The Consumer Protection Act, 1986 and the Indian Society – An Analysis

The Consumer Protection Act of 1986 (the Act) envisaged protecting the interests of consumers by establishing consumer councils and other such authorities for settling consumer disputes. The perceived guiding principle behind this Act is that business organizations must adopt utmost ethical practices while conducting their business transactions. If and when the businesses gallivant and fail to fulfil their social and ethical obligations, the government will come to the assistance of the consumer.

Another oblique purpose of this Act, as stated by H.K.L Bhagat, the then Minister of Parliamentary Affairs, was to spur strong voluntary consumer movement at the grass root level. However, a law is a part of society, it takes issues from society. Hence, laws are not immune to the fault-lines prevalent in the society.

The Act has failed to substantially stimulate the welfare of consumers belonging to subaltern groups. Here subaltern group refers to consumers from lower socio-economic classes. The Act envisaged bringing in a behavioral change in the attitudes of the buyers and sellers, shifting the focus from caveat emptor to caveat venditor. This behavioral change can be brought on a macro level only when people are aware of the Act, its contents, and its consequences.

However, we have dismal awareness about the Act in India, especially in rural areas. As per a study sponsored by Department of Consumer Affairs the awareness of the Act is directly proportional to the level of education and income level. Subsequently, the Act has had a much less impact on the marginalized and subaltern groups of the society who lack education and are living in rural areas with minimal levels of income. Thus, to a large extent, socio-economic background of the consumer will determine the impact that this Act has on them.

Further, the Act aimed to provide speedy and effective justice to aggrieved consumers by establishing three-tier consumer redressal forums. It was deemed that shifting consumer dispute cases from the judiciary to specialized forums would ensure speedy redressal. However, most of the specialized consumer forums do not have the minimum facilities to function and the members appointed, especially non-judicial members, lack the basic legal expertise to deal with the legality of myriad issues.

According to a report submitted by a committee headed by retired Supreme Court Justice Arijit Pasayat, most of the non-judicial members are political appointees, serving political interests, who are incapable of even writing or dictating order.  Fearing delays and further complications, the consumers have been generally cautious of approaching these special forums.

Marketization and privatization have further lead to overtly strengthening the caste and class consciousness deepening the archaic social hierarchies and innate biases. The members of the redressal forums are also not immune to it. Most of the appointed members belong to the affluent class and castes of the society and hence they have certain predispositions toward other members of the society, especially those from the less privileged sections.

The graded and structural inequalities in social, political and economic edifices of society are also reflected in the working of the Act. Superficially, it seems that the Act provides equal opportunities for consumers to put forth their point of view before the forum.

However, under the Act, consumers can argue their case either through the medium of an advocate or they can represent themselves before the consumer forums. The latter arrangement is based on the assumption that the process and technicalities in the consumer forums are far too benign and easy as compared to the one followed in the civil courts and as such even a layman may understand the proceeding, or the lack thereof, and may represent himself saving the fees of advocacy.

However, this procedure, although established with a benign intent, does not help the subaltern consumers. This is due to the following two factors:

1) The poor, being illiterate in most cases, do not have proper guidance and understanding of the legal processes to present their own arguments before the redressal forums, and as such, they don’t get any assistance with this regard from the officials present therein.

2) Most the subaltern people don’t have the pecuniary resources to hire a lawyer to fight a case on their behalf.

Thus, the Act, and consequently consumerism, has failed to protect the interests of the subaltern consumers for whom every hard-earned penny matters.


ABOUT THE AUTHOR

Pratik Dixit

PRATIK PRAKASH DIXIT

Law Student pursuing BA LLB (Hons) at NLSIU, Bangalore. Interested in social and political issues.

Right to environment calls for justice!!

Human beings across the globe have gradually developed sensitivity towards the concept of sustainable development and have started using the natural resources cautiously. We, in some or the other form, have made efforts to save each and every component which constitutes a healthy environment, be it flora or fauna.

In India, we have a number of laws that are legislated to protect and develop the environment for the benefit of the people who are a part of this country. Some of them are as under: –

  1. [The Water (Prevention and Control of Pollution) Act, 1974 ;
  2. The Water (Prevention and Control of Pollution) Cess Act, 1977;
  3. The Air (Prevention and Control of Pollution) Act, 1981;
  4. The Forest (Conservation) Act, 1980;
  5. The Wildlife Protection Act, 1972.][1]

The government has also taken several steps as and when necessary through various campaigns like Rally for Rivers, Swachh Bharat Abhiyan, Odd and Even scheme in Delhi, shifting of Mathura Refineries away from Taj Mahal, providing carbon credits to the industries etc. to decrease pollution and save the environment from deteriorating further.

