While striking down the IGST imposed on the import of Oxygen Concentrators for personal use as unconstitutional, the Delhi High Court bench of Justices Rajiv Shakdher and Talwant Singh had made a very special observation. It said: “This is a George Floyd moment for the citizens of this country.”
It is telling, because while the immediate reference is of Floyd’s last cries of “I can’t breathe,” even when the Judges said that it was in a “different context and setting” the fact that remained unsaid was a reference to police officer Derek Chauvin, who killed Floyd.
The inference cannot be overlooked. Somebody killed those patients.
The bench said yesterday: “The logical sequitur of this would be that persons who are similarly circumstanced as the petitioner, those who obtain imported oxygen concentrators as gifts, for personal use, cannot also be equated with those who import oxygen concentrators for commercial use.”
Gurcharan Singh, an 85-year-old, had received a gift of an oxygen concentrator from his nephew in the US. The government did not care that it was a life-saving equipment, and went ahead and imposed a 12 percent IGST. Not that Singh would not have been able to pay this, but as a principled man, probably yet to be acclimatised to government bullying, Singh approached the court.
The court appointed Senior Advocate Arvind Datar as Amicus Curiae in the matter. Datar researched the subject and told the court: “The right to life encompasses, within it, the right to health. The right to health includes, within it, the right to affordable treatment. The state has not only a duty, but a positive obligation, to ensure that the health of its citizens is duly protected.
“While there is no right in law to claim exemption from taxes, however, once the state invokes the provisions of Section 25 (power to grant exemption from duty) of the Customs Act, such delegated legislation can be judicially reviewed,” Mr Datar added.
The Counsel, appearing for the state, contended it made a case in law, without any reference to humanity. He said: “Several measures have been taken, which include exemption from customs duty and extension of concessions qua IGST in respect of specified goods imported into the country. The imposition of IGST on imported oxygen concentrators, which are gifted, and are for personal use, does not violate Article 21 of the Constitution. If this argument of the petitioner is accepted, it will lead to absurd consequences in as much as citizens will attempt to seek exemption from property tax, and food items since both housing and food items have been considered as a facet of the right to life as encapsulated in Article 21 of the Constitution.”
Of course, the bench was not impressed by such seemingly outlandish claims by the state lawyer. The bench said: “The Courts and the State have to adopt a humanistic approach, which, in our view, is a facet of Article 21 of the Constitution. The failure to do so both, by the Court and by the State, would lead to an unbridgeable chasm between law and justice, resulting in, disruption of social order.”
The bench, of course, added (as published already) a caveat that the user has to give an undertaking that it would be for personal use only. This is a small matter of a letter.
All that, leaves to the imagination this special comment about George Floyd. So, in this case, who is throttling the throats of the public in India? That public “can’t breathe” has been established.