Source: Indian Express  

Introduction 

Recent controversy over government directives requiring food establishments to display owners' and staff names. These directives, issued in Uttar Pradesh and Uttarakhand, have raised concerns about religious discrimination and privacy violations. The Supreme Court has intervened, keeping these orders while allowing the display of food types. This situation has brought attention to the existing regulations for food businesses in India and the authority of state governments to impose additional requirements. 

What is the background and Court Observation of the Association for Protection of Civil Rights (Apcr) v. The State of Uttar Pradesh And Ors? 

Background: 

• On 17th July 2024 the Senior Superintendent of Police, Muzaffarnagar, issued a directive requiring all eateries along the Kanwar Yatra route to display owners' names. 
• This directive was extended statewide in Uttar Pradesh on 19th July 2024 and was being enforced across districts in both UP and Uttarakhand. 
• Three petitions were filed challenging these directives:  
  • By NGO-Association for Protection of Civil Rights (APCR) 
  • By TMC MP  
  • By political commentator  

Court Observations: 

• Interim Order:  
  • The Supreme Court issued an interim order prohibiting the enforcement of the directives.  
  • The Court stated that while food sellers may be required to display the kind of food they're selling to Kanwariyas, they cannot be forced to display the names/identities of owners and employees. 
• The Court noted that while competent authorities under the Food Safety and Standards Act, 2006 may issue certain orders, legal powers cannot be usurped by the Police without legal foundation. 
• When questioned about whether the directives were formal orders or press statements, the Court was told it was a case of "camouflaged order," as eatery owners faced consequences regardless of compliance. 
• Justice Bhatti emphasized that there were three dimensions to consider: safety, standard, and secularism, all of equal importance. 
• On Existing Regulations: The Court noted that under current Food Safety Standard Regulations, only two things are required to be displayed: 
  • Calorie component 
  • Nature of food (vegetarian or non-vegetarian) 
• While the bench initially suggested the directives might be voluntary, petitioners argued they were being strictly enforced with fines of Rs. 2000 and Rs. 5000 for non-compliance. 

Which Articles of the Constitution are being Violated? 

• Article 19 deals with Protection of certain rights regarding freedom of speech, etc. 
  • Article 19(1)(g) to practice any profession, or to carry on any occupation, trade or business. 
• Article 17 deals with Abolition of Untouchability. 
  • “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law. 
• Article 15 deals with prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. 
  • Article 15(1) states that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. 
• Article 13 deals with laws inconsistent with or in derogation of the fundamental rights. 
  • Article 13(1) states that all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. 

What is FSSAI? 

• FSSAI is an autonomous statutory body established under the Food Safety and Standards Act, 2006, operating under the Ministry of Health & Family Welfare with its headquarters in Delhi.  
• The FSS Act, 2006 unified various pre-existing food-related acts and orders from different ministries, including the Prevention of Food Adulteration Act, 1954 and the Milk and Milk Products Order, 1992.  
• While FSSAI was established in 2008, it became fully operational in 2011 after the necessary rules and key regulations were notified.  
• The creation of FSSAI represents a shift from a multi-level, purely regulatory approach to a single-line control system emphasizing self-compliance.  

Food Safety and Standards Act, 2006 (FSSA) 

Section 31 deals with the Licensing and registration of food business. 

• General Licensing Requirement 
  • No person can start or operate a food business without a license 
  • Exception: Petty manufacturers, retailers, hawkers, vendors, temporary stall holders, small-scale/cottage industries 
  • These exempt categories must still register with designated authorities 
• License Application Process 
  • Applications must be submitted to the Designated Officer 
  • Must include specified particulars and fees as per regulations 
  • Decision Timeline:  
    • Two-month processing period 
    • If no decision is made within two months, the applicant can start their food business 
    • In such cases, the Designated Officer can issue an improvement notice if necessary 
• License Issuance and Scope 
  • Licenses are subject to specific conditions set by regulations 
  • Types of Licenses: 
    • Single license can cover multiple food articles 
    • Can apply to different establishments in the same area 
    • Separate licenses needed for premises in different areas 
• Decision-Making Process 
  • Designated Officer can: 
  • Grant the license, or 
  • Refuse the license (must provide reasons in writing) 
  • Must give applicant opportunity to be heard before refusal 
  • Refusal must be in the interest of public health 
    • Appeals: Can be made to the Commissioner of Food Safety against rejection 
• License Validity and Renewal 
  • Valid for period specified in regulations 
• Renewal Process: 
  • If renewal application is made before expiry 
  • Existing license remains valid until decision on renewal 

Section 63 deals with the penalties for operating a food business without the required license under the Food Safety and Standards Act. 

