Supreme Court of India
ACADEMY OF NUTRITION IMPROVEMENT AND ORS.versusUNION OF INDIA
- Citation
- 2011 INSC 431
- Decided
- 4 July 2011
- Disposal
- Disposed off
- Bench
- R V RAVEENDRAN
Holding
Rule 44‑1 is ultra vires the Prevention of Food Adulteration Act and cannot be sustained, but the ban on non‑iodised salt is to remain in force for six months pending a governmental review.
Summary
The Academy of Nutrition Improvement and others challenged the constitutionality of Rule 44‑1 of the Prevention of Food Adulteration Rules, 1955, which prohibited the sale of non‑iodised common salt for human consumption. The petitioners argued that the rule violated Articles 14, 19(1)(g) and 21 of the Constitution and was beyond the power granted under the Prevention of Food Adulteration Act, 1954. The Court examined the scientific evidence on universal salt iodisation, held that the policy decision was a matter of public‑health expertise and not for the courts to substitute, and found no material to show the rule was arbitrary or injurious. It further held that Section 7 and Section 23(1A)(f) of the Act did not empower the Central Government to ban non‑iodised salt, rendering Rule 44‑1 ultra vires. Exercising its power under Article 142, the Court allowed the petition in part, declared the rule invalid, but ordered the ban to continue for six months to enable the Government to review the iodisation policy and, if necessary, enact appropriate legislation.
Issues considered
- Whether Rule 44‑1 violates Articles 14, 19(1)(g) and 21 of the Constitution.
- Whether Rule 44‑1 is beyond the rule‑making authority of the Central Government under the Prevention of Food Adulteration Act, 1954.
- Whether the ban can be temporarily continued under the Court’s jurisdiction under Article 142.
Legislation cited
- Constitution of Indias. 14, s. 142, s. 19(1)(g), s. 21
- Prevention of Food Adulteration Act, 1954s. 23(1), s. 23(1A)(f), s. 7
- Prevention of Food Adulteration Rules, 1955s. 44-1
Subjects
iodised saltuniversal salt iodisationpublic healthconstitutional lawArticle 14Article 19(1)(g)Article 21Article 142Prevention of Food Adulteration Actrule‑making powerultra viresjudicial review
Judgment
[2011] 8 S.C.R. 680
A ACADEMY OF NUTRITION IMPROVEMENT AND ORS.
v.
UNION OF INDIA
(Writ Petition (C) No. 80 of 2006)
JULY 4, 2011
B
[R.V. RAVEENDRAN AND B. SUDERSHAN REDDY, JJ.]
Prevention of Food Adulteration Rules, 1955:
c r. 44-1 - Constitutionality of - r. 44-1 providing for
restriction on sale of non-iodised common salt for human
consumption - Writ petitions challenging the compulsory
iodisation of sale for human consumption - Held: Government
of India has taken note of scientific and medical inputs,
D research results and survey data to conclude that compulsory
iodisation is the most effective and accepted method for
elimination of iodine deficiency disorders and that
consumption of iodised salt by persons not suffering from
iodine deficiency will not adversely affect them - r.44-1 is
E stated to be in implementation of a policy decision regarding
public health - The material on record is not sufficient to hold
that the reason for the ban is erroneous and that r.44-1 is
unreasonable and arbitrary - Therefore, the provision placing
a ban on sale of non-iodised salt for human consumption
resulting in compulsory intake of iodised salt cannot be said
F to be arbitrary and violative of Article 14 or injurious to the
health of general populace and violative of Article 21 - There
was also no material to show that any monopoly is sought to
be created in favour of a chosen few companies or MNCs -
Therefore, contention that Article 19(1)(g) is violated is also
G liable to be rejected - Constitution of India, 1950 - Articles
14, 19(1)(g), 21.
r.44-1- Whether r.44-1 is inconsistent with the Prevention
of Food Adulteration Act - Held: The Act contemplates
H 680
• ACADEMY OF NUTRITION IMPROVEMENT AND
ORS. v. UNION OF INDIA
681
prohibition of manufacture, storing, sale or distribution of any A
adulterated and mis-branded food. measures to prevent
adulteration, and also provides for laying down food
standards and prohibiting import of certain objectionable
articles of food items - If an item of food is adulterated, or is
itself an adulterant (used for adulteration), or unwholesome B
or injurious to health, a rule to prevent or prohibit the
manufacture for sale, storage, sale or distribution of such
objectionable food item will be within the scope of the Act - If
the object sought to be achieved is to persuade the people
to use iodised salt or to ensure that people use iodised salt, c
recourse cannot be by making a rule banning sale of common
salt for human consumption under the Act - The Act cannot
be used to make a rule intended to achieve an object wholly
unrelated to the Act - r. 44-1 is wholly outside the scope of
the Act and is ultra vires the Act and therefore, not valid - To 0
do complete justice between the parties in the interest of
public health, in exercise of jurisdiction u!Article 142, the ban
contained in r.44-1 for a period of six months is continued -
Central Government given six months time to thoroughly
review the compulsory iodisation policy (universal salt E
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 -
Prevention of Food Adulteration Act, 1954. F
Prevention of Food Adulteration Act, 1954:
Object and purpose of the Act - Discussed.
s. 7 whether a source of power to make r. 44-1 - Held: s. 7 G
relates to prohibition of manufacture for sale, storage, sale or
distribution of 'objectionable' food, that Is adulterated food,
misbranded food, unlicensed food, food injurious to public
health - s. 7 does not relate to rule making and is not a source
H
682 SUPREME COURT REPORTS [2011) 8 S.C.R.
A of power to make r. 44-1 - Prevention of Food Adulteration
Rules, 1955 - r. 44-1.
s.23(1A) - Whether r.44-1 is beyond the rule making
power of the Central Government - Held: The Act vests the
power of prohibiting the manufacture for sale, storage or
8
distribution of any article of food in the interests of public
health, in the Food (Health) Authority - 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
C manufacture for sale, storage, sale and distribution of any
article of food - Clause (f) of s.23(1A) enables the central
government to make rules prohibiting the sale .or 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
D or regulating by the issue of licence the manufacture or sale
of any article of 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
s.23(1A) of the Act.
E
s.23(1)- Whether s.23(1) provides the source of authority
to make r.44-1- Held: No - s.23(1) provides that the central
government may after consultation with the Central
Committee for Food Standards and after previous publication
· F by notification in the public gazette make rules to carry out
the provisions of the Act- r. 44-1 is not a rule made or required
to be made to carry out the provisions of the Act, having
regard to its object and scheme - It has nothing to do with
curbing of food adulteration or to suppress any social or
G economic mischief
Administrative law: Judicial review - Universal salt
iodisation - Restriction imposed on the sale of non-iodised
common salt for human consumption by introducing ;
amendment in.the Prevention of Food Adulteration Rules -
H Scope of interference by the court - Held: The question 1
• ACADEMY OF NUTRITION IMPROVEMENT AND
ORS. v. UNION OF INDIA
683.
whether there should be universal salt iodisation is a much A
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 B
absence of need for such universal salt iodisation on the
basis of some articles and reports placed before it - Nor
should 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 c
persons said to possess technical expertise and rich
experience.
Constitution of India, 1950: Article 142 - Held: Vests
unfettered independent jurisdiction to pass any order in public
interest to do complete justice, if exercise of such jurisdiction D
is not contrary to any express provision of law - Prevention
of Food Adulteration Rules, 1955 - r. 44-1 - Prevention of
Food Adulteration Act, 1954.
Rule 44-1 was inserted in the Prevention of Food E
Adulteration Rules, 1955 by way of amendment to tho
Rules. The said· rule imposed restriction on the sale of
non-iodised common salt for human consumption.
The lnstnnt writ petitions were flied by non-
governmental organizations representing consumers, F
salt producers, medical experts, academics etc. opposing
ths compulsory lodlsetlon of salt for human consumption.
