and its people.
4.2 Petitioner No. 2 came to reside in India as an infant, and has for virtually his entire life, been a resident of Mumbai. He too, went to school and college here. Earlier this year, Petitioner No. 1 married the sister of Petitioner No. 2.
4.3 Petitioner No. 1 made his professional debut, as lead actor, at the age of about 23/24 years (the film was released in the year 2008). As the years went by, Petitioner No. 1 skillfully put in consistent efforts and appeared in one successful film after another. Alongside his filmography, Petitioner No. 1’s public image grew and he became increasingly aware of the responsibility cast upon him to set a positive example to others more humbly situated.
4.4 In or about end-June and early July, 2011, the Petitioners came across a number of press articles, including those in the Times of India and DNA, reporting that Respondent No. 1 had formulated a new De-addiction Policy, as a part of which, it had resolved to firmly enforce the minimum age requirement (i.e. 25 years), for the issuance of permits for the possession, use and consumption of liquor within the State of Maharashtra. Copies of the said articles appearing in the Times of India and DNA are collectively annexed at Exhibit “A” to this Petition.
4.5 Both Petitioners were surprised and bewildered at this. They were then both under the mistaken impression that the minimum age at which persons could consume any liquor was 21 years, not 25. Even the signage at restaurants, pubs and bars, made reference only to the age-limit of 21 years (for “mild liquor”). Moreover, in the Petitioners’ experience, even the age limit of 21 years, was largely observed in its breach, since they both had witnessed the ease with which others their age, and even those much younger, could obtain liquor and that too for purely recreational use.
4.6 The Petitioners thereafter, decided the follow up this issue. Through the internet and their own friends and advisors, the Petitioners got to know that the legal drinking age of 25 which is in force in Maharashtra, is by far the highest, even in the developing world. It is perhaps exceeded only by the Wardha District, where the limit is 30! The Petitioners, for instance learnt that in China, persons may lawfully purchase and consume hard liquor at 18 years of age and that the picture was largely the same, across countries as diverse as Brazil, Russia, South Africa, Nigeria, Turkey, Thailand, Singapore, the Philippines and South Korea (19 yrs.). To the Petitioners this meant that Respondent No. 1 believed that youngsters take longer in Maharashtra, than their counter-parts elsewhere in the world, to acquire the maturity and/or responsibility to consume liquor. Basically, what the State appears to say is that whilst in any given year it may turn out thousands of Information Technology professionals, other engineers, doctors and other achievers who become the envy of the world, yet Indian youth, as a class, cannot be trusted to drink liquor responsibly.
4.7 The picture appeared even more absurd to the Petitioners when they studied the situation in the several States within India. So, for instance, while Goa and Kerala set the minimum age at as low as 18 years, most others lie between 18 years and 21 years. Petitioner No. 2 has, therefore, for instance only to cross the border and go into Karnataka or Andhra Pradesh, where he would be deemed to have acquired the requisite maturity to drink, a maturity he is supposed to lose the moment he drives back. And, whilst it is true that the State of Gujarat (also neighboring Maharashtra) bans the consumption of liquor outright, the Petitioners view this as directing a substantive and conscious difference in principle [full prohibition (in Gujarat) as opposed to controlled prohibition (in Maharashtra and almost the rest of the Union)] and therefore, not accurately comparable.
4.8 Besides, as is already stated hereinabove, Respondent No. 1’s said minimum age requirement is frequently broken or seldom enforced. To the Petitioners, this situation appeared farcical. Keeping the law on the statute books would generally (in the Petitioners’ experience) lead to harassment and corruption, besides contributing to the generation in other young people of a skeptical attitude towards the law.
4.9 This situation intrigued the Petitioners and they decided to more formally investigate matters. They engaged Advocates and through them, tried to understand more fully, the legal framework governing the liquor policy of Respondent No. 1. What the Petitioners found out through this was; (a) That the Bombay Prohibition Act, 1949 (the “Act”), was passed by the legislature of the Province of Bombay as it was constituted in 1949, and was published in the Bombay Government Gazette on 20th May, 1949, and came into force on 16th June, 1949. The Act consists of 148 sections with 2 schedules and is divided into 11 chapters. It is both an amending and consolidating Act and incorporates the provisions of the Bombay Abkari Act which it repeals and also those of the Bombay Opium and Molasses Acts and contains provisions for putting into force the policy of prohibition which is one of the objects mentioned in the preamble of the Act; (b) Under Section 2 of the Act, “to drink” means “to drink liquor”; “liquor” includes spirits (denatured or otherwise), wine, beer, toddy and “all liquids consisting of or containing alcohol”; and “spirit” means any “liquor containing alcohol” and obtained by distillation; (c) Chapter II of the Act deals with “Establishment” under which, the State may appoint several subordinate officers (such as Respondent No. 2), to exercise powers and perform duties and functions under the Act. Moreover, under Section 10, Respondent No. 1 may delegate any of the powers exercisable by it under the Act to Respondent No. 2 or any other fit officer, and these officers may, in turn, delegate such powers to any of his subordinates; (d) Chapter III of the Act, which contains a number