Subject: Human Rights, Gender and Environment. Lesson: Consumer Rights: Consumer Protection Act and Grievance Redressal Mechanism

Transcription

1 Subject: Human Rights, Gender and Environment Lesson: Consumer Rights: Consumer Protection Act and Grievance Redressal Mechanism Lesson Developer: Neelam Jain Institution: Doctoral Researcher, Department of Political Science, University of Delhi

2 Table of Contents: 1. Introduction 2. Historical Evolution: I. Evolution of Consumer Rights and Consumer Protection Movement II. United Nations Guidelines for Consumer Protection III. Evolution of Consumer Law in India: i. Constitutional Provisions for Consumer Welfare ii. Legislative Measures for Consumer Protection a. Pre-independence Legislative Measures: b. Post-Independence Legislative Measures: 3. Consumer Rights and Human Rights Discourse I. Are Consumer Rights Human Rights? II. What are the Consumer Rights? III. Consumer Responsibilities 4. Consumer Protection Act, 1986 and Subsequent Amendments to the Act: I. Grievance Redressal Mechanisms under the Act i. Consumer Protection Councils: ii. Consumer Dispute Redressal Forums a. District Forums: Composition, Jurisdiction and Power b. State Commission: Composition, Jurisdiction and Power c. National Commission: Composition, Jurisdiction and Power 5. Further Initiatives: 6. Concluding Remarks 7. Glossary

3 8. Exercises 9. References Consumer Rights: Consumer Protection Act and Grievance Redressal Mechanisms Source: Accessed on 12/02/2016, 12:40 p.m. 1. Introduction: We often come across slogans like jago grahak jago or news reports of ill health effect of consumption of spurious food or inflation of prices of essential commodities like pulses or onion. Of late, there is growing consciousness about various problems faced by consumers while purchasing goods or availing services from market as well as remedies of these problems. Though the concern for interests of consumers is old one, the organized movement for consumer protection and welfare only started significantly from 1960s. The internationalization of market with the growing inter-dependence of global economy along with the onslaught of e-commerce has contributed to the development of universal emphasis on consumer rights. The growth of unfair trade practices like black marketing, hoarding of essential commodities, misleading information or advertisement about various goods and services by the seller, distribution of adulterated food or other agricultural products, spurious drugs, unsafe or hazardous products have been adversely effecting consumers, particularly the disadvantaged ones. Besides, with the help of information technology and international trade with global supply chains, consumers are exposed to new kind of challenges like fake e-marketing. In such circumstances, consumers are asking for value of costs of their purchased goods or services in terms of quantity and quality of goods and better services. There is a growing demand to prevent the exploitation of market and to provide redressal to the aggrieved consumers by strengthening the institutional mechanism. Today, we see the worldwide growth of consumer rights movement and the consequent policy measures at both national and international level. In this chapter, we shall discuss about these institutional mechanisms for protecting the rights of consumers which find expression through legislation, policy measures, judicial pronouncement and advocacy; its evolution and implementation, particularly in case of India.

4 In the next section, we shall discuss the historical evolution of consumer movement at the national and international level. 2. Historical Evolution: I. Evolution of Consumer Rights and Consumer Protection Movement: Most of the scholars trace the history of beginning of consumer movement with the raising of popular concerns about various consumer related issues in the United States of America. However, one can equally draw a history of growing popular concern for market exploitation in the colonized or underdeveloped/developing nations in the world. In such erstwhile colonized nations, leaders of freedom movement visualized the freedom from exploitation of markets, dominated by the colonial power as prerequisite for national freedom. We can trace the history of consumer movement in United States of America from the early 20 th century. Since, that period, the role of various consumer organizations was prominent in raising popular concern about various consumer related issues and pressurizing the government to legislate on such matters. In the first wave of consumer movement ( ), concerns about food safety, drug safety, preventing anti-competitive practices of markets were raised by leaders of consumer organization namely National Consumers League. In the second wave of consumer movement (1920s and 1930s), key issues of concern were the misrepresentation and non-objective information in advertisements and key leaders were Stuart Chase, Frederick J. Schlink, Arthur Kallet, and Colston Warne. In the context of expanded international trade and revolution of new technology in industries, leaders like Ralph Nader, Esther Peterson, and Michael Pertschuk raised popular concern for various issues for consumer protection and consumers redress for damage in the third wave of consumer movement (1960s and 1970s). Did you Know? Ralph Nader was a catalyst of consumer rights movement in America and author of the book Unsafe at Any Speed: The Designed-in Dangers of the American Automobiles. He led to the enactment of major consumer protection laws in U.S.A. including National Traffic and Motor Vehicle Safety Act, Safe Drinking Water Act, Freedom of Information Act 1974 etc. He contributed in launching the federal regulatory agencies such as the Consumer Product Safety Administration, Occupational Safety and Health Administration, Environment Protection Agency etc. In the history of consumer protection legislation, 15 th March 1962 is recognized as very important, since on that day, President John. F. Kennedy of U.S.A. appealed to the U.S. Congress to accord its approval to the Consumer Bill of Rights. In his special message to the

