Kerala Gold and Silver Dealers Association and All Kerala Gold and Silver Merchant Association v Union of India, Bureau of Indian Standards and Deputy Director General, BIS (Southern Regional Office) and Indian Association of Hallmark Centers Kerala Chapter

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` MONDAY, THE 11[TH] DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945 ``` ## **`WP(C) NO. 14688 OF 2021`** ## **`PETITIONERS:`** - **`1 KERALA GOLD AND SILVER DEALERS ASSOCIATION, REG.NO.65/99, THRISSUR, KERALA, REPRESENTED BY ITS SECRETARY P.M.RAFEEK, AGED 63 YEARS, S/O.MOHAMMED, PUZHANKARA ILLATHU, KAIPPAMANGALAM, MOONUPEEDIKA, THRISSUR-680 681.`** - **`2 MR.SHAJU CHIRAVATH, AGED 53 YEARS, S/O.SEBASTIAN, PRESIDENT, KERALA GOLD AND SILVER DEALERS ASSOCIATION, CHIRAVATH HOUSE, CHALAKUDDY-680 307.`** - **`3 MR.DIX FRANCIS, AGED 56 YEARS, S/O.FRANCIS, THARAKAN HOUSE, KOTTAPPALLY, THRISSUR-680 505.`** - **`4 MR.SUNIL JOSE, AGED 55 YEARS, S/O.T.D.JOSE, THARAKAN HOUSE, P.O. KOTTAPPALLY, THRISSUR-680 505.`** ``` BY ADVS. BABU KARUKAPADATH,M.A.VAHEEDA BABU P.U.VINOD KUMAR,ARYA RAGHUNATH VAISAKHI V.,T.M MUHAMMED MUSHTHAQ MOHAMED HISHAM P ``` ## **`RESPONDENTS:`** - **`1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF CONSUMER AFFAIRS, KRISHI BHAWAN, NEW DELHI-110 001.`** - **`2 BUREAU OF INDIAN STANDARDS, REPRESENTED BY ITS DIRECTOR GENERAL, BIS HEAD QUARTERS, 9 BAHADUR SHAH ZAFAR MARG, NEW DELHI-110 002.`** - **`3 THE DEPUTY DIRECTOR GENERAL OF BUREAU OF INDIAN STANDARDS, SOUTHERN REGIONAL OFFICE, CIT CAMPUS, IV CROSS ROAD, CHENNAI-600 113.`** W.P.(C) Nos. 14688 & 16839 of 2021 2 ``` 4INDIAN ASSOCIATION OF HALLMARK CENTERS KERALA CHAPTER, ATHIRA ASSAYS, 2ND FLOOR, MISSION QUARTERS ROAD, THRISSUR, KERALA-680 005, REPRESENTED BY ITS PRESIDENT. ``` ``` BY ADVS. SRI.SUVIN R.MENON, CGC R2 & R3 BY ADV.MANOJ RAMASWAMY ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.09.2023, ALONG WITH WP(C).16839/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) Nos. 14688 & 16839 of 2021 3 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` MONDAY, THE 11[TH] DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945 WP(C) NO. 16839 OF 2021 ``` ## **`PETITIONERS:`** **1** **`ALL KERALA GOLD AND SILVER MERCHANT ASSOCIATION, REPRESENTED BY ITS PRESIDENT, HAVING ITS REGISTERED OFFICE AT MULLACKAL ALAPPUZHA, CENTRAL OFFICE, P.T.CHERIAN MEMORIAL SWARNA BHAVAN, I S PRESS ROAD, ERNAKULAM, PIN 682 016 REGISTRATION NO.A.202/2000`** **2** **`JUSTIN PALATHRA, AGED 64 YEARS, PALATHRA FASHION JEWELLERS, THAVALATHIL BUILDING, K.P.ROAD, PATHANAMTHITTA P.O., PATHANAMTHITTA DISTRICT, PIN 689645.`** ``` BY ADVS. JACOB P.ALEX JOSEPH P.ALEX MANU SANKAR P. ``` ## **`RESPONDENTS:`** ``` 1UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF CONSUMERS AFFAIRS, MINISTRY OF CONSUMER AFFAIRS, FOOD AND PUBLIC DISTRIBUTION, KRISHI BHAVAN, NEW DELHI PIN 110 001 ``` - **`2 BUREAU OF INDIAN STANDARDS REPRESENTED BY ITS DIRECTOR GENERAL,`** W.P.(C) Nos. 14688 & 16839 of 2021 4 ``` BIS HEADQUARTERS, 9 BAHADUR SHAH ZAFAR MARG, NEW DELHI PIN 110 002 ``` - **`3 DEPUTY DIRECTOR GENERAL`** ``` BUREAU OF INDIAN STANDARDS, SOUTHERN REGIONAL OFFICE, CIT CAMPUS, IV CROSS ROAD, CHENNAI, TAMIL NADU 600 113 ``` ``` R2 & R3 BY ADV MANOJ RAMASWAMY ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.09.2023, ALONG WITH WP(C).14688/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) Nos. 14688 & 16839 of 2021 5 ## **VIJU ABRAHAM, J.** **................................................................. W.P.(C) Nos. 14688 & 16839 of 2021 .................................................................** Dated this the 11[th] day of September, 2023 ## **JUDGMENT** Since common issues are raised in both these writ petitions, they are heard and disposed of by this common judgment. W.P (C) No.16839 of 2021 is treated as the leading case and the facts in the said writ petition will be adverted to in this judgment. 2. Petitioner is an association of persons engaged in the business of precious metals of Gold and Silver in the State of Kerala. About 5000 merchants doing business of gold and silver in the State of Kerala are members of the 1[st] petitioner. The 2[nd] petitioner is the President of 1[st] petitioner and is engaged in the business of gold/jewellery. Petitioners are aggrieved by the recent amendments made by respondents 1 and 2 in the relevant Specification (IS 14172016) whereby Unique alphanumeric ID Code (UAID Code) was W.P.