Nestle India Limited filed a writ petition in the Bombay High Court primarily on the contentions that the natural principles of justice were not adhered by not providing show cause notices before the two impugned orders were passed[1] and that the labs where the tests were conducted were either not accredited by NBAL or lacked accreditation for testing lead. The former was contested by the FSSAI while it was also stated by them that the decision was taken in public interest and it was sufficient even if one of the samples tested above the permissible limits. FSSAI believed that the Food Safety and Standards Act 2006 provides them the authority to carry out the analysis and hence, the Authority could base their decisions on the analysis carried out by them.[2]
Appeal to Forum v Writ Petition
The Respondent also contended that if the petitioner was aggrieved by the impugned order, they should have appealed under Section 46(4) of the Act than prematurely file a writ petition and clarified that it was a 15 days show cause notice as to why its product approval should not be cancelled and as such, no such ban issued. This point was dismissed by the Court referring to the notice and it was held that the authority indeed imposed a ban.[3] The court also held that even assuming that alternate remedies are available to the petitioner, they are entitled to approach the High Court when there are allegations of natural principles of justice. The court in very clear words stated[4]:
It is, therefore, quite well settled that whenever allegation is made that there is violation of principles of natural justice the Petitioner is entitled to challenge the said order and, secondly, in the present case, the impugned order (Exhibit-A) cannot be strictly said to be a show cause notice since the order imposes a ban on manufacture, sale, distribution of 9 variants of Maggi Noodles. It, therefore, imposes a complete ban on the product.
Destroyed Evidence?
There were also allegations that Nestle had tried to destroy evidence by burning packets of Maggi. The petitioner stated that they were adhering by the orders of the Authority which directed it to destroy all food packets. The Court also dismissed the allegation of suppression of facts by the postal records submitted by the petitioner which stated that the notice was received after the petition was filed[5]:
There is, therefore, absolutely no substance in the submissions made by the learned Senior Counsels appearing on behalf of Respondent Nos. 1 and 4 that there was suppression of fact and an attempt to destroy the evidence by the Petitioner.
Nationwide Ban: Unfettered Powers
Another contention by the respondents was that Nestle had represented that the products contain less than 0.1 ppm lead and hence, even if the lead content was within the permissible limits of 2.5 ppm such a ban was justified for misrepresentation and breach of trust.[6] Hence, their argument was that being a Section 22[7] product (according to The Food Safety and Standards Act 2006), even if taken together (as opposed to individual packets) the company couldn’t go back to its commitments where it annexed the Codex standards. This entire argument was dismissed by the court and it stated that no such interpretation of rules exist in the six decades of the apex court’s existence in the country so as to ban a particular product for that reason.
The court extended its reasoning to provide a restricted interpretation that the authority doesn’t have unfettered powers to pass orders and must abide by the limited power mandated by the authority. The court further went to every specific article from Section 22 to Section 30 and gave categorical explanations to prove that the impugned orders’ power weren’t derived from any of them.
The central theme of the court’s argument was that the degree of natural justice required for an order varies with the threshold level of the order and that the principle of “audi alteram partem” has been recognised both in administrative actions and quasi-judicial actions. The court stated that the principles of natural justice can only be ignored if the actions undertaken are done in interest of public health under certain conditions:
“…Commissioner of Food Safety would be compelled to pass immediate order of prohibition in the interest of public health to manufacture, sale of food etc. and similar order can be passed under section 34 when it is found that there is contamination in food which is such an eminent threat to the public health that immediate order of prohibition has to be passed…”[8]
The Verifiability of Food Labs
The petitioner’s argument for that the analysis of all food samples by the food analyst be done only in accredited laboratories approved by NABL in order to put reliance on the reports found support from the bench. He said since the samples were open, the possibility of contamination and evidence-tampering cannot be ruled out for the Kolkata lab. As noted in the judgment, “He submitted that the analysis of the food has to be done in the Food Laboratory accredited by NABL and recognized by the Food Authority under section 43 of the Act which provision is a mandatory provision and non-compliance of the mandatory provision would vitiate the entire process of analysis.’ He also successfully pointed out the discrepancies of the tests conducted in the Avon Food Lab (Pvt) Ltd. This was contended by the respondents who argued that the Food analyst was empowered to conduct tests in any lab whatsoever and refused to accept the reports submitted by the company alleging that there was every possibility of the reports being tampered. However, the Court held that Section 43 of the Act requires that the food analyst undertakes the test in a laboratory accredited by NABL and recognised by the Food Authority and notified by it.
In a long followed dictum, the court reiterated the need to question the unfettered discretions enjoyed by people in power for too long and the wide interpretation given to terms such as “Compensation” in such instances. Hence, the orders were set aside basing on Article 14, 19 and 21 and stated that the orders were passed arbitrarily and lacking transparency and in utter violation of the principles of natural justice. The court clearly stated[9]:
Though Respondents have been shouting from roof top that their action was in public interest as they found that the food which was contaminated by lead beyond permissible limit was unsafe for human consumption, they promptly swung into action and banned the product. The said tall claim has not been substantiated by them before us.
The court also included the “paradoxical consequence”[10] argument to justify its position that such an emergency ban should only operate in a local area as opposed to a nationwide ban. The court also clarified about the “no added MSG” claim by stating that it was not the case that MSG was added but that the MSG content existed within the natural products. Since the petitioner also made a statement to remove the declaration of “no added MSG” the allegation of misbranding also no longer survives. Hence, the claim for the impugned order was not substantiated by the company. The fact that eight out of nine variants of the products had been granted approval further vindicated the stance of Nestle India.
The court further laid down its concern for public health and even though they set aside the impugned orders, they recommended the petitioner to send 5 samples of their products to three Food laboratories accredited and recognised by NABL and enlisted their names and addresses (Maggi passed the test given by Supreme Court as mentioned in Chapter 1).
Conclusion
The High Court of Bombay based its decision primarily in the irregularities by the authorities and the haphazard manner in which the entire episode was undertaken. It also rightly pointed out the absurd interpretations for the act brought about by the authorities time and again to ban products. It was a well-balanced judgment that attempted to clear questions on public health by recommending the test while at the same time, ensuring that public authorities are not given power without responsibility to pass unreasonable orders and undertake arbitrary actions.
While there might be some criticism that the judiciary assumed the responsibility of a food regulator while recommending tests in particular labs, it needs to be considered that in the absence of such a directive, it would have left imperative questions on public health and trust unanswered. The judgment rightly ensured that food safety and consumer trust aren’t tampered with and simultaneously ensured that the basic principles of rule of law and fundamental rights enshrined in the constitution aren’t diluted.
[1] Nestle India Limited v The Food Safety and Standards Authority of India and Ors. [2015(6)ABR74] pp 4(1)
[2] Ibid pp. 33.
[3] Ibid pp. 38.
[4] Ibid pp. 39.
[5] Ibid pp. 45.
[6] Ibid pp. 47.
[7] Section 22 of the Food Safety and Standards Act: Genetically modified foods, organic foods, functional foods, proprietary foods, etc.
[8] Nestle India Limited v The Food Safety and Standards Authority of India and Ors. [2015(6)ABR74] pp 83.
[9] Ibid pp. 101.
[10] Ibid.
This article is authored by Ritesh Patnaik, student of B.A. LL.B (Hons.) at National Law University Delhi.
Also Read – Quarantine Laws Preventing Spread of COVID-19 Around the World
