Emergency and Essential Services and the Indian Law

Emergency and Essential services often are in news due to the absence of public sensitisation in assisting the state in its free flow. The article examines Indian and International Law in this regard.

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A. The Essential Services

(a) The Essential Services: The Essential Services Maintenance Act, 1968 is an Act to provide for the maintenance of certain essential services and the normal life of the community. Essential service as per the aforesaid Act in Section 2(1) (a) means-

  1. Any postal, telegraph or telephone service;
  2. Any railway service or any other transport service for the carriage of passengers or goods by land, water or air with respect to which Parliament has the power to make laws;
  3. Any service connected with the operation or maintenance of aerodromes, or with the operation, repair or maintenance of aircraft;
  4. Any service connected with the loading, unloading, movement or storage of goods in any port;
  5. Any service connected with the clearance of goods or passengers through the customs or with the prevention of smuggling;
  6. Any service in any mint or security press;
  7. Any service in any defense establishment of the Government of India;
  8. Any service in connection with the affairs of the Union, not being a service specified in any of the foregoing sub- clauses;
  9. Any other service connected with matters with respect to which Parliament has the power to make laws and which the Central Government being of opinion that strikes therein would prejudicially affect the maintenance of any public utility service.
  10. The public safety or the maintenance of supplies and services necessary for the life of the community or would result in the infliction of grave hardship on the community, may, by notification in the Official Gazette, declare to be an essential service for the purposes of this Act.

(b) “Strike” as defined under the Section 2 (b) aforesaid Act means the cessation of work by a body of persons employed in any essential service acting in combination or a concerted refusal or a refusal under a common understanding of any number of persons who are or have been so employed to continue to work or to accept employment, and includes-

  • refusal to work overtime where such work is necessary for the maintenance of any essential service;
  • any other conduct which is likely to, result in, or results in, cessation or substantial retardation of work in any essential service.

(c) Power to prohibit strikes in certain employments: If the Central Government is satisfied that in the public interest it is necessary or expedient so to do, it may, by general or special Order, prohibit’ strikes in any essential service specified in the Order. An Order so made shall be published in such manner as the Central Government considers best calculated to bring it to, the notice of the persons affected by the Order. An Order made shall be in force for six months only, but the Central Government may, by a like Order, extend it for any period not exceeding six months if it is satisfied that in the public interest it is necessary or expedient so to do. Upon the issue of an Order:

  • no person employed in any essential service to which the Order relates shall go or remain on strike;
  • any strike declared or commenced, whether before or after the issue of the Order, by persons employed in any such service shall be illegal.

(d) Section 4: Penalty for illegal strikes. Any person who commences a strike which is illegal under this Act or goes or remains on, or otherwise takes part in, any such strike shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two hundred rupees, or with both.

(e) Section 5: Penalty for instigation, etc. Any person who instigates, or incites other persons to take part in, or otherwise acts in furtherance of, a strike which is illegal under this Act shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

(f) Section 6: Penalty for giving financial aid to illegal strikes. Any person who knowingly expends or supplies any money in furtherance or support of a strike which is illegal under this Act shall be punishable with imprisonment for a term which may extend to one- year, or with fine which may extend to one thousand rupees, or with both.

(g)  Section 7: Power to arrest without warrant. Notwithstanding anything contained in the Code of Criminal Procedure, 1898, any police officer may arrest without warrant any person who is reasonably suspected of having committed any offense under this Act. This Act to override other laws. The provisions of this Act and of any Order issued thereunder shall have effect notwithstanding anything inconsistent there with. contained in the Industrial Disputes Act, 1947, or in any other law for the time being in force.

B. Medical and Fire Services

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The emergency vehicles include- Police, Fire, Civil and Medical Emergencies.

(a) Penalty invoked for Obstructing Emergency Vehicle in USA: Generally to understand the protection given to emergency vehicle in US, the 2005 Connecticut Code for instance says “Emergency vehicle“, means any ambulance or emergency medical service organization vehicle responding to an emergency call, any vehicle used by a fire department or by any officer of a fire department while on the way to a fire or while responding to an emergency call but not while returning from a fire or emergency call, any state or local police vehicle operated by a police officer or inspector of the Department of Motor Vehicles answering an emergency call or in the pursuit of fleeing law violators or any Department of Correction vehicle operated by a Department of Correction officer while in the course of such officer’s employment and while responding to an emergency call. Any person who wilfully or negligently obstructs or retards any ambulance or emergency medical service organization vehicle while answering any emergency call or taking a patient to a hospital, or any vehicle used by a fire department or any officer or member of a fire department while on the way to a fire, or while responding to an emergency call, or any vehicle used by the state police or any local police department, or any officer of the Division of State Police within the Department of Public Safety or any local police department while on the way to an emergency call or in the pursuit of fleeing law violators, shall be fined not more than two hundred dollars or imprisoned not more than seven days or both.

In the United States it is commonly taught and practiced that when you see an emergency vehicle coming from behind you with its lights and/or siren going, you slow down and pull off to the right-hand side of the road to allow the emergency vehicle to pass on the left.

(b) Penalty invoked for Obstructing Emergency Vehicle in UK: The Emergency Workers (Obstruction) Act, 2006 contains two new offenses the act makes it an offense to obstruct or hinder certain emergency workers who are responding to emergency circumstances. Emergency workers are defined as firefighters, ambulance workers and those transporting blood, organs or equipment on behalf of the NHS, coastguards and lifeboat crews. This also covers prison officers by virtue of the Prisons Act 1952, which says that prison officers, whilst acting as such, enjoy the same protections and privileges as a constable. A person guilty of an offense under this Act is liable on summary conviction to a fine not exceeding level 5 on the standard scale (£5000). The offence applies in England and Wales. The Act extends to Northern Ireland in respect of ambulance crews, those transporting blood organs and equipment, coastguards and lifeboat crews.

(c) Penalty invoked for Obstructing Emergency Vehicle in Australia: Citing the law under Queens land Government which states that if an emergency vehicle is coming towards you and is sounding an alarm or showing flashing red or blue lights, you must move out its path as soon as you can do so safely. You should:

  • slow down
  • move left to give the vehicle a clear run down the middle of the road. If you can’t move left safely, stay where you are and let the emergency vehicle overtake you
  • not move your vehicle suddenly
  • not drive into the path of the emergency vehicle.

The law allows you to drive onto the wrong side of the road or drive through a red traffic light to get out of the way of an emergency vehicle if it is safe to do so.

Description of offence Legislation Points Fine
Moving into path of emergency vehicle displaying flashing blue or red lights or sounding an alarm Queensland Road Rules—Section 78(1) 3 $284
Failing to move out of path of emergency vehicle displaying flashing blue or red lights or sounding an alarm Queensland Road Rules—Section 78(2) 3 $284

(d) Penalty invoked for Obstructing Emergency Vehicle in India

SO439 (E,) dated 12TH June 1989- Section 118 of the Motors Vehicles Act, 1988 (59 of 1988), says in point 10 that every driver shall on the approach of a fire service vehicle or of an ambulance allow it free passage by drawing to the side of the road. Penalty- Motorists obstructing the way of emergency vehicles will be fined Rs 2,000 apart from facing legal action, according to the Delhi Traffic Police. Also, the extreme right lane, on roads having three or more lanes, will be used by emergency vehicles while they are attending to a call.

C. Right of Way

A right-of-way (ROW) is a right to make a way over a piece of land, usually to and from another piece of land. A right of way is a type of easement granted or reserved over the land for transportation purposes, this can be a highway, public footpath, rail transport, canal, as well as electrical transmission lines, oil and gas pipelines. Emergency services have an important right of a way how far they are granted under Indian law is a matter of study.

Conclusion

Examining the emergency services In India, the laws governing them are split under separate heads and moreover, the penalty for obstructing their movement is quite meager with no stringent penal consequences. Another important deliberation required is whether traffic congestion with bumper to bumper movement can help emergency services with such movement granted under law thus far to match the commitments to such services internationally which includes right of way.


AUTHORS

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unnamedThe author of the article is Team Indian Law Watch along with its Legal Researcher for this article- Intern Avantika Bhattacharya, Amity Law College, B.A. LLB (Hons.) Arts (2016-2021).  

