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On 8th May, 2020 the High court of Madras permitted the online sale of liquor but at the same time the court also ordered closing of the offline liquor retail shops which had reopened only a day before, after a period of 50 days, on the account, that these shops attracted a huge crowd towards themselves and as a result they were risking the violation of the guidelines of social distancing during this pandemic.
Since the sale of liquor had helped with the economy therefore instead of completely banning it, the Madras High court allowed the online sale through door delivery system.
Later a special leave petition (SLP) was filed in the Supreme Court by advocate K. Pari Vendhan against the order of permit given by High court of Madras on the online sale of the liquor. The petitioner submitted that the permit given by high court was bound to be squashed as it was against the guideline which are issued by the Ministry of the Home Affairs. These guidelines were adopted from the disaster management act, according to which any form of E-commerce is only for the “essential products” and clearly liquor was not to be counted as one but rather a product which might hamper the health of the consumers making it hard for them to fight against the virus.
Arguments in the SLP:
There were 4 major issues raised in the SLP regarding the permit of Madras High court.
- Whether High court was right in its decision of allowing the sale of the liquor through online portal?
- Whether high court failed to consider the fact that liquor items do not lie in the category of essential items according to essential commodity act, 1955?
- Whether high court failed in considering the fact that the consumption of liquor items would lead to severe health issues as reported by World Health Organization?
- Whether the High Court has failed to secure the responsibility upon the erring authority for negligently defying the guidelines to hold the pandemic?
It was due to these arguments; the petitioner called the permit given by High court of Madras an “oxymoronic order”. The petition clearly stated that the impugned order of selling liquor to the citizens online in order to stabilize the economy right in the middle of a pandemic is rather an illogical and unethical idea.
The petitioner argued and questioned the court regarding the desperate need of selling the liquor when it is neither an essential item to survive nor is a healthy substance that needs to be counted as an essential product during the pandemic. Rather, according to the reports by the World health organization, consumption of such substances will decrease the chances of the body to fight back with the virus.
The petitioner was in coherence with the idea of Madras High court banning the sale of liquor offline since the sale is indeed violating the guidelines of social distancing and if such sale would have continued, then all the precautions taken during March and April would have turned worthless.
Legal basis of allowing online sale of liquor:
There were majorly 2 reasons why the online sale of liquor was allowed at the first place:
- The offline sale was violating the guidelines adapted by the home ministry on 1 may, 2020 i.e. the guidelines mentioned in Disaster Management act
- The sale of liquor even though was hazardous to the guidelines yet it was extremely beneficial to the economy of the states which has been in depreciation due to the lockdown.
According the central affairs, due to the pressure, they delegated the power of economic management to states and advised them to take decisions for the welfare accordingly. The legality of power of Madras High court of permitting the online sale of liquor is obtained from schedule 7 of the constitution of India.
Schedule 7 of the constitution of India, gives the capacity to the state of making laws on the subjects which are mentioned in the state list. It is schedule 7 that represents the Federal structure of India.
In the schedule 7, the state list explicitly mentions the subject of Alcohol, therefore it is clear that the state of Tamil Nadu had the power to decide matters of liquor production, distribution and stocking. It was according to this provision; the state got the power of permitting.
Similar pleas in other state:
Not only in Madras, but in Delhi High court a plea was filed by advocates Simran Kohli and Abhishek Bhagat which laid down certain directions to the AAP government as well as the excise department. The plea talked about how the government failed to tame the crowd and maintain the social distancing when the liquor stores were opened after the dry spell of 47 days. The plea as a resort to maintain balance the social distancing and stabilizing the economy of the state, proposed the government to allow the online sale. This way the sale wouldn’t be harmed and there would be no crowd to buy liquor too. Unlike the plea given in Madras High court, they do not propose the shutting down of the offline sale since that is one effective way for the government to save their economic stature. The plea has also proposed another alternative where the government should introduce a token system in order to handle the crowd management.
There is another PIL filed by NGO civil safety council which is seeking direction for absolute termination for the sale of liquor (online or offline) until the situation COVID-19 pandemic gets in control.
