Ozair HusaIn Vs. Union of India (Uoi) Through the Secretary, Ministry of Food and Consumer Affairs, Deptt. of Consumer Affairs and Secretary, Ministry of Health and Family Welfare - Court Judgment

Anil Dev Singh, J:

1. By this public interest writ petitioner seeks: (i) a direction to the respondents to protect the rights of innocent conscientious consumers who object to the use of animals in whole or in part or their derivatives in food, cosmetics and drugs, etc., by making the manufacturers and packers thereof to disclose the ingredients of the aforesaid products so that they make an informed choice with regard to their consumption; (ii) a direction to the manufacturers and packers of cosmetics, drugs and articles of food for complete and full disclosure of the ingredients of their products being sold to consumers; (iii) a declaration that the consumers have a right of making an informed choice between the products made or derived from animal and non-animal ingredients; and (iv) a direction to the manufacturers and packers of food, cosmetic and drugs that the products made from animals should bear an easily identifiable symbol conveying that it has an animal ingredient. The petitioner seeks the directions and declaration keeping in view the fact that about 60% of the people of this country are vegetarians so that they can make an informed choice of products as per their beliefs and opinions.

2. The petitioner claims to be an animal welfare volunteer and a member of several animal welfare organisations. He is also stated to be a conscientious objector to be consumption and use of animals and their derivatives for food, cosmetics and drugs. It has been highlighted in the petition that more than 60% of the people of this country are vegetarians and over 50% of them are illiterate and large number of them cannot read or write English. It is urged by the learned counsel for the petitioner that there should be complete disclosure of constituents of cosmetics and food products and that such products should bear an easily recognisable symbol conveying the origin or ingredients of the products, whether vegetarian or non-vegetarian, so that both literate or illiterate consumers can make an informed choice before selecting the products. He pleads that Articles 19(1)(a), 21, 25 of the Constitution as also the Preamble to the Constitution mandates disclosure of information.

3. The questions for our determination in this petition are: (i) whether or not in this country a consumer of cosmetics, drugs and articles of food has a constitutionally guaranteed right to full disclosure of the ingredients thereof clearly specified on the product or its label or wrapper by means of a writing; (ii) whether or not packages of non-vegetarian products should bear a symbol giving their non-vegetarian origin; and (iii) whether or not a package of vegetarian product should also bear a symbol?

4. In short the main question which requires our consideration is: Whether the Constitution mandates disclosure of information? The answer to the other two questions will depend on answer to the main question. It seems to us that answer to the main question lies in Article 19(1)(a), 21 and 25 of the Constitution and preamble thereto. To answer the question, it will also be necessary to keep in view some of the Articles of European Convention on Human Rights, International Covenant on Civil & Political Rights and the judgments on the subject.

Consideration of the question with reference to Article 19(1)(a) of the Constitution read with Preamble thereto:

5. Article 19(1)(a) of the Constitution guarantees to all citizens freedom of speech and expression. At the same time, Article 19(2) permits the State to make any law in so far as such law imposes reasonable restrictions on the exercise of the rights conferred by Article 19(1)(a) of the Constitution in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency, morality, contempt of court, defamation and incitement to an offence.

6. In State of U.P. v. Raj Narayan and Ors., : [1975]3SCR333 , the Supreme Court, while interpreting Article 19(1)(a) of the Constitution, held that a citizen has a right to receive information and that right is derived from the concept of freedom of speech and expression comprised in the said Article. Similarly, in Secretary, Ministry of Information and Broadcasting, Govt. of India and Ors. v. Cricket Association of Bengal and Ors. : [1995]1SCR1036 , the Supreme Court reiterated that the freedom of speech and expression includes right to acquire information. In His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr., : AIR1973SC1461 , and P.V. Narsimha Rao v. State (CBI/SPE), : 1998CriLJ2930 , it was held that fundamental right to receive information flows from the right to freedom of speech and expression enshrined in Article 19(1)(a) of the Constitution.

7. In Association for Democratic Reforms v. Union of India and Anr. 2001 I AD (Delhi) 253, a Division Bench of this Court held that it is imperative for the State to ensure the availability of the right to a citizen to receive the information. Though this was said in the context of the elections, the principle will apply with equal force to the instant case. For making a right choice of food, cosmetics and drugs it is essential that the consumer should be apprised of the ingredients of such products and he should not be kept in dark as non-availability of information would lead to violation of his right to freedom of expression comprised in Article 19(1)(a) of the Constitution.

8. The Supreme Court in Union of India v. Association for Democratic Reforms 2002 (4) SCALE 297, while upholding the decision of this Court in Association for Democratic Reforms v. Union of India (supra), held that the right to receive information in democracy is recognised all throughout and it is the natural right flowing from the concept of democracy. It was also held that right to freedom of speech and expression also includes the right to educate, to inform and to entertain and also the right to be educated, informed and entertained.