(C) Nos. 14688 & 16839 of 2021 6 insisted for every gold article as it unreasonably restricts the right to trade/business and the same is illegal and manifestly arbitrary. The 2[nd] respondent - the Bureau of Indian Standards (BIS) is established under Section 3 of the Bureau of Indian Standards Act 2016 (hereinafter referred to as “the BIS Act”) inter alia for the purpose of standardizing and ensuring quality assurance of goods, processes, systems and services and also for ensuring the purity of precious metals. The Act provides for the hallmarking of precious metal articles in terms with Section 2(16). The BIS Act mandates for establishment of Assaying and Hallmarking Centers as defined under Section 2(2) of the Act in terms of Section 14(5) for the purpose of testing the precious metal articles and applying the mark under the Act to deal with hallmarked products. In exercise of the powers conferred by Section 39 read with Sections 13 and 14 of the Act, the 2[nd] respondent, with the previous approval of the 1[st] respondent notified the Bureau of Indian Standards (Hallmarking) Regulations, 2018 (hereinafter referred to as “BIS Hallmarking Regulations”). As per notification dated 14.06.2018, gold jewellery and gold artefacts and silver jewellery and artefacts were notified as precious metal articles that are to be marked with hallmark for the purposes of Section 14(1) W.P.(C) Nos. 14688 & 16839 of 2021 7 of the Act. It is submitted that though notification was issued, the same was not made compulsory. Despite this many members of the 1[st] petitioner accepted the Hallmarking. However, as per Ext.P3 order, the selling of precious metal articles of gold marked with hallmark through certified sales outlets was made compulsory. Later by Ext.P5 order, the hallmarking order 2020 was made applicable only to just 256 (out of 742) districts in the country due to lack of hallmarking facilities in the country. The 2[nd] respondent has earlier issued Ext.P6 wherein it is specified that the hallmarking articles shall carry four markings, i.e., 1. BIS Standard Mark, 2. Purity in Carat and fineness. 3. Assay Centers Identification Mark and Number. 4. Jeweller’s Identification Mark. But Ext.P6 was amended as per Ext.P7 whereby a “Unique Alpha Numeric ID” (UAID) was made mandatory for each gold article and the same was intimated as per Ext.P8. Petitioners submit that making the Unique Alpha Numeric ID mandatory is manifestly arbitrary and is an unreasonable restriction to the fundamental right to carry business to the petitioners. It is further submitted that Clause 6.1(a)(3) of Ext.P7 is manifestly arbitrary and is an unreasonable restriction to the fundamental right to carry business to the petitioners. Unique identity presupposes uniqueness of the W.P.(C) Nos. 14688 & 16839 of 2021 8 identified material all throughout. If a particular subject could be validly alerted/modified/customized then assigning a unique identity would be counterproductive. So long as there is no law that prohibits alteration, modification or customization of a gold article, then dealing with or selling an altered, modified or customized ornament cannot follow penal consequences. However, the present BIS Specifications will result in penal consequences, if the jeweller indulges in the customization of gold articles. It is submitted that small-scale gold merchants, which constitute 95% of the gold merchant community and the majority members of 1[st] petitioner will be forced to close down business as the UAID Code would make the business impractical. The basic business practice regarding gold ornaments prevalent in the society was not considered by the 2[nd] respondent while insisting for UAID Code. The amended Clause 6.1(a)(3) in Ext.P8 is equally detrimental to the consumers as they will not be able to sell the gold article after retaining a portion of the same. If a customer wants to sell a part or portion of his gold article, the jewellers will be prevented from even purchasing it. Apart from the above illegality, after the introduction of the UAID Code, the very process of hallmarking itself is taking an unusually long time. The long delay due to the lack of W.P.(C) Nos. 14688 & 16839 of 2021 9 sufficient number of AHCS in the State is causing much difficulty. It is also contended that the fluctuation of the price of gold are rampant in the market and any delay in the transaction is likely to affect all concerned including jewellers and customers. Aggrieved by the same, petitioners preferred Ext.P11 before the 1[st] respondent which has not been considered yet. 3. Learned counsel appearing for the petitioners mainly contended that the essential purpose of BIS Hallmarking regulation is to ensure and guarantee of the purity and genuineness of the gold ornaments, for which the UAID code is not required at all. It is further contended that the introduction of the UAID code is beyond the purpose and power of the BIS Act. It is further contended that the introduction of the UAID code has detrimentally affected the business and livelihood of those engaged in the gold business including the petitioners. Due to the introduction of the UAID code, the ease of doing business is lost and the introduction of the same is an unreasonable and excessive restriction to the right to trade/business guaranteed under Article 19 (1) (g) of the Constitution of India. The process of getting the UAID code takes an average time of more than a week and is affecting the business of the petitioners. It is further contended that there are not W.P.