TaxTMI 
TaxTMI 
2011 (7) TMI 1083
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.... sale, the common salt, for direct human consumption unless the same is iodized : Provided that common salt may be sold or exposed for sale or stores for sale for iodization, iron fortification, animal use, preservation, manufacturing medicines, and industrial use, under proper label declarations, as specified under clause (22) of subrule (zzz) of rule 42." The incidental challenge is to consequential amendments to the Rules by insertion of Rule 43(zzz)(22) which reads as under : "Rule 43(zzz)(22). Every container or package of common salt shall bear the following label, namely : 2. The Government of India has been promoting the use of iodised salt in place of common salt, for human consumption, since 1962 by launching a centrally assisted programme for supplying iodised salt in place of common salt with the object of controlling and reducing various Iodine Deficiency Disorders including Goitre (for short 'IDDs'). In April, 1992, the Central Committee for Food Standards (CCFS), a statutory body providing technical advice to the Government on food-related matters, approved the proposal for mandatory iodisation of salt, provided such mandatory iodisation was done only in ....
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....felt that by providing such option to the state governments, there would be no unnecessary compulsion to use iodised salt in areas where iodine deficiency disorders were not prevalent. The Central Government also proposed to play a greater role in enhancing the awareness about the benefits of iodised salt and monitor the impact of the salt iodisation programme in the country. 4. The said omission of Rule 44-H was challenged by 'Common Cause', an NGO, in Writ Petition (C) No.525 of 2000 in this Court. During the pendency of W.P. (C) No.525 of 2000, a Core Advisory Group on Public Health & Human Rights, National Human Rights Commission, was required to critically apprise the evidence available on the public health consequences arising from consumption of non-iodized salt by the populace. The said Core Advisory Group submitted a report dated 6.2.2004 advising that universal iodisation of salt is a public health need which should be implemented throughout the country without any relaxation in the ban on sale of non-iodised salt. On a survey of 324 districts in 28 States and 7 Union Territories, 263 districts were found to be endemic for IDDs, (that is, where prevalence of IDDs was f....
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.... of death. It is contended that while iodised salt would help to make up the iodine deficiency in about 10% of the populace, it would adversely affect the health of remaining 90% of the populace who have no deficiency in iodine levels. 5.1) The petitioners submit that when the entire populace do not need iodised salt, it is unfair and unjust to deny them the right to choose between iodised salt and non-iodised salt. It is submitted that Rule 44-I violates Articles 14 and 21 of the Constitution, which entitle every person to have free choice in regard to consumption of food. 5.2) The petitioners submit that the cost of iodised salt being several times more than the cost of non-iodised salt, the majority of the populace were adversely affected by the rule requiring compulsory iodisation. It is contended that the compulsory use of iodised salt only helped a few multinational companies (MNCs) which had the monopoly in the manufacture of iodised salt. It is submitted that many small scale and local producers of salt were adversely affected by creation of such monopoly. The petitioners therefore contend that Rule 44-I is violative of Article 19(1)(g) of the Constitution, as it affe....
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.... (i) Whether Rule 44-I is unconstitutional? (ii) Whether Rule 44-I is inconsistent with the Act and beyond the rule making power of the Central Government? Re : Question (i) 8. The question whether iodised salt is beneficial to the public or whether it causes harm to the majority of the populace, is a highly disputed and debated issue, on which there is strong divergence of opinion in the scientific community and among the experts on medicine, nutrition and public health. The petitioners have produced some medical and scientific literature which according to them demonstrates that Universal Salt Iodisation (for short 'USI') is not completely effective in attaining its object of elimination of Iodine Deficiency Disorders and at the same time injurious to the majority of populace who do not suffer from iodine deficiency. Respondent has countered the said claim by relying upon some material to show that compulsory salt iodisation has shown marked results and is required in the interest of public health. Material against ban on non iodised salt for human consumption : 9. Reliance was placed upon the resolution dated 29.12.1989 passed at a meeting of group of distinguishe....
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....ts to a large number would outweigh benefits to a few and raised the following issues for the consideration of the Ministry : "The studies available in the public domain provide only weak evidence in support of the universal ban. * The prevalence and seriousness of the problem both appear to have been overestimated, especially given that some qualified analysts have pointed out methodological flaws. For instance, goiter is known to be difficult to assess, and it can exist as a physiological (normal) condition as well as a disease condition, but the studies do not account for this. * The studies assessing impact of salt iodisation programmes appear to have assumed effectiveness of the programme approach, even though findings of several studies demonstrate varying impact. Some studies show little impact despite high use of iodised salt in such areas, thus pointing to the multifactorial origin of IDD. In other areas goiter has declined despite little use of iodised salt. * The potential negative consequence of compulsory use of iodised salt have been demonstrated by other studies, gaining importance when applied on a mass scale." In some locations and sub-populations, i....