Notice for the12th Qualifying Examination for Indian Nationals Holding Foreign Law Degrees

Legal System Update:
NOTICE FOR THE 12TH QUALIFYING EXAMINATION FOR INDIAN NATIONALS HOLDING FOREIGN LAW DEGREES

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Date of Notification: 25/05/2017

The 12th qualifying examination for Indian nationals/citizens holding foreign law degrees is scheduled to be held from 26th June 2017 to 1st July 2017 at the premises of the Bar Council of India at 21, Rouse Avenue Institutional Area, New Delhi

It shall comprise 6 papers of 100 marks, containing subjective questions spread over three parts viz. A, B, and C

Part A will have six questions in which there will be an option to answer any five questions out of the six questions. Each question shall carry 5 marks for the correct answer. Thus Part A shall be of (5X5 marks); 25 marks in all.

Part B shall carry four questions, with an option to answer any three questions. Each question shall carry 15 marks for the correct answer. Thus Part B shall be of (15X3 marks); 45 marks in all.

Part C shall have two questions out of which any one question is required to be answered. Each question shall carry 30 marks for the correct answer. Thus Part C shall be of (1X30 marks).

The examination shall be held from 11.00 AM to 2.00 PM daily between 26/6/2017 to 01/07/2017.

The syllabus and schedule of papers is as follows:

DATES EXAM
26/6/ 2017 Constitution of India
27/6/ 2017 Contract Law & Negotiable Instruments Act
28/6/ 2017 Company Law
29/6/ 2017 Civil Procedure Code and Limitation Act
30/6/2017 Criminal Procedure Code
01/7/2017 Indian Legal Profession and Code of Ethics

Please Note: The hall/admit cards for the candidates giving the qualifying exam will be issued in due course with further relevant information.


Information Curtsey: Bar Council of India

Please Note: For any further information and confirmation of this notification only with the Bar Council of India Website. The information in this regard on Bar Council of India website will be treated as final. 

Legal News Update from Ministries 2017

Legal updates from various Ministries of India.

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A. CABINET DECISIONS

1A. Cabinet approves Protocol amending the  Convention between India and Portugal for the avoidance of double taxation (April 19, 2017) The Union Cabinet chaired by Prime Minister of India has approved the signing of the Protocol for amending the Convention between India and Portugal for the avoidance of double taxation. The Protocol will also ensure prevention of fiscal evasion with respect to taxes on income.  It further said that once the protocol enters into force, both India and Portugal would be able to exchange tax-related information, which will help tax authorities of both countries to curb tax evasion.  This Convention was in force since April 30, 2000. The Convention was applying to following categories mentioned below. This Convention shall apply to taxes on income imposed on behalf of a Contracting State or of its political or administrative sub-divisions or local authorities, irrespective of the manner in which they are levied.

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This Convention was in force since April 30, 2000. The Convention was applying to following categories mentioned below. This Convention shall apply to taxes on income imposed on behalf of a Contracting State or of its political or administrative sub-divisions or local authorities, irrespective of the manner in which they are levied.

(a) This Convention shall apply to taxes on income imposed on behalf of a Contracting State or of its political or administrative subdivisions or local authorities, irrespective of the manner in which they are levied.

(b) There shall be regarded as taxes on income all taxes imposed on total income or on elements of income, including taxes on gains from the alienation of movable or immovable property and taxes on the amounts of wages or salaries paid by enterprises.

(c) The existing taxes to which this Convention shall apply are in particular:

In the case of Portuguese Republic:

S.NO CATEGORIES
(i ) Personal income-tax
(ii ) Corporate Income-tax ;
(iii ) Local surtax on corporate income-tax;

In the case of Republic of India, income tax including any surcharge thereon.

The Convention shall apply also to any identical or substantially similar taxes which are imposed after the date of signature of the Convention in addition to, or in place of, the existing taxes.

1B. An Agreement on Social Security (SSA) between India and Portugal was already signed on 4th March 2013 in New Delhi. On February 7,  2017, Portugal on completion of the relevant constitutional and legal formalities conveyed to the Indian side that it is ready to bring the SSA into force. Accordingly, the SSA between India and Portugal would come into force on 8th May 2017.

The SSA with Portugal will provide the following benefits to Indian nationals working in Portugal:

  • For short term contract, up to 5 years, no social security contribution would need to be paid under the Portuguese law by the detached workers provided they continue to make social security payments in India. The above benefits shall be available even when the Indian company sends its employees to the Republic of Portugal from a third country.
  • Indian workers shall be entitled to the export of the social security benefit if they relocate to India after the completion of their service in Portugal. Self-employed Indians in Portugal would also be entitled to the export of social security benefit on their relocation to India.
  • The period of contribution in one contracting state will be added to the period of contribution in the second contracting state for determining the eligibility for social security benefits.

1C. India and Tunisi

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B. MINISTRY OF CORPORATE AFFAIRS

Screen Shot 2017-05-07 at 7.00.18 PMThe Ministry has provided for the incorporation of a company in one day with following features outlined.

REDUCTION IN PROCEDURES: Five Procedures for Starting a Business are now integrated and can be done simultaneously in One step. Using the newly launched integrated e-Form SPICe, stakeholders now apply for Company Name, Company Incorporation, DIN of the directors, PAN and TAN for the newly incorporated company, and avail all FIVE services simultaneously. The requirement of a company seal has also been removed vide Company (Amendment) Act, 2015.

REDUCTION IN COST/FEES: The fee for incorporation (of the integrated e-Form SPICe /INC-32) has been reduced from INR 2000 to INR 500. The cost incurred by a company for company seal is also eliminated, as the requirement for a company seal has been removed vide amendment to the Companies Act, 2013.

REDUCTION IN TIME: The time taken for processing company incorporation applications has been reduced drastically from between 5 to 15 working days in June 2014, to an average of 0.6 working days in March 2017. Similarly, the processing time for name availability applications has been brought down significantly from between 5 to 6 working days in June 2014, to an average of 0.4 days in March 2017. In addition, more than 90% applications are being approved within 1 working day.


C. MINISTRY OF CONSUMER AFFAIRS, FOOD & PUBLIC DISTRIBUTION

jagologo (1)Service Charge levied by Resturants: Clarification issued by Ministry. Payment of service charge with the hotel bills is not uncommon. Many complaints were raised related to it and hence the Ministry has issued following press release on the issue

13. MOCA


D. MINISTRY OF WATER RESOURCES, RIVER DEVELOPMENT, AND GANGA REJUVENATION

1.  Draft of National Water Framework Bill, 2016

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2. Model Bill for the Conservation, Protection, Regulation and Management of Groundwater, 2016: Comments and suggestions are invited by the Ministry.

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E. MINISTRY OF WOMEN AND CHILD DEVELOPMENT

1. Standard Operating Procedure for Missing Children: as provided on the Ministry of Women and Child Development Website is given below.

Screen Shot 2017-05-02 at 10.08.58 AMThe Hon’ble Supreme Court of India in Bachpan Bachao Andolan vs. Union of India (WP (Civil) 75 of 2012) on 10th May 2013 had directed formulation of a Standard Operating Procedure for cases of Missing Children. The Juvenile Justice (Care and Protection of Children) Act, 2015 under section 2 (14) (vii) includes a „Missing Child‟ as a „child in need of care of protection‟ and in Rule 92 of the “Juvenile Justice (Care and Protection of Children) Model Rules, 2016”, a procedure of inquiry regarding a missing child has been laid down.


F. DEPARTMENT OF EMPOWERMENT OF PEOPLE WITH DISABILITIES

The Department has issued notification dated March 10, 2017, for objections and suggestions on the Rights of Persons with Disabilities Rules, 2017

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G. MINISTRY OF TOURISM

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H. MINISTRY OF TEXTILE

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I. MINISTRY OF ROAD TRANSPORT AND HIGHWAYS

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References 

Website of the Ministries

Lex Resonance: New Round Up 2017

Important news capsule from Facebook page of @indianlawwatch.

