The Supreme Court on Friday stayed all orders of the Madras High Court concerning the closure of TASMAC/liquor shops in Tamil Nadu amidst the COVID-19 lockdown, including the orders on additional conditions for the sale of liquor which were imposed by the High Court on May 6.
The Bench comprising of Justice L Nageswara Rao, Sanjay KishanKaul, and BR Gavai took up a batch of petitions challenging the two orders of the Madras High Court.
This included a challenge to a May 8 High Court order directing the State to close all TASMAC/liquor vending stores in the State as there was large scale violation of safety norms when these outlets were re-opened on May 7.
It also challanged a previous order passed by the High Court on May 6 which had laid down certain guidelines forthe sale of liquor.
Another Madras High Court order of May 11to order the closure of TASMAC shops in the state was also included in these petitions.
This stay by the Supreme Court has paved the way for the TASMAC shops in the State to re-open for liquor sale as per the modalities put by the State government.
The Court today observed that the Court could only ask the State to consider modalities for sale of liquor through online means and home delivery. However, the ultimate decision remainedin the hands of the State.
The Supreme Court also issued notice in matter and has sought a reply within four weeks.
Senior Counsel MukulRohatgi arguing for the State of Tamil Nadu questioned how the High Court could have intervened in the domain of policy by imposing additional conditions for the sale and purchase of liquor in the State.
He further highlighted that the conditions imposed by the High Court such as digital payment and requirement of Aadhaar card for the sale of liquor should be up to the State to decide.
The Counsel for the respondents, Advocate PV Yogeswaran told the Court that the high court had only sought some precautionary measures to be followed and that selling liquor is not a fundamental right but merely a commercial activity.
Rohatgi also sought a stay on the proceedings by the Full Bench of Madras High Court which was scheduled to take up the matter concerning closure of TASMAC before the High Court.
However, the Full bench of Madras High Court has reportedly decided to refrain from hearing the matter further after it was informed about the stay order passed by the Supreme Court.
Challenging the order before the Supreme Court it was submitted that the net effect of the Madras High Court’s order is a “complete and indefinite standstill of the sale of liquor in the State leading to grave losses to the State’s revenue and commercial activity in the State.”
This order was challenged as factually untenable and legally unsustainable on the grounds that,
- the Supreme Court itself has declined to entertain a plea for the total ban on the sale of liquor as the same is a policy matter within the domain of State.
- the State has reasons to believe that the entire batch of Writ Petitions if not some have been filed by vested private interest, so has to make enormous commercial gains, from the unfortunate situation.
The TASMAC has argued that this closure order was passed on a misinterpretation of an order of the Supreme Court on Friday as that the SChad, “recognised that States have a broad margin of power to determine whether and how to effect sales of liquor in this lockdown period.”
Therefore, the TASMAC argued that the Madras High Court’s May 8 order “is a clear case of judicial overreach and is not sustainable in light of the Supreme Court Order.”
Apart from the precautionary directions on social distancing, sanitisation etc. on May 6 the High Court had also issued guidelines concerning,
- limits of alcohol purchase per person per day,
- a bar on cash payments save for those without online payment facilities and;
- a direction that the bill of sale include the name, Aadhar number and address of the customer.
Following this order, the Tamil Nadu Government had approached the Supreme Court challenging the High Court’s directions regarding mandatory cashless payments and inclusion of Aadhaar number in the bill of sale.
The Tamil Nadu Government contended that the mandatory inclusion of the customer’s Aadhaar number in the bill of sale led to a violation of the right to privacy.
An objection had also been raised to the High Court’s direction to make cashless transactions the norm for alcohol sale. In this regard, the Tamil Nadu Government has raised objection on the directions for making cashless transaction as there are practical difficulties to implementing a cashless regime for alcohol sale overnight adding that cash payments cannot be prohibited
While challenging the May 8 closure order before the Supreme Court, the State also asserted that the “the Impugned Judgment has encouraged commercial opportunism from the private entities“, while referring to an application moved by a Fintech company called ‘HIP Bar Private Ltd’, which had “prayed that they be permitted to intervene to propose alternatives to opening of the TASMAC liquor shops to the public in the form of technology assisted home delivery.”
The State while highlighting Liquor matter added,
“its (HIP Bar’s) capability as a home delivery coordinator is unknown and untested at best and it is not scheduled systems provider of the State”, while “e-payment and home delivery call for immense logistical coordination, supply chain management.”
Over and above these concerns, the Madras High Court ruling had been challenged as being disproportionate, “when considered against the fact that that the State had made elaborate bandobast arrangements for crowd control.”
TASMAC at last argued that as the High Court had passed its closure order on unsubstantiated media reports it had to be set aside.