Hon’ble Apex Court in Subhash Kumar vs. State. of Bihar, held that right to life is a fundamental right under Art. 21 of the Constitution and it includes the right to enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has recourse to Art.32 of the Constitution for removing the pollution of water or air which may be detrimental to life.[2] In the case of Vellore Citizens Welfare Forum v. Union of Indian[3], the principle of pollutants pay was also given.

Main Issue: – The main issue is that Judiciary, as one of the pillars of the Government, is making efforts to recognize environment and its importance in every possible manner but is it really doing so on all fronts?

Real life example: –

  1. Many times, we get emails and at the bottom, a line is mentioned as ‘Think of the Environment before printing this mail’
  2. At ATM machines they provide the facility of showing the balance on the screen, instead of printing the same.

How this is related to law and Judiciary in particular?

In Indian Courts, all the documents are submitted in hard copy and the copy of the same is to be served to the opposite party. So, every document has three copies to be made and there is no end to the number of pages used. Also, there are huge numbers of cases that are heard in courts across the country. Also, the paper is used for various other purposes, where its use can now be reduced thanks to the extensive presence of modern technology.

What steps can be taken?

  1. The government has taken some steps but work should also be done in the direction that documents used in the printing copies may be used as less as possible and it should be made available online with proper set of security measures so that number of copies used of same document is decreased.
  2. Also, for the people who do not have access to technology, they should be provided with adequate knowledge and access to technology.

Conclusion:-

These steps mentioned above might seem not achievable to you initially but if worked towards with planning, clubbing it with various other campaigns, ensuring active participation of citizen, they can be implemented successfully. And most importantly, it is to be done before it’s too late!

[1] http://www.environmentallawsofindia.com/the-environment-definitions-and-acts.html

[2] (1991) 1 SCC 598

[3] AIR 1996 SC 2715


ABOUT THE AUTHOR

Headshot

MANSI CHHAYA

Mansi is a law student from Unitedworld School of Law. She has always believed that life is about challenging oneself and living outside one’s comfort zone. Be it music or national level examinations, her focus has always been on trying to develop herself holistically. A consistent high performer and student of the year, she wishes to use her knowledge to ensure justice for people who deserve it.

 

Privacy versus National Interest – An overview

The journey of privacy has been a roller-coaster ride in INDIA. This topic has been debated a lot and has again come to highlight because of the controversial biometric project.

Most people value their ability to keep their private lives private, to protect information that they consider private. Some people do it to hide information about their financial status, or relationship status.The importance of such a right cannot be denied – secret voting enshrines the principle that how people vote is ultimately their own private decision – even if they choose to publicly back a particular candidate, nobody is allowed to scrutinize their DECISION.

However, in the case of the biometric project, it has caused great concern among civil liberties campaigners, who argue that such state intervention threatens the privacy of ordinary citizens and also many experts believe it is not a fair trade-off for protecting the national interest.

When it comes to defining National Interest, it is the interest of a nation as a whole held to be an independent entity separate from the interests of subordinate areas or groups and also of other nations or supranational groups. In this case, it seems to be a fair decision to trade off citizen’s privacy for national security.

What actually privacy is? Privacy is widely regarded as an important right in free and democratic societies. Article 17 of the United Nations International Covenant on Civil and Political Rights states that: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation” and “Everyone has the right to the protection of the law against such interference or attacks”.

In India, the Right to privacy is one such right, which has come to its existence after widening up the dimensions of Article 21. The constitution in specific doesn’t grant any right to privacy as such. However, such a right has been culled by the Supreme Court from Art. 21 and several other provisions of the constitution read with the Directive Principles of State Policy.

Security versus privacy

The idea of government possessing citizen’s private information can be associated with AUTHORITARIAN REGIMES and can be a key feature of George Orwell’s dystopian novel 1984, in which privacy is all but eliminated.

Despite a general consensus on the value of privacy, many argue it has limits or rather it must have some restrictions. If the government is able to maintain the right balance between privacy and security enabling the authorities to keep tabs on personal information, without giving them carte blanche to snoop on citizens. For those in favour of compromising on privacy for the sake of national security, the key point is that seeking such information is no big deal given the rationale behind it.  In other words, privacy might be important, but is it so important that we should risk national and international security rather than compromise a little?

