‘Will open up a Pandora’s box’: Centre opposes court’s role in air purifier GST cut

New Delhi: The Centre on Friday firmly opposed judicial intervention by the Delhi High Court in a public interest litigation seeking a reduction in the goods and services tax on air purifiers from 18 per cent to five per cent, arguing that any such direction would amount to the court entering the legislative sphere and breach the Constitution’s doctrine of separation of powers.

Appearing for the Union government, Additional Solicitor General N Venkataraman told a bench of Justices Vikas Mahajan and Vinod Kumar that the petition, which seeks to classify air purifiers as medical devices to attract a lower GST rate, was “loaded” and raised serious constitutional concerns. He said the GST regime is governed by a detailed legislative process involving parliamentary standing committees and deliberations by the GST Council, a constitutional body comprising the Union finance minister and finance ministers of all states and union territories. Any attempt to bypass this mechanism through court directions would, he warned, “open up a Pandora’s box”.

The bench was hearing the matter following an earlier order on December 24, when the court had asked the Centre to indicate when the GST Council could meet to consider the issue, and had also suggested the possibility of a virtual meeting given the hazardous air pollution levels in Delhi and surrounding regions. On Friday, however, the ASG clarified that virtual meetings were not permitted under Regulations 14 and 15 of the GST Council’s Procedure and Conduct of Business Regulations. These rules, he said, require physical presence of members and secret ballot voting for proposals.

Venkataraman submitted that the government had held an urgent meeting at the highest level, including the finance minister, a day earlier, but had reservations about the petition. He questioned the bona fides of the PIL, stating that the health ministry was not even a party despite a prayer seeking classification of air purifiers as medical devices. “Somebody wants a monopoly in air purifiers, we don’t know,” he said, adding that the Centre was “scared from the constitutional perspective”.

The court, however, indicated that its concern stemmed from the severe pollution situation. Justice Mahajan observed that air purifiers currently cost between Rs 10,000 to Rs 12,000 at the lower end and go up to Rs 60,000, making them unaffordable for many. “Having regard to the situation in Delhi and surrounding areas, why the GST should not be reduced from 18 per cent to five per cent,” the bench asked, adding that the objective was to find a way to make the devices accessible to the common man. Responding, the ASG noted that the GST Council is a federal body and not a unilateral levy applicable only to Delhi. He said each state finance minister perceived the issue differently and that no commitment could be given on when or whether the Council would take up the matter. He suggested that the petition could be treated as a representation to the Council through its secretariat, rather than being contested in court.

The PIL has been filed by practising advocate Kapil Madan, who is appearing as a party-in-person. Madan has argued that air purifiers should not be treated as luxury items in what he described as an “extreme emergency crisis” caused by deteriorating air quality. He relied on a February 11, 2020 notification issued by the Ministry of Health and Family Welfare under the Drugs and Cosmetics Act, contending that air purifiers fall within the definition of medical devices and therefore should attract only five per cent GST, similar to other medical equipment.

During the hearing, Madan read out portions of the notification, referring to entries relating to breathing devices and Schedule I medical devices. He maintained that air purifiers were being taxed under the wrong slab. The bench, however, said it could not reach such a conclusion without examining the Centre’s response and noted that the issue required detailed deliberation.

The ASG also referred to a report tabled by the parliamentary standing committee on science and technology, which recently recommended a reduction or abolition of GST on air purifiers and HEPA filters. He said the report had been forwarded to the environment ministry, which would seek an action taken report from the Department of Revenue, underscoring that a statutory process was already underway.

Accepting the Centre’s submissions on procedure, the court granted 10 days for the government to file a counter affidavit and allowed the petitioner to file a rejoinder thereafter. The matter has been listed for further hearing on January 9, when the court is expected to consider the responses and decide the next course of action.