ALL THAT GLITTERS
ARE NOT GOLD
(Personal Opinion on the proposed amendments over
Consumer Protection Act)
Amendments
to the Consumer Protection Act are round the corner. Some of the new proposed
amendments are able to cover a couple of lacunae which ought to have been
addressed in the Consumer law. But under the guise of covering up such
infirmities, blatant violation of the right to represent cannot be curtailed;
but that is on the cards, which will be revealed on a closer look over the
proposed amendments. So beware, all that glitters are not gold.
ALLOWING AGENTS FOR CLIENTS
A
new regulation - Consumer Protection (Procedure for allowing appearance of
Agents or representatives or Voluntary Organisations before the Consumer Forum),
Regulations, 2014 has been drafted by the Union Government and discussions are
going on. Through this regulation, agents are allowed to present the case
before the Consumer Forums. Just like lawyers, the
agents/representatives/consumer activists can present the case for others. It
is not clear, what are the criteria or checks and balances adopted to verify
the credentials claimed by those persons who claims to fall under these categories.
By way of a special power of attorney, it can be done.
By a bare reading, this
provision may seem better to help the consumer. But we must bear in mind about
the hard reality of state of affairs. Will there be any accountability for such
persons ? Who will monitor their activities? Obviously, it is not the question
of professional challenge to lawyers; it is a different aspect and do not want
to discuss it here. But, despite of the presence of Bar Council and other
disciplinary measures, there are reported incidents of lawyers duping clients.
It’s not just a professional misconduct, in fact it points to the deterioration
of values in the society. Right from the priests to school policemen, it is
there.
But here, by allowing such
agents, what is the benefit being availed to the litigant ? If the agent, on
the basis of the Power of Attorney, act in accordance of his whims and fancies
and even if attempt to defraud the client, what is the remedial measure ? No
institutions such as Bar Council can intervene and it may remain only as a
“black collar crime”.
LAWYERS BANNED
The
new proposed amendment in Section 13(8) read so:
The
Court shall not allow the engagement of an advocate by either party to the
complaint, unless the value of the goods and services & compensation
claimed, if any, exceeds Rs. 5 lakh, provided, that the complainant may engage
an expert if the complaint requires technical expertise.
Whereas
in case of State Commission, the proposed amendment to Section 18(2) read so:
No advocates will appear before the State
Forum for any parties unless the billed value of goods/r services claimed in a
complaint is fifty lakhs or above.
Whereas
in case of National Commission, the proposed amendment to Section 22(3) read
so:
Provided
further that no advocates shall appear for any parties before the
National
Forum unless the claim is above rupees one crore and fifty lakhs.
The
reason for the new amendment to exclude lawyers in some of the above mentioned
cases is to expedite the proceedings in the consumer courts and to avoid unnecessary
delay. If it is read at a stretch, one
may feel that the one and only reason for the delay in consumer courts is the
engagement of lawyers. Is it so?
THIS IS NOT THE FIRST INSTANCE
Similar
incidents of banning lawyers under the camouflage to expedite the proceedings
are there. For example, as per section 17 of Welfare of Parents and Senior
Citizens Act legal practitioners are not permitted to appear for applicants;
whereas it allows to appoint a ‘person of his choice’. When the issue was
challenged before the High Court of Kerala, [2013 KHC 2716] it was held that,
no legislation can water down the mandatory provision under section 30 of the
Advocates Act 1961 with effect from 15/6/11. So also, the provision in Family
Court Act in connection with obtaining sanction for appointing lawyer of his
own choice is also not now in existence. Therefore, whatever be the flimsy and
silly reason raised by the ‘babus’ who draft the legislation, the wisdom of
democracy may not allow it; so long as the section 30 of the Advocates Act
remain intact.
POSTIVE APSETCS
The proposed amendment
includes conferring a right upon the authority and they can act against those
traders who are violating consumer rights and can impose administrative
penalty. Besides, the authority can conduct investigations, either suo-motu or
on a complaint, into violations of consumer rights and conduct search and seizure
of documents/records/articles and other forms of evidence, summon delinquent
manufacturers, advertisers and service providers to record oral evidence and
direct production of documents and records. This apart, the authority can order
recall of goods or withdrawal of services found to be unsafe or hazardous and
order reimbursement of the price of the goods (or services) so recalled, to
purchasers of such goods or services.
There
are also steps to install a Central Consumer Protection Authority. The
objective of the Central Authority will be to prevent the exploitation of
consumers and violation of their rights and to promote, protect and enforce the
rights of consumers. Cases can be resolved through mediation and conciliation,
as per the new proposed amendment. Apart from appointing retired judges as the
head of the consumer courts, the ministry was considering appointing members
through the state public service commission at the state level and through the
Union Public Service Commission at the national level. Currently, 621 district
consumer fora, 35 state consumer commissions and the National Consumer Disputes
Redressal Commissions at the apex level are functioning.
But
one thing we must bear in mind. Whatever be the new amendments, if it is to be
positively implemented, the right to represent and right to heard of a consumer
need to be accepted. Mere figures of pending cases and delayed orders may not
be a short cut to water down the fundamental right of being heard, in just and
proper sense.
സര്ക്കാര് പുതിയ മദ്യ നയം പ്രഖ്യാപിച്ചതോടെ ചിലര് പള്ളികളില് വൈന് ഉപയോഗിക്കുന്നതിനെതിരെ രംഗത്തെത്തി. ഒരു പക്ഷെ അവരുടെ ആദായ മാര്ഗത്തിന് ഭീഷണി ആയതുകൊണ്ടാകാം.
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