Wednesday, June 20, 2007

Street Food and the Law 03: Standards - II

[Continued from Part I]


In India, the nodal agency liaising with CAC is the Directorate General of Health Services, Ministry of Health and Family Welfare (MOHFW). In accordance with CAC guidelines, the Ministry has brought out a Training Manual called 'The User's Manual on Codex: A Contemporary Approach to Food Quality and Safety Standards'.

A characteristic of the manual is its wholesale endorsement of the CAC Codes. Acknowledging that 'The Codex Alimentarius Commission (CAC) has done commendable work for ensuring the safety of street food and has brought out a Code of Hygienic Practice for the preparation and sale of street food,' [p. 228] it goes on to refer to the 1997 Code.

Much of its recommendations flow from the 1997 Code. For example, the note at pp. 233-34 is a verbatim transcription of Note HA referred to above. [p. 7] Significantly for us, the manual reiterates the 1997 Code’s recommendations about storing food at either below 5°C or above 60°C, [p. 233] as well as about serving hot food at 70°C. [p. 235]


At this point, a peculiar issue arises. On the one hand, we have the ban on cooking. And on the other hand, it is clear by now that heating is essential to food safety. In the light of the latter, the question arises what purpose the ban on cooking serves. Is there indeed such a vast distinction between cooking and heating to justify the ban on the first when the second is so critical to food safety? And indeed, does the ban on cooking permit heating, or does it prohibit both?

Before going further, I think it is expedient to say something about the right to equality under Article 14 of the Constitution. Over the years, this has evolved into a number of tests or principles. The one relevant to us is that of nexus with the objective. This means that individuals not on the same footing may be classified into different categories (and consequently treated differently) provided that (a) there is a discernible objective behind the classification, and (b) the classification actually furthers that objective.

The question before is, what is the nature of the classification that the ban on street cooking seeks to achieve? Does it prohibit the heating as well as cooking of food? Given that the question of heating finds no explicit mention, let us for the sake of argument proceed on either possibility.

Possibility 1: Heating is Permitted

Let us first suppose that heating is permitted. This provokes the question, how is heating to be distinguished from cooking? A precise distinction is necessary, or else the ban will fall foul of another test associated with Article 14, namely that of intelligible differentia. This means the distinction between the classes to be treated differently must be clear-cut and unambiguous. Hence, unless a definite criterion is provided for distinguishing between cooking and heating, banning the first while permitting the second will not be tenable in law.

Then again, what is the objective to be served by discriminating between heating and cooking? Surely the other arguments against street cooking discussed earlier (viz. public hygiene and the beautification drive) apply to heating as well as cooking. Moreover, there is nothing to indicate that cooking is more unhygienic than mere heating.

Lastly, the arrangement leaves unanswered significant questions of implementation, especially malfeasant implementation. Our police personnel and municipal inspectors are not the least corrupt of public servants. And the fine distinction between heating and cooking will give them a fantastic opportunity to harass vendors. The mind automatically conjures visions of them running amok, shouting: ‘That’s not heating, you’re breaking the law! Pay us or we book you for cooking!’

Possibility 2: Heating is Prohibited

The other possibility is that cooking and heating are both banned in equal measure. This is, of course, nothing short of ridiculous. Given that most street vendors cannot afford to buy fridges, it is manifest that heating constitutes the only practical way of ensuring that street food remains within safe temperatures. Thus banning heating while permitting street food as such will, instead of making the food safer, actually enhance the risks associated with it!

In other words, the ban’s objective (i.e. food safety) and inevitable consequences turn out to be polar opposites of each other. On this basis, the ban can be challenged as inconsistent with the ‘nexus’ requirement discussed above. Furthermore and much more significantly, by prohibiting practices that make food safer, the ban actually poses a threat to the physical well being of the people. Hence we may even contended that it violates our right to life under Article 21!


The entire debate on street cooking can be reduced to a single question: how responsibly has this ban been drafted? Moreover, on what basis did the Supreme Court and MCD reached their conclusions? Given the wealth of material that advocate safe food temperatures, we may conjecture that they had before them an equally formidable corpus of expert opinion that led it to come to the opposite conclusion.

Or did they? Were at all doctors, food safety experts and other authorities consulted? We may note in parentheses, seeking such information through the Right to Information Act might make an interesting first step to a fresh legal challenge.

More important, if it transpires that expert opinion was not sought, then possibly a challenge can be mounted on that ground alone. There’s lots more to be said on the issue. Stay tuned!