Star Law report
State
obligation to ensure enjoyment of a healthy life free
from man made hazards
BLAST
Vs. Bangladesh and others
Tapas
Kanti Baul & Sonia Ahmed
In
Bangladesh, certain classes like consumers do not have
any right per se and certain issues like general public
health never comes in the attention of the policy makers,
though they are guarded under the provisions of the Constitution
and the laws. Manufacturers and producers of edible foods
have always found the ways to escape with marketing of
inedible foods and thus affecting the right to life of
people by distressing the human health directly and as
we in every problem, children are the worst sufferers.
However, there has been hue and cry to enact specific
laws for consumers and specific rules for protecting general
public health but without any result. Rights of consumers
and general public health are interrelated to peaceful
and healthy continuation of life and most of the times
general public health is affected by different items like,
non-iodised salt, adulterated food, contaminated water
and fruits etc. that people at large consume everyday.
Iodine
is a very important ingredient for human body and in the
absence of natural food containing iodine; we are supposed
to intake it through salt which we consume everyday. It
is essential for growth and development of human body
and brain. Every human being requires 3 to 4 grams of
iodine which ensures the normal physical and mental development
of a child during the month before and soon after its
birth. It is also responsible for the development of the
brain and the nervous system. Lack of this ingredient
may cause:- a) Goitre, and b) Cretinism - due to lack
of thyroid hormone leading to physical and mental retardation.
There may be other natural sources of iodine but main
menu for getting iodine in the human body is iodised salt.
Since 1989 by enacting Iodine Deficiency Diseases Prevention
Act the Government has made marketing of iodised salt
mandatory upon the manufacturers and distributors of salt.
The Government has also constituted a statutory committee
under section 3 of the aforesaid act. Furthermore, the
Iodine Deficiency Diseases Prevention Rules, 1994 was
also enacted for the better observance of the marketing
of iodised salt ensuring the general public health.
Despite
such strong law and preventive mechanisms, leading salt
manufacturers and distributors managed to market iodine
free or less iodine contained salt resulting 47.1% and
69% Goitre and Cretinism cases, respectively, among the
people of Bangladesh in the year of 1993. It also reveals
the inefficiency and callousness of the Government Officials
and the Statutory Committee.
In
the above-mentioned situation, Bangladesh Legal Aid and
Services Trust (BLAST) (petitioner No. 1) collected samples
of iodised salt produced by 12 different manufacturers
of Bangladesh on random selection basis and those were
tested in the Institute of Food, Science and Technology,
an organ of BCSIR, Dhaka, which found that the iodine
content in the salt samples were not up to the requirement
and that the packaging were not as per requirement of
the Act and the Rules.
Prior
to this, the Consumers Association of Bangladesh(CAB)
also collected samples of iodised salt produced by 15
manufacturers from the market and got those tested by
the Institute of Nutrition of Food and Science, University
of Dhaka and result reveals that none of the iodised salt
samples of the said 15 manufacturers contained the required
percentage of iodine in the salt. BLAST along with CAB
came up with a Writ Petition under Article 102 of the
Constitution of People's Republic of Bangladesh before
the Hon'ble Supreme Court of Bangladesh.
The
Respondent No. 1 of the petition was the Ministry of Health
and Family Welfare being responsible for overall public
health including control of food, water and other health
related commodities. Respondent No. 2 is responsible for
development of salt industries and for that matter quality
control of edible salt and has control over the administration
of the Bangladesh Small and Cottage Industries Corporation,
which is responsible for setting up of a large number
of salt industries. The respondent No. 4, the Bangladesh
Standards and Testing Institution, is responsible for
testing and quality control of, amongst others, edible
salt. Respondent No. 3 is a statutory committee constituted
under section 3 of the Iodine Deficiency Diseases Prevention
Act, 1989, with the object, amongst others, to issue licence
for the salt manufacturers as per provisions of said Act,
1989 and the committee is headed by the Secretary of the
Ministry of Health and Family Welfare, a senior Civil
Servant of the country.
Respondent
Nos. 6-12 are some of the manufacturers of Iodised salt,
whose product have been tested and found to be not at
per as required by the law.
After
considering the petition and arguments provided by the
petitioner The Hon'ble Court was pleased to issue a Rule
upon the Respondent No.1-5 to show cause as to why they
should not be directed:
to
take necessary steps and action to ensure that all licensed
manufacturers of salt to produce, pack and sell salt with
iodine content conforming with the quality and standard
as specified in the Iodine Diseases Prevention Act, 1989;
to revoke licences and take action against respondent
Nos. 6-12 and other manufacturers of iodised salt, those
failed to comply with the provisions, as enumerated in
the said Act, and
to identify the unlicensed manufacturers of edible salt
and to take action against these manufacturers as per
provisions of the Act.
