Consumer Rights – A transformative Paradigm For Clean Commerce (Consumer Protection Act, 2019)

The metaphor- ‘consumer is a king’ is attempted to be actualized through an affirmative and well directed legislative initiative culminating in the amended Consumer Protection Act 2019, which though received the assent of the President of India 09th August 2019, remained for a long spell a sterile script, in the absence of notified rules. The metaphor ‘consumer is a king’ needs to be read in juxtaposition with a hard-knock admonition: ‘Uneasy lies the head which wears the crown’. To be a king as a consumer one has to hold a sceptre studded with obligations of adherence to law. In order to retain the status of ‘consumer is a king’ one is bound to remain on a guard as a prudent, law- abiding and diligent consumer.
The obligations of having and possessing the valid documents of contract on the part of a consumer are indeed sacrosanct. The documents alone establish, at the first instance, the legal status of a person as a consumer. Thus a buyer of goods and/or consumer of services in a ‘flea market’ or other analogous business entities (where bills are unknown to the trade practices) cannot brandish the crown or sceptre of a ‘king’ in the garb of a consumer.
The definition of the ‘consumer rights’ as mentioned in the Act is not exhaustive. The rights of the consumer need to be understood within the domains of the jural concepts and theories relating to ‘rights’.
The jurisprudential principles elucidating rights, in the semiotic or jural forms, trace their origin to the works of Socrates and Plato. In the more recent

periods, the ‘rights in rem’ and the ‘rights in personam’ appeared in lucid form in the philosophical theories of ‘permissibility’ and ‘inviolability’ explained by Immanuel Kant.
Wesley Newcomb Hohfeld (1879-1918), who later on also came to be recognized as father of semiotics, propounded what is known as molecular theory of rights. Besides the ingredients of ‘rights’ which are also known as Hohfeldian ingredients of rights, he spoke of ‘paucital rights’ and ‘multital rights’ and thereby attempted to obliterate, through well-researched theories, the then extant concepts of ‘rights in rem’ and ‘rights in personam’. The ‘paucital rights’ have their genesis in the contracts. Thus the consumer rights are primarily ‘paucital rights’. With the advent of global ecommerce and media blitzkrieg, heterogeneity and efficacy of forms of advertisements, even the ‘consumer rights’ on the legal terrains have ratcheted up to more and more complex compounds of ‘multital rights’ (e.g. right against misleading advertisements )
The long-awaited notification dated 20 July, 2020 now stands placed in public domain as a statutory tool aimed to legally empower the consumers and to endow the consumers with statutory wherewithal to meaningfully countenance the new challenges of their commercial and economic life. The critical challenges to protect their well-defined rights in the multi layered scenarios always remained in need of effective solutions. The said scenarios arise out of the emerging realities of globally- networked supply chains, nascent and nebulous trends of international trade, the daily trysts with ‘warp and weft’ of

media-driven markets as well as the wild-fire effects of even child-friendly e- commerce in human life.
The Statute now aims to protect the consumer from multiple vulnerabilities, be it in the form of unfair trade, unethical business practices, misleading advertisements, tele-marketing, multi-level marketing, direct selling besides myriad and constantly emerging perils and deficiencies of e-commerce.
The New legislative dispensation also defines “consumer rights’ as under;

Section 2 (9): Consumer rights includes, :-

i) The right to be protected against the marketing of goods, products or services which are hazardous to life and property;
ii) The right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, as the case maybe, so as to protect the consumer against unfair trade practices;
iii) The right to be assured, wherever possible, access to a variety of goods, products or services at competitive prices;
iv) The right to be heard and to be assured that consumer’s interest will receive due consideration at appropriate fora;
v) The right to seek redressal against unfair trade practice or restrictive trade practices or unscrupulous exploitation of consumer’s; and
vi) The right to consumer awareness;