Even the supreme court of India quoted that “Right to privacy can never be an absolute entitlement.” In my own opinion, I believe that both privacy, as well as security, are important for different reasons. I believe that national security is important because we are and will be protected as a whole. On the other hand, our privacy is important as well because everyone wants to keep their personal business to their self’s, or at least have the opinion to keep it that way. I believe that people should be able to have their own personal privacy without worrying that it’ll be interrupted. I also believe that national security is important so that people will know they are and will be protected without worry. What is to be done is maintaining the right balance and a reasonable compromise between privacy and security. Well, as many say, “We should be willing to compromise our privacy in the interests of national and international security”

RIGHT TO PRIVACY IN INDIA

The right to privacy is seeded in several articles of Part III of the Constitution.

To pass the test of privacy, any law framed must be constitutionally valid. It must be need-based and it must be proportionated to the abridgement sought to the right to privacy consistent with actual need.

GOVERNMENT IS FACING A CHALLENGE

The government faces a formidable legal challenge in implementing its ambitious unique identification programme. Pleas have been made before the Supreme Court questioning the lack of a statutory basis for the collection of biometric details, and the government has to meet this point to the court’s satisfaction. Instead of arguing that privacy is not a fundamental right, it would do well to assure the court that it has the technology and systems to protect the data collected. And that it would do everything possible to prevent unauthorised disclosure of or access to such data.

WHAT WE NEED IS PRIVACY ACT

A Group of Experts appointed by the Planning Commission and headed by Justice (retd.) A.P. Shah came out with a comprehensive report in 2012 containing a framework for a Privacy Act. Such a law, it said, should recognise all dimensions of the right to privacy and address concerns about data safety, protection from unauthorised interception, surveillance, use of personal identifiers and bodily privacy. Underscoring a set of privacy principles, the committee said the underlying idea should be that the data controller should be accountable for the collection, processing and use to which data are put. In its zeal to aggregate data in electronic form and target subsidies better, the government cannot ignore its responsibility to protect citizens from the perils of the cyber era.

BUT To pass the test of privacy, any law framed must be constitutionally valid. It must be need-based and it must be proportionate to the abridgement sought to the right to privacy consistent with actual need.

Also, many people who totally protest that privacy should not be compromised at any cost should not forget what former president of Obama quoted, THAT YOU CANNOT HAVE 100% SECURITY AND 100% PRIVACY.


ABOUT THE AUTHOR

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DEEKSHA KATHAYAT

Deeksha Kathayat is currently pursuing BLS LLB (third-year) from Dr. D. Y. Patil College of Law. An enthusiast debater and avid mooter, she’s into occasions where she can express her views on various issues. She believes that we realize the importance of our voice only when we are silenced. An aspiring bureaucrat, she describes herself as Unstoppable, Unconstrained, and Zealous.

Article 35A of the Indian Constitution – A critical overview

Debate on article 35A started again when during his visit to Kashmir, the Union Home Minister Rajnath Singh said that the BJP-led government at Centre will not go against the wishes of the people of Jammu and Kashmir on the constitutional provision that guarantees special privileges to the natives. Article 35A of the Indian Constitution provides a special prerogative to the Jammu and Kashmir Legislature to define “permanent” residents of the state and give them certain privileges and rights in the public sector jobs, acquisition of property in the state, scholarships, and other public welfare services.

The Delhi Agreement of 1952 between the then Prime Minister of Kashmir Sheikh Abdullah and Pandit Jawaharlal Nehru granted “Indian citizenship” to the state subjects of Jammu and Kashmir. This was followed by the incorporation of article 35A in 1954 by an order of Dr Rajendra Prasad on the advice of Prime Minister Nehru. Certain provisions in the interest of the “state subjects” of Jammu and Kashmir are allowed under Article 370(1)(d). Article 35A implies that Government of India has given a special status to the “permanent residents” of Jammu and Kashmir.

So, now the conflict is whether the President is empowered to incorporate an article into the Constitution. The article wasn’t put up in the parliament for discussion and was implemented. This again creates a dilemma on the constitutionality and validity of the article. According to article 368(I) of the constitution Parliament solely has the authority and power to amend the Constitution. This would land the article in the labyrinth of its validity. In 1961 the Supreme Court analysed the ambit of Presidential powers and concluded that the President could amend an existing article. But the court was silent on whether or not the President could add an entirely new article to the Constitution.