(C) Nos. 14688 & 16839 of 2021 10 many hallmarking centers sufficient to cater for the need of a large number of jewellers in Kerala. The customer is also affected in as much as the imposition of the UAID code curtails the pledge/selling of gold since a piece of gold from among the ornaments cannot be pledged since the same will mismatch with the BIS portal. The purpose of the BIS Act is to prescribe minimum standard/quality assurance, essentially purity and fineness. The weight/item time etc. prescribed for obtaining the UAID code is neither a specification or a standard as per the BIS Act and therefore, insistence of such details is beyond the scope of BIS Act. What has now been done is something which is not contemplated under the Act, which is impermissible. The proportionality principle that mandates to impose the least restrictive method to achieve the object is to be applied and anything beyond the least restrictive/onerous conditions is ultravires the Act. The imposition of the UAID code, the violation of which entails penal consequence, without adequate infrastructure is arbitrary and unjust. 4. The respondents nos. 2 and 3 filed detailed statements in answer to the averments in the writ petition. The essential contention raised is that UAID is introduced in the interest of customers as it provides them purity, traceability and protection and also protection W.P.(C) Nos. 14688 & 16839 of 2021 11 against fake hallmarking, as it is unique. The information corresponding to UAID and its article such as purity, item type, weight etc. can be assessed whenever required. Alteration of up to 2 gms is permitted on jewellery hallmarked with UAID and only in case of alteration of more than 2 gms, articles need to be re-hallmarked and such a requirement is laid down as alteration of more than 2 gms with less purity of gold may bring the overall purity of the article below the purity hallmarked of the article, and thus the customer may get cheated. The complete process of hallmarking with UAID number takes only about 6 to 8 hours and the average time taken by the hallmarking units is 46 hours within which time the hallmarking centre should return the jewellery to the jeweller. It is further contended that jewellers with a turnover of Rs. 40 lakhs are not covered under the impugned order. It is further submitted that there are 74 assaying and hallmarking centres in Kerala in 13 Districts and 957 assaying and hallmarking centres are spread over 256 Districts in the country. The data available from July 2021 to August 2021 indicates that about 20 assaying and hallmarking centres situated in Kerala received less than 100 pieces of hallmarking on a daily basis. It is also submitted that the jewellers have been undertaking this hallmarking procedure W.P.(C) Nos. 14688 & 16839 of 2021 12 even earlier, now only change that has happened is assigning a Unique Identification Number. It is submitted that the requirement of hallmarking is given in the Indian Standard IS 1417: 2016, which states that hallmarked Jewellery shall carry the following marks: a) BIS Standard Mark, b) Purity in carat and Fineness, c) Assay centre's identification mark/number and d) Jeweller's identification mark/number. UAID contains information regarding both AHC's identification and Jeweller identification. However, to give more clarity, Amendment No. 1 to IS 1417:2016 has been gazette notified by the Publication Department with the date of establishment of the amendment as 07.07.2021. As per the amendment, in Clause 6.1, the hallmarked gold articles shall carry the following three markings only: 1) BIS standard Mark, 2) Grade/Designation and its declared Minimum Fineness in ppt, and 3) "Unique Alphanumeric ID of the article issued by the Assaying and Hallmarking Centre. The amendment has been implemented with effect from 07.07.2021. It is submitted that UAID is auto-generated by BIS online module for each article after the assaying process is completed. The UAID will be laser-marked in the jewellery. Hence hallmarking of jewellery without carrying out fire assay testing is eliminated with the online module. W.P.