The aforesaid catalogue of six rights is not exhaustive in its reach and scope. Thus the expression ‘consumer rights’ is statutorily not immune to additional

niches of claims and counter claims in response to any other instances of injustice in the commercial domains of human life.
The Consumer Protection Act 2019, establishes an Executive Agency, described as Central Consumer Protection Authority (CCPA), to promote, protect and enforce the rights of the consumers. The said Central Consumer Protection Authority is authorised to regulate matters relating to violation of rights of the consumers, unfair trade practices and false or misleading advertisements. The entire statutory scheme relating Central Consumer Protection Authority (CCPA) is contained in the fold of Sections 10 to Section 27 of the Act. The text of the said sections read in conjunction with the Central Consumer Protection Authority (Allocation and Transaction of Business) Regulations 2020 explains the operational, functional and administrative mechanism of Central Consumer Protection Authority, inter alia, to carry out investigations, search and seizure operations, to take effective steps for prevention of malpractices and also to effectuate and facilitate the notified punitive measures to curb the culpability of deviant suppliers/service providers.
Thus the new Act (35 of 2019) now ushers in a statutory regime for settlement and redressal of consumer disputes, through its structured text laid in eight chapters and 107 sections, as compared to 31 sections in the 1986 Act (68 of 1986).
The new Act contains a provision for Alternate Dispute Resolution Mechanism and adds a meaningful Chapter V under the nomenclature ‘Mediation’. The

said chapter, within the fold of 8 Sections (Sections 74-81) read in conjunction with Consumer Protection (Mediation) Rules 2020, operates as a complete code for Alternate Dispute Redressal Mechanism.
The new Act unfolds, in its statutory scheme, the concepts of ‘Product Liability’, ‘Product Service Provider’, ‘Unfair Contract’, while clarifying and expanding the definitional space of the terms ‘consumer’, ‘consumer rights’, ‘Unfair Trade Practices’ etc.
The new Act also enhances the pecuniary jurisdiction of a District Commission (earlier known as District Forum), to the extent of Rs. 1 Crore. Identically the pecuniary jurisdiction of the State Commission now stands enhanced to Rs 10 Crores. The matters involving more than Rs 10 crores will now be amenable to original jurisdiction of National Commission.
The amended contours of territorial jurisdiction, add a hitherto unavailable foothold to enable a consumer to file complain, even where the complainant resides or personally works for gain, while in the earlier Act, this advantageous locus was missing.
While product liability action, as a new concept, is delineated in Section 83, the exceptions to the same are specifically enumerated in Section 87. The Section 83 permits the consumer to initiate action against the product manufacturer or product service provider or a product seller. This provision, when read in the light of the notified rules, makes crystal clear the enlarged array of claims and rights stands now rendered amenable to jurisdiction of the consumer Courts.

Chapter VII of the new Act deals with Offences and Penalties. Under the new Act, the Central Authority (CCPA) can impose punishment for a term which may extend to 6 months and fine upto Rs. 20 lakhs or with both.
Punishment for misleading advertisement (Section 89) under the new Act entails punishment to the extent of imprisonment for a term of two years and fine to the extent of Rs. 10 Lakhs, with an additional clause, in case of a repeated offence, where term of imprisonment may be for 5 years and fine may extend to Rs. 50 Lakhs.
While under the pre-amended Act a consumer aggrieved by non-compliance of the orders of the Forums could avail remedies under sections 25 or section 27 of the said Act, the present legislation exhaustively delineates the executing Courts’ jurisdiction in Sections 71 and 72. Thus the entire procedure contained in Order 21 CPC is now available for rescue of the aggrieved person. The quantum of fine leviable under section 72 stands now enhanced to the minimum of Rs 25,000/- with upper limit of Rs 1.00 lakh.
The Chapter VII i.e. ‘Offences and Penalties’ is added to the amended Act, with an object to target and wipe out the adulterated and spurious goods from the markets. Section 90 in the Chapter VII of the new Act, relates to punishment for offence of manufacturing or sale or storing, selling or distribution or importing products containing adulterant, entails punishment of imprisonment for a term which may extend to 6 months and fine which may extend to Rs. 1 Lakh, if such product does not result in injury. While in the case of injury, the punishment is to the extent of 7 years and with fine which