The NGO ‘We The Citizens’ had challenged the constitutionality of Article 35A and Article 370. It posits that the representatives from Jammu and Kashmir were involved in the framing of the Constitution. Article 370 was just a “temporary addition” in the interest of people from Jammu and Kashmir. Permanent amendments like Article 35A were not the intentions of the constitution-makers. The NGO petition claimed that the Article goes against the “spirit of oneness” creating a hierarchy of classes. It also restricts people from other states from getting employment and buying property within the vicinity of Jammu and Kashmir. This provision infringes rights guaranteed by the Constitution under article 14, 19 and 21.

Charu Wali Khanna had challenged Article 35A on the pretext that it infringes a woman the basic right to marry a man of her choice by not giving her children the right of holding any property if the woman marries someone without a Permanent Resident Certificate. Even if the women a permanent resident of Jammu and Kashmir the children have been debarred from her property. Also, the plea said that the children were not given a Permanent Resident certificate, thus considering them illegitimate.

A three-judge constitutional bench has been set up to hear the pleas challenging the article after Diwali.


ABOUT THE AUTHOR

ashish lD

ASHISH KUMAR YADAV

Ashish is an undergraduate student at Cluster Innovation Centre, University of Delhi. The institution has a Meta College concept and focuses on an interdisciplinary approach.  He is the co-founder of two non-profit ventures, one of which deals with education and the other in enhancing scientific communication among the masses. He has done three research projects at Cluster Innovation Centre the first aimed to create a prototype of full-fledged Hindi dictionary and another on the Study of a community’s cultural tradition (Banjara community). The third project was Hafta bazaar aimed to digitalize and study the various weekly markets in Delhi. He is quite ardent in the field of economics and journalism and is intrigued by topics from digital marketing to management, which are reflected in his undergraduate studies. He was also a part of a report published on education.

Child Labour: A Turpitude in Child’s Life

Child labour is an international concern which not only spoils the future of those kids but brings them to the door of adversity and despair. A child at his tender age should be endowed with love, care and a fortuity to learn. Instead of training these young minds to fill their pockets they should be given an opportunity to shape their naïve minds with the tool of education. India has been a centre of child labour for decades. The world has been facing the problem of child labour since centuries and after the era of industrialization, there was a rapid increase in the exploitation of child rights.

Indian law accommodates multi-fold principles for curing this poison of society. Despite innumerable legislations and mandates, child labour still seems like an exuberant. One in every eleven children in India is working, and the concentrated states in India for child labour are Madhya Pradesh, Maharashtra, Rajasthan, Bihar and Uttar Pradesh. 80% of working children are mainly based in rural areas and three out of four are working in the field of agriculture.

Reasons for this forced work is not just the greed of parents to earn money for their children. There are sour realities behind, which compel small kids to leave their priceless childhood for the sake of earning few meals for themselves and their families. Most children suffer from this anguish due to the family indebtedness or lack of livelihood options or poverty.  The increased sympathy towards child workers tends to accelerate the pace of child trafficking for trafficked work. Children are an easy prey of this copious because the payment made to a child is much lower than the payment made to an adult for the same work.

Child labour is not consistent and steady. It changes with the change in society. Due to rapid change in legislation and growth of laws, child labour has become more of a hidden crime. Children are more often found working in households rather than seen working in factories and industries. There is no documentation or registration done for these kids as the workers of any industry due to the presence of strict laws. But child labour in unregistered format does not put an end to it.

There is not just one legislation, there are dozens of laws which keep an eye on child labour in India.  The related and relevant legislations are; Child Labour (Prohibition and Regulation) Act, National Policy on Child Labour; Juvenile Justice Act; The Right to Education, etc. UNICEF has been working for a long time against child labour by spreading the message and strengthening child protection systems.

Child labour in India has become more gender-specific, girls are more into domestic work while boys are more seen to be employed in factories and as a wage labour. The working hour and the workload duration increases as children grow older. Child labour is facing a huge problem due to its complexity and unawareness of people. Children in India are often found as rag pickers, newspaper hawkers, selling gloomy stuff at the roadside and on signals, working as a helper in restaurants and food corners; for which they are paid a meagre sum of money.

It isn’t always the fact that those children choose to work or they are forced into it and they imperiously do it. Kids at this delicate age do not realize the importance of education and knowledge. They should be dispensed with just and a decent avenue towards education. Adults and child’s caregiver should understand that those little hands are not meant to work, those tiny eyes are full of dreams and imagination, they get paid at the cost of their future and the tears they shed. Kids are not driven to this adversity because of fate and poverty, unawareness is the reason for it.

Talking to a cleaner Awanti, who lives in the slums near Gwalior City Centre, her 9-year daughter Riddhi accompanies her to her workplace. She says her son goes to school, which is why she cannot afford to send her daughter to school. The lack of understanding about family planning and unawareness about the impact of lack of education leads to this situation. Unknowingly, Awanti is pushing her daughter in the zone of education deprives.

