Challenging the constitutional validity of the provision of the Food Safety & Standards Act, 2006 (FSSA 2006), Nagpur-based Vidarbha Taxpayers Association (VTA) and Nagpur Residential Hotels Association (NRHA) have filed a Public Interest Litigation (PIL) with the Nagpur bench of the Bombay High Court.
The PIL has been filed against the Food Safety and Standards Authority of India, (FSSAI), the union ministry of health and family welfare, ministry of law & justice, legislative department, and the Food and Drug Administration, Maharashtra.
Calling certain provision of the FSSA unconstitutional, the PIL also challenges the legality, validity and propriety of the Regulation No. 2.1.2 of the Food Safety & Standards (Licensing and Registration of Food Business) Regulations, 2011.
According to the petition filed by Tejinder Singh Renu, secretary, VTA and NHRA, the provision engrafted in the FSS Act appear to harm even innocent traders and others. It said that the law is passed without the traders, merchants, businessmen, etc., concerned in this field. “It is good to have such a law but at the same time it is very difficult to imagine that such a law can be implemented in a most haphazard manner or in a haste shutting eyes to the pragmatic practices and the practices of food business prevalent in India,” said the petition.
The PIL has accused the Authority of enforcing a law which is immensely vague. It is a settled democratic principle that, every wing of the government be it the executive, the legislature or the
judiciary has to separate grain from chaff in respect of issues before it. While drafting a law like the FSS Act, 2006, the target persons must be the one who are engrossed in food adulteration and
black-marketing. However, in catching hold of such persons, the FSS Act, 2006, sounds to be a good prospect but, it may cause more harm than good by implementing the penal, harsh and draconian provision even against the bona-fide food business operators due to its immense vagueness, the petitioners said.
Before the FSSR was enacted (Aug 5, 2011) the petitioners had sent suggestions to the FSSAI in framing regulations and specifying standards under the Act. They suggested that the FSSA, in spite of its niceties, was a glaring example of absurd provision vaguely worded. Further, it treated all food business operators at par without taking into account the prevalent practices in the country. “By and large, the FSSA would provide a fresh lease of life for Inspector Raj and this would increase the rate of corruption chaotically,” the petitioners said.
The FSSAI did not acknowledge the suggestions and comments sent to it for a long time. Till then on August 5, 2011, the FSSR had already been brought into force.
The petitioners then moved an application under the RTI Act, 2005, seeking information about the provision of the FSSR, 2011, etc. as also about the suggestions, objections, comments, and hearings etc., invited by it on the Act, Rules and Regulations. The FSSAI’s reply revealed that no hearing was ever called upon before preparation of the Rules & Regulations under the FSS Act, 2006. The PIL has called this as illegal and improper. It said that the framing and implementation of the FSS (Licensing & Registration of Food Businesses) Regulations, 2011, is per se contrary to the provision of Section 18(2)(d) and 18(2)(a)(i).
Section 18(2)(d) of the FSSA says that the Food Authority shall, while framing regulations or specifying standards under this Act, shall ensure that there is an open and transparent public consultation, directly or through representative bodies including all levels of panchayats, during the preparation, evaluation and revision of regulations, except where it is of opinion that there is an urgency concerning food safety or public health to make or amend the regulations in which case consultation may be dispensed with, provided that such regulations shall be in force for not more than six months. Further, Section 18(2)(a)(i) of the FSS Act, 2006, reads that the Food Authority shall, while framing regulations or specifying standards under this Act, take into account the prevalent practices and conditions in this country including agricultural practices and handling, storage and transport conditions.
The PIL said that the FSSAI has enforced the FSSR 2011 without ensuring that there is an open and transparent public consultation either directly or through representative bodies including all levels of panchayats.
The petitioners claimed to have made a representation wherein they suggested variegated changes in the drafts etc. of these regulations but the FSSAI neither acknowledged the same nor granted any opportunity of hearing to any person. “It is difficult to imagine that, in a country having a population of 1.2 billion and more not even one person wanted a consultation on these Regulations more particularly when the FSSA 2006 and the Regulations take within their sweep all the food business operators at all levels whatsoever,” read the PIL.