(C) Nos. 14688 & 16839 of 2021 13 Further, a provision is made in the portal to record the date and time during which the activities of Assaying and Hallmarking have been carried out. This will help in real-time monitoring of the activities at Assaying and Hallmarking Centres. The timestamp of each activity at AHC starting with receipt of jewellery in the portal to delivery of the hallmarked jewellery after testing can be monitored. This will provide a clear picture of whether the Assaying process was genuinely carried out before laser marking or not. The digital solution is also equipped with a provision to verify the authenticity of the hallmarked jewellery by the introduction of UAID code. This UAID code is unique and will be helpful in identifying the Jeweller who has got the article hallmarked and the A&H Centre which has hallmarked the article. Thus the provision of UAID will help to monitor the functioning of the AHC and identify the jeweller for traceability. On the basis of the same, it is the contention of respondents nos. 2 and 3 that UAID has been introduced in the best interest of the customers and the same will improve the credibility of hallmarking and prevent fake hallmarking as it gives assurance of marked fineness and improves the efficiency of the process of hallmarking. 5. Heard the respective counsel appearing for the petitioners and W.P.(C) Nos. 14688 & 16839 of 2021 14 the learned counsel appearing for the respondents. 6. Going by the averment in the writ petition, Ext.P7, which is impugned in this writ petition is issued modifying Ext.P6. A perusal of Ext.P6, especially Clause 6.1(a) would reveal that the hallmarking was mandatory which should be carried out only in BIS-recognized Assaying and Hallmarking Centres which further mandates that the hallmarked article shall carry the following marking: 1. BIS Standard Mark. 2. Purity in Carat and fineness. 3. Assay Centers Identification Mark and Number. 4. Jeweller’s Identification Mark. By Ext P7 order, Clause 6.1(a) of Ext P6 was substituted as follows: The hallmarked articles shall carry the following marks in the order mentioned: 1. BIS Standard Mark. 2. Grade/Designation and its declared minimum fineness in PPT and 3. “Unique alphanumeric ID” of the article issued by the assaying and hallmarking centre. So, it is without any doubt that the hallmarking of gold jewellery was a process in existence for years together (in the case of gold jewellery from April 2000 onwards) and the only change made by Ext P7 was the introduction of a Unique alphanumeric ID which shall be laser marked on each hallmarked jewellery and it replaces the AHC logo and jeweller logo which were not unique. The UAID is a six-digit alphanumeric ID and W.P.(C) Nos. 14688 & 16839 of 2021 15 can be used to trace the jeweller who has got the article hallmarked and the BIS-recognized Assaying and Hallmarking Centre that has hallmarked the article. There is also a provision in the portal to record the time and date during which the activities of assaying and hallmarking have been carried out which would help in real-time monitoring of activities of assaying and hallmarking centres and the same would provide a clear picture as to whether the assaying process was genuinely carried out before laser marking or not. As per the contention of the 2[nd] and 3[rd] respondents, by the introduction of UAID, no modification has been done in the testing procedure of assaying and hallmarking of gold jewellery. So essentially by introduction of Unique ID for hallmark will improve the credibility of hallmarking and prevent fake hallmarking which is done only in the best interest of the customers. Therefore, it is clear that it is not a new process but only an addition to the existing process of hallmarking whereby a Unique ID for hallmarking is also provided. 7. The main contention raised by the petitioners is that as per Section 2 (16) of BIS Act, hallmarking means in relation to a precious metal article the standard mark which indicates the proportionate content of precious metal in that article as per the relevant Indian W.P.(C) Nos. 14688 & 16839 of 2021 16 Standard. As per Ext.P2 regulation, the jeweller shall be responsible for the purity and fineness of the hallmarked precious metal sold by it. The UAID code introduced as per Ext.P7 which provides for item type, weight etc., exceeds the mandate of the statute and therefore Ext.P7 is ultra-vires the BIS Act. The petitioners rely on the judgment in _**DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana and others (2003) 5 SCC 622**_ and _**State of Karnataka and another v. H. Ganesh Kamath and others (1983) 2 SCC 402**_ , to contend that rules or regulations cannot be made beyond the scope of the enabling Act. It is also contended that the stand taken by the respondents will prevent fake/spurious hallmarking is also beyond the scope of BIS Act and relying on the decision in _**State of Maharasthra & another v. Indian Hotel and Restaurants and others (2013) 8 SCC 519**_ and _**Internet and Mobile Association of India v. Reserve bank of India (2020) 10 SCC 274**_ it is the case of the petitioner that without any empirical data regarding fake/spurious hallmarking, no additional restriction in the form of UAID code should be imposed. Petitioners further submit that when less onerous methods are available to achieve the purpose of BIS Act, the impugned Clause 6.1 (a) of Ext.P7 exceeds the mandate of the BIS Act. Petitioners rely on W.P.