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....the horse. (f) People who are deficient in iodine, are deficient in all nutrients. For them total nutrition correction and not iodised salt is the answer." Material in support of the compulsory use of iodised salt 12. On the other hand the respondent submitted that the decision to ban non-iodised salt for human consumption was taken on detailed studies and on the advice of the Core Advisory Group on Public Health and Human Rights (NHRC). Reliance is placed on the following passages from the report dated 6.2.2004 of the Core Advisory Group : "The Core Advisory Group reviewed the documents which were sent to it by the NHRC and the members also drew upon their expertise and several scientific publications, to critically appraise the evidence available on the public health consequences arising from consumption of non-iodised salt by sections of our population. Iodine deficiency disorders have been recognized as a public health problem in India since the 1920s. Unlike other micronutrient deficiencies, iodine deficiency disorders are due to deficiency of iodine in water, soil and foodstuffs and affect all socio-economic groups living in defined geographic areas. Initial....
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....d in 1994 that, "Daily iodine intake of upto 1 mg i.e. 1000 ug appears to be entirely safe.... In conclusion, it appears clearly that the benefits of correcting iodine deficiency far outweigh the risks of iodine supplementation." Report of a WHO Expert Consultation: "Salt as a Vehicle for Fortification", (2007), at p. 7 states: Salt is the most widely used food vehicle for iodine fortification. USI, that is iodization of all salt for human (food industry and household) and livestock consumption, is the strategy recommended by WHO for the control of iodine deficiency (WHO, 1999). Salt iodization programmes are currently implemented in over 70 countries around the world where IDD is a public health problem (Delange F, et al, 1999). Lewis E Braverman in his article "Adequate iodine intake - the good far outweighs the bad", [European Journal of Endocrinology, 1998, Vol. 139 pages 14-15] says: "Over the past few years, small outbreaks of thyrotoxicosis in adults have been reported following iodine prophylaxis with iodized oil or iodized salt in severely iodine-deficient regions, probably due to excess iodination of these severely iodine-deficient populations (3-6). However, ....
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....f the populace and the consumption of iodised salt by the remaining 90% who do not require it, may not be injurious to their health as excess iodine is easily excreted. The question whether there should be universal salt iodisation is a much debated technical issue relating to medical science. An informed decision in such matters can only be taken by experts after carrying out exhaustive surveys, trials, tests, scientific investigations and research. Courts are neither equipped, nor can be expected to decide about the need or absence of need for such universal salt iodisation on the basis of some articles and reports placed before it. This Court in a series of decisions has reiterated that courts should not rush in where even scientists and medical experts are careful to tread. The rule of prudence is that courts will be reluctant to interfere with policy decisions taken by the Government, in matters of public health, after collecting and analysing inputs from surveys and research. Nor will courts attempt to substitute their own views as to what is wise, safe, prudent or proper, in relation to technical issues relating to public health in preference to those formulated by persons s....
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....that consumption of iodised salt by persons not suffering from iodine deficiency will not adversely affect them. Rule 44-I is stated to be in implementation of a policy decision regarding public health. The material placed by the petitioners is not sufficient to hold that the reason for the ban is erroneous and that Rule 44-I is unreasonable and arbitrary. We therefore reject the contention that the provision placing a ban on sale of non-iodised salt for human consumption resulting in compulsory intake of iodised salt, is arbitrary and violative of Article 14 or injurious to the health of general populace and therefore violative of Article 21. The use of common salt (non-iodised salt) for industrial and commercial use has not prohibited. The ban operates only in regard to use of common salt for human consumption. There is also no material to show that any monopoly is sought to be created in favour of a chosen few companies or MNCs. In the circumstances, the contention that Article 19(1)(g) is violated is liable to be rejected. Re : Question (ii) 17. The petitioners next contend that Rule 44-I apart from being contrary to the objects and provisions of the Act, travels beyond t....
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.... of Health administration in a State, by whatever designation he is known, and includes any officer empowered by the Central Government or the State Government, by notification in the Official Gazette, to exercise the powers and perform the duties of the Food (Health) Authority under this Act with respect to such local area as may be specified in the notification;" Section 23 of the Act relates to the power of the central government to make rules, relevant portions of which are extracted below : "23. Power of the Central Government to make rules.-(1) The Central Government may, after consultation with the Committee and after previous publication by notification in the Official Gazette, make rules to carry out the provisions of this Act: x x x (1A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-- xxx xxx (f) prohibiting the sale of defining the conditions of sale of any substance which may be injurious to health when used as food or restricting in any manner its use as an ingredient in the manufacture of any article of food or regulating by the issue of licence....