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Lex Resonance

A. CONSTITUTIONAL LAW UPDATE

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1. Power to Punish Contempt: The power to punish for contempt vested in a Court of Record under Article 215 does not, however, extend to punishing for the contempt of a superior court. Such a power has never been recognised as an attribute of a court of record nor has the same been specifically conferred upon the High Courts under Article 215. If Supreme Court does not, despite the availability of the power vested in it, invoke the same to punish for its contempt, there is no question of a Court subordinate to the Supreme Court doing so.

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B. CIVIL LAW UPDATE

1. No need to change the name in Passport for women on Marriage and Divorce:

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The Prime Minister Narendra Modi has said that there was no need for a woman to change her name on the passport after marriage or divorce and that she could get the travel document by giving the names of either of her parents. There has been an important change in passport rules.  It will be up to her to have either the name of her father or mother on the passport.

2. Supreme Court declined urgent hearing in a request for a SIT Probe in Saharanpur Case (May 26, 2017): 

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The Supreme Court on Friday refused an urgent hearing on a plea seeking a probe by a Special Investigation Team (SIT) into the recent incidents of caste violence in Uttar Pradesh’s Saharanpur district. A vacation bench comprising Justices L. Nageswara Rao and Navin Sinha said there was no urgency and the petition may be heard after the court’s summer break.


C. CRIMINAL LAW UPDATE

1. Nirbhyay Case: 

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The Supreme Court upheld the death sentences of four convicts of the brutal gang-rape and murder of 23-year-old physiotherapy student. Terming the crime as brutal, barbaric and diabolic, the court said the incident shook the conscience of humanity and they deserved the extreme punishment. A bench headed by Justice Dipak Misra, while upholding the death sentence awarded to the four convicts—Pawan Kumar Gupta, Vinay Sharma, Mukesh and Akshay Kumar Singh—observed that the DNA profile developed from the blood stains obtained from the iron rods was consistent with the DNA of the victim.

2. article-2146026-13252D5E000005DC-541_224x423Three men to be sentenced for an attempt to murder charge against the Judges of Delhi Higher Judiciary: The three men were found guilty by a Delhi Court of attempting to murder three judges by hurling bricks at them in an alleged incident of road rage in 2012. The court observed that the judges while testifying, had remained unchallenged. Testimony of material witnesses of the prosecution shows that the accused became angry after seeing the sticker of ‘judge. On May 17, 2012, around 5 pm, three judges, Inderjeet Singh, Manoj Nagpal and Ajay Garg, were traveling in an official car. Two men on a bike hit it and fell, and when the driver of the car tried to talk, they got into a scuffle with him and abused him. The two men were identified as Anil Raj and Rohit, who were accused of passing threats and asking two more men to join them. The four men, it was further alleged, picked up bricks from a nearby pile and started hurling at the car, breaking its windshield. The three judges supported the testimony of the driver. While one of the judges, Garg, was hurt on his head and bled in the melee, Singh was “dragged” out of the car.  While one accused is on the run, Anil, Rohit, and Prashant were convicted on charges of attempt to murder. Anil and Rohit were also charged with offenses such as assault and causing hurt to a public servant. The court is yet to decide on the quantum of their punishment.


D. FAMILY & PROPERTY LAW UPDATE

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1.  Commercial Surrogacy: Commercial surrogacy has been legal in India since 2002. In 2008, the Supreme Court of India in the Manji’s case (Japanese Baby) has held that commercial surrogacy is permitted in India with a direction to the Legislature to pass an appropriate Law governing Surrogacy in India. At present, the Surrogacy Contract between the parties and the Assisted Reproductive Technique (ART) Clinics guidelines are the guiding force. The Law Commission of India has specifically reviewed the Surrogacy Law keeping in mind that in India that India is an International Surrogacy destination.

International Surrogacy involves bilateral issues, where the laws of both the nations have to be at par/uniformity else the concerns and interests of parties involved will remain unresolved and thus, give due regard to the concerns and in order to prevent the commercialization of the Human Reproductive system, exploitation of women and the commodification of Children, the law commission has submitted its report with the relevant suggestion.

The Law Commission of India has submitted the 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY. The following observations had been made by the Law Commission: –

(a)  Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.

(b) A surrogacy arrangement should provide for financial support for a surrogate child in the event of the death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.

(c)  A surrogacy contract should necessarily take care of life insurance cover for a surrogate mother.

(d) One of the intended parents should be a donor as well because the bond of love and affection with a child primarily emanates from the biological relationship. Also, the chances of various kinds of child abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.

(e) The legislation itself should recognise a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.

(f) The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.

(g) The right to privacy of donor as well as a surrogate mother should be protected.

(h) Sex-selective surrogacy should be prohibited.

(i) Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

The Law Commission has strongly recommended against Commercial Surrogacy. However, this is a great step forward to the present situation.  Israel the first country in the world to implement a form of state-controlled surrogacy in which each and every contract must be approved directly by the state.

Present Law Related to Surrogacy surrogacy-law

There is a proposed legislation that aims at proper regulation and supervision of ART clinics and banks in the country. Some of the important developments include:

The government has proposed that surrogacy for foreigners in India shall not be allowed but surrogacy shall only be permissible to overseas citizens of India (OCIs), people of Indian origin (PIOs), non-resident Indians (NRIs) and any foreigner married to an Indian citizen. The eligible couple will have to produce a duly notarized agreement with the prospective Indian surrogate mother. Further, they have to produce an undertaking that they would take care of the child/children born through surrogacy.

For foreigners married to an Indian because there are other conditions to do so. The Bill makes it mandatory for the couple to be married with the marriage sustaining for at least two years. They will further need to submit a certificate, attested by the appropriate government authority of that country, conveying that the woman is unable to conceive.

The government has also said that the child born to a foreigner married to an Indian citizen by sperm or egg donation, or surrogacy in India, then the child will not be an Indian citizen, despite being born in India, and will be entitled to Overseas Citizenship of India under Section 7A of the Citizenship Act, 1955.

The ART Bill also has stern rules for surrogates. It says that any woman agreeing to act as a surrogate shall be duty-bound not to engage in any act, including unprotected sex that may harm the foetus during pregnancy and the child after birth, until the time the child is handed over to the designated commissioning couple.


E. BANKING & FINANCE LAW UPDATE

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1. Privacy Issue on Mobile Payments: There’s been a surge in transactions through the mobile payment channel. But are mobile payments secure? A study by the Centre for Software and IT Management (CSITM) at IIM Bangalore (IIM-B) raises significant questions on the risks associated with mobile phone-based payment systems.

The study evaluated the apps on the following six key security principles for electronic banking transactions: the potential for confidentiality breaches; the management of the transactions for subsequent repudiation; the strength of the authentication process; the data and transaction integrity procedures; the extent of access and availability of services; and the procedures for maintaining privacy of customer information.

CONCERNS

The study found serious privacy concerns with all the services. For instance, while in many apps like Freecharge, the wallets are not directly linked to third-party vendors (such as Uber or BigBasket), apps such as Paytm allow for automatic linkage with the vendors and they can deduct amounts without the explicit consent of the user. Potential for confidentiality breaches was a problem observed in all the mobile payment methods, except USSD. A recurring security concern was that many of the apps do not automatically log the users out, and anyone having access to the phone can make financial transactions through these apps. This risk is highest if the user loses or misplaces her/his mobile phone, and higher still if the phone is unlocked or unprotected. However, apps such as iMobile, BHIM have auto-logout/session time-out features.


2. Whistleblower’s Identity: Barclays has reprimanded Chief Executive Jes Staley and will cut his bonus for attempting to uncover a whistleblower’s identity, the British bank said on Monday, dealing a blow to a man who has been in the role little over 15 months.  Barclays grants whistleblowers anonymity to prevent any retribution for their actions — in keeping with normal UK practice.  The board, which said it accepted Staley’s explanation that he was trying to protect a colleague from what he believed to be an unfair attack, will back his reappointment at the annual shareholder meeting on May 10.  Barclays’ board first heard of Staley’s attempt to identify the author of the letter in early 2017, after the issue was raised by an employee, Barclays said.


