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Jolt for FSSAI as Nagpur bodies move HC against “unconstitutional” FSSA
Monday, 09 April, 2012, 08 : 00 AM [IST]
Irum Khan, Mumbai
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 ar
 
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