Justice for all: New angel not much better than old devil!

Like the curate's egg, the new Consumer Protection Bill, 2019, recently passed by the Rajya Sabha, is good in parts. The definition of a 'consumer' has been changed under Section 2(7). While goods for resale or commercial purposes are out of its ambit, all transactions - offline, online and tele-shopping are now covered. A Central Consumer Protection Authority with an investigation wing is to be set up by the Central government. This body will be empowered to impose penalties on endorsers of products - up to Rs 10 lakh and imprisonment up to 2 years, with the fine going up to Rs 50 lakh and a 5-year jail term for subsequent misleading advertisements.

 The concept of 'product liability', defined under Section 2(34) of the bill, requiring manufacturers or sellers to compensate consumers for harm caused by defective products or deficiency in services, is covered as a separate chapter. Unfair contracts, which place consumers at a disadvantage, are also dealt with. The bill also provides for 3-tier mediation cells with empanelled mediators.

 All these changes may augur well for consumers on paper. But those who practise in consumer fora  and commissions know that there is not just a slip but a huge crater between the provisions of law and their implementation. The 3 to 5 months time for the disposal of consumer complaints is a cruel joke as a single adjournment may last longer! Unlike statutes like the Arbitration & Conciliation Act, delay in filing applications are dealt with strictly with the words "but not thereafter". Under the consumer law, the term 'sufficient cause' can be used to stretch periods of condonation of delay. Surprisingly, the new bill does not plug such loopholes.

What should be of concern is the change in the pecuniary jurisdiction that has now been increased from 20 lakh to 1 crore for the district fora, from 1 crore to 10 crore for the state commissions and above 10 crore for the National Commission. Will this  be applicable prospectively or retrospectively?  The legal maxim 'lex prospicit non respicit', meaning the law looks forward not back.  Ditto with the Coke principle. In Garikapati Veeraya  Vs Subbiah Choudhury, the Supreme Court had observed that, “the golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed.”  Similarly, in Dayawati Vs Inderjit, the apex court held that "as a general proposition, it may be admitted that ordinarily a court of appeal cannot take into account a new law, brought into existence after the judgment appealed from has been rendered, because the rights of the litigants in an appeal are determined under the law in force at the date of the suit." The National Consumer Disputes Redressal Commission in Babita Aggarwal Vs Dr.S.K. Goel also batted for prospective application of amendments.

In the present bill, there is an indication that a notification on retrospective application of the changes in pecuniary jurisdiction will be issued, state by state, for this purpose. It is now well settled that procedural laws will operate retrospectively, unless the contrary is indicated in the statute. On the other hand, substantial laws will operate prospectively, unless the legislation declares the contrary.

As pecuniary jurisdiction falls under the procedural domain, a mass transfer of cases from the National Commission to the State Commissions and from the state commissions to the district fora will be on the anvil.  In my opinion, this will further delay proceedings. With most consumer disputes less than a crore, the district fora will soon be bursting at the seams as the most overburdened units. But there is not even a squeak about increasing the number of benches at the district level. Right now, each district forum has a solitary bench.

 Under the existing Consumer Protection Act of 1986, the president of the district fora, state and national commission was to be of the level of district, high court and Supreme Court judges. However, the new bill does not specify any judicial qualifications. If the members are to be from non-judicial backgrounds, that would tantamount to executive control. Wouldn't this tamper with the doctrine of 'separation of powers', which is a basic structure of the Constitution?

 As opposed to the higher judiciary having a role in the appointment of members of commissions, the bill leaves the method of appointment to the Central government. Wouldn't this executive involvement undermine the independence of the commissions?

 I find no attempt made to simplify the cumbersome paper work in consumer fora and commissions. The least the bill could have done was to introduce online filing of complaints, to obviate exasperating nitpicking by the registry.  A great opportunity to make the law more consumer friendly has gone abegging.

(The writer is an advocate at the Madras high court, columnist & author)