A PIL was filed in the High court of Rajasthan challenging the decision of re-opening of liquor stores, since it was defeating the main guideline of protecting people from crowding and increasing the risk of virus spread. The presiding bench of Chief Justice Indrajit Mahanty and Justice SK Sharma squashed the plea on account, that the state was taking care that the guidelines during the sale is being followed, moreover the court claimed that during this passage of time, there are no complaints heard due to the overcrowding.
In states such as Maharashtra, West Bengal and Punjab, the states considered the circumstances and judgements given by other High courts of the country and allowed the online as well as offline sale of liquor. As of now, there are no pleas filed against them.
- Impact on health:
WHO (world health organization) is absolutely against the support of liquor or any sort of promotion of liquor during the COVID –19 pandemic. WHO during a discussion, associated approx. 230 diseases which were caused due to consumption of liquor. Liquor tends to lower the stamina of the body and also affects the immunity. The lower the immunity, the more are the chances for the virus to enter the body. Liquor is known to stimulate the effect of NCDs (non-communicable disease) in the body of the humans. These NCDs predisposes the body towards the infectious diseases. Currently when the country in preparing to fight a war against a virus, introducing or promoting the consumption by selling the liquor online will only make it worse. WHO recommends people to avoid the liquor or tobacco consumption in order to prevent themselves from exposing to the virus.
- Impact on domestic violence:
In India, there have been a number of cases of domestic violence reported during the lockdown. Liquor consumption fairly attributes to the domestic violence against the women and children. If the country allows open consumption, the number of cases are bound to increase.
- International Obligation on India:
Before the outbreak, in February 2020, WHO during its EB (executive board) meeting recognized alcohol as a burden and harm to the people at large and hence recognized the global alcohol burden as the “public health priority” and requested for the “accelerated action”on alcohol harm. India along with 10 other country which favoured in the draft decision. The government of India is also bound to abide by the commitment that makes it mandatory for the country to respect and follow the right to health of its respective citizens. The government of India had also taken the national target of reducing the liquor prevalence by 10% until year 2025. The one of the ten strategy of WHO’S global strategy (2010) to reduce consumption of liquor was to allow physical restriction on physical availability of it. All of it shows that India is obligated by international conventions to put a curb on Liquor.
- Impact on economy:
The sale of liquor contributed approximately revenue of Rs 15,000 crores per month towards the states before the lockdown was imposed. The never-ending demand for liquored increased the moment when liquor shops re-opened. The sale of liquor seemed the most feasible solution for the states in order to bridge up the gap of revenue lost amidst the lockdown. This is the reason why states such as Maharashtra pondered over the idea of online sale and home delivery of liquor.
In a report published by Reserve Bank of India of State Finances, there was study claimed that the state governments have generated up to 10-15% of their total revenue from the excise duty on sale of liquor in the year of 2019- 2020. Now during the lockdown in place and continued following of guidelines to the social distancing rule, these revenue numbers which are estimated will most possibly be low, unless the online liquor sale and its home delivery is legislated by the government.
With the witnessed pattern of liquor consumption by the citizens, it is safe to estimate that half of the present liquor revenue of India which is nearly around sum of $17.5 billion can easily be devised by the online liquor market in case it is legislated all over India.
The verdict of the plea filed in Supreme Court would determine what the apex court in its judicial conscience feels is the right thing to do. The decision on the plea would affect not only the state of Madras but also on the other states which have permitted the online sales of liquor. On one hand there is a wrecked economy of the country which will be impacted even more heavily if sale of liquor is curbed again whereas on the other hand there is law which only allows use of e-commerce only on essential items and clearly liquor isn’t one.
Liquor sales has its pro as well as cons in the situation and both of them according to a reasonable prudent man seems to be important for the country. Somewhere India is also obligated to the international conventions and cannot blindly neglect its findings and recommendations during such a hard-times. The apex court has a huge burden on its shoulder to decide what is best for the country at this situation.
Author: Divyanshi Saxena from University of Petroleum & Energy Studies.
Editor: Akshat Mehta from Institute of Law, Nirma University.