Consumer Protection Act, 2019: A Criminal Imbalance

The Consumer Protection Act, 2019 ("Act") received the assent of the President of India and was subsequently notified in the Gazette of India on August 9, 2019. Several Sections of the Act came into force on July 20, 2020 and the remaining Sections came into force on July 24, 2020.

The Act replaces the Consumer Protection Act, 1986 ("Act of 1986") and in considerable departure from the Act of 1986, has widened the powers of the District and State Commission ("Commissions") and has introduced penal provisions for violation of provisions of the Act. Chapter VII of the Act provides for penalties, including imprisonment ranging from up to six months and going all the way up to life imprisonment for offences which result in the death of a consumer. The Commissions' power to grant such punishments impacts the life, liberty, reputation and property of the litigants.

Section 38(10) of the Act provides that every proceeding before the District Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code ("IPC"), and the District Commission shall be deemed to be a criminal court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 ("CrPC").

Section 49(1) makes the provisions of Section 38(10) applicable to the disposal of complaints by the State Commission. The punishments under the Act, which go all the way up to life imprisonment, will be administered by the President and Members of the State and District Commissions. Their appointment is governed by the Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of the President and members of the State Commission and District Commission) Rules, 2020 ("Appointment Rules") which were notified on July 15, 2020 and came into force on July 20, 2020.

For appointment as a member of the District Commission, Rule 4(2) of the Appointment Rules prescribes that the members of the State Commission should have a bachelor's degree from a recognised university and should be a person of ability, integrity and standing, and has special knowledge and professional experience of not less than fifteen years in consumer affairs, law, public affairs, administration, economics, commerce, industry, finance, management, engineering, technology, public health or medicine.

For appointment as a member of the State Commission, Rule 3(2)(b) of the Appointment Rules prescribes similar requirements albeit with the minimum professional experience prescribed as twenty years.

Therefore, in effect, at least fifty percent of members of the State Commission and all members of the District Commission while wielding the power of a criminal court to grant imprisonment for a period of up to life, may not have any legal/judicial qualification, training and experience within the justice system, particularly the criminal justice system.

The Act gives the members of the Commissions wide punitive powers and accords the status of criminal courts to the Commissions whereas the prescribed qualifications of the members of the Commissions under the Appointment Rules do not mandate even a minimum qualification in law and/or any judicial training or experience of the judicial system for such members. Accurate interpretation of legal provisions and meaningful appreciation of competing evidence are conditions precedent for having a fair trial, however, the members would have no qualifications and experience to that effect, despite which they will be sitting on trials and administering punishments which may go all the way up to life imprisonment. Resultantly, an accused may be denied his/her right to a fair trail as enshrined in the Constitution of India

Entrusting the powers of a criminal court to non-judicial members of a court/commission/tribunal is neither envisaged under the Indian legal system nor in consonance with various earlier rulings in this regard by the Hon'ble Supreme Court of India.

Transferring the jurisdiction exercised by courts to Commissions, constituted of members who do not have any specialized knowledge or expertise in the field of law or justice and vesting in them the power to grant punishments which impact the life, liberty, reputation and property of a litigant will clearly be a case of dilution of and encroachment upon the independence of the judiciary and Rule of Law and would be unconstitutional. Since the Commissions have been given the powers of a criminal court which can grant punishments up to life imprisonment, the Commissions must necessarily be manned by Judges or members with a judicial background. The Hon'ble Supreme Court in Union of India v. R. Gandhi, President, Madras Bar Association^[1] while drawing a distinction between a court and a tribunal has held that while all courts are tribunals, all tribunals are not courts, and courts are to be exclusively manned by Judges. The Commissions, which have now been deemed to be criminal courts under the Act must, therefore, be exclusively manned by judges.

The Hon'ble Supreme Court in All India Judges' Association & Ors. v. Union of India & Ors.^[2] has held that considering the fact that a criminal court has to decide, inter alia, question of life, liberty, property and reputation of the litigants, to induct persons from non-judicial background as members of the Commissions to occupy seats of such wide powers is neither prudent nor desirable.

Non-judicial members of the Commissions, who will constitute a majority, have been given powers to grant imprisonment, including life imprisonment, which powers are ordinarily vested with the Sessions Judge under the CrPC, who has either an experience of at least seven years as an advocate or has been a member of the judicial services with substantial experience. Therefore, same qualifications should be prescribed for members of the Commissions, who are empowered to impose similar incarcerations.

Therefore, even though the requirement for being appointed as a member of the District and State Commission lists out a fifteen years' and twenty years' experience, respectively, in the enumerated fields, such experience would not equate with judicial training imparted to judicial officers who exercise similar punitive powers.

In light of the aforesaid judgements of the Hon'ble Supreme Court and the provisions of the Constitution of India, the Appointment Rules in its current form are ultra vires the Constitution and need to be amended in as much as they pertain to the qualifications of the members of the Commissions.

In view of the above imbalance between punishments contained in the act and the required qualifications of members having the power to administer them, the authors make the following suggestions:

• Appropriate amendment be made in the Appointment Rules to prescribe necessary qualifications and/or training for appointment of members of the Commissions and align with the provisions of the Constitution of India and the judgments of the Hon'ble Supreme Court;
• Until the time such amendment is made, the Appointment Rules be kept in abeyance and any process of appointment initiated under the Appointment Rules be put on hold;
• The existing members of the Commissions be imparted necessary judicial training or in the alternate be appointed on such other posts commensurate with their qualifications and experience;

It is also suggested that Chapter VII of the Act which deals with Offences and Penalties, and Sections 38 and 49 of the Act which deem the Commissions as criminal courts and the proceedings before them as judicial proceedings under the provisions of IPC and CrPC must not be implemented until necessary amendment is made in the Appointment Rules.