of prohibitions in regard to liquor as defined in the Act, enacts some rather sweeping provisions. Section 11 thereof, first provides that notwithstanding anything contained in Chapter III, it shall be lawful inter alia to buy, possess, use or consume any intoxicant in the manner and to the extent provided by the provisions of the Act or by any rules, regulations, orders, licences, permits, passes or authorizations issued thereunder. Sections 12 and 13 then contain general restrictions inter alia on the manufacture, buying, possession consumption or use of liquor; (e) Section 18 next prohibits the sale of intoxicants “to any person who is a minor”. Interestingly, the words here quoted were, in 1960, substituted for the words “to any person apparently under the age of twenty-one years”. Even the section-heading was amended from “Prohibition of sale to children” to “Prohibition of sale to minor”; (f) Next, Chapter IV of the Act related to the “Control, Regulation and Exemptions", and contains inter alia sections 31 and 40 which provide for cases in which, licenses/permits for the manufacture, export import, transport, sale or possession of liquor may be granted. Particularly, Sections 40, 40-A, 40-B, 43, 47, 52 and 53, provide for the terms and conditions for the grant of permits for the use or consumption of liquor to persons who satisfy certain very basic qualifications, and for the regulation thereof. Section 49 then provides for the exclusive right/privilege of Respondent No. 1 inter alia to possess or use intoxicants and for the grant of such right/privilege to private persons by or on behalf of the said Respondent; and (g) Chapter XI contains certain miscellaneous provisions, which include those relating to Respondent No. 1’s general powers in respect of licences, etc. (Section 139) and its power to make rules (Section 143).
4.10 The Petitioners further learnt that by virtue inter alia of the powers granted to it under Section 143(2) of the Act, Respondent No. 1 enacted the Bombay Foreign Liquor Rules, 1953 (the “Rules”). By and under a Notification dated 13th September, 1972 [bearing No. FLR. 0172/2/III-A(a)], after Part VI of the said Rules, a new Part (VI-A) was added, providing for “(p)ermits for possession, use and consumption of foreign Liquor” to “any person above the age of 21 years”. A copy of this Notification is annexed at Exhibit “B” to the Petition.
4.11 Next, by a Notification dated 8th August, 1979 (bearing No. BPA 2079/1-PRO-2) amending the said Rules (“First Notification”), Rule 70-D was inserted in the said Rules stipulating the procedure for permits to be issued for purchase, possession, transport, use and consumption of foreign liquor and country liquor in the State. The said First Notification stipulated that under Rule 70-D sub-rule (1) the Collector or any other officer authorized by the Collector was empowered to issue a permit to any person above the age of 30 years for the purchase, possession, transport , use and consumption of foreign liquor and country liquor in the State of Maharashtra (the “Liquor Permit”). Annexed at Exhibit “C” is a copy of the Notification dated 8th August 1979.
4.12 The Petitioners state that Pursuant to the above Notification, Respondent No. 1 issued another Notification dated 4th May, 1982, bearing No. BPA 1081/13(II)/PRO-2 (the “Second Notification”) and amended sub-rule (1) of Rule 70-D of the said Rules by substituting the age of “25 years” for “30 years” for persons residing in the State of Maharashtra to apply for a Liquor Permit except for the district of Wardha. Annexed at Exhibit “D” is a copy of the Notification dated 4th May 1982.
4.13 Pursuant to the Second Notification, sub-rule (1) of Rule 70-D of the said Rules was once again amended by and under two separate notifications dated 19th January, 2005 and 1st July 2005 bearing Nos. FLR 1104/CR-21/EXC-2 and No. BPA 2002/CR 1/EXC-II respectively, substituting the words and figures “the age of 25 years” with the words and figures “the age of 21 years”, thus decreasing the age limit for applying for a Liquor Permit from 25 years to 21 years. Annexed at Exhibits “E” and “F” are copies of the said Notifications dated 19th January, 2005 and 1st July, 2005 respectively.
4.14 At this point there occurred some confusion. The Petitioners were under the impression that it was this Notification (of July 2005), which was still in force. Right since 2005 (i.e. when Petitioner No. 1 himself was 22 years of age and Petitioner No. 2 was 16) they had witnessed many persons close to their own age, having no great difficulty in gaining access to liquor (mild or otherwise), for personal, recreational consumption. The Petitioners themselves, being social drinkers, had noticed that even this age requirement was rarely enforced. It thus came as a surprise to them to know that Respondent No. 1 was now aiming to firmly enforce (not to introduce) a minimum age requirement of 25 years. In order to remove this confusion, the Petitioners instructed their Advocates to file an Application under the Right to Information Act, 2005, with the appropriate authorities, to ascertain the rules/regulations presently in force, prescribing the minimum age requirement for the consumption of liquor. In response to this Application, Respondent No. 1, under cover of its letter dated August 16, 2011, has furnished the Petitioners with two Notifications. The first was the afore-mentioned Notification dated 1st July, 2005. Along with this, Respondent No. 1 also included a copy of anther Notification, dated 26th September, 2005. That Notification re-amended sub-rule (1) of Rule 70-D of the said Rules, once again increasing the age limit for grant of Liquor Permit to any person from “21 years” to “25 years” in the State of Maharashtra. A copy of the said Notification (hereinafter, the “impugned Notification”) dated 26th September, 2005 is annexed at Exhibit “G” to the Petition. It is thus this Notification which the Petitioners now seek to challenge.