5 U.S. Congress, Kennedy equated the safeguarding the rights of ordinary American consumers, which according to him includes all American citizens, with protecting national interest. Kennedy recognized that consumers, being the largest economic group in the country s economy, had been influencing and being influenced by almost every public and private economic decision. He regretted that despite this fact, consumers are not properly organized and no one pays heed to their voices. He pointed out that without protecting the basic consumer rights, national interest will suffer: If a consumer is offered inferior products, if prices are exorbitant, if drugs are unsafe or worthless, if the consumer is unable to choose on an informed basis, then his dollar is wasted, his health and safety may be threatened, and national interest suffers. He mentioned four basic consumer rights; right to safety, right to choice, right to information and right to be heard. Thus, he reminded the obligations of the Federal Government towards the protection of consumer rights through approving the legislation for consumer protection. Considering the importance of Kennedy s speech to the US Congress on this day, and the resultant law, the Consumer International, federation of worldwide Consumer Rights Organizations, took a decision in 1982 to observe 15 th March as the World Consumer Rights Day from 1983, which was later approved in the United Nations. Later, President Gerald Ford added Right to Consumer Education, realizing the importance of education for consumers to enable them to make right choices and protest against exploitation. In the course of time, it was recognized by consumer organizations that global consumers need other rights too, apart from the rights contained in U.S. Bill of Rights. Subsequently, right to basic needs, right to healthy environment, right to redress was acknowledged as consumer rights. All these rights were later documented in the national and international policies. Consumer rights in India In the context of India, we can trace the evolution of consumer rights through many rules which restricts the unfair practices of merchants in pre-colonial India. Consumer activism was visible prominently in the anti-colonial movement. The Nationalist leader like M.K. Gandhi blended many indigenous practices and religious philosophy to effectively protest against economic policy of colonial state. Taxation on basic consumer product such as salt and monopoly of British East India Company on salt production was protested by Gandhi and his associates by way of civil disobedient movement. Gandhi began his march, famously known as salt march or Dandi march, on 12 th March 1930 to extract salt from seawater by reaching the coastal village Dandi of Gujarat on 6 th April He stirred a movement against the prevalent salt law of British colonial state by calling for the indigenous practice of producing salt without paying heavy tax to the British.

6 Description: Salt March which began from Sabarmati Ashram to Dandi village, Gujarat (12 March to 6 April 1930) And Accessed on 12/02/2016, 01:22 p.m. Gandhi also began the movement for indigenous products or Khadi movement, as part of his Nationalist Movement against economic exploitation by the British colonial state. He encouraged the small scale industries or indigenous production of basic commodities like cloths to challenge the monopoly of British East India Company. Sources: and Accessed on12/02/2016, 01:39 p.m. Gandhi championed the concept of sustainable consumption. He encouraged everyone to live a simple life so that the poor and disadvantaged are not deprived from their basic needs. He famously said that the rich must live more simply so that the poor may simply live. He promoted the idea of service by the commercial enterprises or trustee role of businesses. He said that commercial industries are responsible to the customers, workers, shareholders and their community for rendering service.