(C) Nos. 14688 & 16839 of 2021 17 the judgment of _**JK Industries Limited and another v. Union of India and others (2007) 13 SCC 673**_ , _**Petroleum and Natural Gas Regulatory Board v. Indraprastha Gas Limited and others (2015) 9 SCC 209**_ , and _**Adani Gas Limited v. Union of India and others (2022) 5 SCC 210**_ in support of their contention. Petitioners also rely on the judgment in _**Mohammed Faruk v. State of Madhya Pradesh and others (1969) 1 SCC 853**_ and submit that the court while testing the validity of the law, imposing restriction on carrying on business or profession, the court must evaluate the possibility of achieving the same object by imposing a less drastic restrain. The counsel for the petitioner also relies on the judgment in _**Rameshchandra Kachardas Porwal and others v. State of Maharashtra and others 1981 (2) SCC 722**_ and _**Jamshed N.Guzdar v. State of Maharashtra and others (2005) 2 SCC 591**_ and contended that court should while examining a challenge against notification on the ground of lack of necessary facilities and convenience may instead of quashing the notification, issue appropriate time-bound direction for providing necessary facilities and conveniences. 8. The BIS Act is an Act to provide for the establishment of a National Standards Body for the harmonious development of the W.P.(C) Nos. 14688 & 16839 of 2021 18 activities of standardization, conformity, assessment and quality assurance of goods, articles, processes, systems and services and for matters connected therewith or incidental thereto. Section 2(2) deals with the establishment of assaying and hallmarking centres and Section 2(16) defines hallmark as in relation to a precious metal article, the Standard Mark which indicates the proportionate content of precious metal in that article as per the relevant Indian Standard. Indian Standard is defined in Section 2(17), meaning: _2. (17) “Indian Standard” means the standard including any tentative or provisional standard established and published by the Bureau, in relation to any goods, article, process, system or service, indicative of the quality and specification of such goods, article, process, system or service and includes— (i) any standard adopted by the Bureau under sub-section (2) of section 10; and_ - _(ii) any standard established and published, or recognised, by the Bureau of Indian Standards established under the Bureau of Indian Standard Act, 1986 (63 of 1986), which was in force immediately before the commencement of this Act.”_ Section 10 (2) deals with the standard established by the Indian Standards which provides that the Bureau may adopt an Indian standard, any standard established by other institutions in India or elsewhere, in relation to any goods, article, process, system or service W.P.(C) Nos. 14688 & 16839 of 2021 19 in such manner as may be prescribed. Section 14 deals with certification of standard marks and Section 14(2) mandates that the goods or articles notified in Sub-section (1) may be sold through retail outlets after being certified by the bureau to be in conformity with the relevant standard by testing and marking centre recognized by the bureau and marked with hallmark or standard mark as the case may be as specified by regulation. Therefore, the Act itself give power to the Bureau of Indian Standard to get the goods or articles hallmarked as may be prescribed by a regulation. Ext.P7 regulation mandates that the hallmarking should also contain a Unique alphanumeric ID other than other hallmarking specifications. Therefore, the contention that Rules and Regulations cannot go beyond the scope of the enabling Act, based on the decision in _**DLF Qutab**_ ’s case supra and _**Ganesh Kamath**_ ’s case supra is only to be rejected. The new stipulation as per the regulation is only to give authenticity to the hallmarking of gold articles, which is done in the interest of consumers, and cannot be said to be ultra vires the BIS Act 2016. 9. In Ext.P6, gold and gold alloys are classified into various grades in Clause 4.1 depending upon their fineness. In Ext.P6 also, the hallmarking is done not just by marking the purity in carat and W.P.