5. The Petitioners state and submit that the Impugned Notification seeks to impose a manifestly unreasonable, arbitrary and unjustified restriction on the class of persons between the ages of 21 to 25 years, who are not legally regarded as “minor” and may vote, marry, contract, consume tobacco and even own firearms, but are not permitted to consume liquor. The Petitioners submit that this classification has no reasonable relation to the object of the legislations governing this field. Furthermore, there is no intelligible difference between persons who have attained the age of 21 and those who attain the age of 25. The impugned Notification seeks to impose a classification which is wholly and palpably unreasonable and arbitrary and occasions real and substantial discrimination between persons otherwise similarly situated. The Petitioners further submit that the impugned Notification is an abuse or improper exercise of discretion by the Respondent, as it bears no proportionality to the object which may be sought to be achieved by it.

6. Questions presented: The Petitioners submit that in view of what is aforesaid, the present Petition raises the following, important and substantial questions of law; A) Whether under the Constitution, persons who are not “minor” and have attained the age of 21 years, have a fundamental and/or legal right(s) of equality, privacy and personal liberty? B) If the answer to Question (A) is in the affirmative, what is the full extent of this right(s); would it include within it, a right to responsibly consume the lawfully prescribed units of liquor? C) If the answer to Question (B) is also in the affirmative, may the State curtail and/or abridge such a right by executive order, only on the basis of the non-attainment of the age of 25 years (as opposed to full legal majority at 21)? D) What is the standard of scrutiny upon which such an executive order/law may be examined?