7 Did you Know? Consumer activist Ralph Nader has called Gandhi the greatest consumer advocate the world has seen for advancing the idea of service to the consumers by business enterprises. "A customer is the most important visitor on our premises. He is not dependent upon us. We are dependent upon him. He is not an interruption in our work - he is purpose of it. We are not doing him a favor by serving him. He is doing us a favor by giving us the opportunity to serve him".-m.k. Gandhi Upholding the philosophy of non-cooperation and satyagraha popularized by M.K. Gandhi, consumer organizations like CUTS International are talking about right to boycott or right to resist and boycott any person, goods or services in the event of conflict with consumer s interest as an ultimate or last method for redress of consumer grievances. 1 In the next section, we shall discuss the United Nations Guidelines for consumer Protection which substantially provided policy framework in consumer concern worldwide. II. United Nations Guidelines for Consumer Protection: In the history of consumer movement and consumer policy formulation, 9 th April 1985 is considered as very significant. On this day, the General Assembly of United Nations adopted a set of general guidelines for consumer protection, namely United Nations Guidelines for Consumer Protection (UNGCP). UNGCP acts as a comprehensive roadmap for developing national consumer protection legislation and policies for awareness of consumers. This guideline was the outcome of consistent campaigning and consultation by consumer organizations and other stakeholders. UNGCP pleads for consideration of the interests and needs of consumers of all countries, particularly those in developing countries. It recognizes that consumers have the right of access to non-hazardous products. Besides, it is the collective responsibility to promote just, equitable and sustainable economic and social development and environmental protection. The objectives of the UN guidelines are the achievement of adequate protection for consumers of each country, pro-consumer production and distribution patterns, facilitation of ethical conduct for producers and distributors of goods and services, elimination of abusive business practices, development of independent consumer groups, fair markets and sustainable consumption. UNGCP invites governments to develop a strong consumer protection policy considering the guidelines. While taking into account the economic, social and environmental circumstances of a country and the needs of its population, each government should set its own priorities for the protection of consumers. Promotion and protection of economic interests of consumers, right to safety, right to choice, right to information, right to education, right to 1 See the reference no. 10

8 redress, right to form organizations, and right to sustainable consumption has been recognized in UNGCP as vital for consumer protection. The United Nations Organizations enlisted the following guidelines to be applied to both home produced goods and services and to imports while stressing that procedures or regulations for consumer protection imposed by the state governments should not be inconsistent with international trade obligations. a) Physical safety: To ensure physical safety of the consumers, the UN calls upon the governments to adopt appropriate measures including safety regulations, legal systems and the maintenance of safety records. Comprehensive policy measures should be adopted to confirm that the suppliers, exporters, importers, retailers and those who are responsible for bringing goods in the market properly handle or store those goods and convey vital safety information in their products. Governments should have the measures to make manufacturers or distributors to recall defective and hazardous goods to either replace or modify it. b) Promotion and protection of consumers economic interests: Government policies should seek to achieve the goals of adequate standard of good and distribution and business practices; Government should monitor adverse practices, such as the adulteration of foods, false or misleading claims in marketing and service frauds by its own or otherwise; Government should curb the restrictive or other abusive business practices; Government should ensure that the producer of goods and seller of services adheres the reasonable demands of durability, utility and reliability of their goods and services; For ensuring choice and low cost for consumers, fair and effective competition should be encouraged; Government should adopt measures so that manufacturers and/or retailers ensure sufficient availability of spare parts and after-sales services; Safeguard the consumers from contractual abuses; Promotional marketing and sales practices should be fair and legal; Government should encourage the free flow of genuine information about consumer products; Government should make manufacturers or distributors to avail correct information or claims about environmental impact of their products.

