Do consumers have special
rights against fizz-makers?

Though the underlying spirit of the Supreme Court’s judgment requiring the Soft Drink makers to warn the consumers regarding the possible presence of pesticides in the soft drinks cannot be questioned, the effect is that the ruling has put the soft drinks in the high-risk bracket despite the admitted fact that cause of pesticides is pesticide overuse by farmers and the pesticides are likely to be there in most of the eatables. The ruling, in effect, appears to make a classification without reasonable cause, says HemRaj Singh

Bottles will cry ‘poison’ and the fizz-makers foul, though not aloud – quite understandably. The recent Supreme Court ruling emphasizing consumers’ right to be informed as to what they are consuming so that they are well equipped to make an informed choice, cannot really be questioned so far as its object and intent goes. However, the effect of the judgment might not be in the same league of unquestionable faultlessness, for there is definitely some merit in Arun Jaitley’s rejected argument that a government order exclusively targeting the soft drink industry would have been quashed by the courts on the ground of discrimination. The argument holds force because the admitted fact is that the problem lies not with the manufacturing or bottling process of the colas but with the water and sugar used. And the contamination of water and sugar results from the excessive use of pesticides by the farmers, which is another undisputable fact. And since the root cause is our farming and not the processes used by the cola industry, the ruling ends up shearing the leaves while keeping the root intact. The problem lies right beneath our feet and so pesticides residue is very likely to be there in all such products that use water as an ingredient besides the produces of farming itself. Nearly everything – fruits, vegetables, juices, you name it – are likely to have pesticide residue. Why single out the cola industry? Why should they alone be asked to declare the pesticide levels? Do the consumers have any less of the right to know with respect to other products or do they have any special rights against soft drinks? Why should the consumer be at a disadvantage with respect to other consumables? Harish Salve was very close to the truth when he said, “agriculture in our country is a holy cow and no government would make a law against them even if it is in public knowledge that coffee and tea and even fruit juice contained more pesticide than the soft drinks.”

The ruling has the effect of asking the soft drink manufacturers to virtually declare that their drink is, more or less, injurious to health, which puts them in the same category as liquor and cigarette. The obvious question is can soft drinks be, in effect, clubbed together with patent health hazards like alcohol and nicotine? Asking the soft drink makers alone to declare the pesticide level puts them into a special category with their product in the high-risk bracket. The position would have been different, had all products likely to have pesticides were asked to reflect it on their labels, for in that case it would be akin to declaring the ingredients in the product.

The result of the ruling is that soft drinks stand out as a high-risk product without there, actually, being anything to make them more injurious to health than normal ground water and other products using water, which have pesticide residue due to pesticide overuse by farmers. The test for valid classification as evolved by the Supreme Court itself as far back as in 1952 in State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75 demands that the classification must be founded on an intelligible differential which distinguishes persons or things that are grouped together from those left out of the group. Classification without a difference is also prohibited and has been held to be violative of Article 14 by the Supreme Court in several cases. In this case the soft drinks have been asked to declare that they are high-risk product while they do not pose a higher threat than many of the apparently innocuous products. With utmost respect
to the Hon’ble Supreme Court
this apparently amounts to discrimination without reasonable cause and seems to run contrary to the spirit of the earlier Supreme Court rulings.

No doubt the right of the consumers are paramount and have to be protected at all costs, but the law cannot afford to be selective or else it would lose the legal, ethical and moral high ground it has to operate from to be effective.