According to the petitioners, constant use of Iodised salt
on account of compulsory lodlsation would lead to Iodine
Induced hyper thyroldl&m with Increased chances of G
. death; that when tho entire populace do not need Iodised
salt, It le unfair and unjust to deny them the right to
choose bt'~veen iodised salt and non-iodised salt and,
therefore, Rule 44-1 violates Articles 14 and 21 of the
Constitution of India which entitles every person to have H
684 SUPREME COURT REPORTS [2011] 8 S.C.R.
A free choice in regard to consumption of food; that the
coot of Iodised salt being several times more than the
cost of non-Iodised salt, the majority of the populace are
adversely affected by the rule requiring compulsory
lodisation; that the compulsory use of iodised salt only
B helped a few multi-national companies which had the
monopoly In the manufacture of Iodised salt and that
many small scale and local producers of salt were
adversely affected by creation of such monopoly,
therefore, Rule 44·1 Is violative of Article 19(1 )(g) of the
C Constitution as It affected the fundamental rights of small
and medium scale manufacturer to carry on their
business In salt
Partly allowing the writ petition and disposing of the
transferred petitions, the Court
D
~HELD: 1.1. There Is some material to support the
contention of the petitioners that around 90% of the
populace do not need iodised salt and that consumption
of excess iodine may have some adverse effects. On the
E other hand there is also considerable material for the
view that compulsory iodisation is also necessary to
prevent IDDs in about 10% (or more) of the populace and
the consumption of iodised salt by the remaining 90%
who do not require it, may not be injurious to their health
F as excess iodine Is easily excreted. The question whether
·there should be unlv~rsal salt lodlsatlon 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,
G toste, scientific Investigations and research. Courts are
neither equipped, nor can be expected to decide about
tho need or absence of need for such universal salt
lodlsatlon on the basis of some articles and reports
placed before It. Courts should not rush In where even
aclentJsts and medical experts are careful to tread. Tho
H
• ACADEMY OF NUTRITION IMPROVEMENT AND
ORS. v. UNION OF INDIA
685
rule of prudence Is that courts will be reluctant to Interfere A
with pollcy decisions taken by the Government, In
. matters of public health, after collecting and analysing
Inputs from surveys and research. Nor wlll courts attempt
to substitute tholr own views as to what Is wise, safe,
prudent or proper, In relation to technical Issues relating s
to public health In preference to those formulated by
persons said to possess technical expertise and ·rich
experience. [Para 14] [706-E-H; 707-A-C]
Medical Physiology by Author C. Guyton & John£. Hall C
- 1996 Edition - referred to.
1.2. The petitioners' challenge to constltutlonallty of
the Impugned amendment Is bound to fail. Courts are not
equipped to decide the medical Issue relating to public
health, as to whether compulsory iodisation should be D
replaced by voluntary lodisation as has been done in
some developed countries, so that both common salt and
iodised salt are available In the market and only those
10% who are deficient in Iodine can opt for iodised salt.
The Government of India has taken note of scientific and e:
medical inputs, research results and survey data to
conclude that compulsory iodisation is the most effective
and accepted method for elimination of iodine deficiency
disorders and that consumption of iodised salt by
persons not suffering from Iodine deficiency will not F
edversoly affect them. Rule 44·1 Is stated to be In
implemontatlon of a policy decision regarding public
health. The material placed by tho petitioners Is not
sufficient to hold that tho reason for the ban Is erroneous
and that Rulo 44·1 Is unreasonable and arbitrary. G
Therefore, the contontlon that the provision pl~clng a ban
on sale of non-Iodised salt for human consumption
rosultlng In compulsory Intake of Iodised salt, Is arbitrary
and vlolatlve of Article 14 or Injurious to tho health of
general populace and therefore violative of Article 21 Is H
686 SUPREME COURT REPORTS (2011] 8 S.C.R. •
A rejected. The use of common salt (non-Iodised salt) for
Industrial and commercial use Is not prohibited. The ban
operates only in regard to use of common salt for human
consumption. There was also no material to show that
any monopoly is sought to be created in favour of a
·s chosen few companies or MNCs. In the circumstances,
the contention that Article 19(1)(g) Is violated is liable to
be rejected. [Para 16) [708-B-G]
Report dated 6.2.2004 of the Core Advisory Group;
Vitamin and Mineral Requirements in Human Nutrition" 2004
C Edition, Report of a WHO Expert Consultation: "Salt as a
Vehicle for Fortification" (2007) p. 7; 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; Rajan Shankar and C.S.Pandav, in "Ban on
0 Sale of Non-iodized Salt for Human Consumption: A step in
the right direction" (The National Medical Journal of India, Vol.
18, No.4, 2005 p. 169 at p. 170; Modem Nutrition in Health
and Development" edited by M. Shike and others [Lippincott,
Williams, & Wilknis Publishers, 2006, p.310 - referred to.
E
2.1. The Prevention of Food Adulteration Act
contemplates prohibition of manufacture, storing, sale or
distribution of any adulterated and mis-branded food,
measures to prevent adulteration, and also provides for
F laying down food standards and prohibiting import of
certain objectionable articles of food Items. The object
and purpose of the Act Is to eliminate the danger to
human life from the sale of adulterated food and to
ensure that what Is sold is wholesome food. In other
words, if an Item of food Is adulterated, or Is Itself nn
G adulterant (used for adulteration), or unwholesome or
Injurious to health, a rule to prevent or prohibit the
manufacture for sale, storage, sale or distribution of such
objectionable food item will be within the scope of the Act
Such prohibition will be valid even in regard to incidental
IH
• ACADEMY OF NUTRITION IMPROVEMENT AND
ORS. v. UNION OF INDIA
687
items such as misbranded food Items and unlicensed A
food Items (where licence Is required). But where an Item
of food (used In the composition or preparation of human
food and used as a flavouring) is in Its natural form and
Is unadulterated and is not injurious to health, a rule
cannot be made under the provisions of the Act to ban B
the manufacture for sale, storage or sale of such food
Item on the ground such ban will ensure that the
populace will use a medicated form of such food, which
will benefit a section of the populace. Making available
m!3dlcines or medicinal preparations to Improve public c
health is not the object of the Act. If the object sought to
be achieved is to persuade the people to use iodised salt
or to ensure that people use iodised salt, recourse
cannot be by making a rule banning sale of common salt
for human consumption under the Act. The Act cannot D
be used to make a rule intended to achieve an object
wholly unrelc:tad to the Act. The good intention of the rule
making authority is not therefore sufficient to save the
rule. Rule 44-1 is wholly outside the scope of the Act.
[Paras 18, 22] [709-D; 715-F-H; 716-A-D]
E
Directorate of Film Festivals vs. Gaurav Ashwin Jain
2007 (4) SCC 737: 2007 (5) SCR 7; Municipal Corporation
of Delhi. v. Kacheroo Mal 1976(1) SCC 412: 1976 (2) SCR
1; Dinesh Chandra Jamnadas Gandhi vs. State of Gujarat
1989 (1) SCC 420: 1989 (1) SCR 138; State of Kamataka F
vs. H.. Ganesh Karnath 1983(2) SCC 402; Indian Express
Newspapers (Bombay), Pvt. Ltd vs. Union of India 1985 (1)
SCC 641: 1985 (2) SCR 287;General Officer Commanding-
in-Chief vs. Dr.Subhash Chandra Yadav 1988 (2) SCC 351:
1988 (3) SCR 62; Supreme Court Employees' Welfare G
Association vs. Union of India 1989 (4) SCC 187: 1989 (3)
SCR 488; Addi. District Magistrate (Rev.) Delhi Administration
vs. Siri Ram 2000 (5) sec 451: 2000 (3) SCR 1019;
Dr. Mahachandra Prasad Singh vs. Chairman, Bihar
Legislative Council & Ors. 2004 (8) SCC 747: 2004 (5) Suppl. H
688 SUPREME COURT REPORTS [2011] 8 S.C.R. •
A SCR 692; J. K. Industries vs.Union of India 2007 (13) SCC
673: 2007 (12) SCR 136 - relied on.