(C) Nos. 14688 & 16839 of 2021 20 fineness of the gold but also the details of the assay centre, identification mark/number and jeweller identification mark/number. If the argument of the petitioners that BIS hallmarking is only to ascertain the proportionate content of precious metal alone is accepted, then in Ext P6 no other details other than the purity in carat and fineness of the gold should have been included. Though Ext.P3 order produced in W.P(C) No. 16839 of 2021, whereby hallmarking was made compulsory, was challenged before this court in W.P(C) No.12158 of 2021, this court did not interfere observing that laudable objective in issuing Ext.P3 order is to ensure the purity of gold sold through jewelleries across the country and hence the petitioner therein have to comply with the stipulations in the order if they want to continue with their business. Ext.P6 stipulates that the assay centre's identification mark as well as the jeweller’s identification mark should be there in the hallmarked articles, so as to give authenticity to the hallmarking done. What has now been done as per Ext.P7 is giving a UAID number to weed out any tendency of fake/spurious hallmarking and going by the statement of respondents nos. 2 and 3 the same was done after a consensus arrived at, incorporating all the demand of the stakeholders. UAID is autogenerated by BIS Online Module for W.P.(C) Nos. 14688 & 16839 of 2021 21 each article after the assaying process is completed and the same will be laser marked in the jewellery. Further that a provision is made in the portal to record the date and time during which the activities of assaying and hallmarking have been carried out and this will help in real-time monitoring of activities at Assaying and Hallmarking Centres. All these will provide a clear picture as to whether the assaying process was genuinely carried out before laser marking or not. The UAID is unique in identifying the jeweller who has got the article hallmarked and also the A and H Centre who has hallmarked the articles. 10. Another objection raised is that the gold articles are not unique in itself but is alterable and inherently alterable articles cannot have a unique identity and the introduction of the UAID code for each jewellery article is an unreasonable restriction on the option of modification/customization of gold articles and this will largely affect the small scale gold merchants like the petitioner who constitutes 95% of the gold merchant community. The stand of the 2nd and 3rd respondents is that jewellers with a turnover of less than 40 lakhs per annum are not covered under this impugned order. In the additional statement dated 17.07.2023 in W.P(C) No.14688 of 2021, it is stated W.P.(C) Nos. 14688 & 16839 of 2021 22 that presently alteration of hallmarked jewellery up to 50% of the weight of jewellery or up to 2 grams whichever is lower is permitted subject to the responsibility of purity on the jeweller and the said policy was adapted after due consultation with stakeholders including the representatives of the jewellery industry. Initially, there was no such option to sell the modified jewellery without re-hallmarking irrespective of the weight of the article but the said modification was made on the basis of the request made by the stakeholders. It is further stated that the use of a particular form of jewellery for a purpose different from what is intended or alteration of a jewellery to a different form to suit a different way of use are not so uncommon and to address these issues regarding variations due to trade practices and customer preferences, BIS has already mandated that all physically separable component of jewellery should bear a separate unique hallmark with UAID and the said process will ensure that when such reassembly or customization occurs, the assurance of the purity of the article is reasonably maintained and allow trade to continue unobstructed. In view of this definite stand taken by the respondents, I do not find any merit in the said contentions raised by the petitioners. 11. Another contention raised by the petitioners based on the W.P.(C) Nos. 14688 & 16839 of 2021 23 judgment in _**Jamshed N Guzdar**_ ’s case supra which was issued relying on _**Rameshchandra Kachardas Porwal**_ ’s case supra that in case where some facilities and convenience have not been provided which are necessary, the court can issue necessary time-bound directions for providing such necessary facilities. The contention of the petitioner is that even though Ext.P7 has been made mandatory, there is lack of sufficient number of hallmarking centres in the State and that will result in considerable delay in the process of hallmarking. In both these writ petitions instances have been pointed out wherein delay had occurred in the process of hallmarking. Learned counsel for respondents nos. 2 and 3 would contend that there are 74 Assaying and Hallmarking Centres in Kerala in 13 Districts and the average time taken to complete the process of assaying and hallmarking is between 6 to 8 hours and the average time being taken by hallmarking centres is on an average of about 46 hours. Single instances projected to contend that there is serious delay cannot be taken as a general trend of delay in hallmarking. A specific instance was referred to in Paragraph 15 of W.P(C) No.14688 of 2021 to project that there is considerable delay, to which, in the additional statement filed on 06.09.2021 by respondent nos. 2 and 3, it is stated W.P.