7. Grounds of challenge:- The Petitioners submit that the impugned Notification is illegal, void, ultra vires, palpably arbitrary and appears on its face to be within the specific prohibition of the Constitution, under Art. 21 r/w. Art. 14 thereof. The same is therefore and even otherwise liable to be set aside on the following, amongst other grounds, which are in the alternative and/or without prejudice to one-another. A) Both the Petitioners have attained full majority under the law (Indian Majority Act, 1875, Section 3). They are both over the age of 21 years and may, on that account (i) vote at elections to Parliament and the State Legislature (under the Constitution and the Representation of Peoples Act, 1950); (ii) marry (both under the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955); (iii) enter into binding obligations of contract (under the Contract Act, 1872); (iv) drive any vehicle (under the Motor Vehicles Act, 1988); and (v) they may even own firearms (under the Arms Act, 1959). The law therefore, recognizes no real or substantial difference between Petitioner No. 1 and Petitioner No. 2, so as to deem Petitioner No. 1 better qualified and equipped to exercise certain important rights or take certain life-altering and momentous decisions. To then allow Petitioner No. 1 to get a permit to consume liquor, whilst denying it to Petitioner No. 2, is to make an artificial and unreal distinction between the two. No real or intelligible differentia exists between the class of persons such as Petitioner No. 1 (who are at least 25 years old) and the class to which Petitioner No. 2 is relegated (those over 21 years but under 25). B) The Petitioners submit that even the Bombay Prohibition Act, 1949 recognizes this non-distinction. The substantive prohibition under the Act on the provision of liquor is contained in Section 18. In that Section, the legislature has consciously chosen to prohibit the sale of alcohol “to any person who is a minor”. These words have been substituted for the words “to any person apparently under the age of twenty-one years”. Even the section-heading is amended from “Prohibition of sale to children” to “Prohibition of sale to minor”. This, the Petitioners submit, is a conscious declaration of policy by Respondent No. 1 that persons who are not minor (which under Indian law means those under the age of 18 years) may enjoy a limited right/privilege to consume liquor. The legislature has also, consciously, not specifically defined the term “minor” under the Act. Its meaning must therefore, be the same as is generally understood under Indian law, viz. one who has not completed 18 years of age. If this is so, then there is no rational relationship between the object of the Act and Rules and the classification/distinction sought to be made under the impugned Notification. The impugned Notification, the Petitioners submit, either in terms or by necessary implication, discriminates between classes of persons which have no intelligible difference between them and the same denies one equality before the law and the equal protection of the laws. This insidious discrimination is, in the Petitioners’ submission, incorporated in the statute itself. C) The Petitioners submit that the impugned Notification thus violates Article 14 of the Constitution. That Article is designed to protect all persons placed in similar circumstances against legislative/executive discrimination. In this behalf, it is submitted that whilst Respondent No. 1 may, in the exercise of its governmental power, of necessity make laws operating differently on different groups or classes of persons to attain particular ends, such classification must observe equality between all the persons on whom it is to operate. Even if it be held that the provisions of the Act and the Rules give a discretion to Respondent No. 1 to distinguish between such classes of persons, the Petitioners submit that such discretion has been improperly and arbitrarily exercised under the impugned Notification. D) Per Rules 52 and 57 of the aforesaid Rules, “mild liquor” and “mild beer” including wine is allowed to be sold to any person above the age of 21 years. It is wholly irrational and does not stand to reason then, that a person may enter a club, pub, restaurant, disco, lounge, bar etc. and purchase mild beer and wine at the age of 21 years, but he may not purchase or consume other liquor until he completes 25 years of age. The Petitioners submit that such anomaly is not only unfair and unreasonable but also practically incapable of being implemented and enforced. The same may also leave the door open to vexatious and/or corrupt practices. Besides, this is further evidence of the fact that the classification (under 25 years and over) has no reasonable basis having regard to the object to be attained or is arbitrary. It is submitted that for sustaining a law on an Art. 14 challenge, it must be shown that the classification is not arbitrary, but it rational. It must, therefore, be not only based on some qualities or characteristics which are to be found in all persons grouped together and not in those others who are left out, but those qualities and characteristics must have a reasonable relation to the object of the legislation. The impugned Notification does not satisfy this requirement. E) Factually, it has been the experience of the Petitioners