Case BriefsHigh Courts

Bombay High Court: In this case, the petitioner prayed for the issue of writ of mandamus against Social Justice and Tribal Development Department of the Government of Maharashtra to set aside a government order pertaining to the procurement policy of the hostels meant for students belonging to SCs, STs and OBCs and alleged that it was violative of Article 46 of the Constitution which is a Directive Principle providing for promotion and protection of educational and economic interests of SCs, STs and other weaker sections. The respondent department is in charge of development and functioning of these hostels.

A decision to supply essential material to these hostels was taken and certain guidelines as to how the tender process for the same would be conducted were indicated. A GR was made in 2015 giving preference to tribal supplier over the general if the price quoted by both was same. Subsequently in 2016, another GR was made stating that the lowest rate quoted by the backward class, institutions or individuals would be considered. Finally, a GR in December 2016 was made by way of new procurement policy.

As per this new policy, priority was being given to Micro Small and Medium Industries in large scale procurement in about 20% of the total procurements and out of the these 20%, around 4% was being reserved for MSMEs belonging to SCs or STs. The main averment of the petitioner is that the entire fund meant for the said community should have been used only for their welfare.

The counsel for the respondents relied upon a judgment of Madras High Court and of the Supreme Court in State of Punjab v. Ram Lubhaya Bagga, (1998) 4 SCC 117 which clarified the government’s stand on forming its policies and also that such policies are based on expert opinions. The Courts have refrained to interfere in these policies as far as Article 14 or Article 21 of the Constitution is not infringed. It has always been open to the government to invite tenders and make contracts as per its requirements and a manufacturer or a supplier cannot claim any right that the tender conditions should be that he is eligible to apply.

Owing to the reasons in the judgments cited by the respondent counsel, the  Court rejected the plea of the petitioners. It noted that the essential material was anyways being supplied to the hostels occupied by the said classes and the demand that even the tenders must be availed from the same categories of persons is an unacceptable stand as per the Court. It was held that there was no justification to the stand of petitioners. [Ajit Kumar Maruti Sonawane v. Principal Secretary, Social Justice and Special Assistance Department, PIL No. 16 of 2016, decided on 20.01.2017]

Case BriefsHigh Courts

Patna High Court: Stating that the punishments imposed in respect of the Liquor ban in the State of Bihar by way of the amendment to the Bihar Excise Act, 1915 are quite unreasonable and draconian and cannot be justified in a civilized society, the bench of Iqbal Ahmed Ansari, CJ and Navaniti Prasad Singh, J quashed the law imposing liquor ban in the State of Bihar.

The Court noticed that the punishment for any offence has been prescribed as not less than 10 years, which may extend to imprisonment for life and with fine, which shall not be less than Rs. one lakh, but may extend to Rs. 10 lakhs and that it totally takes away the discretion of the Court to give a lesser sentence depending upon the mitigating circumstances.  Explaining it by way of an example the Court said that if a humble rickshaw-puller found with only a bottle or a pouch of country liquor would, now, be exposed to minimum of 10 years of imprisonment with a fine of Rs. one lakh, an amount, which he had ever never possessed or seen.

On the question that whether the right to drink alcohol is a fundamental right, the bench gave different views. Navaniti Prasad Singh, J was of the opinion that State cannot dictate what a personwill eat and what he will drink and that right to drink alcohol, like a responsible citizen, is a part of right to privacy included under Article 21 of the Constitution. He said that a citizen has a right to enjoy his liquor within the confines of his house in an orderly fashion and that right would be a part of right of privacy, a fundamental right, under Article 21 of the Constitution and, any deprivation thereof would have to withstand the test of Articles 14 and 19 of the Constitution as well. If the State starts dictating a citizen what to drink or what not to drink, though the same is not per se injurious to health, it would be a direct intrusion on personal liberty affecting meaningful life. It would be violation of personal liberty guaranteed by the Constitution.

Iqbal Ahmed Ansari, CJ, however, disagreed and held that when the Legislature of a State makes the Directive Principles applicable in the governance of the State, one cannot be heard to complain that the Directive Principles are violating the fundamental rights. Had the Directive Principles been violating fundamental rights, the Directive Principles could not have been made, and would not have been incorporated, in our Constitution by the Constitution-makers as fundamental principles of governance of the States. He added that though what one will eat or what one will drink is his decision, the fact remains that when the Directive Principles of State Policy requires the State to make endeavour to bring about prohibition, it logically follows that merely because the State is making the endeavour to bring about prohibition, one cannot claim that he has a fundamental and indefeasible right to continue to consume liquor or alcohol or intoxicating drinks or intoxicating drugs. When the right to consume intoxicating drink cannot be claimed as a fundamental right, an intrusion into this right, if, otherwise, legally valid, cannot be resisted by saying that it is one’s right to privacy, which is infringed or violated. If the right to consume intoxicating drink is held to be a fundamental right, one would be justified in saying that this right cannot be taken away or infringed by imposing total prohibition. [Confederation of Indian Alcoholic Beverage Companies v. State of Bihar, 2016 SCC OnLine Pat 4806, decided on 30.09.2016]