2.2. Section 7 does not relate to rule making. It relates
to prohibition of manufacture for sale, storage, sale or
dlstributlor; of 'objectionable' food, that is adulterated
8
food, misbranded food, unlicensed food, food Injurious
to public health. Section 7(iv) provides that no person
shall manufacture for sale, store, sell or distribute any
article of food, the sale of which is for the time being
prohibited by the Food (Health) Authority in the Interest
C of public health. Rule 44-1 is not a prohibition by the Food
(Health) Authority In the Interest of public health. The
Food (Health) Authority refers to the Director of Medical
and Health Services or the Chief Officer In-charge of the
Health Administration in a State as also any officer
D 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. Section 7(iv) is of no
E assistance to decide upon the validity of rule 44·1, nor can
it be a source of power to make rule 44-1. [Para 23] [716·
H; 717-A]
2.3. If the Act vests the power of prohibiting the
F manufacture for sale, storage or distribution of any article
of food In the Interests of publlc 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
G manufacture for sale, storage, sale and distribution of any
article of food. Clause (f) of section 23(1A) enables the
central government to make rules prohibiting the sale or
defining the conditions of sale of any oubstance "which
may be injurious to health when used as food" or restricting
In any manner Its use as an Ingredient in the manufacture
H
• ACADEMY OF NUTRITION IMPROVEMENT AND
ORS. v. UNION OF INDIA
689
of any article of food or regulating by the issue of licence A
the manufacture or sale of any article of food. It Is the
specific case of the respondent that the use of non-
Iodized salt Is not Injurious to health. Section 23(1A)(f}
empowers making a rule to prohibit sale only if the
substance is injurious to health when used as food. If B
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. [Paras 24, 25) [717-B-C; 717-H; 718-A-B, G-H]
Godde Venkateswara Rao vs. Government of Andhra C
Pradesh 1966 (2)SCR 172 - relied on.
2.4. Section 23(1) provides that the central
government may after consultation with the Central
Committee for Food Standards (constituted under section D
3 of the Act) and after previous publication by notification
in the public gazette make rules to carry out the provisions
of the Act. Statutes delegating the power to make rules
follow a standard pattern. The relevant section would first
contain a provision granting the power to make rules to E
the delegate in general terms, by using the words 'to carry
out the provisions of this Act' or 'to carry out the
purposes of this Act'. This is usually followed by another
sub-section enumerating the matters/areas in regard to
which specific power is delegated by using the words 'in F
particular and without prejudice to the generality of the
foregoing power, such rules may provide for all or any
of the following matters." Interpreting such provisions,
this Court in a number of decisions has held that where
power is conferred to make subordinate legislation in G
general terms, the subsequent particularisation of the
matters/topics has to. be construed as merely illustrative
and not limiting the scope of the general power.
Consequently, even if the specific enumerated topics in
section 23(1A) may not empower the Central Government H
690 SUPREME COURT REPORTS (2011) 8 S.C.R. •
A to make the impugned rule (Rule 44·1), making of the Rule
can be jus.tlfied with reference to the general power
conferred o·n th.e ,central government under section 23(1 ), •
provided the rule does not travel beyond the scope of the
Act. But even a general power to make rules or
B regulations for carrying out or giving effect to the Act, Is
strictly ancillary In nature and cannot enable the authority
on whom the power is conferred to extend the scope of
general operation of the Act. Therefore, such a power
"will not support attempts to widen the purposes of the
c Act, to add new and different means to carrying them out,
to depart from or vary its terms. Rule 44-1 is not a rule
made or required to be made to carry out the provisions
of the Act, having regard to its object and scheme. It has
nothing to do with curbing of food adulteration or to
suppress any social or economic mischief. [Para 26)
0
[719-A-H; 720-A]
Principles of Statutory Interpretation by Justice G. P.
Singh 12th Editionpage 1009 - referred to.
E Shanahan v. Scott 1957 (96) CLR 245; Utah
Construction v. Pataky 1965 (3) All ER 650 - referred to.
2.5. There is no material to show that universal salt
iodlsation will be injurious to public health (that Is to the
majority of populace who do not suffer from Iodine
F deficiency). But Rule 44-1 Is ultra vlres 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.
Therefore, the Central Government should have at least
G 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 vlew that
universal lodisation scheme requires to be continued,
H bring appropriate legislation or other measures In
• ACADEMY OF NUTRITION IMPROVEMENT AND
ORS. v. UNION OF INDIA
691
accordance with law to continue the compulsory A
lodisation programme. [Para 27] [720-B-E]
3. 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 B
of law. To do complete justice between the parties in the
· interest of public health, In exercise of jurisdiction under
Article 142 of the Constitution, the ban contained in Rule
44-1 for a period of six months is continued. The central
government may within that period review the C
compulsory lodisation programme and If It decides to
continue, may Introduce appropriate legislative or other
measures. However, If it fails to take any action within the
expiry of six months from today, Rule 44-1 shall cease to
operate. Thus, Rule 44-1 of the Prevention of Food D
Adulteration Rules, 1955 (inserted by Prevention of Food
Adulteration (Eighth Amendment) Rules 2005) Is beyond
the rule-making power of the Central Government and
ultra vires the Act subject to the continuation of the ban
· contained in Rule 44-1 for a period of six months in terms E
of the previous paragraph. [Paras 28-30] [720-F; 722-B-
E]
Supreme Court Bar Association vs. Union of India 1998
(4) SCC 409:1998 (2) SCR 795; Kalyan Chandra Sarkar vs. F
Rajesh Ranjan 2005 (3)SCC 284 - relied on.
Case Law Reference:
2007 (5) SCR 7 relied on Para 14
1976 (2) SCR 1 relied on Para 19 G
1989 (1) SCR 138 relied on Para 19
1985 (2) SCR 287 relied on Para 20
1988 (3) SCR 62 relied on Para 20 H
692 SUPREME COURT REPORTS [2011) 8 S.C.R. •
A 1989 (3) SCR 488 relied on Para 20
2000 (3) SCR 1019 relled on Para 20
2004 (5 ) Suppl. SCR 692relled on Para 20
2007 (12 ) SCR 136 relied on Para 20
B
1966 (2) SCR 172 relied on Para 24
1957 (96) CLR 245 relied on Para 26
1965 (3) All ER 650 relied on Para 26
c 1998 (2) SCR 795 relied on Para 28
2005 (3) sec 284 relied on Para 29
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
D 80 of 2006.
Under Article 32 of the Constitution of India.
WITH
TC (C) No. 54, 55, 56, 57, 58 of 2011 And
E
TC (C) No. 11 of 2002 & WP (C) No. 175 of 2006 ..
Dr. Aurobindo Ghose, Balraj Dewan, Vishwajit Singh,
Himanshu Munshi for the Appellants.
F Naresh Kaushik, Sadhana Sandhu, D.S. Mahra, Sushma
Suri, B.B. Singh for the Respondent.
The Judgment of the Court was delivered by
R.V.RAVEENDRAN, J. 1. The petitioners have sought a
G declaration that the Prevention of Food Adulteration (Eighth
Amendment) Rules, 2005 [vide Notification No.GSR 670(E)
dated 17.11.2005 of the Ministry of Health and Family Welfare,
Government of India] is unconstitutional and invalid. The
grievance is primarily in regard to Rule 44-1 inserted in the
H Prevention of Food Adulteration Rules 1955 by the said
• ACADEMY OF NUTRITION IMPROVEMENT AND
ORS. v. UNION OF INDIA [R.V. RAVEENDRAN, J.]