In its reply to the RTI filed by the petitioners, the FSSAI categorically admitted that no hearings on the objections were called for and no personal hearings have been conducted for any suggestions/comments. “In light of this statement of the FSSAI, the FSSR is unsustainable in law and need to be struck down forthwith,” the PIL said.
Further on Regulation No. 2.1.2 of the FSSR (Licensing & Registration of Food Businesses) it said that it was contrary to the principles of equality enshrined U/A. 14 of the Constitution of India. It may be noted that, wherever arbitrariness steps in Article 14 comes into picture.
Regulation 2.1.2 of the FSSR talks about obtaining a valid licence or registration for food business operations. The requirements of Schedule IV, as per the regulation, appear to be mandatory for every food business operator irrespective of whether a food business operator already carries on such a business or a new venture is proposed to be commenced by a person.
According to the PIL, it is nothing but arbitrary to treat the food business operators who are already carrying on their businesses and the food business operators intending to commence their businesses at par. There must be separate guidelines for them. Thus Regulation No. 2.1.2 is violative of Article 14 of the Constitution of India.
Further, the broad width and contours of the FSSA try to include food business operators at all levels be it a street food vendor or a seven-star rated hotel. In other words, the settled principle of law of equality that injustice arises when equals are treated unequally and when unequals are treated equally, is flagrantly violated by the provision of the FSSA and the FSSR. Thus, for not appreciating the rational intelligible differentia in framing and implementing the FSSA and the FSSR the PIL has asked that these regulations, more particularly Regulation No. 2.1.2, needed to be struck down as they were unconstitutional and violative of Article 14 of the Constitution.
For the same analogy and argument, Section 31 of the FSSA needed to be effaced from the Statute Book.
Further, the PIL said the entire quasi-judicial structure of authorities set up under the FSSA for implementing the provision of the Act was contrary to the test of impartiality. The theme and scheme of the FSSA revealed that a quasi-judicial institutional structure had been set up thereunder with powers to unilaterally decide the non-compliance with the provision of the Act.
“It is difficult to imagine that the authorities, entrusted with the function of discharging quasi-judicial functions prescribed under the Act, can act independently and with impartiality,” the petition said.
It is a fairly settled law all over the globe that an accused is presumed to be innocent till his guilt is proved. However, the authorities entrusted under the FSSA and the rules and regulations made thereunder were the limbs of the FSSAI and were bound to presume that a person accused of any delinquency under the Act was guilty and must establish his innocence.
Further, the PIL pointed out that certain provision of the Act were vague. For example, Section 50 of the FSSA 2006 read: “Penalty for selling food not of the nature or substance or quality demanded. Any person who sells to the purchaser’s prejudice any food which is not in compliance with the provisions of this Act or the regulations made thereunder, or of the nature or substance or quality demanded by the purchaser, shall be liable to a penalty not exceeding five lakh rupees. Provided that the persons covered under sub-section (2) of section 31, shall for such non-compliance be liable to a penalty not exceeding twenty five thousand rupees.”
The wordings of this Section are vague. According to the petitioners, the expression nature, substance and quality demanded by the purchaser is not capable of independent adjudication as considering the prevailing Indian practices it is difficult to imagine that there can be any proof of what purchaser demanded and what was sold to him.
Also, the purchaser is likely to take undue advantage of the expression underlined in Section 50. When the Act was meant to be fair by the food business operator it was also needed that consumers and purchasers be fair to them reciprocally. Hence, such provision, particularly the expression underlined in Section 50, needed to be struck down as arbitrary and unreasonable. This Section violated the right to carry on business, trade and occupation as enshrined U/A. 19(1)(g) of the Constitution of India.
The PIL has also pointed that certain provision of the FSSA and the rules and regulations give unfettered discretion to the Authorities. These should be scrapped for the simple reason that if the officers do not exercise their discretion in a sound and judicial manner the aggrieved person would be rendered remediless.
“It is erroneous to say that the Food Safety Appellate Tribunal set up under the Acts can give an independent decision to such a person,” said the PIL.
Notably, there is no provision under the FSSA earmarking the accountability of the commissioners and other officers appointed to ensure the execution of the provision of the Act.
Hence, this provides a space for sowing the roots of corruption. The FSSA, though not unsustainable in totality, needs to be reviewed and until the same is done by Parliament the implementation of its vague provision must be stayed during the pendency of the present petition else it would result in causing irreparable loss to the food business operators.