3. Insurance cover for Mental Illness: The Mental Healthcare Bill 2016, which got Lok Sabha’s nod last week, will become law once it receives Presidential assent. The Bill makes it mandatory for insurers to provide insurance to the mentally ill. Health insurers are gearing up to bring mental illness, such as depression and anxiety, under insurance cover. The progressive provision, however, may result in more expensive insurance products. While estimate shows that 5-6 percent of the population suffers from some mental health concern, a recent survey conducted by the National Institute of Mental Health and Neuro Sciences (NIMHANS) puts the figure at a much higher 13.7 percent of the adult population, of which, at least 150 million need immediate medical intervention. This vast number is likely to put pressure on the health insurance providers.


3. FDI Policy in Multi Brand:  The government today said there is no proposal under its consideration to review the foreign direct investment (FDI) policy in the multi-brand retail sector. The current foreign direct investment policy permits overseas players to hold 51 percent stake in an Indian retail company. So far, only one foreign player, Tesco, has received approval for opening stores under the multi-brand retail policy.


4. Income Tax Declaration for loan and credit card bills: All cash payments of over Rs 2 lakh for paying loans and credit card bills during the 50-day period post demonetization will have to be disclosed in the new one-page Income Tax return form. The tax department a few days back notified new Income Tax Return (ITR) forms for filing of returns for the Assessment Year 2017-18 (the financial year 2016-17). Besides providing for declaring income, exemption claimed and tax paid, the forms have a new column providing for declaration for any deposit of over Rs 2 lakh in bank accounts made during 9 November and 30 December 2016 after the old 500 and 1,000 rupee notes were demonetized. This column is also to be used for declaring cash payments in excess of Rs 2 lakh for repayment of any loan or settlement of credit card bills during this 50-day period. “The column is an attempt to match the cash deposits made post demonetisation with the annual income,” he said. While all credit cards are linked to permanent account number (PAN) of the holder, almost all loans by scheduled banks are also provided on furnishing of PAN.


5.  Lenders to Reliance Communications (RCom) has placed telecom company under a strategic debt restructuring exercise (SDR).

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An SDR is a debt-recovery programme under which lenders convert debt to equity and sell the business to new owners. Reserve Bank of India (RBI) rules require that banks get control of at least 51% shares in the company through debt conversion and sell the business within 18 months of initiation of SDR. However, RCom’s lenders have agreed to wait until seven months before they convert debt to equity. RCom has debts of over Rs 45,700 crore on its books and it intends to reduce this by Rs 25,000 crore through a merger of its mobile services unit with Aircel and a sale of its interest in the telecom tower business to Canada’s Brookfield. The company’s current market capitalisation is Rs 5,139 crore. This will be the largest-ever debt reduction by a company in the history of India.


F. INTERNATIONAL LAW UPDATE

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1. WTO Negotiations on E-commerce: India has joined forces with Cuba to resist pressure from other members of the World Trade Organization to start negotiations on e-commerce rules. Australia, the EU, Norway, and China have stepped up their campaign to include e-commerce in the agenda for the year-end Ministerial meeting in Buenos Aires, and New Delhi is reaching out to countries that share its opposition to the move. At a recent meeting of the WTO’s goods council, India and Cuba took the stand that it was premature to discuss multilateral rule-making in e-commerce, given the digital divide among members. Several other members such as Australia, Switzerland, Norway, Brazil and Argentina, however, said that an agreement on e-commerce was necessary for the WTO to demonstrate its continued relevance.

Enormous pressure

“There is a pressure from both developed and developing countries to bring e-commerce formally on the agenda of the WTO negotiations,” the official said. “India opposes it because once discussions begin, members could try to include a lot of aspects into it, including market access. It, therefore, has to work together with like-minded countries like Cuba.” Cuba particularly took issue with suggestions to negotiate liberalization and market access in e-commerce and emphasized that there was no basis for doing so, he added. Electronic commerce was made a part of the WTO in 1998 but in a limited way. Members had agreed to give a temporary moratorium on import duties on digital transmissions. This moratorium is extended every two years. It was also decided to hold discussions on various aspects of e-commerce, but there was no understanding on negotiating rules.

The stakes in India

The e-commerce sector is extremely sensitive in India as the move to allow foreign investment into the e-retail sector has, so far, been strongly resisted by the owners of small stores who argue that it will disrupt their livelihoods. Allowing multilateral rule-making in the area could lead to political destabilization. The African countries and the least developed countries (LDCs) have not opposed discussions on e-commerce, but they insist that the focus is on the development dimension. Uganda, on behalf of the LDC Group, said that most of the proposals on the table fall outside the scope of the work program on e-commerce and that development should be the focus of e-commerce talks. South Africa, speaking on behalf of the African Group, similarly said it would like the Goods Council to take up issues that place the needs of developing countries and LDCs at its core.


2. Israel has appointed the first-ever female judge to serve in the country’s sharia court system.

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The unanimous appointment of Hana Khatib, hailed by some Arab lawmakers as “historic,” was carried out by the Committee to Elect sharia judges, known as qadis, which is headed by Justice Minister Ayelet Shaked. Sharia courts in Israel deal with personal status issues for the Muslim community, such as marriage, divorce, conversion, inheritance and prevention of domestic violence. They have existed in what is now Israel since early Ottoman times and through the British Mandate and were recognized by the State of Israel upon its founding in 1948.


3. Filipino lawyer Jude Sabio filed a complaint against Filipino President Rodrigo Duterte accusing him of extrajudicial killings during his nationwide anti-drugs crackdown.

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The complaint was filed before the International Criminal Court (ICC) and asks the court to prosecute Duterte over his involvement in the Davao Death Squad. In an accompanying statement, Sabio accused the Duterte of “repeatedly, unchangingly and continuously” committing extrajudicial executions from his term as Mayor of Davao City through to his current presidency. Sabio is asking the ICC to charge Duterte and 11 senior government officials with crimes against humanity and to issue an arrest warrant for them. Over 8,000 people have been killed since Duterte took office last year over drug-related offenses.


4. Roman Seleznev, the son of a member of the Russian Parliament, was sentenced for hacking into more than 500 US businesses, stealing then selling millions of credit card numbers. Seleznev was sentenced to 27 years, the longest-ever sentence for such a crime, and ordered to pay nearly $170 million in restitution. US District Judge Richard Jones took no leniency on Seleznev, despite Seleznev’s pleas for mercy.

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5.The Alabama Supreme Court upheld the September 2016 Court of the Judiciary decision to suspend Chief Justice Roy Moore for violation of the Cannons of Judicial Ethics by issuing orders contradicting the US Supreme Court’s recognition of same-sex marriage.

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6. A federal judge in Houston has overturned the county’s bail system for people charged with low-level crimes after finding that it disproportionately affected indigent residents and violated the Constitution.

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The judge, Lee H. Rosenthal of Federal District Court, ordered Harris County to stop keeping people who have been arrested on misdemeanor charges in jail because they cannot pay bail


7.H1 B Visa:

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U.S. President Donald Trump signed an executive order for tightening the rules of the H-1B visa program to stop “visa abuses.” The executive order also called upon the Departments of Labour, Justice, Homeland Security, and State to take action “against fraud and abuse of our visa programs. H1 B Visa is a non-immigrant visa in the USA under the Immigration and Nationality Act Section 101 (a) 17 (H). A bill has now been re-introduced in the House of Representatives that seeks an exemption for foreign-born persons with an American Ph.D. in science, technology, engineering or mathematics from the limits on the number of employment-based green cards and H-1B visas awarded annually.


