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  • Writer's pictureMandavi Banerjee

Writ Petition to Delhi HC seeking to classify masks and sanitizers as "Essential Commodities".

News Article covered by Mandavi Banerjee.

Gaurav Yadav, a social activist and Advocate Aarti Singh challenged the order of Central Government "excluding Mask and sanitiser from essential commodities", and levy of 18% GST on sanitizer through Advocate Amit Kumar Sharma, Advocate Satyam Singh Rajput and Advocate Rohit Arora in Delhi High Court. The petitioner prefers this Writ Petition under Art.226 of the Constitution of India seeking a writ of Mandamus or any other appropriate writ, Order, Directions from this Hon’ble Court seeking the direction to the Respondent to classify masks and sanitizers as Essential Commodities and regulate their prices. Also, the Petitioners are seeking a direction from this Hon’ble Court to Respondent to reduce the GST rate of 18% on alcohol-based sanitizers to 5% or 12%.

The backdrop of such a petition needs to be highlighted to full substantiate this petition. In the light of the recent events, we can see that there has been the outbreak of the Novel Covid-19. Advisories from health care professionals and institutions around the world issued to citizens at large to continually disinfect their hands with sanitizers and soaps and cover their face with a mask as a measure to stop the spread of the said disease. Due to the ever-increasing number of cases and the deaths caused by the said infectious diseases declared it to be a ‘Pandemic’ and Covid-19 firstly as “public health emergency of international concern”. More so as of 30th July 2020, there has been a continuous surge in the number of cases of people getting infected with the Novel Covid-19 in India. In India, there have been 5,45,318 active cases and 35,747 deaths. Further, the number of daily active cases and deaths as per the Arogya Setu Application continue to rise. That is such a situation, wearing masks and using hand sanitizers have become utmost important for the general public to protect themselves from contacting the Covid-19 virus.

Following this, the Press released: “It is stated that hand sanitizers attract GST at the rate of 18%. Sanitizers are disinfectants like soaps, anti-bacterial liquids, Dettol etc which all attract duty standard rate of 18% under the GST regime. The GST rates on various items are decided by the GST Council where the Central Government and all the state governments together deliberate and take decisions. It is further clarified that inputs for the manufacture of hand sanitizers are chemicals packing material, input services, which also attract a GST rate of 18%. Reducing the GST rate on sanitizers and other similar items would lead to an inverted duty structure and put the domestic manufacturers at disadvantage vis-à-vis importers. Lower GST rates help imports by making them cheaper. This is against the nation’s policy on Atmanirbhar Bharat. Consumers would also eventually not benefit from the lower GST rate if domestic manufacturing suffers on account of inverted duty structure.”

A key issue of this matter is that wearing masks has become mandatory nowadays. That in order to bring back the life in a normal situation, the companies, offices, workplace set has started opening up for work. Therefore, the workers, employees, labourers etc. have to step out of their house for work and have to follow the safety rules devised by the state authorities including wearing masks and the using hand sanitizers in factories, workplaces and office set. And ‘The Delhi Epidemic Diseases, (ManagementofCOVID-19) Regulations, 2020’ further notified that the act of non-wearing a mask in public/workplaces as an offence attracting fine and action under section188 of the Indian Penal Code, 1860.

Not just to make it pocket friendly for all the citizens of India but also that by keeping the masks and sanitizers out from the classification of ‘Essential Commodity’ under Essential Commodities Act, 1955 would increase the chances of malpractice evil and black marketing, price hiking, hoarding etc. of the said products thereby exposing every stratum of the society ranging from the economically challenged citizens who due to lockdown and other restrictive steps were not able to earn their livelihood and the citizens who have started going out for work and masks and sanitizers are the primary protective gears to protect themselves from contacting the deadly novel COVID- 19 virus.

To briefly mention the grounds for such a petition which will be states as follows:

The most important grounds is that it violates Article 21 whereby the prices of masks and sanitizers were fixed, violates the inviolable fundamental right to life of the general public particularly the people belonging to the lower-income strata that is contained in Article 21 of the Constitution of India in as much as it gives leeway to the manufacturers/traders/retailers to start the malpractice of hoarding, black marketing etc. thereby causing harm to the general public. Then referring to the case of Vincent Panikurlangara vs. Union of India,(AIR 1987 SC 990) it has been said that

“As pointed out by us, maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community…”

Further reliance is placed on the judgment in the case, Hon’ble Supreme Court in the case, Consumer Education& Research Vs Union of India,(1995SCC (3) 42), wherein the Hon’ble Supreme Court held as follows:

“Therefore, we hold that right to health, medical aid to protect the health and vigour to a worker while in service or post-retirement is a fundamental right under Article21, read with Articles 39(e),41, 43,48A and all related Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of the person”.

The Respondent grossly failed to understand the purpose of the Essential Commodities Act,1955. Referring to Section 2 and 3 of Essential Commodities Act that the purpose for classifying them asks and sanitizers as ‘Essential Commodities’ was far more than maintaining the supply of the said products and included the act of regulating the quality, distribution, logistics etc. The foremost purpose of the Essential Commodity Act,1955istoprovide benefit to consumers and not the trade and industry. To consolidate that it has been stated in the case, Prag Ice &Oil Mills &Anr. Etc v.Union of India,(1978AIR1296) while dealing the issue of the validity of Mustard Oil (Price Control)Order,1977 issued under the Essential Commodities Act,1955, held as follows:

“The dominant purpose of these provisions is to ensure the availability of essential commodities to the consumers at a fair price. And though patent injustice to the producer is not to be encouraged, a reasonable return on investment or a reasonable rate of profit is not the sine qua non of the validity of the action taken in furtherance of the powers conferred by S.3(1) and S.3(2)(c) of the Essential Commodities Act. The interest of the consumer has to be kept at the forefront and the prime consideration that an essential commodity ought to be made available to the common man at a fair price must rank in priority over every other consideration."

In the said petition advocate Amit Kumar Sharma prayed for the following reliefs from the Hon'ble High Court: a. An appropriate writ in the nature of Mandamus or any other appropriate Writ, Order, directions of like nature directing the Respondent to extend the Notifications dated 12/03/2020 and 21/03/2020 thereby classifying masks and sanitizers as ‘Essential Commodity’ under the Essential Commodity Act, 1955 and fixing the retail prices of the said products. b. An appropriate writ in the nature of Mandamus or any other appropriate Writ, Order, directions of like nature directing Respondent No. 2 and 3 to reduce the GST rate of 18% on alcohol-based sanitizers to either 5% or 12%. The matter is listed on 11th August 2020. For further information on this matter, the prescribed petition has been attached.

Writ Petition to Delhi HC for the case o
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