693
Amendment Rules. The said Rule reads as follows·: A
"44 I. Restriction on sale of common salt - No person
shall sell or offer to expose for sale or have in his premises
for the purpose of sale, the common salt, for direct human
consumption unless the same is iodized : 8
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 sub-rule (zzz) of rule 42. • C
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 D
sale shall bear the following label, namely :
Common Salt for lodisation/lron fortification/Animal Use/
Preservation/Medicine/Industrial Use*
E
*Strike out whichever is not applicable
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 F
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, G
provided such mandatory iodisation was done only in respect
of edible salt for direct human consumption and not in regard
to salt meant for commercial use by the food industry. In
pursuance of it, Government of India took a decision to iodise
the entire edible salt for direct human consumption in the H
694 SUPREME COURT REPORTS [2011) 8 S.C.R. •
A country. As a consequence, the state governments were
advised to implement the compulsory iodization of salt within
their own territories by placing suitable restrictions on the
marketing and sale of non-iodised salt for direct human
consumption by invoking the provisions of section 7(iv) of the
a Prevention of Food Adulteration Act, 1954 ('Act' for short).
Based on such advice, various States took action by issuing
notifications prohibiting/restricting the sale of non-iodised salt.
Subsequently, with the object of uniformly applying the ban
throughout the country, the Central Government inserted Rule
c 44-H in the Prevention of Food Adulteration Rules, 1955
('Rules' for short), by the Prevention of Food Adulteration (Tenth
Amendment) Rules 1997 (vide notification dated 27.11.1997),
banning the sale of non-iodised common salt for direct human
consumption. The said Rule 44-H came into effect on
27.5.1998. It is stated that by then, almost all the States (except
0
Kerala, Maharashtra and parts of Andhra Pradesh) had
imposed ban or restrictions on sale of non-iodised salt for
human consumption.
3. The said amendment inserting Rule 44-H prohibiting the
E sale of non-iodised salt for direct human consumption was
reviewed by the Central Government. On such review, it came
to the conclusion that such a restriction could be more
effectively exercised by the State Governments in regard to the
respective areas within their jurisdiction, keeping in view the
F nutritional profiles of the populace in different parts of the
respective state, whereas such a flexibility was not available
as a result of the Central Government making the rule (Rule
44H) mandating the use of iodised salt in the entire country,
without any option or choice. In view of it, the Central
G Government omitted Rule 44H from the Rules with effect from
30.9.2000, by the Prevention of Food Adulteration (Fifth
Amendment) Rules 2000 (vide notification dated 13.9.2000),
so that more informed decisions could be taken by the
respective State Governments on the question whether a
H provision should be made for sale of only iodised salt for
• ACADEMY OF NUTRITION IMPROVEMENT AND
ORS. v. UNION OF INDIA [R.V. RAVEENDRAN, J.]
695
direction human consumption. It was felt that by providing such A
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 B
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.525of2000
in this Court. During the pendency of W.P. (C) No.525 of 2000, C
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 · D
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 found in more than E
10% of the population) and no state or Union Territory was free
from IDDs. It was also found that iodine deficiency caused a
wide spectrum of disorders, ranging from Goitre to Cretinism,
apart from causing disorders like still-birth, abortion, dwarfism,
eye-squint, mental retardation, lower IQ, deaf-mutism and F
neuromotor defects. It was found that the simplest and most
effective and inexpensive method of preventing and controlling
IDDs was to make up the iodine deficiency by iodising the
common salt to ensure that through consumption of iodised salt,
not less than 150 micro grams of iodine is made available to G
each person per day. In view of the said report, the Central
Government again introduced a ban on sale of non-iodised
common salt for human consumption by inserting Rule 44-1, by
way of amendment to the Rules, vide notification dated
17.11.2005. On such re-introduction of the ban, WP [CJ No.525 H
696 SUPREME COURT REPORTS [2011) 8 S.C.R. •
A of 2000 challenging the omission of Rule 44H was disposed
of, as having become infructuous.
5. The petitioners in these writ petitions are non-
governmental organisations representing consumers, salt
producers, medical experts, academics, etc. They oppose
8
compulsory iodisation of salt for human consumption. According
to them, goitre and other IDDs occur not only in areas deficient
in iodine but also in areas where (i) water supply is
contaminated, (ii) water is hard, (iii) poor hygiene prevails on
account of poverty, (iv) foods contain iodine inhibitory
C (goitrogenic) substances; (v) functioning of thyroid gland is
improper; and (vi) consumption of processed and preserved
food is excessive. According to them, even after two decades
of use of iodised salt in several areas, incidence of goitre had
increased sharply. It is submitted that the international
D experience, particularly in western countries, is to move from
compulsory iodisation regime to voluntary need-based
iodisation regime, so that only those having iodine deficiency
could use iodised salt. It is submitted that when people who do
not suffer from iodine deficiency are forced to take iodised salt
E regularly, there is risk of many of them developing
complications induced by higher intake of iodine and increase
in iodine levels. According to the petitioners, constant use of
iodised salt on account of compulsory iodisation, would lead
to iodine-induced hyper-thyroidism with increased chances of
F 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.
G 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 44-1 violates Articles 14 and 21 of the
Constitution, whic~ entitle every person to have free choice in
regard to consumption of food.
H
• ACADEMY OF NUTRITION IMPROVEMENT AND
ORS. v. UNION OF INDIA [R.V. RAVEENDRAN, J.]
697
5.2) The petitioners submit that the cost of iodised salt A
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 multi-national
companies (MNCs) which had the monopoly in the manufacture B
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 44-1 is
violative of Article 19(1 )(g) of the Constitution, as it affects the
fundamental ri9ht of small and medium scale manufacturers to c
carry on their business in salt,..
5.3) It was lastly contended by the petitioners that non-
iodised salt was not injurious to public health and consequently,
the provisions of the Act do not enable the Central Government
to make a rule banning the sale of common salt (non-iodised 0
salt) for human consumption. The petitioners submit that
common salt is an unadulterated article used as an ingredient
in food and Rule 44-1 imposing a ban on its sale for human
consumption does not conform to, and is inconsistent with the
object of the statute under which it is made. E
6. Respondent has resisted the petitions by referring to the
circumstances (mentioned in para 4 above) which necessitated
the insertion of Rule 44-1 by way of amendment to the Rules. It
was contended that the ban on sale of common salt for human F
consumption was imposed in the interest of public health, and
does not violate either Article 14 or 21 of the Constitution. It is
submitted that IDDs are caused by lack of iodine in diet; that
majority of iodine deficiency disorders are permanent and
incurable, but each one of them is completely preventable by G
ensuring a iodine supplementation of 100-150 ug (micrograms)
of iodine per day and the simplest and most effective way of
ensuring such iodine intake is through iodising the common salt
used for human consumption; and that iodine, when taken in
excess of what is required is easily excreted through urine and H
698 SUPREME COURT REPORTS [2011] 8 S.C.R. •
A therefore consumption of iodated salt is safe for everyone. It is
submitted that if the resistance to the ban was on account of
small scale manufacturers of salt not being able to produce
iodised salt in an economically viable manner or compete with
large scale manufacturers (multinational companies),
B appropriate steps would be taken by the central and state
governments to enable them to produce iodised salt by using
simple production techniques. It is stated that by 2006 itself
more than 800 private units were licensed and more than 500
units have started production of iodised salt. Respondent
C contei1ds that Rule 44-1 is neither inconsistent with the provisions
of the Act nor beyond its rule making power. The power to
make such a rule is traced to section 7(iv), and section 23(1)
and 23(1A)(f) of the Act.
7. Therefore, the following two questions arise for our
D consideration:
(i) Whether Rule 44-1 is unconstitutional?
(ii) Whether Rule 44-1 is inconsistent with the Act and
beyond the rule making power of the Central
E Government?