G. TRANSPORT & INFRASTRUCTURE LAW UPDATE

1. Proposed Motor Vehicle Amendment Bill doubles penalty:

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Lok Sabha has approved a bill for radical reforms in transport sector that will usher in multi-fold hike in fine for traffic violations, compensation of Rs. 5 lakh for grave injuries, and check bogus licences and vehicle theft. The bill, which seeks to amend nearly 30-year-old Motor Vehicle Act 1988, also calls for 100

a) The bill calls for 100 percent e-governance and will cap maximum liability for third party insurance at Rs. 10 lakh in case of death in a motor accident. The bill proposes a compensation of Rs. 5 lakh. This is not the upper limit. After getting this amount (the affected family) can withdraw the case or appeal. This (Rs 5 lakh) is being done to ensure that there are fewer court cases and immediate compensation is given. The minister also said that it would not be possible to increase the compensation in case of death to Rs.20 lakh as it would entail substantial hike in insurance premium. In the case of death in hit-and-run accidents, the bill provides for an eight-fold increase in compensation to Rs. 2 lakh.

b) The bill seeks to make services like issuance of licenses totally transparent and online and provides for punitive action against officials in case of delay in issuance of the document to eligible applicants. Under the new system, everyone will have to go to the licence issuing authority under a uniform procedure and if the licence is not issued in three days, the RTO will have to face action. A learner’s licence can be availed online sitting at home.

c) The government, he said, has already 786 black spots across the country, which are accident prone.

d) There is a provision in the bill under which if holes are found on roads, DPR designer and contractor would be held accountable.

e) The minister said that the proposal is on strengthening the network of trauma centres has also been received.

f) Euro VI emission norms, Gadkari added, would be made mandatory from April 1, 2020.

g)The bill provides for linking of driving licence and vehicle registration with Adhaar—based platform and heavy penalties for traffic violations.

h) The bill also provides for Aadhaar-based verification for grant of online services including learner’s licence. This would ensure integration of online services and also stop the creation of duplicate licences.

i) Stricter penalties have been proposed for high-risk offenses such as drunken driving, dangerous driving, overloading, non-adherence to safety norms by drivers (such as the use of seat belt, helmets).

j) The bill aims to provide for a national database of vehicles and driving licences that would help in safety and security and avoid malpractices.

k) It also provides specific timelines for processing of insurance claims. A ten-fold increase has been made in the amount of compensation awarded under a simplified process of claims disbursal wherein the family of an accident victim would get compensation of Rs. 5 lakh as a settlement within four months of the accident. Presently it takes at least four to five years for an award.


Food Safety Regulator and Law

Role of Food regulator is gaining importance in Indian Society day by day. The article examines the challenges of litigation faced by such regulators in wake of such issues.

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Introduction

Food safety is a vital issue affecting human rights therefore, its safety too is important. It is considered any food article, which is dangerous to human life, is in violation of article 21[1] read with article 47[2] of the Constitution of India[3]. The Food Safety and Standards Authority of India (“FSSAI”) has been established under Food Safety and Standards Act, 2006 (“Act”). FSSAI has been created for laying down science-based standards for safety of food articles and to regulate their manufacture, storage, distribution, sale and import to ensure availability of safe and wholesome food for human consumption. The food regulator’s nod about food safety seems to have assumed more importance in the wake of the pan-India recall of Nestlé’s Maggi [4] in June 2015. FSSAI was tasked with enforcement of the Food Safety and Standards Act, 2006 however, the Maggie debate has raised questions on the role of a regulator in assuring enjoyment of right to life and personal liberty guaranteed under Article 21 of the Constitution of India. It seems that Maggi is not the sole food product that doesn’t stand up to the food quality standards that are enforced by the FSSAI. As per the data available on FSSAI’s website, on April 30, 2015, the statutory body has rejected more than 400 food products and deemed them unsafe for consumption. The article analyses the various issues raised in the litigations against the functioning of the FSSAI under the Act in wake of any such issue.

A. Role and Responsibility of the Regulator of Food Safety

The Act intends to consolidate the interest of consumers and manufacturers. With the coming into force of the 2006 Act, different food laws were repealed as all concerns were compiled under one umbrella Act. The repealed Acts include:

  1. The Prevention of Food Adulteration Act, 1954 (37 of 1954)
  2. The Fruit Products Order, 1955.
  3. The Meat Food Products Order, 1973
  4. The Vegetable Oil Products (Control) Order, 1947
  5. The Edible Oils Packaging (Regulation) Order, 1998.
  6. The Solvent Extracted Oil, De oiled Meal, and Edible Flour (Control) Order, 1967
  7. The Milk and Milk Products Order, 1992
  8. Any other order issued under the Essential Commodities Act, 1955 (10 of 1955)

The 2006 Act also mandates the constitution of regulatory body for maintaining food safety standards in India. The role of any regulator body cannot be read in isolation but in view that between people’s health and safety of life stands a watchdog carrying its function to uphold the fundamental rights of each and every individual. Food safety vest in the hands of FSSAI, which has been mandated by the 2006 Act for performing the following functions:

  1. Framing of Regulations to lay down the standards and guidelines in relation to articles of food and specifying appropriate system of enforcing various standards thus notified.
  2. Laying down mechanisms and guidelines for accreditation of certification bodies engaged in certification of food safety management system for food businesses.
  3. Laying down procedure and guidelines for accreditation of laboratories and notification of the accredited laboratories.
  4. To provide scientific advice and technical support to Central Government and State Governments in the matters of framing the policy and rules in areas which have a direct or indirect bearing of food safety and nutrition .
  5. Data Collection regarding food consumption, incidence and prevalence of biological risk, contaminants in food, residues of various, contaminants in foods products, identification of emerging risks and introduction of rapid alert system.
  6. Creating an information network across the country so that the public, consumers, Panchayats etc receive rapid, reliable and objective information about food safety and issues of concern.
  7. Provide training programmes for persons who are involved or intend to get involved in food businesses.
  8. Contribute to the development of international technical standards for food, sanitary and phyto-sanitary standards.
  9. Promote general awareness about food safety and food standards.

B. Judgments challenging the role of Regulator and the validity of the Act

(i) Maggie Dispute

Maggie, a Nestle product, was scrutinized by the FSSAI, facing legal consequences for impermissible levels of monosodium glutamate (“MSG”) and lead in the noodles. FSSAI held Maggi accountable on the following grounds:

  1. Excessive lead content: The maximum permitted amount of lead can be 0.25%, but the samples had 1.72%, making them unsafe and unfit for human consumption.
  2. Mislabeled products: Maggi labeled its packs with ‘No added MSG’, which mislead customers as the tests showed presence of MSG.
  3. Non-authorization: Maggi Oats masala noodles with tastemaker was launched in the market without product approval by the FSSAI.

Mumbai High Court in M/s Nestle India vs. FSSAI[5] after examining all the submissions, the following judgment have been passed as recourse for Nestle going forward:

  1. The 9 variants of the Maggie Noodles available with Petitioner would be tested.
  2. 5 samples out of each batch in their possession is to be sent to three Food Laboratories accredited and recognized by the NABL, being Vimla Lab. (Hyderbad), Punjab Biotechnology Incubator, Agri & Food Testing Laboratory (Mohali) and CEG Test House and Research Centre Pvt. Ltd.(Jaipur).
  3. If results show that lead in these samples is within the permissible limits, then the Company may be permitted to start its manufacturing process.
  4. However, even newly manufactured products of all the other variants shall be tested in the 3 laboratories above named and if the level of lead in these newly manufactured products is also within the permissible limits then the Company may be permitted to sell its products.
  5. Maggi Oats Masala Noodles with Tastemaker: It will have to undergo the procedure of obtaining the product approval, before it can be sold in the market.
  6. Additionally, the company should delete the declaration “No Added MSG” from its pack, hence no prejudice would be caused to the public at large and the allegation that product is misbranded also will not survive.

Additionally, a class action suit against Maggie is also pending before the National Commission. 

(ii) Other important Judgments 

Other important development in legal field on subject are three connected writ petitions filed before Mumbai High Court are worth mentioning titled the Association of the Traders carrying the Food Business of various Food items being an registered Association vs. Union of India[6] in which a prayer is made seeking a writ of mandamus[7] to quash and set aside the provisions of Section 31[8] and 36[9] and other connected sections of the FSS Act as violative of Article 14, 19 and 21 of the Constitution of India.

The second writ petition filed by Mumbai Mewa Masala Merchants Association[10], a registered Association under the provisions of the Societies Registration Act, 1860. The challenge as raised is to the substantive provisions of the FSS Act, there is also a challenge to the certain provisions under the Licensing Regulations. The challenge is basically to the legality of the provisions of Sections 31(License and Registration Food Business), 34 (Emergency Prohibition Notices and Orders), 38 (Powers of Food Safety Officer), 46 (Functions of Food Analyst), 65 (Compensation in Case of Injury of Death of Consumer), 70 (Establishment of Food Safety Appellate Tribunal) and 80 (Defenses which may or may not be allowed in prosecution under the Act) of the FSS Act.

