ADivision Bench of the Madras High Court comprising Justices PN Prakash and Pugalendhi have joined the select band of frontline COVID-19 warriors like “doctors, nurses, paramedicals, judiciary, police et al” and ordered closure of all government-owned Tamil Nadu State Marketing Corporation liquor retail shops.

The right of the State to carry on liquor sales is not an absolute one but only a qualified one under Article 19(1)(g) of the Constitution, the learned judges observed and ruled “when that right seeks to trample the right to life guaranteed by Article 21 of the Constitution, the former has to give way and remain subservient to the latter.

In a republican democracy like ours, when the executive wing wants to pursue a policy that is likely to destroy the right to life, the judicial wing cannot afford to sleep like Kumbhakarna. 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, history will not forgive this court,” the Bench observed.

The judicial overreach would have the effect of stultifying a major commercial activity of the State. The Madras High Court order was passed on the very day, 8 May, when the Supreme Court dismissed a call to close liquor shops across the country and clarified that a decision on sale of liquor would be left entirely left to the discretion of States.

On Friday 15 May, a Supreme Court Bench of Justices L Nageswara Rao, SK Kaul and BR Gavai froze the proceedings before the Madras High Court and said it was a case of judiciary encroaching into State policy. Stating it was the decision of the State how and what to sell, the Bench asked: “Why should the High Court get into it? Why should a person need an Aadhaar card to buy liquor?”

The Supreme Court order was in line with a directive issued by the Union Ministry of Home Affairs on 1 May permitting the sale of liquor in States, subject to physical distancing. Sale of liquor presents a vital source of revenue along with VAT or Sales Tax.

The States need funds to remain functional and to discharge their duties, even those regarding Covid-19. The Disaster Management Act, 2005, under which the nationwide lockdown was imposed on 24 March, cannot totally disrupt the States’ plenary jurisdiction as a federal partner and select the goods that are to be prohibited irrespective of linkage to pandemic management.

The Union government’s ban on sale of liquor under the Disaster Management Act is questionable. The objective of the Act is to deal with disasters, their impact and all steps necessary to alleviate, remedy and rehabilitate. Encroaching on State’s powers, as the Union Home Ministry has done in the instant case, is not part of its objective.