• Who Can Be Punished? 
  • Any person who is required to obtain a license and operates without one 
  • Any food business operator required to be licensed but operating without license 
  • Anyone acting on behalf of the above persons 
• Exemptions 
  • The following are exempt from punishment under this section: 
  • Persons already exempted from licensing under Section 31(2):  
    • Petty manufacturers 
    • Petty retailers 
    • Hawkers 
    • Itinerant vendors 
    • Temporary stall holders 
    • Small scale industries 
    • Cottage industries 
    • Tiny food business operators 
• Applicable Offenses 
  • Operating without a license in any capacity: 
  • Manufacturing food 
  • Selling food 
  • Storing food 
  • Distributing food 
  • Importing food 
• Penalties 
  • Imprisonment:  
    • Term: Up to 6 months 
  • Financial Penalty:  
    • Fine: Up to ₹5 lakh (500,000 rupees) 
  • Nature of Punishment:  
    • Both imprisonment and fine can be imposed together 

Section 93 deals with the Power of State Government to make rules. 

• Section 94(1) empowers state governments to make rules for implementing the FSSA, subject to approval from the Central Government and the Food Authority.  
  • This allows states some flexibility in adapting the law to local needs while maintaining national consistency. 
• Section 94(2) outlines specific areas where states can make rules, including "other functions" of the Commissioner of Food Safety as per Section 30(2)(f).  
  • This broad provision allows states to assign additional responsibilities to the Commissioner beyond those explicitly listed in the Act. 
• The inclusion of Section 94(2)(c) further expands state rule-making authority to "any other matter" that requires or may be prescribed by rules. 
  • This catch-all clause provides states significant latitude in addressing unforeseen issues or local concerns related to food safety. 
• Section 94(3) introduces a legislative oversight mechanism by requiring state rules to be placed before the state legislature for approval.  
  • This ensures democratic accountability in the rule-making process, albeit with some flexibility in timing ("as soon as may be"). 

The Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations, 2011 

• The Food Safety and Standards Authority of India (FSSAI) regulations require all food business operators to be either registered or licensed, depending on the scale of their operations. Petty food businesses must register, while larger operations require licensing. 
• The licensing process involves submitting an application, paying the applicable fees, and complying with safety and hygiene requirements. Licenses can be granted by either the Central Licensing Authority or State/UT Licensing Authorities, depending on the nature and scale of the food business. 
• Licenses are valid for 1 to 5 years, as chosen by the food business operator, and must be renewed before expiry. The regulations also outline procedures for suspension, cancellation, and modification of licenses, as well as appeals processes for aggrieved food business operators. 
• Food business operators are required to submit annual returns to the Licensing Authority, with specific requirements for those involved in manufacturing milk and milk products. Failure to comply with regulations or directions can result in legal action under the Food Safety and Standards Act. 

Can the Directives Issued by a State Government Under the FSSA Be Challenged in Court? 

• Directives issued by state governments under the FSSA can be challenged in court if they exceed the powers granted by the Act or violate constitutional rights.  
  • Courts can review whether the directives are within the scope of the law and if they infringe on fundamental rights. 
• Challenges can be made on constitutional grounds, such as violation of fundamental rights (e.g., right to equality, right to practice any profession) or principles like secularism. The recent challenges to UP and Uttarakhand directives cited violations of Articles 14, 15, 17, and 19 of the Constitution. 
• Directives can be challenged on procedural grounds, such as whether they were issued by the appropriate authority under the FSSA.  
  • The Supreme Court's recent stay order highlighted that police cannot "usurp" powers granted to competent authorities under the Act. 
• Courts can examine whether the directives meet the proportionality test - whether they have a legitimate aim, are rationally connected to that aim, are necessary, and balance the rights of individuals against the larger public interest. 

Conclusion  

The controversy surrounding the directives of States that delicate balance between government regulation and individual rights in India's food industry. While the Food Safety and Standards Act provides a framework for food business operations, the recent attempts by state governments to impose additional requirements have raised important questions about privacy, discrimination, and the limits of administrative power. As this issue continues to evolve, it will likely prompt further discussions on the appropriate balance between food safety, transparency, and personal freedoms in India's diverse