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....Court held : "A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition, it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be question on the ground that it is contrary to some other statute. That is because sub-ordinate legislation must yield to plenary legislation." (emphasis supplied) In General Officer Commanding-in-Chief vs. Dr. Subhash Chandra Yadav - 1988 (2) SCC 351, this Court held : "Rules have statutory force. But before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely, (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void." (emphasis supplied) In Supreme Court Employees' Welfare Association vs. Union of India - 1989....
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....its ends. (See Section 59 in chaper "Delegated Legislation" in Francis Bennion's Statutory Interpretation, 3rd Edn.)" (emphasis supplied) In J. K. Industries vs. Union of India - 2007 (13) SCC 673, this Court reiterated the grounds on which a sub-ordinate legislation can be challenged as follows : "That, any inquiry into its vires must be confined to the grounds on which plenary legislation may be questioned, to the grounds that it is contrary to the statute under which it is made, to the grounds that it is contrary to other statutory provisions or on the ground that it is so patently arbitrary that it cannot be said to be in conformity with the statute. It can also be challenged on the ground that it violates Article 14 of the Constitution." 21. We will now examine whether the rule is valid in the light of the aforesaid principles, that is (a) whether the rule making authority in making the rule has travelled beyond the scope of the Act; (b) whether the rule does not conform to the provisions of the Act; and (c) whether the rule falls within the scope and purview of the rule making power of the Central Government under section 23 of the Act. 22. As noticed above, th....
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....ical and Health Services or the Chief Officer in-charge of the health administration in a state as also any officer empowered by the central government or the state government by notification in the official gazette to exercise the power and perform the duties of the Food (Health) Authority with respect to such local area as may be specified in such notification. We are not concerned with either any notification by the central government constituting the Food (Health) Authority nor the exercise of power by any Food (Health) Authority in the interest of public health. Therefore, section 7(iv) is of no assistance to decide upon the validity of rule 44-I, nor can it be a source of power to make rule 44-I, nor can it be a source of power to make rule 44-I. 24. If the Act vests the power of prohibiting the manufacture for sale, storage or distribution of any article of food in the interests of public health, in the Food (Health) Authority, the Central Government cannot under its power to make rules for carrying out the purposes of the Act, take upon itself the power to prohibit the manufacture for sale, storage, sale and distribution of any article of food. In Godde Venkateswara Rao ....
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....plied) In the additional counter affidavit filed by the respondent on 30.3.2009, the respondent has again reiterated as follows : "That the respondent has never stated that the use of noniodised salt is injurious to health...... That there is no blanket ban on sale of common salt. The ban on sale of common salt has been imposed (by Rule 44-I)only for direct human consumption. Thus the ban on sale of direct salt for human consumption has been imposed in the interest of public health." (emphasis supplied) Section 23(1A)(f) empowers making a rule to prohibit sale only if the substance is injurious to health when used as food. If use of common salt is not injurious to health, the question of making a rule prohibiting the sale of such a substance would not arise under clause (f) of section 23(1A) of the Act. 26. We will next consider whether section 23(1) of the Act provides the source of authority to make rule 44-I. Sub-section (1) of section 23 provides that the central government may after consultation with the Central Committee for Food Standards (constituted under section 3 of the Act) and after previous publication by notification in the public gazette make rules to....
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....rule 44-I is ultra vires the Act and therefore, not valid. The result would be that the ban on sale of non-iodised salt for human consumption will be raised, which may not be in the interest of public health. We are therefore, of the view that the central government should have at least six months time to thoroughly review the compulsory iodisation policy (universal salt iodisation for human consumption) with reference to latest inputs and research data and if after such review, is of the view that universal iodisation scheme requires to be continued, bring appropriate legislation or other measures in accordance with law to continue the compulsory iodisation programme. 28. The question is having held that Rule 44-I to be invalid, whether we can permit the continuation of the ban on sale of non-iodised salt for human consumption for any period. Article 142 of the Constitution vests unfettered independent jurisdiction to pass any order in public interest to do complete justice, if exercise of such jurisdiction is not be contrary to any express provision of law. In Supreme Court Bar Association vs. Union of India - 1998 (4) SCC 409, this Court observed: "The Supreme Court in exe....