The PIL is listed for hearing on April 10.
The PIL has been filed against the Food Safety and Standards Authority of India, (FSSAI), the union ministry of health and family welfare, ministry of law & justice, legislative department, and the Food and Drug Administration, Maharashtra.
Calling certain provision of the FSSA unconstitutional, the PIL also challenges the legality, validity and propriety of the Regulation No. 2.1.2 of the Food Safety & Standards (Licensing and Registration of Food Business) Regulations, 2011.
According to the petition filed by Tejinder Singh Renu, secretary, VTA and NHRA, the provision engrafted in the FSS Act appear to harm even innocent traders and others. It said that the law is passed without the traders, merchants, businessmen, etc., concerned in this field. “It is good to have such a law but at the same time it is very difficult to imagine that such a law can be implemented in a most haphazard manner or in a haste shutting eyes to the pragmatic practices and the practices of food business prevalent in India,” said the petition.
The PIL has accused the Authority of enforcing a law which is immensely vague. It is a settled democratic principle that, every wing of the government be it the executive, the legislature or the
judiciary has to separate grain from chaff in respect of issues before it. While drafting a law like the FSS Act, 2006, the target persons must be the one who are engrossed in food adulteration and
black-marketing. However, in catching hold of such persons, the FSS Act, 2006, sounds to be a good prospect but, it may cause more harm than good by implementing the penal, harsh and draconian provision even against the bona-fide food business operators due to its immense vagueness, the petitioners said.
Before the FSSR was enacted (Aug 5, 2011) the petitioners had sent suggestions to the FSSAI in framing regulations and specifying standards under the Act. They suggested that the FSSA, in spite of its niceties, was a glaring example of absurd provision vaguely worded. Further, it treated all food business operators at par without taking into account the prevalent practices in the country. “By and large, the FSSA would provide a fresh lease of life for Inspector Raj and this would increase the rate of corruption chaotically,” the petitioners said.
The FSSAI did not acknowledge the suggestions and comments sent to it for a long time. Till then on August 5, 2011, the FSSR had already been brought into force.
The petitioners then moved an application under the RTI Act, 2005, seeking information about the provision of the FSSR, 2011, etc. as also about the suggestions, objections, comments, and hearings etc., invited by it on the Act, Rules and Regulations. The FSSAI’s reply revealed that no hearing was ever called upon before preparation of the Rules & Regulations under the FSS Act, 2006. The PIL has called this as illegal and improper. It said that the framing and implementation of the FSS (Licensing & Registration of Food Businesses) Regulations, 2011, is per se contrary to the provision of Section 18(2)(d) and 18(2)(a)(i).
Section 18(2)(d) of the FSSA says that the Food Authority shall, while framing regulations or specifying standards under this Act, shall ensure that there is an open and transparent public consultation, directly or through representative bodies including all levels of panchayats, during the preparation, evaluation and revision of regulations, except where it is of opinion that there is an urgency concerning food safety or public health to make or amend the regulations in which case consultation may be dispensed with, provided that such regulations shall be in force for not more than six months. Further, Section 18(2)(a)(i) of the FSS Act, 2006, reads that the Food Authority shall, while framing regulations or specifying standards under this Act, take into account the prevalent practices and conditions in this country including agricultural practices and handling, storage and transport conditions.
The PIL said that the FSSAI has enforced the FSSR 2011 without ensuring that there is an open and transparent public consultation either directly or through representative bodies including all levels of panchayats.
The petitioners claimed to have made a representation wherein they suggested variegated changes in the drafts etc. of these regulations but the FSSAI neither acknowledged the same nor granted any opportunity of hearing to any person. “It is difficult to imagine that, in a country having a population of 1.2 billion and more not even one person wanted a consultation on these Regulations more particularly when the FSSA 2006 and the Regulations take within their sweep all the food business operators at all levels whatsoever,” read the PIL.
In its reply to the RTI filed by the petitioners, the FSSAI categorically admitted that no hearings on the objections were called for and no personal hearings have been conducted for any suggestions/comments. “In light of this statement of the FSSAI, the FSSR is unsustainable in law and need to be struck down forthwith,” the PIL said.