Re : Question (i)
8. The question whether iodised salt is beneficial to the
F 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
G literature which according to them demonstrates that Universal
Salt lodisation (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
d.o not suffer from iodine deficiency. Respondent has countered
H the said claim by relying upon some material to show that
• ACADEMY OF NUTRITION IMPROVEMENT AND
ORS. v. UNION OF INDIA [R.V. RAVEENDRAN, J.]
699
compulsory salt iodisation has shown marked results and is A
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 B
29.12.1989 passed at a meeting of group of distinguished
scientists and experts including Dr. B.D.Agarwal, President,
Indian Medical Association (NB) OBA, Dr. Ajai Lanjewar,
President, Academy of Medical Sciences; Dr. (Mrs.) Memuha
Haque, President, Nutrition Society of India, Dr. P.K.Sengupta, C
Past President IMA, and several others. The relevant portions
of the said resolution are extracted below:
"The available data about availability of iodine to the
people from daily diet clearly indicates that it is more than D
adequate (Annual Report 1986-87, National Institute of
Nutrition, l.C.M.R. Hyderabad, Page 4). Also common salt
(Not iodised) provides iodine upto 5 micrograms per
grams of salt which it self is adequate to meet daily
requirement of iodine of poor people involved in hard work E
(Salt Commissioner of India, Letter No. 11(4)/Goiter/89/
6373 dated 18.10.89 and Analytical Report of the Iodine
Content of Common Salt, Biochemistry Department,
Nagpur University of PGTD/BC dated 9th February, 1989
and Dr. M.S.Swaminathan).
F
As such it is concluded and resolved that there is no need
of promoting of compulsion of iodised salt all over the
country. However, the medical profession can prescribe
iodised salt or alike preparations for those who really need
iodine for their good health. G
Available reports indicates regular excess intake of iodine
or iodised salt is injurious to the health of the people and
more so for pregnant, neonatal conditions and over the
age of 40 years. On the basis of these informations, use H
700 SUPREME COURT REPORTS [2011) 8 S.C.R.
A of radiographic dyes, antiseptic lotions and medication
with high iodine content are prohibited for clinical use in
pregnant mothers even in western countries.
It is also known that people are sensitive to iodine and as
such it is routine practice to carry out iodine sensitivity test
B
before iodine is used for diagnostic or therapeutic
purpose. It is noted that people suffering from asthama are
very sensitive to iodine and as such may prove health
hazard upto sudden death when universal use of iodised
salt is made (Preventive and control of Iodine Deficiency
c Disorders by Basil & Hetzel, United Nations Publication,
March 1988 Page 76-77 and N. Kouchupillai &
M.M.Godbole, N.F.I. bulletin October 1986 page 343)."
10. In an open letter dated 9.9.2005 addressed to the
o Minister for Health & Family Welfare, Government of India, 235
eminent doctors and medical experts pointed out that adverse
side-affects to a large number would outweigh benefits.to a few
and raised the following issues for the consideration of the
Ministry:
E "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,
F 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
G 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
H
• ACADEMY OF NUTRITION IMPROVEMENT AND
ORS. v. UNION OF INDIA [R.V. RAVEENDRAN, J.]
701
varying impact. Some studies show little impact A
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.
B
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, iodine deficiency C
disorders {IDD) do constitute a public health problem.
Local measures to deal with the problem are known, for
instance, subsidizing the iodised salt so that it becomes
available at lower prices than non-iodised salt, promoting
small-scale production in the endemic pockets and D
encouraging its use there. Therefore, there is no rationale
for instituting a universal ban on non-iodised salt."
11. Reliance was placed on the following passage from
Text Book of Medical Physiology (By Author C. Guyton & John E
E. Hall - 1996 Edition) :
"Because iodides in high concentrations decrease all
phases of thyroid activity, they slightly decrease the size
of the thyroid gland and especially decrease its blood
supply, in contradistinction to the oppose effects caused F
by most of the other anti-thyroid agents."
The following observations from the Article "Common Salt vs.
Iodised Salt" (by Dr. PVR Bhaskar Rao, Chairman, People for
Economical and Effective Medicare) are also relied on :
G
"The advice for consumption of iodised salt without
correction of total nutritional deficiency is unscientific and
results in waste of money. If iodine is consumed in the form
of iodised salt the aim is to see that the iodine gets
converted into thyroid hormone, there should be sufficient H
702 SUPREME COURT REPORTS (2011) 8 S.C.R.
A amounts of the essential amino acid tyrosine (protein) and
the enzyme peroxidise for the manufacture of which
sufficient quantities of iron in the body are necessary. It
means that if there is protein deficiency or iron deficiency
or both, whatever iodine is given to an individual in any
B form it would be completely excreted in the urine.
Therefore, it is utterly futile to advice consumption of
iodised salt without correcting total nutrition deficiency
including anaemia. 1t is worth while to note that even in
urban population 60% are anaemia and in rural population
c it would be around 80% with this degree of anaemia
iodine deficiency cannot be corrected by any means if
anaemia is not corrected.
Conclusion :
D (c) By addition of potassium iodate which may be harmful
to some, iodised salt is the adulterated salt.
(d) Iodised salt is known to cause hyperthyroidism and also
severe allergic reactions to some and its universal
consumption leads to health hazards.
E
(e) Without correcting iron and protein deficiencies,
advising people to consume iodised salt amounts to
putting cart before the horse.
F (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
G 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
H dated 6.2.2004 of the Core Advisory Group :
• ACADEMY OF NUTRITION IMPROVEMENT AND
ORS. v. UNION OF INDIA [R.V. RAVEENDRAN, J.]
703
"The Core Advisory Group reviewed the documents which A
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 cons1,1mption of non-
iodised salt by sections of our population. B
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 C
affect all socio-economic groups living in defined
geographic areas. Initially, Iodine deficiency disorders
were thought to be a problem in sub-Himalayan region.
However, surveys carried out subsequently showed that
iodine deficiency disorders exist even in riverine and
coastal areas. No State in India is completely free from D
iodine deficiency disorders. Universal use of iodised salt
is a simple. inexpensive method of preventing iodine
deficiency disorders.
xxx E
The Tenth Five Year Plan has recommended that it is
essential to ensure that only iodised salt is made available
for human consumption in order to enable the children of
the 21st century to attain their full intellectual potential and F
take their rightful place in a knowledge based-society.
xxx
The plea that there should not be any ban on the sale of
non iodised salt and that the people should be allowed to G
make an informed choice between use of iodised salt and
non iodised salt is not tenable. An apparently normal
mother in a family with no over signs of iodine deficiency
disorders (IDD) can deliver a child with cretinism. In view
of this there is a need to ensure universal access only to H
704 SUPREME COURT REPORTS [2011) 8 S.C.R. •
A good quality powdered iodised salt.. ....
The Core Advisory Group was of the opinion that universal
iodisation of salt is a public health need which should be
met, without any relaxation in the ban on sale of non-
iodised salt. If part of the opposition to a ban on the sale
B
of non-iodised salt arises from the apprehensions of small-
scale manufacturers of salt that they would be unable to
produce iodised salt in an economically viable manner and
compete with large commercial manufacturers of iodised
salt, appropriate steps may be taken by relevant
c government agencies to enable them to produce iodised
salt close to the sites of salt extraction, using simple
production techniques."
13. Support for compulsory iodisation of salt for human
D · consumption is also found in the opinion of several experts. We
may refer to some of them. The World Health Organisation, in
its publication on "Vitamin and Mineral Requirements in
Human Nutrition" [2004 Edition, p.314] states:
"Excess iodine intake in healthy adults in iodine replete
E
areas is difficult to define. Many people are regularly
exposed to huge amounts of iodine- in the range of 10-
200 mg/daily - without apparent adverse effects ... This
tolerance to huge doses of iodine in healthy iodine-replete
adults is the reason why WHO stated in 1994 that, "Daily
F 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."