(C) Nos. 14688 & 16839 of 2021 24 that in the said case the process of assaying and hallmarking was completed within a period of 48 hours and even though the jeweller was informed to take the delivery, the same was collected by the jeweller only on 11.07.2021 due to lockdown and that there is no delay in completing the process of hallmarking. It is further stated that there are currently 74 Assaying and Hallmarking Centres in Kerala in 13 Districts and 957 in 256 Districts in the country. The data available from July 2021 to August 2021 indicates that about 20 Assaying and Hallmarking centres situated in Kerala received less than 100 pieces of hallmarking on daily basis and that the Kochi office of BIS has a dedicated help desk for addressing any issues concerning the jewellers in connection with the hallmarking activity. Therefore, in view of the same, I am not inclined to accept the said contention of the petitioners. 12. Another contention raised is that Clause 6.1(a) of Ext.P7 imposes unreasonable and excessive restriction of fundamental right under Article 19(1)(g) of the Constitution of India, especially that of small/rural jewellers and the restriction imposed does not pass the proportionality test. The object of issuance of Ext.P7 is to ensure purity of gold articles which is sought to be achieved through the W.P.(C) Nos. 14688 & 16839 of 2021 25 process of hallmarking. It is true that even as per Ext.P6 the BIS standard mark and purity and carat fineness, assay centre identification and jewellers identification marks are provided. But the introduction of UAID as per Ext.P7 helps in real monitoring of activities at assaying and hallmarking centres and the same would provide a clear picture as to whether the assaying process was genuinely carried out which is issued absolutely in the interest of consumers. The unique ID for the hallmark will only improve the credibility of hallmarking and prevent fake hallmarking. It is also to be noted that jewellers with a turnover of Rs.40 lakhs are not covered under the impugned order. Further, it could be seen that hallmarking was in existence even before the issuance of Ext.P6 and by Ext.P7 order, only a unique identification number is provided to improve the authenticity of the hallmarked gold ornaments and the time consumed for hallmarking is also not increased due to the introduction of UAID. In view of the above, I am of the opinion that the said contention of the petitioners also cannot be accepted. 13. It is to be seen that not much change has occurred from the process undertaken by Ext.P6, by the introduction of UAID code by the impugned order Ext.P7. I have already found that the introduction 26 ## W.P.(C) Nos. 14688 & 16839 of 2021 of UAID code is only to ensure the credibility of hallmarking and prevent fake hallmarking which is definitely for the benefit of the customer. When a modification is introduced, definitely there will be certain initial difficulties while implementing the same which cannot be a reason to interfere with Ext.P7 which has been issued with a laudable object. In the meanwhile, if the dealers like the petitioners have any grievance in respect of the implementation of Ext.P7, the same should be appropriately considered by the authorities including the 1[st] respondent Government. The petitioners relying on Ext P8 produced in WPC No. 14688/2021 which is a report of the committee for “transforming India’s Gold Market” by NITI Aoyog would contend that even the NITI Aoyog in the said report has not recommended for a UAID mark and it has recommended only for Sponsor’s Mark, Metal and Fineness (purity) Mark and Assay Office Mark. In the said report it is further recommended that hallmarking is essential for consumer protection and the number of hallmarking centres has to be increased. All these are matters which the petitioners could raise before the 1st respondent Government. It is seen that the petitioners in W.P(C) No.16839 of 2021 have already preferred Ext.P11 representation before the 1[st] respondent Government in this regard. Therefore, it is W.P.(C) Nos. 14688 & 16839 of 2021 27 only appropriate that Ext.P11 representation or any other representations filed by the petitioners in both the writ petitions, which should be submitted before the 1[st] respondent within a period of two weeks from the date of receipt of copy of this judgment, is appropriately considered by the 1[st] respondent with notice of hearing to the petitioners/their representatives and take a final decision in the matter regarding the grievances raised by the petitioners in the said representation/s, within an outer limit of three months thereafter. With this limited direction, both the writ petitions are disposed of as above. Sd/- **VIJU ABRAHAM JUDGE** cks W.P.