9 Government should encourage formulation and implementation of codes of marketing and other business practices; Government should review legislation pertaining to weights and measures and assess its implementation on a regular basis. c) Standards for the safety and quality of consumer goods and services: In terms of safety and quality of consumer goods and services, government should follow the international standards while formulating its national standards. Government should facilitate the test and certification of the quality, safety and performance of essential consumer goods and services. d) Distribution facilities for essential consumer goods and services: Government should undertake appropriate measures to ensure distribution of essential goods and services to consumers, particularly to the rural consumers. Such measures should include assistance for the creation of adequate storage and retail facilities in rural centers, establishment of consumer cooperatives etc. e) Measures enabling consumers to obtain redress: Governments should establish or maintain legal and/or administrative measures to enable consumers or relevant organizations to obtain redress through formal or informal procedures. Such procedures should be expeditious, fair, inexpensive and accessible and should be designed according to the needs of the low-income consumers. f) Education and information programs: Governments should develop or promote general consumer education and information programs, especially according to the needs of the disadvantaged consumers. Such consumer education and information programs should cover the following aspects of consumer protection: g) Promotion of sustainable consumption: In the context of sustainable consumption, sustainability should be achieved across generations for the fulfillment of needs of goods and services. Besides, the goods and services should be economically, socially and environmentally sustainable. Responsibility for sustainable consumption should be shared by all, including informed consumers, government, businesses, labour organizations. In this regard, role of the consumer and environmental organizations are particularly important. Governments, in partnership with business and relevant organizations of civil society, should develop and implement strategies that promote sustainable consumption. Such strategies include regulations, economic and social instruments and sectoral policies in areas such as land use, transport, energy and housing. Government should promote information programs to raise awareness of the impact of consumption patterns. Removal of subsidies that promote unsustainable patterns of consumption and production and

10 promotion of sector-specific environmental-management best practices are other available means for government. Through recycling programs, impartial environmental testing of products, awareness of the health-related benefits of sustainable consumption and production patterns, maintaining effective regulatory mechanisms and promoting research on consumer behavior, government can significantly contribute towards sustainable consumption within the country. Besides, government, particularly in developing countries, should develop policies for controlling quality and distribution pattern of essential commodities e.g. food, water and pharmaceuticals. Though not legally binding, the above mentioned guidelines provide an internationally recognized set of fundamental objectives for structuring and strengthening consumer protection policies and legislations, particularly for governments of developing and newly independent countries. Since 1985, Consumer organizations and UN agencies have been monitoring the implementation and consulting on revision of UNGCP to meet the new challenges in the field of consumer protection. The UNCTAD (United Nations Conference of Trade and Development) in its report on implementation of UNGCP 2 concluded that since 1985, the UNGCP have been widely implemented by the member states of United Nations and most of the current guidelines remain valid and useful. Consumers International, however, pointed out that there are new challenges which needs to be addressed and suggested proposals for incorporating new issues e.g. e-commerce and financial services and pointed out that data protection, abusive advertisement, energy and cross-border trade are the areas which merit wider consultations. In its report 3 it also suggested improved guidance in specific sector like water for universal access. It also suggested that needs of women and consumers with disabilities deserve greater attention. Subsequently, the Second Ad-hoc Expert Group meeting on Consumer Protection pleads for incorporation of these issues along with the issue of universal services, tourism, class action and housing in the UNGCP. 2 The First Ad-hoc Expert Group Meeting on Consumer Protection organized by UN (12-13 July 2012) asked UNCTAD to prepare an implementation report on the UNGCP. Subsequently, the implementation report (TD/B/C.I/CLP/23) prepared by UNCTAD was reviewed in the Second Ad-hoc Expert Group Meeting on Consumer Protection (11-12 July 2013). 3 Consumer International is a world federation of consumer rights groups, spanning across 120 countries, has been undertaking consumer advocacy since It submitted its report Consumers International Proposals for Amendments to the UN Guidelines for Consumer Protection: In Advance of the Ad Hoc Expert Meeting on Consumer Protection, UNCTAD, Geneva, July 2013, pp. 1-39, which was consulted for revision of UNGCP by the Second Ad-hoc Expert Meeting on Consumer Protection.

