The court upheld the Central Government's authority to mandate BIS marking for phenol and melamine under the BIS Act, emphasizing public health and safety while affirming the legality of the decision-making process.

JUDGMENT :

KAUSHIK GOSWAMI, J.

Heard Dr. A. Saraf, learned Senior Counsel assisted by Mr. P. Baruah and Mr. P.K Bora, learned counsel for the petitioners. Also heard Mr. R.K.D Choudhury, learned Deputy Solicitor General of India, Mr. P.P. Sharma, learned Senior Counsel assisted by Mr. N. Choudhury, learned counsel for respondent No. 7, Mr. K. Gogoi, learned CGC for respondent Nos. 1, 2, 3, 5, 6 and Mr. B.Pathak, learned counsel for respondent No. 4.

2. By way of this petition under Article 226 of the Constitution of India, the petitioners are challenging, inter-alia, the validity and legality of the recommendation of the respondent No. 1 taken during the course of Expert Committee Meeting held on 22.04.2019, whereby the two raw materials namely ‘phenol’ and ‘melamine’ listed at Serial No. 10 in the Annexure-B and Serial No. 12 in Annexure-C respectively were proposed to be brought under the mandatory BIS marking scheme under the Bureau of Indian Standards Act, 2016 (hereinafter referred to as the BIS Act, 2016).

3. It is the specific case of the petitioners that respondent No. 1 in gross abuse of powers conferred on Central Government under the BIS Act, 2016 recommended mandatory BIS marking of the two subject raw materials. It is the further case of the petitioners that while the Union of India as a sovereign State is within its competence to frame the law and regulation as it considers appropriate to give effect to the obligations under the treaty on Technical Barriers to Trade (hereinafter referred to as TBT), it cannot extend the application of its municipal law outside the territory of India to bind the exporters to comply with the mandatory BIS registration and certification unless it demonstrates that the external content in such municipal laws or regulations are consistent with obligations and prohibitions under the TBT Agreement. Accordingly, the present writ petition has been filed seeking the following reliefs from this Court which are reproduced hereunder for ready reference:-

“I. A writ of and/or order and/or direction in the nature of mandamus commanding the Respondents to terminate and or withdraw its recommendation or any notification giving effect to mandatory BIS marking on these two industrial raw-materials.

II. A writ of and/or order and/or direction in the nature of prohibition commanding to the Respondents to cease and desist from taking any further or other actions in the matter of invoking Section 16 and 17 of BIS Act in respect of such items as are not consumer items or are industrial inputs without any consumer interface and outside the mandate in BIS Act.

III. A writ of and/or order and/or direction in the nature of certiorari commanding the Respondents to certify and transmit entire case records on proceeding or decision making or notifying these two raw-materials subjecting to mandatory BIS marks and in particular the records of assessment of risks pertaining to "public health and safety, environment, unfair trade practices and national security".

IV. Injunction restraining the Respondents from taking any further or other steps /or actions in the matter of mandatory BIS mark on Phenol and Melamine imported by the petitioner during the pendency of the instant writ petition on the dispute or without a reference and approval by this Hon'ble Court.

V. An ad-interim order and or direction commanding the Respondent No. 3 to conduct random tests on properties of the imported Phenol & Melamine from several sources and several countries and/or producers from places such as ports of entry in India as well as from the premises of Industrial users including the petitioner and other market places in sufficient numbers and determine the properties of the imported Phenol and Melamine including its conformity or otherwise with the upgraded BIS standard whether published or under consideration and submit the report to this Court within such time as may seem appropriate to this Hon'ble Court.

VI. An ad-interim order or direct