Curtailing child labour is not just the duty of government but is a moral responsibility of every citizen of this country and of the globe. Awareness and knowledge is the only key which can stop this evil from expanding its vicinity, laws and regulations are needed when morality is harmed. If masses understand the need to protect a child’s tomorrow then prerequisite of laws is not needed.


ABOUT THE AUTHOR

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YOGRICHA VERMA

Yogricha Verma, a fourth-year law student at Amity Law School, Amity University Madhya Pradesh, is also a student of Company Secretary under ICSI. She is a student member of Indian National Bar Association (INBA) and Chartered Institute of Arbitrators (CIArb). Her native is Bhopal, India. She is also a freelancer and an artist and loves to do social works.

Terrorism: An illusion of war?

Terrorism today is not just confined to a state’s borders but cheers to globalization, it has now expanded to unfathomable horizons.

According to The United States 2007 National Intelligence Estimate:

Globalization trends and recent technological advances will continue to enable even small numbers of alienated people to find and connect with one another, justify their beliefs, intensify their anger, and mobilize resources to attack—all without requiring a centralized terrorist organization, training camp, or leader (Anomic outsiders).”

The Internationalization of terrorism has raised several issues on enforcement and jurisdiction. Regardless, even today no globally accepted definition of the term exists, largely because of political differences (One man’s terrorist is another’s freedom fighter).

But a fundamental question that needs to be answered is whether terrorism is a criminal offence or an act of war.

The use of the term WAR by the media and our learned politicians has created an illusion of a constant state of war surrounding our day to day affairs;, “war on drugs, war on poverty, war on organized crime”.[1]

State of war equips the government with the power to circumvent the rights and procedural protections ordinarily accorded to an accused.

It is argued (constructionist approach to defining terrorism) that terrorism is just a way of identifying someone with lesser rights that validates a concept which is purely a self-serving one i.e. justification for state power, withdrawal of Human Rights and expenditure on military hardware.

The reason why this view is popular is because two people having caused the same magnitude of damage to the society would be treated in completely different ways, the one charged with a criminal offence would have rights to a formal charge notifying exactly what he/she is being charged with, competent and relevant proof beyond a reasonable doubt, the right to cross-examine witnesses, to right to remain silent etc., while on the other hand in war its considered legal to kill the enemy to say the least.

A war takes place between two nation states. It does not connote situations of struggle between state and non-state actors such as criminal gangs, drug cartels, mafia etc. A mere involvement of the military does not make the struggle a war; it simply means that the military is being used in a police capacity. It moves us towards the second question, that shouldn’t the suspects of the war on drugs in Mexico or in other “wars” be entitled to the same rights under the criminal jurisdiction? Are they?

It is generally accepted that terrorists cannot be tried under the traditional criminal law as it is reactive and not proactive. Also, that charging it as a criminal offence and subsequent adherence to due process would take up a longer time before conviction.

In the absence of a definition as to who falls under the same and the excessive bargaining power of the state actors it’s not difficult to deduce whose interests would be furthered.

In the event of occurrence of a criminal activity in our locality, we take mitigating steps. However, the reaction of a rational individual to an act of terrorism is not the same. The constant bombardment of the idea of the existence of war has changed the national psyche.[2] We agree to give up more rights, freedom, and privacy in the name of National security policies that are implemented without any cost-benefit or rationality analysis.

Terrorism or War, and politics are very intricately related: it’s not surprising that Non-state terrorism is much smaller in comparison to state terrorism and that funding to terrorist organizations are often state funding. The illusion creates opportunities for politicians, and it sure will take a long time before the white flag is raised.

[1] Essig. Terrorism: Criminal Act of Act of War? Implications for National Security in the 21st Century,18.

[2]  Mike Masnick (9th Jan 2015) When We Call Criminal Acts ‘Terrorism’ We Destroy Our Rights And Sacrifice Our Principles. Retrieved form https://www.techdirt.com/articles/20150108/18213829642/when-we-call-criminal-acts-terrorism-we-destroy-our-rights-sacrifice-our-principles.shtml.


ABOUT THE AUTHOR

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TANVI SINGH

Tanvi Singh is a fourth-year Law student pursuing B.Com. LL.B. (Hons.) at Gujarat National Law University. Tanvi believes that deductions and deliberations must be made sincerely based on well-researched information. Her academic interests are in the field of International Trade Law, Law and Economics, Contracts and Arbitration.