SC stays HC order for online sale and home delivery of liquor in Tamil Nadu

In a relief to Tamil Nadu government, the Supreme Court on Friday stayed the Madras HC order of May 8 that directed for only online sale and home delivery of liquor due to overcrowding at liquor outlets.

A bench of Justices L Nageswara Rao, Sanjay Kishan Kaul and B R Gavai passed the order after hearing arguments by senior advocate Mukul Rohatgi and Additional Advocate General Balaji Srinivasan on behalf of the state.

Rohatgi, for Tamil Nadu, pointed out that the state has already issued guidelines and imposed restrictions to maintain social distancing.

But the HC imposed its own restrictions. It could not have entered into the domain of policy, he said.

"We would be able to sell two bottles online, otherwise we can sell more. It is the states' prerogative to decide how to sell. We have to decide whether we should do it online or not," he said.

The counsel also said there may be issues of adulteration.

"Further, why should a person need an Aadhaar Card to buy liquor. Why digital payment? It's impossible to implement the order," he submitted.

The bench said, "we can only say that it is for the government to consider online delivery."

"But how can we do it online? We do not have such a service. How can we trust somebody to carry liquor? There will be riots, someone can adulterate the liquor. Tamil Nadu is a large state, it is not like Delhi," he submitted.

Advocate P V Yogeswaran, for some of the petitioners before the HC, contended that selling liquor is not a fundamental right. It is a commercial activity, he said.

After hearing the counsel, the court, however, stayed the order and decided to consider the matter on a future date.

The state-owned Tamil Nadu State Marketing Corporation (TASMAC) had on Saturday approached the court challenging the HC's order.

In its petition, the state government contended the net effect of the order would be complete and indefinite standstill of liquor sale resulting in grave losses to the state's revenue and commercial activity since all liquor retail was owned and operated by the TASMAC.

Background

The Union government's Ministry of Home Affairs had on May 1 issued guidelines allowing sale of spirits subject to restrictions including social distancing.

Maintaining that the HC's interim order was "factually untenable and legally unsustainable", the state government said the sale of liquor was a policy matter, falling within its domain.

The petition drafted by Additional Advocate General Balaji Srinivasan further said that the HC bypassed and misinterpreted the top court's order of May 8, 2020 by which a three-bench had declined to direct states to close down liquor stores pending the lockdown and left it to each state’s discretion to consider non-direct sale including online sale and home delivery of liquor.

Asking the apex court to set aside the HC's order, the petitioner said since the Tamil Nadu Liquor (License and Permit) Rules, 1981 do not provide for online sales, the state has to amend the provision of the Tamil Nadu Liquor Retail Vending (In shops and Bars) Rules, 2003.

"It is submitted that the High Court cannot compel the state to amend the provisions of the said Rules," it said.

It termed the HC's order as disproportionate saying the state had made elaborate arrangements for crowd control.

"Wherever there was overcrowding, prompt action was taken by the police and the TASMAC has also stopped sales at 12 such shops. The overcrowding that takes place at certain shops is something that all states have faced when re-opening their liquor stores after 41 days of lockdown," it said.

The state government also pointed out that the HC passed the order ignoring the fact that e-payment and home delivery called for immense logistical coordination, supply chain management and manpower, which made it all the more difficult in the present COVID-19 situation.

"The extent of judicial overreach in the present case will have the effect of stultifying a major commercial activity," it said.

It also pointed out there was no other state, where liquor was being sold exclusively through online means, with the exception of perhaps Maharashtra where the COVID-19 figures are three to four times that of Tamil Nadu.