9. In Ramesh Thapar v. State of Madras, : 1950CriLJ1514 , the Supreme Court inter alias held that all members of the society should be able to form their own beliefs and communicate the same freely to others.

10. It seems to us that to enable a person to practice the beliefs and opinions which he holds, in a meaningful manner, it is essential for him to receive the relevant information, otherwise he may be prevented from acting in consonance with his beliefs and and opinions. In case a vegetarian consumer does not know the ingredients of cosmetics, drugs or food products which he/she wishes to buy, it will be difficult for him or her to practice vegetarianism. In the aforesaid context, freedom of expression enshrined in Article 19(1)(a) can serve two broad purposes - (1) it can help the consumer to discover the truth about the composition of the products, whether made of animals including birds and fresh water or marine animals or eggs, and (2) it can help him to fulfill his belief or opinion in vegetarianism.

11. World has moved towards universalisation of right to freedom of expression. In this context we may refer to Article 10 of the European Convention on Human Rights. Article 10 of the Convention provides that every one has a right to freedom of expression and this right shall include freedom to hold opinions and to receive information and ideas without interference by public authority and regardless of frontiers.

12. Again, Article 19(1) and 19(2) of the International Covenant on Civil and Political Rights declares that every one shall have the right to hold opinions without interference, and every one shall have the right to freedom of expression, and this right shall include freedom to seek, receive and impart information of ideas of all kinds regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. It needs to be noted that India is a signatory to the aforesaid convention.

13. It is well settled by several judgment of the Supreme Court that while interpreting constitutional provisions dealing with fundamental rights the courts must not forget principles embodied in the international conventions and instruments and as far as possible the courts must give effect to the principles contained in those instruments. In Apparel Export Promotion Council v. A.K. Chopra 2000 (1) AISLJ 65, the Supreme Court went to the extent of holding that the courts are under an obligation to give due regard to the international conventions and norms while construing domestic laws, more so when there is no inconsistency between them and the domestic laws. To the same effect is an earlier decision of the Supreme Court in Vishakha and Ors. v. State of Rajasthan and Ors. : AIR1997SC3011 .

14. Right to hold opinions and to receive information and ideas without interference embodied in the Covenant is concomitant to the right to freedom of speech and expression which includes right to free flow of information. Since ancient times we have allowed noble thoughts to come from all sides [Rig Veda]. This has helped in forming, building, strengthening, nurturing, replenishing and recreating opinions and beliefs of an individual.

15. Drawing from the aforesaid decisions, effect must be given to the Covenant. Reading Article 19(1)(a) along with the Covenant, it must be recognised that right to freedom of speech and expression includes freedom to seek, receive and impart information of ideas. It seems to us that freedom to hold opinions, ideas, beliefs and freedom of thought, etc., which is also enshrined in Preamble to the Constitution, is part of freedom of speech and expression.

Consideration of the question with reference to Article 21 of the Constitution:

16. Article 21 enshrines right to life and personal liberty. Expression 'right to life and personal liberty' and compendious terms which includes with themselves variety of rights and attributes. Some of them are also found in Article 19 and thus have two sources at the same time (see Kharak Singh v. State of U.P., : 1963CriLJ329 ). In R.P. Limited v. Proprietors, Indian Express Newspapers, Bombay, Pvt. Ltd. (1988) 4 S.C. 592 , the Supreme Court read into Article 21 the right to know. The Supreme Court held that right of know is a necessary ingredient of participatory democracy. In view of transactional developments when distances are shrinking, international communities are coming together for cooperation in various spheres and they are moving towards global perspectives in various fields including human rights, the expression 'liberty' must receive an expanded meaning. The expression cannot be cribbed or confined to mere freedom from bodily restraint. It is wide enough to expand to full range of rights including right to hold a particular opinion and right to sustain and nurture that opinion. For sustaining and nurturing that opinion it becomes necessary to receive information. In this view of the matter, we have no hesitation in holding that Article 21 grants freedom to an individual to follow and to stick to his opinions, and for pursuing such a course he has right to receive information and also a right to know the ingredients or the constituent of cosmetics, drugs and food products.

Consideration of the question with reference to Article 25 of the Constitution:

17. We now refer to Article 25 of the Constitution. Article 25, inter alia, deals with freedom of conscience. In Ratilal Panachand Gandhi v. State of Bombay, : [1954]1SCR1055 , it was held that freedom of conscience connotes a person's right to entertain beliefs and doctrine concerning matters, which are regarded by him to be conducive to his spiritual well-being.

