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 even
consulting 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
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 even
consulting 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.
Source:http://www.fnbnews.com
1 comment:
nice blog !! i was looking for blogs related of fssai consultant . then i found this blog, this is really nice and interested to read.
Post a Comment