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Liquor Alcohol
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State cannot hide behind cloak of policy when its action can kill in droves: Madras HC stands by Liquor Shop closure order amid COVID-19

Inter alia, the Madurai Bench of the High Court observed, "When a myopic State policy stands pitted against public health, the natural choice should be to protect the latter at the cost of the former."

Meera Emmanuel

The Madurai Bench of the Madras High Court on Monday expressed its complete agreement with the order passed last Friday by the Principal Bench to close all TASMAC/liquor shops in Tamil Nadu amid the COVID-19 Lockdown.

Today, the Supreme Court is due to hear a plea filed challenging this closure order.

On Monday, a Bench of Justices PN Prakash and BN Pugalendhi emphasised,

"The right of the State to carry on liquor sales via TASMAC shops is not an absolute one, but only, a qualified one under Article 19(1)(g) of the Constitution of India and when that right seeks to trample the right to life guaranteed by Article 21 of the Constitution of India, the former has to give way and remain subservient to the latter."
Madras High Court

It added that the judiciary cannot "afford to sleep like Kumbhakarna" when the executive pursues a policy that is likely to destroy the right to life. Opining that it is certain that there would be a cascading effect qua the spread of COVID-19 as a fallout of the TASMAC shops on May 7, the Bench proceeded to remark,

"The State cannot be permitted to hide behind the cloak of policy decision when its action is likely to kill people in droves. At this critical juncture, if the judiciary fails to come to the rescue of the people and protect their cherished right to life guaranteed by Article 21 of the Constitution of India, history will not forgive this Court."
Madras High Court

"A tippler may claim to have a right of self destruction, but, in that process, he cannot destroy others. It is like a person committing self immolation hugging his neighbour", the Court said, further adding that, "When a myopic State policy stands pitted against public health, the natural choice should be to protect the latter at the cost of the former.

The Court also noted that there was a fallacy in the arguments made by the Government that it will lose out on revenue needed to combat the pandemic. The judges noted that majority of the citizens are daily wage earners who may have been brought to utter penury amid the COVID-19 lockdown. A large proportion of TASMAC shop patrons also come from this category, the Court pointed out. As such, the Bench said,

"The simple question we ask ourselves is from where did these poor people get money to purchase liquor. It is obvious that the little money which they would have otherwise used for purchasing food for themselves and their family members, has gone into the coffers of the TASMAC shops. Had the Government permitted the resumption of small business activities and thereafter opened the TASMAC shops, none could have had any grudge."

Adding to the possible negative consequences of alcohol consumption amid the lockdown, the Court also highlighted various press reports concerning alcohol-induced violence and death.

In this backdrop, the Court also declined to accept the stance that these matters lay in the policy realm and that as such, the Court has limited powers of judicial review. The order states,

"Be it noted that policy decision of the Government is not completely immune from judicial review, especially where it seeks to brazenly violate the fundamental right of the citizens guaranteed by Article 21 of the Constitution of India...When a State policy threatens to cause a likely extinction of its citizens, judicial review of it by the Constitutional Court is not tantamount to judicial overreach."

As such, the Court proceeded to conclude that, "we are in complete agreement with the order dated 08.05.2020 passed by the Division Bench at the Principal Seat and we also issue directions to close down the TASMAC shops in the same lines."

Read the order:

Madurai Bench order re closure of TASMAC.pdf
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