18. In Bijoe Emmanuel and Ors. v. State of Kerala and Ors., : 1986CriLJ1736 , the Supreme Court while dealing with the challenge to the expulsion of three children from the school because of their not joining the singing of the national anthem in the morning assembly in keeping with their religious faith, held that the expulsion was in violation of their fundamental right to freedom of conscience.

19. In United States v. Daniel Andrew Seeger, 380 US 163, 13 Led 733, 85 S Ct 850, it was held that any person opposed to war on the basis of sincere belief which in his life fills the same place as the belief in God fills in the life of an orthodox religionist, is entitled to exemption from statutory combatant training and service in the armed forces of the United States on the ground of freedom of conscience which implies respect for an innate conviction based on belief.

20. It appears to us that where packages of food products, drugs and cosmetics do not disclose any information in writing and by an appropriate symbol about the composition of the products contained therein, right to freedom of conscience of the consumers is violated as they may be unconsciously consuming a product against their faiths, beliefs and opinions.

21. In view of the aforesaid discussion, we are of the view that it is the fundamental right of the consumers to know whether the food products, cosmetics and drugs of non-vegetarian or vegetarian origin, as otherwise it will violate their fundamental rights under Article 19(1)(a), 21 and 25 of the Constitution. Accordingly, we answer the main question in the affirmative. Since there is a constitutionally guaranteed right of the consumers to the full disclosure of the ingredients of cosmetics, drugs and articles of food, answers to remaining questions (ii) and (iii) necessarily are required to be answered in the affirmative. We, accordingly, answer the questions (ii) and (iii) also in the affirmative.

22. It seems that the Parliament Realizing that the consumers have a fundamental right to be apprised of the fact whether or not a food article contains whole or part of any animal including birds, fresh water or marine animals or eggs or products of animal origin, brought about necessary changes in the Prevention of Food Adulteration Act, 1954. At this stage it will be apposite to quote the relevant provisions:-

'xx xx xx xxPART VII - PACKING AND LABELLING OF FOODS

32. Package of food to carry a label - Every package of food carry a label and unless otherwise provided in the rules, there shall be specified on every label:-

(a) the name trade name or description of food contained in the package;

Provided that the name, trade name of the description of food gain on the package of food shall not include the name of any food or ingredient prefixed or suffixed to it, if such food ingredient is not the main ingredient of the final food product.

(b) the names of ingredients used in the product in descending order of their composition by weight or volume as the case may be.

Provided that in the case of artificial flavouring substance, the label may not declare the Chemical names of the flavors, but in the case of natural flavouring substances or nature-identical flavouring substance, the common name of flavors shall be mentioned on the label.

Provided also that whenever Gelatine is used as an ingredient, a declaration to this effect shall be made on the label by inserting the word 'Gelatine-Animal Origin.'

*[Provided also that when any article of food contains whole or part of any animal including birds, fresh water or marine animals or eggs or product of any animal origin, but not including milk or milk products, as an ingredient,-

(a) a declaration to this effect shall be made by a symbol and colour code so stipulated for this purpose to indicate that the produce is Non-Vegetarian. The symbol shall consist of a brown colour filled circle having a diameter not less than the minimum size specified in the Table given below, inside the square with brown outline having side double the diameter of the circle, as indicated in Clause 16) of Sub-rule (ZZZ) of Rule 42;

TABLE

S. No. Area of principal display panel Minimum size of diameter in mm.

1. up to 100 cms square 3 2. Above 100 cms square up to 500 cms square 4 3. Above 500 cms square up to 2500 cms square 6 4. Above 2500 cms square 8

(b) the symbol shall be prominently displayed,-

(i) on the package having contrast background on principal display panel;

(ii) just close in proximity to the name or brand name of the product, and

(iii) one the labels, containers, pamphlets, leaflets, advertisements in any media;

Provided also that where any article of food contains egg only as Non-Vegetarian ingredient, the manufacturer, or packer or seller may give declaration to this effect in addition to the said to the said symbol.

