Delhi High Court: In a case wherein the petitioner’s, Fresh Fruit Flowers and Vegetables Traders Association’s grievance was the notification dated 09-07-2020 (‘impugned notification’) issued by Respondent 1, the Directorate General of Foreign Trade (‘DGFT’), under the aegis of Ministry of Commerce and Industry, Government of India (‘MoCI’), which imposed a prohibition on importation of a variety of cut flowers into India through all airports, except for Chennai airport, the Division Bench of Satish Chandra Sharma, C.J. and Sanjeev Narula, J.*, held that the impugned notification and order do not arbitrarily discriminate against flower traders in the Delhi-NCR region but rather aim to fortify the biosecurity of the nation. The Court observed that while the focus of the respondents had largely been on centralizing resources at a single port, the respondents had indicated an intent to scale up technical and laboratory capabilities at multiple ports across the country.
Background
The petitioner was a body committed to the advancement and well-being of flower traders operating in Delhi. The petitioner submitted that this regulatory measure discriminated against Delhi’s flower traders by putting them in an unfavourable position relative to their Chennai-based counterparts. It was also submitted that the impugned notification infringed upon the petitioner’s rights under the Constitution, as it imposed an unreasonable constraint on the commercial activities undertaken by the members of the petitioner.
Analysis, Law, and Decision
The issue for consideration before the Court was “whether the Union Government, represented by its respective departments, was justified in allowing the importation of cut flowers exclusively through Chennai Airport?”.
The Court noted that on one hand, the petitioner argued that the directive was arbitrary, especially given the absence of any incidents involving exotic pests from imported cut flowers at Delhi Airport, and the purported sufficiency of staffing and facilities there and on the other hand, the Government argued that the directive served national interests related to biosecurity and efficiently uses available resources. The Court further noted that while the respondents agreed upon the highly perishable nature of cut flowers and the necessity for time-sensitive clearance procedures, they asserted that designating a singular port of entry would maximize operational efficiency. Specifically, this approach aimed to expedite clearance processes and ensure rigorous adherence to phytosanitary inspection protocols, thereby alleviating pressure on other entry points, including but not limited to Delhi Airport.
The Court observed that the Regional Plant Quarantine Station in Chennai (‘RPQS Chennai’) was well-equipped for the import of cut flowers and this facility boasts state-of-the-art instrumentation, including Electron Microscopes, Stereo Binocular Microscopes with Image Analyzers, Polymerase Chain Reaction (PCR) equipment, and Gel Electrophoresis units. Furthermore, plant quarantine officials at this location had received specialized training to identify and diagnose elusive, sub-microscopic foreign pests such as Thrips, Aphids, and Mites.
The Court noted that the respondents had explained that the northern region of India, being a more prolific producer of cut flowers compared to its southern counterpart, was particularly vulnerable to the incursion of harmful pests via imported floral shipments. The Court observed that to augment existing safety measures, the respondents had initiated a “Pest Risk Analysis”, which aimed to deepen the understanding of threats posed by various intercepted pests, thereby informing future quarantine procedures and policies. The Court further observed that “according to the Department of Agriculture Co-operation & Farmers Welfare, Ministry of Agriculture and Farmers Welfare, Government of India (‘DAC&FW’), a scrupulous examination of past interception records revealed a conspicuously high incidence of invertebrate pests, most notably Thrips, Aphids, and Scales, on imported cut flowers; and of these, Thrips had been classified as a “quarantine pest” and was globally recognized as one of the most economically damaging plant viruses”.
The Court opined that “the imperative of bio-security gains emphasis in the context of the widespread ramifications witnessed by our country due to cross-border spread of COVID-19 virus. Biosecurity was thus more than a health issue; it constituted an integral facet of national security, given its direct impact on the ecological and environmental framework that was vital for growth of the country. The inadvertent introduction of invasive alien species or harmful exotic pests, whether through flowers, fruits, vegetables, or other pathways, poses a grave threat to the country’s native agricultural produce and, by extension, its agrarian economy”.
The Court further opined that “tackling such complex and fluid risks required specialized expertise and informed decision-making. For example, during severe locust attacks, the bulk of the Directorate of Plant Protection, Quarantine, and Storage (‘DPPQ&S’) staff was redeployed to specialized locust control units. This exemplified the diverse range of considerations and real-time adjustments needed, underscoring that such decisions clearly fall within the purview of administrative and policy-making authorities”. The Court opined that these were areas where the respondents were best equipped to deliberate and enact suitable measures, including the evaluation of import conditions and the strategic deployment of personnel and equipment to mitigate the threat of invasive species or exotic pests.
The Court also opined that the Courts could not assume the role of the executive to dictate policy on matters such as import regulations, the safeguarding of domestic agriculture, or the allocation of state resources. Rather, these were specialized determinations best left to the discretion of experts in the relevant fields. Thus, the Court held that the impugned notification and order do not arbitrarily discriminate against flower traders in the Delhi-NCR region but rather aim to fortify the biosecurity of the nation.
The Court observed that while the focus of the respondents had largely been on centralizing resources at a single port, the respondents had indicated an intent to scale up technical and laboratory capabilities at multiple ports across the country. The Court noted that improvements to the Plant Pathology and Entomology laboratory facilities were underway at several major Regional Plant Quarantine Stations (‘RPQSs’) and airports, including those in Mumbai, Kolkata, Bangalore, and Delhi; and the upgrades were described as a phased process, acknowledging that the department intended to progressively allocate trained technical manpower and state-of-the-art technical infrastructure.
The Court noted that the respondents, while currently emphasizing a centralized approach for biosecurity, recognized the need for a more expansive and long-term strategy. The Court opined that “this indicated the Government’s commitment to ensure that advancements in plant quarantine facilities and biosecurity were not isolated to a single port but were extended across a wider geographic framework. This strategy envisions enhancing technical prowess and expanding laboratory facilities at various entry points throughout the nation.
The Court after considering the respondents’ ongoing initiatives for phased enhancements to laboratory facilities and equipment across several ports, including Delhi, opined that, it was clear that the core concern of the petitioner, that is, the challenges faced in importing cut flowers via Delhi, had not only been recognized but was also presently being addressed by the appropriate authorities. Thus, the Court disposed of the present petition and held that judicial intervention at this stage was not warranted.
[Fresh Fruit Flowers and Vegetables Traders Association v. Directorate General of Foreign Trade, 2023 SCC OnLine Del 6201, decided on 05-10-2023]
*Judgment authored by: Justice Sanjeev Narula
Advocates who appeared in this case :
For the Petitioner: Shakeel Sarwar Wani, Advocate
For the Respondents: Chetan Sharma, ASG; Ripu Daman Bhardwaj, CGSC; Amit Gupta, Kushagra Kumar, Advocates; S.K. Verma, Joint Director; Hariom Miglani, Legal Officer