G 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
H
• ACADEMY OF NUTRITION IMPROVEMENT AND
ORS. v. UNION OF INDIA [R.V. RAVEENDRAN, J.]
705
strategy recommended by WHO for the control of iodine A
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).
B
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 C
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, it
must be emphasized that the eradication of iodine
deficiency far outweighs this minor risk, which is almost D
always self-limited and disappears over many years as
the iodine-deficient population achieves iodine repletion.
Prevention of iodine-deficiency goiter, mental and growth
retardation, poor productivity, and cretinism must be
achieved through joint efforts of international, national, and E
local agencies."
Rajan Shankar and C.S.Pandav, in "Ban on Sale of Non-
iodized Salt for Human Consumption: A step in the right
direction" (The National Medical Journal of India, Vol. 18, No.4,
2005 p. 169 at p.170) state :
F
"Why is there a need for legislation and compulsory salt
iodisation? Can people have a choice? There are
situations in which, in the absence of proper education, 'the
freedom to choose' may not offer the right choice and salt G
iodization is one of them. Individuals often need to be
convinced to make good choices when the benefits are
preventive in nature .... Public health experts who see
iodine deficiency as a critical problem should lead the
fight against the idelogical arguments tilted in the H
706 SUPREME COURT REPORTS (2011) 8 S.C.R.
•
A direction of doing nothing."
In "Modem Nutrition in Health and Development" edited
by M.Shike and others [Lippincott, Williams, & Wilknis
Publishers, 2006, p.310] it is observed:
B "Iodine is a necessary component of the thyroid hormones,
which are required for life and health. Iodine is distributed
unequally over the earth, and half of the world's population
lives in countries with significant deficiency. The worst
consequence of the deficiency occur during pregnancy and
C included fetal and infant deaths, irreversible brain damage,
and maternal complications. Additional problems of the
rest of the community are hypothyroidism, goiter, and
socio-economic stagnisation. lodisation of salt is the best
and most effective way of correcting iodine deficiency.
o Excess iodifJe intake occasionally occurs but can be
avoided : its consequences are minor compared with
.those of deficiency. •
(emphasis supplied)
E 14. There is thus some material to support the contention
of the petitioners that around 90% of the populace do not need
iodised salt and that consumption of excess iodine may have
some adverse effects. On the other hand there is also
considerable material for the view that compulsory iodisation
F is also necessary to prevent IDDs in about 10% (or more) of
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
G 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
H ·for such universal salt iodisation on the basis of some articles
• ACADEMY OF NUTRITION IMPROVEMENT AND
ORS. v. UNION OF INDIA [R.V. RAVEENDRAN, J.]
707
and reports placed before it. This Court in a series of decisions A
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. B
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 said to possess technical expertise and rich
experience. This Court in Directorate of Film Festivals vs. c
Gaurav Ashwin Jain - 2007 (4) SCC 737, pointed out :
"The scope of judicial review of governmental policy is now
well defined. Courts do not and cannot act as Appellate
Authorities examining the correctness, suitability and
appropriateness of a policy. Nor are courts Advisors to the D
executive on matters of policy which the executive is
entitled to formulate. The scope of judicial review when
examining a policy of the government is to check whether
it violates the fundamental rights of the citizens or is
opposed to the provisions of the Constitution, or opposed E
to any statutory provision or manifestly arbitrary. Courts
cannot interfere with policy either on the ground that it is
erroneous or on the ground that a better, fairer or wiser
alternative is available. Legality of the policy, and not the
wisdom or soundness of the policy, is the subject of judicial F
review."
15. The limited question that can therefore be examined
by this Court is whether the policy underlying Rule 44-1 based
on opinion of experts and national survey can be said to be
wholly arbitrary and unreasonable so as to be violative of Article G
14. The further question is whether forcing the majority of
populace who are not having iodine deficiency to use iodised
salt to ensure that those with iodine deficiency get their needed
dosage of iodine would affect their right to life under Article 21.
The last question is whether the rule violates the fundamental H
708 SUPREME COURT REPORTS (2011) 8 S.C.R.
A right of small scale and medium scale manufacturers of salt and
traders to carry on trade or business and thereby violates Article
19(1 )(g).
16. In our considered opinion the petitioners' challenge to
constitutionality of the impugned amendment is bound to fail.
8
Courts are not equipped to decide the medical issue relating ·
to public health, as to whether compulsory iodisation should be
replaced by voluntary iodisation as has been done in some
developed countries, so that both common salt and iodised salt
are available in the market and only those 10% who are
C deficient in iodine can opt for iodised salt. The Government of
India has taken note of scientific and medical inputs, research
results and survey data to conclude that compulsory iodisation
is the most effective and accepted method for elimination of
iodine deficiency disorders and that consumption of iodised
D salt by persons not suffering from iodine deficiency will not
adversely affect them. Rule 44-1 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 44-1 is
E unreasonable and arbitrary. We therefore ,·eject 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.
F The use of common salt (non-iodised salt) for industrial and
commercial use has not p~ohibited. The ban operates only in
regard to use of common salt for human consumption. There
is also no material to show that any monoooly is sought to be
created in favour of a chosen few companies or MNCs. In the
G 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 44-1 apart from
H being contrary to the objects and provisions of the Act, travels
• ACADEMY OF NUTRITION IMPROVEMENT AND
ORS. v. UNION OF INDIA [R.V. RAVEENDRAN, J.]
709
beyond the scope of the Act. It is also contended that the Act A
does not empower the central government to make a rule
banning the manufacture, sale or distribution of an article unless
it is adulterated or injurious to health. The respondent on the
othu hand contends that section 7(iv) and sub-sections (1) and
(1A) (f) of section 23 of the Act empower and enable the central B
government to make Rule 44-1 and the rule does not travel
beyond the scope of the Act. To consider this question, it is
necessary to refer to the relevant provisions of the Act which
was enacted to make provision for prevention of food
adulteration. c
18. The Act contemplates prohibition of manufacture,
storing, sale or distribution of any adulterated and mis-branded
food, measures to prevent adulteration, and also provides for
laying down food standards and prohibiting import of certain
objectionable articles of food items. Section 7 of the Act relates D
to prohibition of manufacture, sale etc. of certain articles of food.
It is extracted below :
"7. Prohibition of manufacture, sale, etc., of certain
articles of food.-No person shall himself or by any E
person on his behalf manufacture for sale, or store, sell or
distribute-
(i) any adulterated food;
(ii) any misbranded food; F
(iii) any article of food for the sale of which a licence is
prescribed, except in accordance with the
conditions of the licence;
G
{iv) any article of food the sale of which is for the time
being prohibited by the Food (Health) Authority in
the interest of public health;
(v) any article of food in contravention of any other
provision of this Act or of any rule made thereunder; H
710 SUPREME COURT REPORTS [2011) 8 S.C.R.
A or
(vi) any adulterant."
The term 'food' is defined in section 2(v) as under :
B "(v) "food" means any article used as food or drink for
human consumption other than drugs and water and
includes-
(a) any article which ordinarily enters into, or is
used in the composition or preparation of,
c human food,
(b) any flavouring matter or condiments, and
(c) any other article which the Central
D Government may, having regard to its use,
nature, substance or quality, declare, by
notification in the Cfficial Gazette, as food for
the purposes of this Act;"
'Food (Health) Authority' is defined in section 2(vi) as under
E
"Food (Health) Authority" means the Director of Medical
and Health Services or the Chief Officer in-charge of
Health administration in a State, by whatever designation
F 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
G 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 :
H
• ACADEMY OF NUTRITION IMPROVEMENT AND
ORS. v. UNION OF INDIA [R.V. RAVEENDRAN, J.]
711
"23. Power of the Central Government to make rules.- A
(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
B
(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
c
(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 licences the manufacture or sale o
of any article of food;
xxx xxx
19. The object of the Act is to prevent supply of adulterated
food-stuff as a part of business activity, in the interests of health E
of the community. In Municipal Corporation of Delhi. v.
