Column | Crackdown on Unsafe Practices Must, But Law Must Be Followed

At the same time, concerns have been raised about the manner in which certain establishments have been inspected, the immediacy of licence suspensions, the opportunity afforded to food-business operators to rectify deficiencies and the consistency with which the law appears to have been applied. These concerns are no longer merely matters of perception or industry grievance. They have found their way into the courts.

Suspension is an Exception

Section 32 of the FSS Act establishes a graduated enforcement mechanism. Where the designated officer has reasonable grounds to believe that a food-business operator has failed to comply with the applicable regulations, the officer may issue an improvement notice specifying the deficiencies, the corrective measures required and a reasonable period for compliance, which cannot ordinarily be less than 14 days. If the operator fails to comply, the licence may be suspended; continued non-compliance can ultimately lead to cancellation after an opportunity to show cause. While the aforesaid is the normal process, there is, however, an exception. It is the proviso to Section 32(3) which permits the designated officer to suspend a licence forthwith without issuing an improvement notice, provided it is “in the interest of public health” and requires reasons to be recorded in writing.

The Regulator Must Regulate Itself

An order cannot necessarily be justified merely by stating that suspension is being undertaken “in the interest of public health”. The proviso requires reasons to be recorded. That necessarily suggests that the authority must demonstrate the factual basis for its conclusion that immediate intervention was necessary. The Bombay High Court, in the case of Saraswati Milk Products and the case of Akshay Dairy Farm, draws an important line between regulatory non-compliance and circumstances warranting immediate regulatory intervention. The court made it clear that the mere finding of deficiencies during an inspection does not, by itself, justify bypassing the ordinary statutory mechanism of an improvement notice. Where the deficiencies are capable of being rectified and the material does not disclose an emergent threat to public health, the authority is required to follow the prescribed process.

The judgements put a check on the FDA’s recent bold enforcement drive and serve as a reminder that regulatory zeal cannot come at the expense of the statutory process prescribed under Section 32. While the court does not dilute the FDA’s power to take swift action where public health genuinely warrants it, it makes clear that the exceptional power of immediate suspension cannot be exercised routinely.

One Regulator, One Standard

The question of consistency in enforcement has also come under the Bombay High Court’s scrutiny in the case of Sanjay Baburao Nirbhavne v. State of Maharashtra. The court has pulled up the regulator over concerns regarding the differential treatment of private establishments and establishments operated by state instrumentalities.

The contrast noted by the court is striking. While private establishments were subjected to lengthy and stringent inspections, the three Mantralaya canteens inspected by the FDA had uniformly received 98 per cent compliance scores, with inspections reportedly lasting only 30-45 minutes. The court questioned whether the same yardstick was being applied to both categories and emphasised that the regulator “has to be impartial with all”.

This is not a mere question of administrative consistency. The law does not become less demanding merely because the establishment being inspected happens to be government-run. The rigour of food-safety enforcement cannot depend upon whether an establishment is privately or publicly operated. If the FDA adopts a strict enforcement approach towards private establishments, the same standards must apply to government establishments. Selective rigour is not strict enforcement; it is unequal enforcement.

Enforcement or Over-Enforcement?

The Bombay High Court’s decision in the Gurunanak Dairy & Sweets case raises the question of when strict enforcement crosses the line into over-enforcement. The licence of the establishment had been suspended following an inspection. The establishment thereafter took corrective measures and was subjected to a fresh inspection by the FDA itself, which found 98 per cent compliance. Yet, the suspension continued, on the ground that an appeal against the original order was pending. The court found little justification for allowing the suspension to continue. It accordingly directed restoration of the licence and directed payment of Rs 5 lakh as compensation to the establishment.

The Rs 5-lakh award is significant beyond the amount itself. It serves as a judicial reminder that bold enforcement cannot become over-enforcement, and regulatory authority cannot be exercised without regard to proportionality and the consequences of the action taken. There can be little disagreement that food safety cannot be compromised. The FDA must have the authority to act swiftly where consumers face a genuine and immediate risk. However, the recent orders of the Bombay High Court demonstrate that the question is not whether the FDA should act, but how it should act.

Regulatory power is at its strongest when it is exercised within the framework of law: when exceptional powers are reserved for exceptional circumstances; when businesses are given a meaningful opportunity to rectify deficiencies where the law requires it; when continued action remains proportionate to the risk; and when the same standards are applied without distinction between a private establishment and one operated by the state. The ultimate measure of a strong regulator is not how readily it exercises its power, but how responsibly it knows when and how to exercise it.

(Views expressed are personal)

Fatema Kachwalla is Partner, JSA Advocates & Solicitors