Here, it is pertinent to mention that none appeared on
behalf of the respondents. On request of the court, the
learned D.A.G appeared before the Hon'ble Court. The lawyer
appearing on behalf of the petitioners stated the law
before the court whereby certain responsibilities are
provided upon the Government officers responsible for
observing and scrutinising the production and marketing
of edible salt including the Respondent Nos. 1 to 5. The
law (the Act of 1989) requires production and marketing
of iodised salt as per specification of section 2(ka)
of the Act and the law has clearly barred manufacturing
and sale of edible salt without iodine and any contravention
of such act have been made punishable offence under sections
4 and 6. Section 9 of the act provided that whoever violates
the law may suffer imprisonment not more than three years
and fine not more than Tk. 5000/-. The function and duty
of the National Salt Committee (to be appointed under
the Act) and the authority to file cases by the inspectors
have been provided in the provisions of Act and the Rules.
The petitioners also mentioned the diseases which may
result from the inefficiency of iodine and they placed
the relevant data whereby it was proved that public officials
failed to perform their duty according to the law and
hence, the hon'ble court felt necessary to issue the Rule
to require the persons concern to rise to the occasion
and for that matter to compel them to act as required
by the provisions of the Act and the Rules. Also to compel
them and to perform their statutory duties and obligations
as well.
The
learned D.A.G also sought 'proper directions' for respondent
Nos. 1- 5 so that they perform their statutory obligations
properly and diligently in the greater interest of the
future generation and accordingly the Government Officials
and the Committee were directed to perform their respective
duties as specified in the act of 1989 by the Hon'ble
Court so that the iodised salt produced and marketed for
consumption of the people to comply with the provisions
of sections 2, 4 and 6 of the said Act and the violators
thereof be prosecuted under provisions of section 9 of
the said Act. They are further directed to ensure that
the unregistered edible salt manufacturers are not allowed
to produce, market and sell for human consumption and
such unregistered manufacturers of salt be brought to
book and be prosecuted in accordance with the provision
of law. The respondent Nos. 2 and 5 are also directed
to prepare and submit the list of registered manufacturers
/ producers of the edible iodised salt in Bangladesh and
the respondent Nos. 2, 3, and 4 are directed to collect
the samples of edible salt put in the market for sale
for general consumption and to submit analysis reports
of such salt twice a year, i.e., for the period ending
on 30th June and 31st December, respectively, to the Registrar,
Supreme Court of Bangladesh, within 15 days thereafter
without fail with a copy thereof endorsed to the respondent
No. 3, who is directed to ensure taking of actions as
per law against the defaulters on the basis of such reports.
The
analysis reports are to be submitted initially for five
(5) years effective from 2005 A.D.
In
addition to this judgement, it can be said that the respondents
Nos. 1-5 should not forget Article 18 (2) of the Constitution
of People's Republic of Bangladesh, where it is said that:
The State shall regard the raising of the level of nutrition
and the improvement of public health. Furthermore, "right
to life", which by way of judicial explanation helps
to enforce the above-mentioned Article 18 (2) in the apex
court of Bangladesh in case of any violation, is guaranteed
under Article 32 of our Constitution. According to Munn
vs. Illinois [(1877) 94 US 113], life means: Something
more than mere animal existence. The inhibition against
its deprivation extends to all those limbs and faculties
by which life is enjoyed. It must include protection of
the health and strength of workers, men and women, and
the tender age of children against abuse, opportunities
and facilities for children to develop in a healthy manner.
The
respondents in this instant case was not functioning enough
to provide safety to public health at large and specially
to the future generation. It was again decided in Vincent
vs. Union of India [AIR 1`987 (SC) 990]: In a welfare
state, it is the obligation of the state to ensure the
creation and the sustaining of conditions congenial to
good health. So failure of the Respondent Nos. 1 to 5
means failure of the state to function for the welfare
of its people. Again, the "right to life" through
the protection of public health has been reiterated in
a leading case of Bangladesh, which is Mohiuddin Farooque
vs. Bangladesh [49 DLR 438] and it is stated there that:
A man has natural right to the enjoyment of a healthy
life and a longevity up to normal expectation of life
of an ordinary human being. Enjoyment of a healthy life
and normal expectation of longevity is threatened by disease,
natural calamities, and human actions. Natural rights
of a man to live free from all man-made hazards has been
guaranteed under. Article 31 and 32 subject to law of
the land.
Thus,
by this judgement the Apex Court of Bangladesh once again
upheld the supremacy of the law and the constitution,
and stated that Government officials should function according
to the law and not according to their own discretion.
The
Judgement was declared on the 14th December, 2004 by Justice
Shah Abu nayeem mominur rahman and Mr Justice Moyeenul
islam chowdhury. Petitioners were represented by senior
advocate Mr. M. I. Farooqui with advocate Mr. Md. Ruhul
quddus.
The
authors are students of Law Department, University of
Dhaka.
