Judiciary's Role In Appointing Consumer Forum Members Can't Be Diluted: Bombay High Court Strikes Down Rule 6(1) Of Consumer Protection Rules 2020

The Bombay High Court at Nagpur has quashed Rule 6(1) of the Consumer Protection Rules, 2020 which prescribed two members from the State bureaucracy and only one member from the judiciary on the Selection Committee that recommends appointment of the President and member-judges to the State and District Consumer Commissions.

The division bench comprising Justices Atul Chandurkar and Vrushali Joshi observed the rule was “diluting the involvement of the judiciary” and the “lack of judicial dominance” was in “contravention of the doctrine of separation of powers and also an encroachment on the judicial domain.”

The court further quashed Rule 10(2) to the extent it prescribed only a four-year tenure for members instead of five and additionally found the advertisement issued by Maharashtra's Department of Consumer Affairs for recruitment to be without jurisdiction for one of the two written papers.

As Rule 6(1) was struck down, the court consequently set aside the notifications issued in June this year constituting the selection committees.

The bench disposed of a clutch of petitions, one filed by Advocate Dr. Mahendra Bhaskar Limaye and others by then member-judges seeking extension of their tenure.

On June 23, the bench refused to grant interim relief to the petitioners and stall the written examination of over 1500 aspiring candidates scheduled for June 25.

“We find that the interest of justice would be served by making the advertisement dated May 23, 2023 subject to the outcome of the present challenge rather than staying the conduct of the examination scheduled on 25.06.2023.”

The petitions challenged provisions of the Consumer Protection (Qualification for Appointment, method of recruitment, procedure for appointment, term of office, resignation and removal of the President and members of the State Commission and District Commission) Rules 2020. 

The pleas were reserved for orders on September 1, 2023 and the judgment pronounced on October 20, 2023, over 52 days later. In the interim the State Government completed the selection process based on the same Rules and notifications which have now been set aside. Moreover, 112 Presidents and member-judges for various Consumer Commissions were appointed on October 5, and many appointees have also assumed office.

The petitioner himself was appointed as the President of the Bhandara District Consumer Commission but is yet to assume office.

In 2021 the HC bench at Nagpur had quashed Rule 3(2)(d), Rule 4(2) (c) and Rule 6(9) of the Rules of 2020 on Dr Limaye’s plea argued by Advocate Tushar Mandlekar. The appointments of Members have been pending since then.

Regarding the constitution of the selection committee, the court held that the Secretary in charge of Consumer Affairs of the State Government, the sponsoring department of the Commission, could not have a say in appointment of members.

“Its present composition definitely results in excessive interference of the Executive in the appointment of President and members of the State Commission and the District Commission. It results in diluting the involvement of judiciary in the process of appointment of members of the Tribunals amounting to an encroachment by the executive on the judiciary.”

The advertisements issued in May this year provided for deduction of a candidates marks in the entrance paper for every wrong answer and required a candidate to attempt an essay topic in Marathi to test their local language proficiency. The State government said that several complaints are made in local languages and therefore proficiency in Marathi was necessary.

The court held that under Section 101(2)(n) of the Consumer Protection Act only the Central Government and not the State Government was empowered to make rules regarding qualification for appointment, term of office or mode of recruitment.

Moreover, once the SC had already decided the particulars of an examination for recruitment, the Department couldn’t have prescribed something in addition. Consequently, it would be necessary for the Department to re-conduct the test in Paper-II by following SC's directions issued in another matter, Court said.

The HC held that the “re-appointment” of the existing judges should be made in accordance with the Rule 8 (18) of Consumer Protection Rules 2019 without the “examination”.

The HC heard the UOI through its Secretary, Ministry of Consumer Affairs, Food and Public Distribution, New Delhi and State Government of Maharashtra through its Secretary, Ministry of Food and Consumer Affairs.

Regarding Rule 6(1), the petitioners had argued that members have enormous powers to adjudicate the consumer disputes and should be treated like civil courts and therefore their appointments must be done with the “similar standards” of appointment of subordinate judiciary. They cited the case of the Madras Bar Association vs UOI case. (MBA-III).

They also cited the SC case in Rojer Mathew case regarding the “basic structure doctrine” and “independence of judiciary.”

The UOI argued that presence of a judicial member for selection was mandatory therefore there was no dilution of judicial dominance. However, the court accepted the contention of the petitioners and quashed Rule 6(1).

Appearances: Dr Tushar Mandlekar assisted by Adv Tejas Fadnavis argued for petitioners. Adv. Nandesh Deshpande, Assistant Solicitor General of India argued for Union of India. Adv. Anand Deshpande, Government Pleader argued for the State of Maharashtra.

Case No.: WRIT PETITION NO. 3680/2023

Case Title: Dr.Mahendra Bhaskar Limaye vs UOI

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