The third Writ Petition is filed by one AHAR Indian Hotel and Restaurant Association[11]. It claims to be an Association of restaurants and hotel owners in and around Mumbai and other parts of the State of Maharashtra, registered under the Societies Registration Act, 1860. The petitioners in this petition pray that the FSS Act and the Rules and Regulations, 2011 framed thereunder be declared as illegal and unconstitutional, null and void, qua the food service providers i.e. hotels and restaurants, and, in the alternative that the FSS Act and Rules and Regulations framed thereunder are mainly framed and/or applicable to the manufacturing units / factories and not to the hotels and restaurants providing food services to its customers. Relevant Prayer clause was that this Hon’ble Court be pleased to issue a writ of Mandamus or a writ in the nature of certiorari or any other appropriate writ, order or direct the Respondents;

(i) Not to consider Hotels and Restaurants as manufacturers as defined u/Section 3(zd) of FSS Act.

(ii) To direct the Respondent No.5 to provide for representation from the Hotels and Restaurants in Central Advisory Committee.

(iii) To direct the Respondents to clarify whether the provisions of Section 16 are applicable to the Hotels and Restaurants.

(iv) To direct the Respondents to create separate category of Hotels and Restaurants in FSS Act.

(v) To direct the Respondents to frame separate & specify Rules and Regulation for Food Service Provides.

The Court held that the provisions as impugned in these writ petitions are legal, valid and intra vires Articles 14 and 19 (1) (g) of the Constitution of India and thus the challenge as raised in these Writ Petitions fails however the following observations regarding the connected petitions are worth mentioning:

(i)  Legislative Intent: A detailed examination of the scheme of the FSS Act reveals the legislative intent was to include every possible aspect regarding manufacture, processing of foods, distribution of food articles, its ultimate sale and import to ensure safe and wholesome food. The statement of objects and reasons referred is of assistance to appreciate the legislative intent underlying each of these provisions in interpreting these provisions and to ascertain the object as sought to be achieved.

(ii) Right to Safe Food: It is quite clear that multiple laws on Food, which were prevailing, stand repealed by this enactment. The Parliament in exercise of its legislative powers as conferred in entry 18 of List III has enacted the FSS Act in the interest of Public Health and to safeguard the constitutional guarantee to the citizens as conferred under the provisions of Article 21 of the Constitution, from the perspective of human health and consumption of food being a necessary concomitant of this fundamental right. This Act is a successor to the provisions of the Prevention of Food Adulteration Act, which stood repealed by the FSS Act.

(iii) Absolute Liability for Infringement not Contrary to Law: Referring to the decision of the Supreme Court in the case of “Andhra Pradesh Grain and Seed Merchants Association Vs. Union of India[12],wherein the Supreme Court considered a challenge to the validity of Section 7 read with Section 2(v) and2(ix) and Section 19(2)(i) and Section 10 read with Section 13 of the Prevention of Food Adulteration Act,1954 and the rules framed thereunder challenged on the ground that they are violative of fundamental rights guaranteed under Article 14, 19(1) (g) and 20(3) of the Constitution. The following relevant para needs attention of the readers here too:

“6. But in considering whether creation of absolute liability amounts to imposing unreasonable restrictions, the Court has to strike a balance between the individual right and public weal. The Courts will not strike down an Act as imposing unreasonable restrictions merely because it creates an absolute liability for infringement of the law which involves grave danger to public health. The Courts will undoubtedly consider whether without imposing absolute liability the object of the statute could be reasonably secured. For that purpose the Court will consider the object of, the Act, apprehended danger to the public interest, arising out of the activity if not controlled and the, possibility of achieving the intended results by less stringent provisions.” 

“7. It is true that for the protection of the liberty of the citizen, in the definition of offences, blameworthy mental condition is ordinarily an ingredient either by express enactment or clear implication: but in Acts enacted to deal with a grave social evil, or for ensuring public welfare, especially in offences against public health, e.g., statutes regulating storage or sale of articles of food and drink, sale of drugs, sale of controlled or scare commodities, it is often found necessary in the larger public interest to provide for imposition of liability without proof of a guilty mind.”

(iv) Observations in Litigation of Harmful Effects of Soft Drinks: Referring to the recent decision of the Supreme Court in the case of “Centre for Public Interest Litigation Vs. Union of India & Ors[13]. In the context of an issue dealing with the harmful effect of soft drinks on human health and in considering the provisions of FSS Act on various principles of food safety as enshrined in Section 18 and other provisions of the Act, the Supreme Court has held that a paramount duty is cast on the States and its authorities to achieve an appropriate level of protection to human life and health which is a fundamental right guaranteed to the citizens under Article 21 read with Article 47 of the Constitution of India. It is thus clear from the enunciation of the above legal principles as laid down by the Supreme Court that it is not only a statutory requirement for the food Authorities to have a regime of making available safe food products to the consumer but it is a constitutional requirement emanating from the provisions of Article 21 read with Article 39 and 47 of the Constitution of India.

(v) Ordinary Meaning of Section 31 of the Act:  The Hon’ble Court also observed that after perusal of Section 31 of the FSS Act reveals that it is a licensing provision, which requires that no person shall commence or carry on any food business except under a licence. “Food business” is defined under Section 3(n) of the Act to mean any undertaking, whether for profit or not and whether public or private, carrying out any of the activities related to any stage of manufacture, processing, packaging, storage, transportation, distribution of food, import and includes food services, catering services, sale of food or food ingredients. Similarly “unsafe food” is defined under Section 3(zz) to mean an article of food whose nature, substance or quality is so affected as to render it injurious to health. As to how it is rendered injurious to health has been explained in clauses (i) to (xii) as contained in sub-section (zz) of Section 3 of the Act. A plain reading of Section 31 when seen in the context of grant of a licence or registration of food business, the court found that in its opinion, it does not indicate that it creates any ambiguity. The meaning, which is attributed to the various words used in Section 31 read with the words in the definition clause do not create any vagueness so as to render Section 31 vague or in-operational. This is for the reason that the words as used in the provision are required to be read in the context of the Act. The legislation as a whole is required to be considered to ascertain the meaning of the terms and expression as used in the legislation. Thus, the words contained in the definition clause are required to be understood in the light of the other provisions of the Act and with due regard to the ordinary connotation of the words defined and not in isolation as sought to be contended by the petitioners. Moreover, to give effect to the licensing provision under Section 31 the Food Authority has framed regulations namely the Food Safety and Standards (Licensing and registration of food businesses) Regulations, 2011 (for short “the licensing regulations’) in exercise of powers conferred under clause (o) of sub section (2) of Section 92 read with Section 31 of Food Safety Act. A perusal of these licensing regulations would demonstrate that submissions not well founded.

Perusal of the Licensing regulations show that the licensing / registering Authority would grant license and registration only on the compliance by the applicant to the Safety Regulations as mentioned in Schedule 4. Schedule 4 pertains to General Hygienic and Sanitary practices to be followed by Food Business operators. The provisions of Schedule 4 are extensive which pertain to general hygienic and sanitary practices followed by the food business operators, food manufacturer, processor, handler, sanitary and hygienic requirements for street food vendors and units other than manufacturing/processing, general requirements on hygienic and sanitary practices to be followed by all Food Business Operators applying for a license, engaged in manufacture, processing, storing and selling of Milk and Milk Products, engaged in manufacture, processing, storing and selling of Meat and Meat Products, engaged in catering / food service establishments, personal hygiene, transportation and handling of food, storage, special requirements for high risk foods such as cut fruits/salads, fresh juices and beverages etc. A perusal of the extensive nature of these licensing regulations and intricate facets. It takes into consideration, would show that there is no ambiguity or vagueness as being canvassed on behalf of the petitioners. Looking at these provisions we are not at all impressed with the submissions made.