that persons between the ages of twenty-one and twenty five years may gain easy access to alcoholic beverages of all kinds. If the same is legalized, at least they'll be drinking in a controlled, supervised setting, such as a bar or nightclub, rather than in cars or at unsupervised parties, which areas may be very difficult (if not impossible) to control and may result in a significant increase in the rate of infraction. In fact, making it illegal to drink hard liquor until the age of 25 years may only increase the desire for the “forbidden fruit” and there may be a high possibility that when persons just attain full majority, they would indulge such a repressed desire in excess. F) The impugned Notification is likely to drive such persons to resort to illegal or unlawful means to access alcohol for personal consumption and thereby encourage bootlegging and black marketing, with the resultant rise in a number of corrupt practices which can lead to further deterioration of the social fabric. G) Moreover, the Impugned Notification is likely to cause injury, harm and prejudice to the society at large since it is a possibility that the teens that would not get alcohol may resort to switch to other and perhaps even more dangerous alternatives like drugs. H) The impugned Notification is likely to cause further harm since persons below the age of 25 years, who may be caught consuming liquor, would be unfairly punished by the state with fines, probation and even imprisonment. Therefore, it is likely that the teens would enter the legal system with no more than a de minimis infraction and by the time these persons reach 25 years of age, they would have a substantial criminal record only for the reason of having consumed hard liquor. This would unfairly tax young people and destroy lives. Besides and in any event, the Petitioners have reliably learnt that Respondent No. 1’s policy in this behalf is that whilst the State shall not encourage the consumption of liquor and shall uproot the use of illicit liquor, it would work towards the effective regulation of the consumption of lawful liquor. The impugned Notification would, then, act to the detriment of this policy and not further it in any way. I) Without prejudice to aforesaid, the Petitioners submit that it is an established fact that the age-limit has done little to stop underage drinkers getting access to alcohol. The impugned Notification disregards the fact that the changed social psyche and expectations are important factors to be considered in the upkeep of law. Globalisation today has brought about radical changes in the economic and social landscape of the country. Its impact on the Constitution and constitutionalism is significant. As and when an occasion raises the interface between globalization and constitutionalism (whether from an economic or human rights perspective), the same must be seriously gone into. The Court must therefore, take a realistic view in the interpretation of the Constitution, having regard to such a changed scenario. J) In this regard, the ground reality is that in India, the hospitality industry has grown by leaps and bounds. Liquor, in the hospitality industry, is being served not only in the bar but also in the restaurant where a person dines with his family including children. Therefore, the restriction imposed under the impugned Notification may have been reasonable in mid-20th century the same may not constitute rational criteria/classification in the 21st century. K) Besides, the Court cannot shut its eyes to the fact that except the State of Gujarat, no other State imposes a complete prohibition on the consumption of liquor. In fact, States are encouraging liberalization to such an extent that alcoholic beverages may be permitted to be sold even in grocery shops. The State has also permitted the opening of liquor shops at airports. As set out above, society has accepted pub culture in the metros. This Hon’ble Court, ought therefore, in forming its view on this matter, to have due regard for the changing scenario on the basis of ground reality and not on the basis of a misplaced notion of paternalism, which seeks to prevent society from remaining in step with the times. In this behalf, it is well-settled that a law (such as the impugned Notification) which may have at one point of time been constitutional, may be rendered unconstitutional because of the passage of time. This is so here. L) It is thus submitted that what is to be determined in the present case is whether the differentiation made offends what may be called the social conscience of a soverign democratic republic and whether fair-minded, reasonable, unbiased and resolute men, not swayed by emotion or prejudice, may regard the impugned Notification with equanimity and call it reasonable, just and fair. The Petitioners submit this is not the case here. The impugned Notification does not mete out equal treatment, nor does it protect and defend the liberty of persons which they expect in the conditions which obtain in India today. M) Furthermore and without prejudice, it is submitted that the impugned Notification is wholly arbitrary. The same violates both Articles 14 and 21 of the Constitution of India. These two Articles do not represent entirely separate streams of rights which do not mingle at many points. They are all parts of an integrated scheme in the Constitution. Their