(C) Nos. 14688 & 16839 of 2021 28 ## **`APPENDIX OF WP(C) 14688/2021`** ## `PETITIONER EXHIBITS` ``` EXT.P1 A TRUE COPY OF CERTIFICATE OF REGISTRATION NO.65/99 OF THE 1ST PETITIONER ASSOCIATION ``` - `Exhibit P2 A TRUE COPY OF THE CERTIFICATE OF` ``` REGISTRATION DATED 17.12.2018 ISSUED BY THE BUREAU OF INDIAN STANDARDS IN THE NAME OF THE 3RD PETITIONER'S JEWELLERY. ``` - `Exhibit P 2(a) A TRUE COPY OF THE RECEIPT OF LICENSE FEE ISSUED TO 4TH PETITIONER ON 11.02.2021 BY THE CHAVAKKAD MUNICIPALITY.` - `Exhibit P2(b) A TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 19.06.2021 ISSUED BY THE BUREAU OF INDIAN STANDARDS IN THE NAME OF THE 4TH PETITIONER'S JEWELLERY.` - `Exhibit P3 A TRUE COPY OF THE RELEVANT PORTIONS OF BUREAU OF INDIAN STANDARDS (HALLMARKING) REGULATIONS-2018 NOTIFIED ON 14.06.2018.` - `Exhibit P4 A TRUE COPY OF THE NOTIFICATION DATED 14.06.2018 NOTIFYING GOLD AND SILVER JEWELLERY & ARTEFACTS FOR THE PURPOSE OF HALLMARKING.` - `Exhibit P5 A TRUE COPY OF THE RELEVANT PORTION OF THE ORDER DATED 15.01.2020 OF THE HALLMARKING OF GOLD JEWELLERY AND GOLD ARTEFACTS ORDER, 2020.` - `Exhibit P6 A TRUE COPY OF THE RELEVANT PORTION OF THE NOTIFICATION DATED 01.06.2021 OF THE HALLMARKING OF GOLD JEWELLERY AND GOLD ARTEFACTS ORDER 2020 NOTIFYING THE COMMENCEMENT OF THE ORDER AS 16.06.2021.` ``` Exhibit P7A TRUE COPY OF THE RELEVANT PAGES OF THE GAZATTE NOTIFICATION DATED 23.06.2021 NOTIFYING THE AMENDMENT OF HALLMARKING OF GOLD JEWELLERY AND GOLD ARTEFACTS ORDER ``` 29 ## W.P.(C) Nos. 14688 & 16839 of 2021 - `2020 INTYER ALIA RESTRICTING THE SAME TO CERTAIN DISTRICTS.` - `Exhibit P8 A TRUE COPY OF THE RELEVANT PARTS OF THE REPORT OF NITI AAYOG ON TRANSFORMING INDIA'S GOLD MARKET INTER ALIA RELATING TO HALLMARKING.` - `Exhibit P9 A TRUE COPY OF THE RECEIPT DATED 20.02.2021 ISSUED BY AMRITHA ASSAY AND HALLMARKING CENTRE, A RECOGNIZED ASSAYING & HALLMARKING CENTRE, KUNNAMKULAM TO THE JEWELLERY OF THE 3RD PETITIONER FOR RECEIPT OF 32 NUMBERS OF GOLD ORNAMENTS.` - `Exhibit P9(a) A TRUE COPY OF THE BILL DATED 20.02.2021 ISSUED BY AMRITHA ASSAY AND HALLMARKING CENTRE A RECOGNIZED ASSAYING & HALLMARKING CENTRE, KUNNAMKULAM TO THE JEWELLERY OF THE 3RD PETITIONER.` - `Exhibit P10 A TRUE COPY OF THE COMMUNICATION DATED 18.06.2021 SAID TO HAVE BEEN ISSUED BY THE HEAD, HALLMARKING TO VARIOUS ASSAYING AND HALLMARKING CENTRES IN KERALA.` - `Exhibit P11 A TRUE COPY OF THE GOLD ISSUES OF 178 GOLD ARTICLES DATED 02.07.2021 SUBMITTED BY THE 3RD RESPONDENT TO ATHIRA ASSAY AND HALLMARKING CENTRE, A RECOGNIZED ASSAYING & HALLMARKING CENTRE.` - `Exhibit P11(a) A TRUE COPY OF THE DELIVERY VOUCHER DATED 11.07.2021 ISSUED BY ATHIRA ASSAY AND HALLMARKING CENTRE, A RECOGNIZED ASSAYING & HALLMARKING CENTRE TO THE JEWELLERY OF THE 3RD PETITIONER.` - `Exhibit P12` - `TRUE COPY OF THE IS 1417:2016:GOLD AND GOLD ALLOYS, JEWELLERY/ARTEFACTS-FINENESS AND MARKING -SPECIFICATION` - `Exhibit P13 TRUE COPY OF THE AMENDMENT NO.1 TO IS 1417:2016:GOLD AND GOLD ALLOYS,` 30 W.P.(C) Nos. 14688 & 16839 of 2021 ``` JEWELLERY/ARTEFACTS-FINENESS AND MARKING- SPECIFICATION ``` ``` Exhibit P14TRUE COPY OF THE COMMUNICATION NO.HMD/14:14 DATED 23/07/2021 REGARDING IMPLEMENTATION OF AMENDMENT NO. 1 TO IS 1417:2016 ISSUED BY THE 2ND RESPONDENT ``` ## RESPONDENTS’ EXHIBITS ``` ANNEXURE R2(a)TRUE COPY OF THE NOTIFICATION ``` W.P.(C) Nos. 14688 & 16839 of 2021 31 ## **`APPENDIX OF WP(C) 16839/2021`** ``` PETITIONER EXHIBITS ``` - `Exhibit P1 TRUE COPY OF THE REGISTRATION CERTIFICATE OF 1ST PETITIONER` - `Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF THE BUREAU OF INDIAN STANDARDS (HALLMARKING) REGULATIONS, 2018` - `Exhibit P3 TRUE COPY OF THE HALLMARKING OF GOLD JEWELLARY AND GOLD ARTEFACTS ORDER, 2020 DATED 15.1.2020` - `Exhibit P4 TRUE COPY OF THE ORDER BEARING NO.SO 2102(E) DATED 1.6.2021 ISSUED BY THE 1ST RESPONDENT` - `Exhibit P5 TRUE COPY OF HALLMARKING OF GOLD JEWELLERY AND GOLD ARTEFACTS (SECOND AMENDMENT) ORDER, 2021.` - `Exhibit P6 TRUE COPY OF THE IS 1417 2016 GOLD AND GOLD ALLOYS, JEWELLARY/ARTEFACTS - FINENESS AND MARKING -SPECIFICATION.` - `Exhibit P7 TRUE COPY OF AMENDMENT NO.1 (JULY 2021) TO IS 1417:2016 GOLD AND GOLD ALLOYS, JEWELLERY/ARTEFACTS - FINENESS AND` - `MARKING -SPECIFICATION.` - `Exhibit P8 TRUE COPY OF COMMUNICATION BEARING NO.HMD/14:14 DATED 23.7.2021 REGARDING IMPLEMENTATION OF AMENDMENT NO.1 TO IS 1417:2016 ISSUED BY THE 2ND RESPONDENT` ``` Exhibit P9 ``` - `TRUE COPY OF THE DELIVERY CHELLAN DATED 27.7.2021 ISSUED FROM PALATHARA FASHION JEWELLERS TO SREEKRISHNA HALLMARKING CENTER, ADOOR.` - `Exhibit P10 TRUE COPY OF THE CASH BILL DATED 4.8.2021 ISSUED BY SREEKRISHNA HALLMARKING CENTER` - `Exhibit P11` ``` TRUE COPY OF THE REPRESENTATION DATED ``` 32 W.P.(C) Nos. 14688 & 16839 of 2021 ``` 26.7.2021 SUBMITTED BEFORE THE 1ST RESPONDENT. ``` ``` Exhibit P12True copy of the relevant pages of SO No. 1047(E) dated 03-03-2023 Exhibit P13True copy of the relevant pages of SO No. 1555(E) dated 31-03-2023 Exhibit P14True copy of the judgment dated 31-03- 2023 in WPC No. 10620 of 2023 ```