(vi) Dispute regarding the Designated Officer under the Act: A perusal of Section 31 read with Rule 2.1.2 of the Food Safety and Standards Regulations, 2011 clearly indicate that the Designated Officer is not a Revenue Officer as urged by the petitioners. Furthermore, the Act and Rules appropriately provide for all the safeguards as necessary for the Designated Officer to perform various duties and powers conferred on him. The challenge by the petitioner is thus, wholly unfounded and accordingly deserves to be rejected. We note that section 32 is a comprehensive provision. This provision as it pertains to suspension and cancellation of licence is undoubtedly required to be read with the Licencing Regulations, 2011 which is clear from a reading of Section 32. In our opinion, in the administration of the FSS Act, unless the Designated Officer is provided with such powers the administration of the Act would become difficult when the Act intends to achieve an object directly affecting human life. The object of these provisions is therefore, laudable.

(vii) Dispute regarding Provisions relating to the Compensation in case of Injury or death of a Consumer: The provisions assailed are section 65(1) which pertains to compensation in case of an injury or death to a consumer. A perusal of this provision clearly indicates that the provision begins by following words:-“Without prejudice to other provisions of this Chapter, if any person whether by himself or by any other person on his behalf manufactures or distributes or sells or imports any article of food causing injury to the consumer or his death, it shall be lawful for the Adjudicating Officer or as the case may be, the Court to direct him to pay compensation.” The provision is required to be read in its entirety and alongwith the other provisions of the FSS Act. The word ‘manufacturer‘ as used in this provision in a given situation would take within its ambit any producer of  a food item on whom there is an obligation to comply with the provisions of the Act, rules and regulations made under it. If it is found that such a producer or manufacturer is guilty of dealing with food which has caused death of a person, then only for the reason that the word ‘producer‘ has not been used in the provision cannot be construed that such a person can escape the liability and consequences under this provision. Thus, the contention that as the word ‘producer’ is not incorporated in Section 65 (1), it would render Section 65(1) illegal or unconstitutional is without any merit.

(viii) Regarding the third writ petition: The court held that the legislature has carefully incorporated various provisions providing for penalty with an object of securing safe food for human consumption and has attempted to establish standards for those who are dealing in business of food. These are provisions, which are enshrined under Articles 21, and 47 of the Constitution of India as held by the Supreme Court. Each of the provisions, which are assailed by the petitioners, is intended to achieve these constitutional objects. Thus, an imaginary challenge is sought to be raised which in any case ought to fail. The Petitioners have not come out with any case that the respondents in any manner have restricted the use of any food item in its natural form which is unadulterated not injurious to health and have made a rule prohibitive of such use. Reliance on the observations of the Supreme Court in paragraph 55 therefore, are squarely inapplicable to the facts of the present case. Counsel for the petitioners has placed reliance on the decisions of the Supreme Court in the case of Academy of Nutrition Improvement & ors vs Union of India[14], in support of his submissions that the terms like processing, storage, distribution, food service, catering, food ingredients which are not defined under the Act have created an ambiguity and vagueness in the implementation of the provisions of the Act.  We may observe that the FSS Act has been enacted for the benefit and welfare of the citizens and has direct nexus to the right to life as enshrined under Article 21 of the Constitution. This is a social legislation and provides for solution to the problems which would be a creation of nobody else but the members of the society. In upholding the validity of the provisions of the FSS Act, we have adopted the principles of interpretation which would further the social interest and the object of the legislation. As a Constitution Court, we cannot loose sight of the evil, which is sought to be remedied by this enactment. The mischief which is sought to be remedied is nothing but sheer creation of we humans who have the tendency to indulge and deal in food products which would not be safe for human consumption and/or likely to cause a grave impact on human health. Every person even the person dealing in such unsafe food is likely to be the victims. We may observe that it would be the fundamental duty of every citizen to nurture such morals, ideals, qualities, habits and discipline so as to bring about a situation that the indulgence and dealing in hazardous and unsafe food is eliminated in totality as a matter of social responsibility of every citizen and bring about a situation that penal actions under these social legislation are minimized sheerly by inculcating these virtues of honesty and morality in dealing with food as a duty towards every citizen and this Country. These are the principles which are enshrined as one of the fundamental duties in Article 51 A sub-clauses (h)[15] and (j)[16] of the Constitution.

C. Litigation in Repealed Food Adulteration Act over Similar Issues 

The legislative power of the Parliament in enacting Prevention of Food Adulteration Act was also in Entry 18 in List III of the Constitution. A challenge to this Act was considered by the Constitution Bench of the Supreme Court in the case of State of Uttar Pradesh Vs. Kartar Singh, (AIR 1964 SC 1135). The case concerned the prosecution faced by the respondent Kartar Singh of an offence under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act,1954. Mr.Kartar Singh was conducting a shop. The Food Inspector purchased some quantities of ghee. The sample of the Ghee was sent for analysis. The public analyst expressed an opinion that the sample contained small proportion of vegetable fat or oil foreign to pure ghee. The Medical Officer of Health sanctioned the prosecution against Kartar Singh and a complaint was lodged before the Magistrate First Class by the Food Inspector. Kartar Singh pleaded not guilty and entered a defence. The defence was that it was not adulterated and that he had obtained ghee which has sold from Jodhpur. The requirement of such additive in Jodhpur was different. The Magistrate, however, did not accept the defence and sentenced him to R.I. for a period of six months and fine of Rs.500/-. In the appeal the Sessions Judge confirmed the findings of the Magistrate, however, while upholding the conviction reduced the sentence of imprisonment from six months to one month and fine of Rs.200/-. In a criminal revision petition before the High Court under Section 435 and 439  of Cr.P.C. 1898, the learned Judge of the High Court disagreed with the Courts below on finding of facts based on the standards of ghee in Jodhpur Region. As different standards were prescribed at Jodhpur, the High Court held that the respondent was not guilty of adulteration and directed his acquittal. It was this decision of the High Court which was in appeal before the Supreme Court. A challenge was raised in regard to the standards prescribed under the Food Adulteration Act  violates Article 14. The Supreme Court set aside the decision of the High Court and restored the sentence of conviction of one month as imposed by the Sessions Court. While examining the provisions of the Prevention of Food Adulteration Act, the Supreme Court in paragraphs 15 and 16 has observed thus:-

“15. The standards themselves, it would be noticed, have been prescribed by the Central Government on the advice of a Committee which included in its composition persons considered experts in the field of food technology and food analysis. In the circumstances, if the rule has to be struck down as imposing unreasonable or discriminatory standards, it could not be done merely on any a priori reasoning but only as a result of materials placed before the Court by way of scientific analysis. It is obvious that this can be done only when the party invoking the protection of Art. 14 makes averments with details to sustain such a plea and leads evidence to establish his allegations. That where a party seeks to impeach the validity of a rule made by a competent authority on the ground that the rules offend Art. 14 the burden is on him to plead and prove the infirmity is too well established to need elaboration”.


Conclusion

It is well settled that there is no fundamental right to do business in adulterated or unsafe food. There cannot be any complaint on the part of the petitioners that they have a legal right to deal in food which is not safe or which is manufactured or dealt with or is made available for human consumption contrary to the norms which are set down under rules and regulation as framed under the Food Safety Act. Such argument cannot be countenanced. If an interpretation as being canvassed on behalf of the petitioner is accepted, the consequences is nothing but a grave violence to the salutary provisions and norms which are sought to be brought about and implemented by the authorities under the FSS Act for the betterment of human life. Thus, any Maggie debate should not raise issues of why Maggie alone be singled out or be resolved by filing litigations against the regulator or on Constitutional Status of an Act but should inspire the companies burdened with Corporate Social responsibility under law or otherwise to remember this is an era of doing business with responsibility alone.

[1] Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law

[2] Duty of the State to raise the level of the nutrition and standard of living and to improve public health

[3] Centre for Public Interest Litigation vs.UOI AIR 2014 SC 49

[4] The regulator termed the noodles “hazardous for human consumption”, owing to the presence of monosodium glutamate and excessive lead in it.

[5] Writ Petition 1688 of 2015 (Mumbai High Court)

[6] Writ Petition no.477 OF 2012, Mumbai High Court

[7] Mandamus is a judicial remedy in the form of an order from a superior court,[1] to any government subordinate court, corporation or public authority to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from doing) and which is in the nature of public duty, and in certain cases one of a statutory duty.

