Abolish Consumer Protection Act If Commission Vacancies Can't Be Filled : Supreme Court Expresses Anguish

"The very purpose of settling up these tribunals and providing consumer remedy goes if these tribunals are not being manned. If the government feels it doesn't want them then abolish the Act. But if you put the Act in place you must man the tribunals."

A Bench of Justice Sanjay Kishan Kaul and M.M Sundresh made the above observations while considering the suo-motu case taken by it to deal with the vacancies in Consumer Commissions across the country. On Friday, the Bench was dealing with the issue of whether some clarification would be required for other States to proceed in light of the Bombay High Court judgement striking down certain provisions of the Consumer Protection Rules. Today, the Bench clarified that the judgement of the Bombay High court would not impede the appointment already made and processes imitated in other states.

"We are only trying to see that the entire timeline and process that we have laid down all over the country is not derailed."- the Bench observed.

Appearing for the Union Government, Additional Solicitor General Aman Lekhi made the submission that the principles of equivalence and judicial relevance are duly incorporated in the rules and that the matter is still to be argued before the Court.

To which Justice Kaul responded:

"The fact is that the Bench says something you again do the same thing again the Bench says something and you do the same thing…..some kind of an embargo being created. And the end of the bargain the citizen is suffering. This is for remedies and especially the nature of the consumer forum we are dealing with they are small issues which people deal with…they are daily lives which are being affected. And the very purpose of settling up these tribunals and providing consumer remedy goes if these tribunals are not being manned. If the government feels it doesn't want them then abolish the Act. But if you put the Act in place you must man the tribunals…."

"We are stretching our jurisdiction to see these are filled in...normally we should not be spending time and these should be filled in logically…it is unfortunate that the judiciary is called upon to push that these posts are manned. I mean we shouldn't be called upon to do this…if you have the Act, if you have the vacancy, when you have the norm it should be filled in…today we are monitoring state-wise trying to see they are pushed to do this. Not a very happy situation is all I can say," Justice Kaul went on to say.

"This is not only central, but at the state-level also see the ramification…but every state is having this problem…there are not enough number of people manning these posts……but this problem is both at the central and state level so the very intent of the Act is being defeated."

Expressing his displeasure with the entire process Justice Kaul said: "I do not wish to say anything more but the fact is that the matter is being going on of some judgement being rendered on the tribunal's issue and then again the Act coming contrary to this...not a very happy picture. It is not before us so we are not commenting on it…but the net result is not very happy."

Adv. Mr. Tushar Mandlekar intervened to argue that posts were being filled without conducting written that is a requirement laid down by the Apex Court.

Justice Kaul interjected to point out that the Adv Mandlekar's Intervening Application was not being considered by the Bench at this point and in any case "Filling up the post is more important than getting into these niceties we feel….we are not going to derail this process come what may."

"You are more interested in the niceties of it without the posts ever being filled in and the consumer suffers…you maybe interested in appointments in a particular manner we are concerned with the appointments per se…these are not really super-legal posts, these are people dealing with consumer for a…there must be people to deal with this issue…people are not in place, litigant doesn't get remedy. Is that more important or is what you are saying more important?"

Justice M.M Sundresh shared his personal opinion that consumer fora and courts be manned in a more permanent manner with high courts appointing judicial officers which could enable monitoring and control instead of having these 'ad-hoc' appointments. He said:

"It's my personal view that we need to look at this from a different view. Consumerism as a concept has developed so much yet we are still holding on to the earlier concept of having a tribunal for this. There has to be this element of permanency to this. Treating this as a tribunal and then fixing the age limit, forming the rules…we need to have a permanent structure like our regular courts…because the concept has developed so much and become an indispensable part of our concept of justice..therefore in the longer run we need to think of having a system where we can select judges at a young age like we do for district judiciary like a civil judge or a senior civil judge…otherwise the difficulty will be this- you pick someone at the age of 35, 40 there is no element of accountability there…high court won't have power of superintendence over them in respect of their conduct and service conditions…where will the system develop? I think we need to look at it from a different perspective also….should we go on with this ad-hoc performance of 5 years and one more term, why should we do that? Because once you realise it a very important part of dispensation of justice. We need to think aloud."

Amicus Curiae Senior Advocate Gopal Sankarnarayanan pointed out that the Central Government was best placed to bring about such changes. He further pointed out that under the Tribunals Act, everyone has been put under one umbrella.

Justice S.K Kaul expressed his view there must be caveat to that proposition. He further pointed out that there is a debate whether there should be sense of permanency attached to the posts.

"There are consumer activists and all who can also be appointed and not as a part of the regular process. How does that work is the issue that stands today"- Justice Kaul said.

ASG Aman Lekhi submitted that the concept of tribunalization has not discarded element of judicial primacy. All the Madras Bar Association Cases, he submitted, have maintained the judicial primacy by emphasising on composition and control. "While tribunalization is there, it is not like the court system has been discarded": he submitted.

Justice Sundresh quipped that there with respect to judicial members there is a lacunae as there is "absolutely no accountability" there.

"Judicial officers can be sent on deputation..you need to think from a different perspective also. Then what's the point of having a judicial officer who is retired? What is the motivation level for him? How do you fix the accountability on him? You will be giving 5 and 5 ten years maximum..what is this mindset? And is it really required for the development of the institution as such? Because now you are fixing the tenure."

Justice Kaul intervened to say that will make an interesting debate as to how far tribunalization has worked. "The government seems to be of the view that they are on a slight spree of winding up the tribunals at the moment. I also find that it has worked in very limited areas…in most of the areas possibly the strengthening of the main judiciary system would have subserved the purpose. But that's the larger context.."

Case Title: RE: Inaction of the Governments in appointing President and Members/Staff of Districts and State Consumer Disputes Redressal Commission and inadequate infrastructure across India| SMW (C) No(s). 2/2021

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