Further on Regulation No. 2.1.2 of the FSSR (Licensing & Registration of Food Businesses) it said that it was contrary to the principles of equality enshrined U/A. 14 of the Constitution of India. It may be noted that, wherever arbitrariness steps in Article 14 comes into picture.
Regulation 2.1.2 of the FSSR talks about obtaining a valid licence or registration for food business operations. The requirements of Schedule IV, as per the regulation, appear to be mandatory for every food business operator irrespective of whether a food business operator already carries on such a business or a new venture is proposed to be commenced by a person.
According to the PIL, it is nothing but arbitrary to treat the food business operators who are already carrying on their businesses and the food business operators intending to commence their businesses at par. There must be separate guidelines for them. Thus Regulation No. 2.1.2 is violative of Article 14 of the Constitution of India.
Further, the broad width and contours of the FSSA try to include food business operators at all levels be it a street food vendor or a seven-star rated hotel. In other words, the settled principle of law of equality that injustice arises when equals are treated unequally and when unequals are treated equally, is flagrantly violated by the provision of the FSSA and the FSSR. Thus, for not appreciating the rational intelligible differentia in framing and implementing the FSSA and the FSSR the PIL has asked that these regulations, more particularly Regulation No. 2.1.2, needed to be struck down as they were unconstitutional and violative of Article 14 of the Constitution.
For the same analogy and argument, Section 31 of the FSSA needed to be effaced from the Statute Book.
Further, the PIL said the entire quasi-judicial structure of authorities set up under the FSSA for implementing the provision of the Act was contrary to the test of impartiality. The theme and scheme of the FSSA revealed that a quasi-judicial institutional structure had been set up thereunder with powers to unilaterally decide the non-compliance with the provision of the Act.
“It is difficult to imagine that the authorities, entrusted with the function of discharging quasi-judicial functions prescribed under the Act, can act independently and with impartiality,” the petition said.
It is a fairly settled law all over the globe that an accused is presumed to be innocent till his guilt is proved. However, the authorities entrusted under the FSSA and the rules and regulations made thereunder were the limbs of the FSSAI and were bound to presume that a person accused of any delinquency under the Act was guilty and must establish his innocence.
Further, the PIL pointed out that certain provision of the Act were vague. For example, Section 50 of the FSSA 2006 read: “Penalty for selling food not of the nature or substance or quality demanded. Any person who sells to the purchaser’s prejudice any food which is not in compliance with the provisions of this Act or the regulations made thereunder, or of the nature or substance or quality demanded by the purchaser, shall be liable to a penalty not exceeding five lakh rupees. Provided that the persons covered under sub-section (2) of section 31, shall for such non-compliance be liable to a penalty not exceeding twenty five thousand rupees.”
The wordings of this Section are vague. According to the petitioners, the expression nature, substance and quality demanded by the purchaser is not capable of independent adjudication as considering the prevailing Indian practices it is difficult to imagine that there can be any proof of what purchaser demanded and what was sold to him.
Also, the purchaser is likely to take undue advantage of the expression underlined in Section 50. When the Act was meant to be fair by the food business operator it was also needed that consumers and purchasers be fair to them reciprocally. Hence, such provision, particularly the expression underlined in Section 50, needed to be struck down as arbitrary and unreasonable. This Section violated the right to carry on business, trade and occupation as enshrined U/A. 19(1)(g) of the Constitution of India.
The PIL has also pointed that certain provision of the FSSA and the rules and regulations give unfettered discretion to the Authorities. These should be scrapped for the simple reason that if the officers do not exercise their discretion in a sound and judicial manner the aggrieved person would be rendered remediless.
“It is erroneous to say that the Food Safety Appellate Tribunal set up under the Acts can give an independent decision to such a person,” said the PIL.
Notably, there is no provision under the FSSA earmarking the accountability of the commissioners and other officers appointed to ensure the execution of the provision of the Act.
Hence, this provides a space for sowing the roots of corruption. The FSSA, though not unsustainable in totality, needs to be reviewed and until the same is done by Parliament the implementation of its vague provision must be stayed during the pendency of the present petition else it would result in causing irreparable loss to the food business operators.
The PIL is listed for hearing on April 10.
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