waters must mix to constitute an unimpeded and impartial flow of justice. Moreover, the principle of reasonableness, which is an essential element of equality or non-arbitrariness, pervades Article 14. Even a “procedure” contemplated under Article 21, it is now settled, must answer the test of reasonableness and be in conformity with Article 14. In other words, a law, in order to be sustained, must be shown to be right and just and fair. This is not so with the impugned Notification. The same is wholly arbitrary, fanciful and oppressive. N) Besides, there is another reason why the impugned Notification cannot withstand scrutiny by this Hon’ble Court under Article 226 of the Constitution. Persons between the ages of 21 and 25 years are a separate and narrow minority. In India, they may lack sufficient strength or influence to seek redress through the usual political process. As is set out above, the impugned Notification, on its face, is arbitrary, fanciful and oppressive and is thus, ex facie in violation of Articles 14 and 21 of the Constitution. The same must therefore, be subjected to a more searching judicial scrutiny, and must thereupon be quashed and set aside. The Respondents can show no compelling interest whatsoever to sustain the impugned Notification. The same is not at all narrowly tailored and seeks to paint all those between the ages of 21 and 25 with the same brush. O) The Petitioners further submit that it is important to determine whether the measures sought to be furthered by the State in the form of an executive mandate to augment the legislative aim of protecting the interests of youth is proportionate to the other bulk of well settled norms such as the right to equality, right to personal liberty etc. In the present scenario, the impugned Notification seeks to impinge on the right to equality and personal liberty of youth between the age of 18 to 21 years who are otherwise vested with all rights and obligations as an adult under various statutes applicable in the state and in the country. P) The Petitioners submit that the Impugned Notification is illogical and arbitrary and unreasonable is also evident from the fact that for different kinds of alcoholic beverages different age limits are prescribed. This classification bears no rational nexus with the object of classification. As a corollary the larger class must be considered as eligible for the benefit of making a choice of consumption of alcohol at lower age. Q) The Petitioners further submit that the issue in this case is the choice a person may make and the right to make such a choice. The State cannot impose unreasonable or arbitrary fetters and restrictions upon such choice. It is not that every adult on attaining age of 21 or 18 years is going to start drinking recklessly. The question is whether the person who constitutes member of electorate is still required to be subjected to third party wishes to make his/her decision. R) The impugned Notification is also ultra vires for non-compliance of the provisions of pre-publication and consultation. There was no warrant for dispensing with these requirements and on account of such violation, the impugned Notification is liable to be declared illegal and void. S) The Petitioners submit that the impugned Notification impinges on persons’ right to privacy, which is recognized as a facet of the right to life and personal liberty and is inextricably linked to persons’ right to equality. Moreover, it is an executive action, which consciously discriminates between equals. The same does not reflect good faith and knowledge of existing conditions on the part of Respondent No. 1 nor a willingness to explore lesser restrictive (and the Petitioners would submit, more effective) means to achieve its ends. The Petitioners submit that there is nothing on the face of the law or the surrounding circumstances on which the classification may reasonably be regarded as based. The settled presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed or unknown reasons for subjecting individuals to hostile and discriminating legislation. T) Neither may the Respondents rely on Article 47 of the Constitution to sustain the impugned Notification. Affirming such reliance would mean that the guarantees given by Part III may be destroyed in order to achieve the goals of Part IV. This would be plainly to subvert the Constitution by destroying its basic structure. The Petitioners submit that our Constitution is founded on the bedrock of the balance between Parts III and IV. To give primacy to one over the other is to disturb the harmony of the Constitution. Thus, the goals set out in Part IV must be achieved without the abrogation of the rights/means provided for by Part III. U) Even otherwise, the impugned Notification is ex facie arbitrary, a clear abuse of power and a manifestation of Wednesbury unreasonableness. The same is ultra vires Articles 14 and 21 of the Constitution of India and the provisions of the Act and Rules. If not struck down, the impugned Notification would set an unfortunate precedent which will be exploited by other authorities and vested interests in other cases. Thus, the wrong here complained is inextricably linked with matters requiring the vindication of public justice and the prevention of public injury. The Petitioners have no effective or adequate alternative remedy available to them.