Kacheroo Mal [1976 (1) SCC 412], this court described the
object of the Act thus:
"The Act has been enacted to curb and remedy the F
widespread evil of food-adulteration, and to ensure the
sale of wholesome food to the people. It is well settled that
wherever possible, without unreasonable stretching or
straining the language of such a statute, should be
construed in a manner which would suppress the mischief, G
advance the remedy, promote its object, prevent its subtle
evasion and foil its artful circumvention ...
In Dinesh Chandra Jamnadas Gandhi vs. State of Gujarat -
1989 (1) SCC 420, this Court described the object of the Act
fuus: H
712 SUPREME COURT REPORTS [2011) 8 S.C.R.
•
A "The object and the purpose of the Act are to eliminate the
danger to human life from the sale of unwholesome articles
of food The legislation is on the Topic 'Adulteration of Food
Stuffs and other Goods' (Entry 18 list Ill Seventh Schedule).
It is enacted to curb the wide spread evil of food
B adulteration and is a legislative measure for social-
defence. It is intended to suppress a social and economic
mischief-an evil which attempts to poison, for monetary
pains the very sources of sustenance of life and the well-
being of the community. The evil of adulteration of food and
c its effects on the health of the community are assuming
alarming proportions. The offence of adulteration is a
socio-economic offence ...... The construction appropriate
to a social defence legislation is, therefore, one which
would suppress the mischief aimed at by the legislation
and advance the remedy."
D
(emphasis supplied)
20. The grounds on which a sub-ordinate legislation can
be challenged are well settled. In State of Kamataka vs. H.
E Ganesh Karnath - 1983 (2) SCC 402, this Court held :
"...... It is a well-settled principle of interpretation of statutes
that the conferment of rule-making power by an Act does
not enable the rule making authority to make a rule which
travels beyond the scope of the enabling Act or which is
F inconsistent therewith or repugnant thereto."
(emphasis supplied)
In Indian Express Newspapers (Bombay) Pvt. Ltd vs.
Union of India - 1985 (1) SCC 641, this Court held:
G
"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
H legislation is questioned. In addition, it may also be
• ACADEMY OF NUTRITION IMPROVEMENT AND
ORS. v. UNION OF INDIA [R.V. RAVEENDRAN, J.]
713
questioned on the ground that it does not conform to the A
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."
B
(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 C
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 o
conditions is not fulfilled, the rule so framed would be
void."
(emphasis supplied)
In Supreme Court Employees' Welfare Association vs. Union E
of India - 1989 (4) SCC 187, this Court held :
"Thus as delegated legislation, a subordinate legislation
must conform exactly to the power granted.
Rules whether made under the Constitution or a Statute, F
must be intra vires the parent law under which power has
been delegated. They must also be in harmony with the
provisions of the Constitution and other laws. If they do not
tend in some degree to the accomplishment of the
objects for which power has been delegated to the G
authority, courts will declare them to be unreasonable
and therefore void."
(emphasis supplied)
H
714 SUPREME COURT REPORTS [2011] 8 S.C.R. •
A In Addi. District Magistrate (Rev.) Delhi Administration vs. Siri
Ram - 2000 (5) SCC 451, this Court reiterated :
"It is a well-recognised principle of interpretation of a
statute that conferment of rule making power by an Act
B does not enable the rule making authority to make a rule
which travels beyond the scope of the enabling Act or
which is inconsistent therewith or repugnant thereto."
(emphasis supplied)
c In Dr. Mahachandra Prasad Singh vs. Chairman, Bihar
Legislative Council & Ors. [2004 (8) SCC 747], this court
explained the concept of delegated legislation thus :
"Underlying the concept of delegated legislation is the
basic principle that the legislature delegates because it
D
cannot directly exert its will in every detail. All it can in
practice do is to lay down the outline. This means that the
intention of the legislature, as indicated in the outline
(that is the enabling Act), must be the prime guide to the
meaning of delegated legislation and the extent of the
E power to make it. The true extent of the power governs the
legal meaning of the delegated legislation. The delegate
is not intended to travel wider than the object of the
legislature. The delegate's function is to serve and
promote that object, while at all times remaining true to it.
F That is the rule of primary intention. Power delegated by
an enactment does not enable the authority by
regulations to extent the scope or general operation of
the enactment but is strictly ancillary. It will authorise the
provision of subsidiary means of carrying into effect what
G is enacted in the statute itself and will cover what is
incidental to the execution of its specific provision. But
such a power will not support attempts to widen the
purposes of the Act, to add new and different means of
carrying them out or to depart from or vary its ends. (See
H
• ACADEMY OF NUTRITION IMPROVEMENT AND
ORS. v. UNION OF INDIA [R.V. RAVEENDRAN, J.]
Section 59 in chaper "Delegated Legislation" in Francis
Bennion's Statutory Interpretation, 3rd Edn.)"
715
A
(emphasis supplied)
In J. K. Industries vs. Union of India - 2007 (13) SCC 673,
this Court reiterated the grounds on which a sub-ordinate B
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 c
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." o
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 mal<ing 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 E
scope and purview of the rule making power of the Central
Government under section 23 of the Act.
22. As noticed above, the object and purpose of the Act
is to eliminate the danger to human life from the sale of F
adulterated food and to ensure that what is sold is wholesome
food. In other words, if an item of food is adulterated, or is itself
an adulterant (used for adulteration), or unwholesome or
injurious to health, a rule to prevent or prohibit the manufacture
_for sale, storage, sale or distribution of such objectionable food G
item will be within the scope of the Act. Such prohibition will
be valid even in regard to incidental items such as misbranded
food items and unlicensed food items (where licence is
required). But where an item of food (used in the composition
or preparation of human food and used as a flavouring) is in H
716 SUPREME COURT REPORTS [2011) 8 S.C.R. •
A its natural form and is unadulterated and is not injurious to health.
a rule cannot be made under the provisions of the Act to ban
the manufacture for sale, storage or sale of such food item on
the ground such ban will ensure that the populace will use a
medicated form of such food, which will benefit a section of the
s populace. Making available medicines or medicinal
preparations to improve public health is not the object of the
Act. If the object sought to be achieved is to persuade the
people to use iodised salt or to ensure that people use iodised
salt, recourse cannot be by making a rule banning sale of
c common salt for human consumption under the Act. The Act
cannot be used to make a rule intended to achieve an object
wholly unrelated to the Act. The good intention of the rule
making authority is not therefore sufficient to save the rule. We
are of the view that the Rule 44-1 is wholly outside the scope of
the Act.
0
23. We may next consider whether section ?(iv) of the Act
enables or empowers the Central Government to make Rule
44-1. Section 7 does not relate to rule making. It relates to
prohibition of manufacture for sale, storage, sale or distribution
E of 'objectionable' food, that is adulterated food, misbranded
food, unlicensed food, food injurious to public health. Section
?(iv) provides that no person shall manufacture for sale, store,
sell or distribute any article of food, the sale of which is for the
time being prohibited by the Food (Health) Authority in the
F interest of public health. Rule 44-1 is not a prohibition by the
Food (Health) Authority in the interest of public health. The Food
(Health) Authority refers to the Director of Medical and Health
Services or the Chief Officer in-charge of the health
administration in a state as also any officer empowered by the
G 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
H the Food (Health) Authority nor the exercise of power by any
• ACADEMY OF NUTRITION IMPROVEMENT AND 717
ORS. v. UNION OF INDIA [R.V. RAVEENDRAN, J.]
Food (Health) Authority in the interest of public health. A
Therefore, section 7(iv) is of no assistance to decide upon the
validity of rule 44-1, nor can it be a source of power to make
rule 44-1, nor can it be a source of power to make rule 44-1.