may extend to 5 lakhs in case of grievous hurt and imprisonment for life and with fine upto Rs. 10 Lakhs if such adulterant results in the death of the consumer. The offence of adulteration is also declared cognizable and non- bailable under the new Act.
Identically, Section 91 in the Chapter VII of the new Act, controls manufacturing for sale or storing or selling or distributing or importing spurious goods with penalties of imprisonment and fine extending from a term of one year and fine of Rs. 3 Lakhs to Rs. 10 Lakhs. However, Section 92 of the Act introduces threshold controls in the exercise of the punitive jurisdiction of the Court by stipulating that no cognizance of any offence under section 88 and 89 shall be taken by the competent court except on a complaint filed by Central Authority or any officer authorized by it in this behalf.
However, notification qua Sections 88, 89 92 and 93 is still awaited and resultantly the said chapter will not be fully operational immediately.
The new Act specifically clothes all three Forums with jurisdiction to review their own orders through Section 40 (For District Commission), Section 50 (For State Commission) and Section 60 (For National Commission).
While the rules with respect to the substantive part of the Consumer Protection Act 2019 stand notified, the notification in respect of the following provisions of the Act is still awaited:
A) Section 2 sub sections (4), (13),(14), (16), (40) in the definition clause.

B) Sections 58 sub clause (iv) of clause (a) of sub section (1) relating to Chapter 4 of the Act.

C) Sections 88, 89 92 and 93 relating to ‘Offences and Penalties’

D) Clauses (f) to (m) and clauses (zg) (zh) and (zi) of sub section (2) of section 101 relating to Chapter VIII- Miscellaneous.
E) Sections 94, 96, 97 99 and 104 relating to Chapter VIII- Miscellaneous

The ecommerce, being a complex commercial spectrum, is attempted to be comprehensively covered from the viewpoint of consumer rights, by adopting Consumer Protection (ecommerce) Rules 2020. The rigour of the said rules explicitly and specifically delineates the duties (Rule 4) and liabilities (Rule
5) of ecommerce entities, duties of the sellers on marketplace (Rule 6) and duties and liabilities of inventory ecommerce entities (Rule 7). The compliance of these rules by ecommerce entities and their associates will ipso facto unravel the extant complexities from the perspective of consumer rights, by ensuring reasonable standards of transparency and accessibility to the consumer.
However, the ecommerce domain of consumer rights will have to wait for attaining full operational form, till the still-awaited notification qua its operational aspects is made to see the light of the day.
To aid a functional continuity of the existing forums, three separate transitional provisions are added (Sections 31, 45, 56). The said transitional provisions permit the existing benches to continue in all three hierarchical structures till the completion of the term of the respective members or the term of the respective President.

The phenomenon of hydra-headed challenges, in the socio-economic journey of human life, is indeed an eternal reality. We, the aspiring People of India, by affirmatively responding to the in protean challenges of time, through legislative initiatives, affirm and vindicate, the vigour, vitality and vibrancy of our constitutional values.
A jurist and eminent advocate Nani Palkhivala, contemplating the value of green shoots in the democratic landscape, once said:
“The beginning of obsolescence of materialistic civilization may not be far away. There are hopeful signs of a longing for that which a consumer culture cannot provide. A transformation is going on and it is probable that in our time we are going through the necessary travails before mankind ascends to new awareness…During the transition let us act in conformity with the words of Buddhi- ‘we have not inherited this earth from our forefathers; we have borrowed it from our children.”
With the truth of the aforesaid thoughtful expression at the hindsight, it can aptly be said that ‘during the transition’ this Consumer Protection Act 2019 is a leap forward, resonating with the legend and symbolism of the oracular whispers of lissome ‘Reeds of Runnymede’ (Rudyard Kipling – The Reeds of Runnymede ).

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