[8] Provision of licensing and registration of food business

[9] Provisions relating to designated officers

[10] Writ Petition No.227 of 2012 (Mumbai High Court)

[11] Writ Petition No.227 of 2012 (Mumbai High Court)

[12] AIR 1971 SC 2346

[13] AIR 2014 SC 49

[14] (2011 (8) SCC 274)

[15] It shall be the duty of every citizen of India to develop the scientific temper, humanism and the spirit of inquiry and reform;

[16] It shall be duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement

Laws Relating to Junk Food

Globalization brought with it the culture of fast food, which has impact on the health of our generations considering its consumption by all age groups.

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Introduction

Globalization brought with it the culture of fast food, which has impact on the health of our generations considering its consumption by all age groups. The food laws in India includes the following:

(i) Prevention of Food Adulteration Act, 1954

(ii) Fruit Products Order,1955

(iii) Meat Food Products Order, 1973

(iv) Vegetable Oil Products (Control) Order, 1947

(v) Edible Oils Packaging (Regulation) Order 1988

(vi) Milk and Milk Products Order, 1992 etc are repealed after commencement of FSS Act, 2006.

(vii) Food Safety and Standards (“FSS”) Act, 2006

Recent Maggie dispute caused lot of attention to the food laws prevailing in our country safeguarding the health of our country. The article is an overview of various laws in our country regarding the laws relating to junk food.

A. Laws and Guidelines relating to the Junk Food

The most prevalent food form across length and breadth of country is Junk Food. However, Junk food being so dominant in Indian plate has not been defined anywhere under the Prevention of Food Adulteration Act, 1954. At present, there is no proposal under consideration of the Ministry of Health to define junk food under the FSS Act. The junk food is generally understood as food rich in sodium/glucose/sugar and is responsible for causing dental cavities/obesity/heart diseases. Food items such as Samosa, jalebi, pizza, burgers and pakodas come under the definition of Proprietary Food[1]. Further, FSS Act does not give any authority to ban any kind of food.

Guidelines for making available wholesome, nutritious, safe and hygienic food to schoolchildren in the country have been framed by the Central Advisory Committee formed under the FSS Act.

In a major development, the Delhi High Court has ruled in Udai Foundation for Congenital Defect and rare Blood Groups vs. Union of India[2] this year that junk food – high in fat, sugar and salt (HFSS) – must be restricted in schools and a 50 meter radius. The court constituted an expert group in September 2013 to recommend guidelines on the availability of junk food to children in schools. The expert group comprised of nutritionists and pediatricians, and also included well-known environmentalist Sunita Narain of the Centre for Science and Environment. CBSE has been given appropriate directions for ensuring implementation under the aforesaid judgment for outside Delhi schools. The Maggie dispute is just a symbol of awakening about the health hazard and safety in consuming these fast foods. The way the fast food is taking over our normal routine food, it has become necessary to be alarmed about revisiting the laws related to them now.

B. Recent Maggie Dispute

Food safety inspectors in the northern Indian state of Uttar Pradesh have filed a criminal complaint against Nestle’s Indian arm, after spot checks earlier this year found excess lead in some packets of Maggi instant noodles. The Uttar Pradesh FDA had ordered a recall of a 200,000-pack batch of noodles at the end of April, after a spot check which said showed elevated levels of monosodium glutamate (MSG), a flavour enhancer, and lead 17 times above the permissible limit. The FDA official confirmed that the complaint included Nestle India, as well as the manufacturing unit, the retailer selling the tainted packs, two Nestle managers and even Bollywood stars who promoted the 2-minute snack. The consumer affairs department has filed a complaint against food major Nestle India with the National Consumer Disputes Redressal Commission (NCDRC) seeking damages of Rs 640 crore alleging that the company sold unsafe and hazardous products – Maggi noodles – to millions of consumers endangering their health. It has also alleged the company indulged in misleading and deceptive advertisements and also resorted to unfair trade practices to earn “unjust profits”.

C. Understanding the FSS Act in context of Junk Food

The FSS Act which is applicable to whole of India. It is an Act to consolidate the laws relating to food and to establish the Food Safety and Standards Authority of India for laying down science based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto.

Food Safety and Standards Authority of India (FSSAI) has been established under Food Safety and Standards Act, 2006 that consolidates various Acts & orders that have hitherto handled food related issues in various Ministries and Departments. FSSAI has been created for laying down science-based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import to ensure availability of safe and wholesome food for human consumption.

D. Food Labeling

Food Labeling serves as a primary link of communication between the manufacturer and packer of food on the one hand and distributor, seller, and user or consumer on the other hand. By way of labeling the manufacturer introduces his product to his distributor or seller and to the target consumer or user of his product by providing all the information regarding his product on the label.

As per Food Laws, every packaged food article has to be labeled and it has to be labeled in accordance to the law applicable in the country of the user. Every packaged food article for the domestic use has to be labeled in accordance to the related Indian Food Law i.e. Food Safety and Standards (Packaging and Labelling) Regulations, 2011, notified by Food Safety and Standards Authority of India (FSSAI). The packaged food for export has to be labeled in accordance to the food laws and regulations applicable to the importing country.

In order to safe guard the interest of the consumer, The Food Safety and Standards (Packaging and Labelling) Regulations, 2011, provides that every packaged food article has to be labeled and it shall provide the following information –

  1. The name of Food
  2. List of Ingredients,
  3. Nutritional Information,
  4. Declaration regarding Veg or non-veg,
  5. Declaration regarding Food Additives,
  6. Name and complete address of the manufacturer or packer
  7. Net Quantity,
  8. Code No,/Lot No./Batch No.,
  9. Date of manufacture or packing,
  10. Best Before and Use By Date,
  11. Country of Origin for imported food and
  12. Instructions for use

In addition to the above information the manufacturer or the packer has to also ensure that the label complies with the general requirements of labeling prescribed under the regulations I.e. the label should not become separated from the container, contents on the label shall be correct, clear and readily legible and shall be in English or Hindi language, etc.

The offences & penalties under the Act is for:

  1. Misbranded Food Up to 3lakh rupee
  2. Misleading advertisement Up to 10lakh rupees

The consumer can notice the labeling defect easily through visual inspection and that may create suspicion about the quality of the product also in the mind of the consumer. If on analysis the sample is found non-complying to the standards then the food product is declared as substandard besides misbranding and prosecution is launched for substandard and also for misbranding i.e. labeling defect. Even if the sample is found confirming to standards, the prosecution is launched for misbranding. On the other hand incorrect and incomplete labelling makes the food product misbranded, suspicious of its quality and attracts the attention of the regulators for its quality check and further leads to prosecution.

This Packaging and Labeling Regulations are summarized in the following modules:

  1. General Requirements and Manner of Labelling
  2. The name of Food and List of Ingredients,
  3. Nutritional Information,
  4. Declaration regarding Veg or Non-veg,
  5. Declaration regarding Food Additives,
  6. Name of Manufacturer or packer and Country of Origin
  7. Net Quantity
  8. Lot No. /Batch No./Code No.
  9. Date of manufacture or packing and Best Before or Use By Date,
  10. Instructions for Use
  11. Specific Requirements and Manner of Labelling for Infant Milk Substitute and Infant Foods
  12. Specific Labelling Requirements of edible oils and fats, permitted food colors and irradiated foods
  13. Specific Requirements and Manner of Labelling of Other Food Products
  14. Specific Restrictions on product labels and advertisement
  15. Exemptions from labeling requirements

Labeling means to introduce a product for sale by providing comprehensive information about the product to the target consumer market besides ensuring safety standards of the regulatory body. A useful elaborated information about the label leaves good impression on the consumers seeking required details about the product”


Conclusions

Junk food is not alone present in Indian market but also in Indian kitchen. For India it’s a matter of grave concern as India is diabetic capital of the world and Indian traditional food is free from all health hazard but has failed to catch up in terms of presence in Indian mindset. In present scenario, how do we look at laws relating to the junk food is important not only from perspective of health hazard and recent Maggie dispute but also for understanding properly what is the standard of food being served to us, to make an informed choice for our health.

[1] These are those foods for which standards are not prescribed but are considered as safe.
[2] W.P 8568 of 2010