24. If the Act vests the power of prohibiting the manufacture
8
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 C
vs. Government of Andhra Pradesh [1966 (2) SCR 172) this
court considered a similar question. Under section 18 of the
Andhra Pradesh Panchayat Samitis and Zilla Parishads Act,
1959, the power of establishing primary health centres was
vested in the Panchayat Samitis. The question was whether the D
State Government in purported exercise of its power under
section 69 of the said Act to make rules for carrying out the
purposes of the Act, take upon itself the power to establish a
primary health centre at a particular centre. This court held that
that was impermissible, observing as follows : E
"It is manifest that under the Act the statutory power to
establish and maintain Primary Health Centres is vested
in the Panchayat Samithi. There is no provision vesting the
said power in the Government. Under s. 69 of the Act, the
Government can only make rules for carrying out the F
purposes of the Act; it cannot, under the guise of the said
rules, convert an authority with power to establish a
Primary Health Centre into only a recommendatory body.
It cannot, by any rule, vest in itself a power which under the
Act vests in another body. The rules, therefore, in so far G
as they transfer the power of the Panchayat Samithi to the
Government, being inconsistent with the provisions of the
Act, must yield to s. 18 of the Act.•
25. We may next consider whether clause (f) of section H
718 SUPREME COURT REPORTS [2011] 8 S.C.R. e
A 23(1A) empowers the Central Government to make Rule 44-1.
The said clause enables the central government to make rules
prohibiting the sale or 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
B the manufacture of any article of food or regulating by the issue
of licence the manufacture or sale of any article of food. It is
the specific case of the respondent that the use of non-iodized
salt is not injurious to health. The Government of India has filed
two counter affidavits in WP(C) No.80/2006. In para 3 of the
c first affidavit filed on 3.4.2006, the respondent specifically
admits as follows :
".. .the respondent has never stated that the use of any
non-iodised salt is injurious to health . ...... the restriction
on sale of non-iodised salt have been issued in view of
D the fact that regular consumption of iodised salt ensures
prevention and control of Iodine Deficiency Disorder."
(emphasis supplied)
In the additional counter affidavit filed by the respondent on
E 30.3.2009, the respondent has again reiterated as follows :
"That the respondent has never stated that the use of
non-iodised 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-l)only for
F 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)
G
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
1-1 under clause (f) of section 23(1A) of the Act.
• ACADEMY OF NUTRITION IMPROVEMENT AND
ORS. v. UNION OF INDIA [R.V. RAVEENDRAN, J.]
719
26. We will next consider whether section 23(1) of the Act A
provides the source of authority to make rule 44-1. 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 s
carry out the provisions of the Act. Statutes delegating the
power to make rules follow a standard pattern. The relevant
section would first contain a provision granting the power to
make rules to the delegate in general terms, by using the words
'to carry out the provisions of this Act' or 'to carry out the c
purposes of this Act'. This is usually followed by another sub-
section enumerating the matters/areas in regard to which
specific power is delegated by using the words 'in particular
and without prejudice to the generality of the foregoing power,
such rules may provide for all or any of the following matters."
0
Interpreting such provisions, this Court in a number of decisions
has held that where power is conferred to make subordinate
legislation in general terms, the subsequent particularisation of
the matters/topics has to be construed as merely illustrative and
not limiting the scope of the general power. Consequently, even E
if the specific enumerated topics in section 23(1A) may not
empower the Central Government to make the impugned rule
(Rule 44-1), making of the Rule can be justified with reference
to the general power conferred on the central government under
section 23(1), provided the rule does not travel beyond the
scope of the Act. But even a general power to make rules or F
regulations for carrying out or giving effect to the Act, is strictly
ancillary in nature and cannot enable the authority on whom the
power is conferred to extend the scope of general operation
of the Act. Therefore, such a power "will not support attempts
to widen the purposes of the Act, to add new and different G
means to carrying them out, to depart from or vary its terms.
(See: Principles of Statutory Interpretation by Justice G. P.
Singh - 12th Edition page 1009) referring to Shanahan v.
Scott - 1957 (96) CLR 245 and Utah Construction v. Pataky
-(1965 (3) All ER 650). Rule 44-1 is not a rule made or required H
720 SUPREME COURT REPORTS [2011} 8 S.C.R.
A to be made to carry out the provisions of the Act, having regard
to its object and scheme. It has nothing to do with curbing of
food adulteration or to suppress any social or economic
mischief.
What Relief?
8
27. We have already noticed that as at present there is
no material to show that universal salt iodisation will be injurious
to public health (that is to the majority of populace who do not
suffer from iodine deficiency). But we are constrained to hold
C that rule 44-1 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
D 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
E law to continue the compulsory iodisation programme.
28. The question is having held that Rule 44-1 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 vest~ unfettered independent jurisdiction
F 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:
G "The Supreme Court in exercise of its jurisdiction under
Article 142 has the power to make such order as is
necessary for doing complete justice "between the parties
in any cause or matter pending before it". The very nature
of the power must lead the court to set limits for itself
H within which to exercise those powers and ordinarily it
• ACADEMY OF NUTRITION IMPROVEMENT AND
ORS. v. UNION OF INDIA [R.V. RAVEENDRAN, J.]
721
cannot disregard a statutory provision governing a subject, A
except perhaps to balance the equities between the
conflicting claims of the litigating parties by "ironing out the
creases" in a cause or matter before it. Indeed this Court
is not a court of restricted jurisdiction of only dispute
settling. It is well recognised and established that this court B
has always been a law maker and its role travels beyond
merely dispute settling. It is a "problem solver in the
nebulous areas". (See. K. Veeraswami v. Union of India
- 1991 (3) sec 655, but the substantive statutory
provisions dealing with the subject matter of a given case, c
cannot be altogether ignored by this court, while making
an order under Article 142. Indeed, these constitutional
powers can not, in any way, be controlled by any statutory
provisions but at the same time these powers are not
meant to be exercised when their exercise may come D
directly in conflict with what has been expressly provided
for in statute dealing expressly with the subject.•
In Kalyan Chandra Sarkar vs. Rajesh Ranjan - 2005 (3) SCC
284, this Court after reiterating that this Court in exercise of its
jurisdiction under Article 142 of the Constitution would not pass E
any order which would amount to supplanting substantive law
applicable to the case or ignoring express statutory provisions
dealing with the subject, observed as follows:
"It may therefore be understood that the plenary powers of F
this Court under Article 142 of the Constitution are inherent
in the Court and are complementary to those powers
which are specifically conferred on the Court by various
statutes though are not limited by those statutes. These
powers also exist independent of the statutes with a view G
to do complete justice between the parties ... and are in the
nature of supplementary powers... [and] may be put on a
different and perhaps even wider footing than ordinary
inherent powers of a court to prevent injustice. The
advantage that is derived from a constitutional provision H
722 SUPREME COURT REPORTS [2011] 8 S.C.R.
•
A couched in such a wide compass is that it prevents
'clogging or obstruction of the stream of justice. [See :
Supreme Court Bar Association (supra)]"
29. In view of the above and to do complete justice between
the parties in the interest of public health, in exercise of our
8
jurisdiction under Article 142 of the Constitution, we direct the
continuation of the ban contained in Rule 44-1 for a period of
six months. The central government may within that period
review the compulsory iodisation programme and if it decides
to continue, may introduce appropriate legislative or other
C measures. It is needless to say that if it fails to take any action
within the expiry of six months from today, Rule 44-1 shall cease
to operate.
30. We therefore allow this writ petition in part and declare
D that Rule 44-1 of the Prevention of Food Adulteration Rules,
1955 (inserted by Prevention of Food Adulteration (Eighth
Amendment) Rules 2005) is beyond the rule-making power of
the Central Government and ultra vires the Act subject to the
continuation of the ban contained in Rule 44-1 for a period of
E six months in terms of the previous paragraph. The Transferred
Cases are also disposed of in terms of the decision in the writ
petition.
D.G. Matters disposed of.
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