Provided further that the provisions of these rules shall not apply in respect of any Non-vegetarian Food which is manufactured and packed without the symbol before the Commencement of the Prevention of Food Adulteration (Fourth Amendment) Rules, 2001]

[*Ins. By GSR 245 (E), dt. 4.4.2001, w.e.f. 4.10.2001]

xx xx xx #[Provided also that for all Vegetarian Food,-

(a) a declaration to this effect shall be made by a symbol and colour code so stipulated for this purpose to indicate that the product is Vegetarian Food. The symbol shall consist of a green colour filled circle, having a diameter not less than the minimum size in the Table given below, inside the square with green outline having side double the diameter of the circle, as indicated in Clause (17) of Sub-rule (ZZZ) of Rule 42;

TABLE

S.No. Area of principal display panel Minimum size of diameter in mm. (1) (2) (3) 1. up to 100 cms square 3 2. Above 100 cms square up to 500 cms square 4 3. Above 500 cms square 2500 cms square 6 4. Above 2500 cms square 8

(b) the symbol shall be prominently displayed,-

(i) on the package having contrast background on principal display panel; (ii) just close in proximity to the name or brand name of the product, and (iii) one the labels, containers, pamphlets, leaflets, advertisements in any media;

Provided further that the provisions of these rule shall not apply in respect of any Vegetarian Food which is manufactured and packed without the symbol before the commencement of the Prevention of Food Adulteration (9th Amendment) Rules, 2001:

Provided also that the provisions of these rules shall not apply in respect of mineral water or packaged drinking water or carbonated water or liquid and powdered milk.]

#(Ins. By GSR 908(E), dt. 20.12.2001, w.e.f. 20.5.2002]

xx xx xx+[Explanation IX - 'Non-Vegetarian Food' means an article of food which contains whole or part of any animal including birds, fresh water or marine animals or eggs or products of any animal origin, but not including milk or milk products, as an ingredient.]

+[Subs. by GSR 245(E), dt. 4.4.2001, w.e.f. 4.10.2001, for 'Explanation IX - 'Non-Vegetarian Food' means an article of food which contains whole or part of any animal including birds, fresh water or marine animals or eggs as an ingredient.' Prev. ins. by GSR 463(E), dt. 17.5.2000, w.e.f. 17.11.2000]

@[Explanation X - 'Vegetarian Food' means by article of Food other than the Non-Vegetarian Food as defined in Explanationn IX of this rule;]

@[Ins. By GSR 908(E), dt. 20.12.2001, w.e.f. 20.5.2002]

xx xx xx $[(ZZZ) (16) Every package of Non-Vegetarian Food shall bear the following symbol on the principal display panel just close in proximity to the name or brand name of food, namely:-

$[Ins. By GSR 245(E), dt. 4.4.2001, w.e.f. 4.10.2001]

%[(ZZZ) (17) Every package of Vegetarian Food shall bear the following symbol in green colour on the principal display panel just close in proximity to name or brand name of the Food, namely:-

%[Ins. By GSR 908(E), dt. 20.12.2001, w.e.f. 20.5.2002]xx xx xx'

23. In so far as food products are concerned, adequate provisions have been made for informing the consumers as to whether or not the article of food is vegetarian or non-vegetarian. As regards drugs and cosmetics, necessary amendments have not been made in the relevant statutes. In so far as a life saving drug is concerned, there is a view point that the information: whether or not it is derived or manufactured, wholly or partly, from an animal, should not be disclosed since it is meant to fight disease and save life. In other words, a patient, who is suffering from serious ailment, which can be fatal if a life saving drug is not administered to him, need not be informed in his own interest as to whether or not the drug contains part of any animal as it is conducive to preservation of life and, thereforee, in tune with Article 21 of the Constitution. this also means that he should not have a choice in the matter of administering life saving drug to him. In many cases patients are unconscious and they have to be put on life saving drugs. In any event they cannot exercise an informed choice in the matter of selection of such drugs. In the circumstances, thereforee, the aforesaid view must prevail in case of life saving drugs. This limited exception will apply only to life saving drugs. It needs to be clarified that all drugs do not qualify for being treated as life saving drugs. Drugs which are not life saving drugs must stand at part with the food products and in case they are derived from animals, whether in whole or in part, the consumers must be informed.

24. In so far as cosmetics are concerned, the same must be treated at par with articles/packages of food for the purposes of disclosure of their ingredients.

25. Till such time the requisite amendments are carried out, we direct as under:-

(1) Where a cosmetic or a drug other than life saving drug, as the case may be, contains ingredients of non-vegetarian origin, the package shall carry label bearing the following symbol in red colour on the principal display panel just close in proximity to name or brand name of the drug or cosmetic :-

(2) Where a cosmetic or a drug other than life saving drug, as the case may be, contains ingredients wholly of vegetarian origin, the package shall bear the following symbol in green colour on the principal display panel just close in proximity to name or brand name of the drug or cosmetic:-

(3) Where a cosmetic or a drug other than life saving drug has ingredients of vegetarian or non-vegetarian origin, a declaration shall be made in writing on the package indicating the nature of the origin of the product.

(4) The Director General of Health Services/Drugs Controller General, Govt. of India, shall issue a list of Life Saving Drugs within a period of two months.

26. With the above directions and observations, the writ petition is disposed of.