8. The Petitioner craves leave of this Hon’ble Court to add to, alter or in any manner amend the above Grounds, if so required.

9. In view of what is aforesaid, the Petitioners submit that the impugned Notification is patently unconstitutional and also violative of Articles 14 and 21 of the Constitution of India and is hence liable to be stayed during the pendency of this Petition.

10. The Petitioner No. 1 has acted bona fide and has sufficient interest in the proceeding of this Public Interest Litigation as a social cause. He has approached this Hon’ble Court to prevent the violation of constitutional rights and unsustainable infractions of statutory provisions, and not for personal gain or private profit or political motive or any oblique consideration. Petitioner No. 2 is an aggrieved person being below the age of 25 years and therefore has locus to file the present petition. Both the Petitioners have filed this Petition is public law interest. It is submitted that although the notification is of the year 2005, the grieviance is a continuing one and hence the cause of action is a continuing one. Besides by the latest announcements by the State a further resolve is made to perpetrate the arbitrary age restriction. Hence the present Petition does not suffer from delay and laches and this Hon’ble Court be pleased to entertain the same.

11. Final reliefs sought:- 1. In the facts and circumstances aforesaid, the Petitioners submit that they are entitled a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction, striking down and setting aside the impugned Notification (@ Exhibit “G” hereto) issued by Respondent No. 1. 2. The Petitioners are also entitled to a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction, permanently restraining Respondent Nos. 1 and/or 2 (whether by themselves or through their agents, subordinates or servants) from enforcing the impugned Notification (@ Exhibit “G” hereto).

12. Interim reliefs sought:- The impugned Notification unjustly prejudices an entire class of persons between the ages of 21 and 25. The impugned Notification is patently unconstitutional and also violative of Articles 14 and 21 of the Constitution of India. It is therefore just and absolutely necessary that pending the admission, hearing and final disposal of this Petition, the effect and purport of the impugned Notification be stayed by and under Orders of this Hon’ble Court. Further, it is also equally necessary that the Respondents be restrained (whether by themselves or through their agents, servants or subordinates) from implementing or enforcing the impugned Notification. The Petitioners submit that they have made out a strong prima facie case for the grant of interim and ad interim reliefs. The balance of convenience over-whelmingly favours the Petitioners. The Respondents would suffer no prejudice whatsoever, in the event interim/ad interim Orders, as sought, are granted. Reliefs, if granted in terms of this Petition, would be complete and dispositive.

13. The Petitioners have observed all due diligence in filing this Petition. The Petitioners have the necessary credentials to file this Petition and have approached this Court with clean hands, mind and objective, requisite to maintain this action.

14. The impugned Notification has been issued within jurisdiction. Its effect and purport is fully felt within jurisdiction. All parties are territorially amenable to the authority of this Court. This Court therefore has jurisdiction to entertain and dispose of this Petition.

15. The Petitioners have no alternative or equally efficacious remedy under the law or Constitution being in force to redress the grave, substantial and irreparable injury caused by the impugned Notification and that remedy by way of this Public Interest Litigation, orders or directions prayed for herein are the only adequate, expeditious and efficacious remedy available.

16. The Petitioners has not filed any other Appeal, Application, or Petition, either in this Hon’ble Court or in the Hon’ble Supreme Court of India, for the same or similar reliefs, as claimed herein.

17. The Petitioners have paid the fixed Court Fee of Rs. 250/- on this Petition.

18. This Petition is affirmed and verified by the Petitioners themselves.

19. The Petitioners shall rely on documents, a list whereof is annexed hereto.

PRAYERS
The Petitioners therefore pray for:- a) a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction, striking down and setting aside the impugned Notification (@ Exhibit “G” hereto) issued by Respondent No. 1; b) a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction, permanently restraining Respondent Nos. 1 and/or 2 (whether by themselves or through their agents, subordinates or servants) from enforcing the impugned Notification (@ Exhibit “G” hereto); c) an Order and prohibitory Injunction of this Hon’ble Court staying the effect and purport of the impugned Notification, pending the hearing and final disposal of this Petition; d) an Order and prohibitory Injunction of this Hon’ble Court, restraining the Respondents (whether by themselves or through their agents, servants or subordinates) from implementing or enforcing the impugned Notification, pending the hearing and final disposal of this Petition; e) ad interim reliefs in terms of prayer clause (c) and/or (d) above; f) the Petitioners’ costs; and g) such other and further reliefs as this Hon’ble Court may deem fit in the facts and circumstances of the present case.

AND FOR THESE ACTS OF KINDNESS, THE PETITIONER SHALL, AS IN DUTY BOUND, EVER PRAY.

Dated this day of September, 2011

Petition Drawn by
Naik Naik & Co
Advocates, High Court, Bombay

For Naik Naik & Co

Partner [Imran Khan]
Advocate for Petitioners

[Vedant Mallik]

V E R I F I C A T I O N

I, Imran Khan, the Petitioners abovenamed do, hereby, solemnly affirm and state that what is set out in paragraphs ___ to ____ is true to my own knowledge and what is set out in paragraphs _____ to ____ is based on information and on belief and I believe the same to be true and correct.

Solemnly affirmed at Mumbai ] Dated this day of September, 2011 ] Before me; Advocate for the Petitioners

For Naik, Naik & Company

Partner

Advocates…...

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