11 I. Evolution of Consumer Law in India: Constitutional Provisions for Consumer Welfare: The spirit of consumer welfare is well documented in article 38, 39, 42, 43, 46 and 47 of Indian constitution which deal with issues relating to just social order, human conditions of work, decent standards of life for workers, promotion of economic and educational interests of weaker sections and public health. Specifically, article 46 of the Indian Constitution provides that state shall endeavor to protect the weaker sections from social injustice and all forms of exploitation which includes all kinds of harassments and frauds in the market place. Article 47 of the Constitution laid down the duty of the state to raise the level of nutrition and the standard of living and to improve public health. It is provided that the state shall endeavor to bring about prohibition of the consumption, except for medical purposes, of intoxicating drinks and of drugs which are injurious to health. Legal Provisions for Consumer Protection and Welfare: Pre-Independence Legislative Measures: The Indian Contract Act, 1872: The Indian Contract Act passed by the British colonial state in 1872 is intended to determine the particular circumstances which entail legality of promises made by the parties to a contract. It deals with the enforcement of rights and duties on the contracting parties and it was applicable to all the states except the state of Jammu and Kashmir. Along with other things, it also dealt with rights and obligations related to sales of goods until 1930 until the enactment of a separate act for this purpose in the light of new development in mercantile transactions. The Sale of Goods Act, 1930: The Act laid down provisions for formation of contract of sale, conditions and warranties in the sale, transfer of ownership and delivery of goods, right of unpaid seller against the goods and the suit for the breach of contract. The Dangerous Drugs Act, 1930: In the area of drugs control, this Act was an important legislation which empowered the central government to restrict certain operations relating to dangerous drugs. This colonial legislation sought to render uniform penalties for offences relating to operations of dangerous drugs. The Agricultural Produce (Grading & Marketing) Act, 1937: This Act was enacted with an intention to provide for rating and marking the products taken from agriculture and other products as scheduled in the Act. It empowers the central government to provide for grade designation mark to designate the quality of products. This Act was amended further in 1937, 1942, 1943, 1983 and In India, AGMARK has been

12 legally employed as certification mark to verify the set of standards approved by the Directorate of Marketing and Inspection, an agency of the government of India. The present AGMARK standards cover quality guidelines for 205 different commodities spanning a variety of pulses, cereals, essential oils, vegetable oils, fruits and vegetables and semiprocessed agricultural products. The Drugs and Cosmetics Act, 1940: To protect the consumers from misbranded, adulterated and spurious drugs and cosmetics and to regulate the import, manufacture and distribution of drugs and cosmetics, Drugs and Cosmetics Act 1940 was enacted. It was amended in 1949, 1950, 1951, 1955, 1960, 1962, 1964, 1972, 1982, 1993, 1995 and For the inspection of manufacturing premises, the Act empowers the central government to appoint inspectors. Central government has the power to take samples of drugs and to appoint government analysts to analyze such samples for protection for consumers. Post- independence Legislative measures: The Indian Standards Institutions (Certification Marks) Act, 1952: The Act empowers the central government to establish central agency for the standardization and marking of industrial products. Bureau of Indian Standards (BIS), formerly known as the Indian Standards Institute has been entrusted with the task of developing Indian standard for industrial goods and certifying the products with ISI mark. The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954: This Act control the advertisement of drugs for treatment of certain disorders and diseases and prohibits advertisements of drugs and remedies that claim to have magical properties. Magical remedy includes any talisman, mantra, amulet or any other object which is claimed to have miraculous powers to cure, diagnose, prevent or mitigate a disease in humans and animals. The Essential Commodities Act, 1955: This Act defines the essential commodities and provides for the regulation of production, distribution and pricing of such commodities. This regulation aims at ensuring the easy availability and fair price of these commodities. The various measures available under this Act include, among others, licensing, distribution and imposition of stock limits. The Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980: This Act prevents unethical trade practices like hoarding and black-marketing. The Act provides for the detention of persons who are involved in illegal activities in relation to the maintenance of the essential commodities. As per reports received from the State Governments, 119 detention orders were issued under the Act during the year The

13 central government and the state governments also have the power to modify or revoke the detention orders. The representations made by or on behalf of the persons ordered for detention are considered and decided by the central government. 4 The Bureau of Indian Standards Act, 1986: The Act provides for the establishment of a Bureau for marking, standardization and quality certification of goods. The Bureau has the power to establish, publish and promote Indian Standard in relation to any article or process, specify a Standard Mark to be called the Bureau of Indian Standards Certification Mark, levy fees for the grant and renewal of any license, inspect articles or processes to assess standard and establish, maintain and recognize laboratories for the purpose of standardization. Trade Marks Act, 1999: This Act prevents the use of fraudulent marks and consolidates the law relating to trade marks for goods and services. This Act has repealed the earlier Trade and Merchandise Mark Act 1958 and expands the definition of trade mark and provides for establishment of Intellectual Property Appellate Board. Competition Act, 2002: This Act provides for the establishment of Competition Commission to promote and sustain competition in markets by preventing practices which have adverse affect on competition. This Act has replaced the Monopoly and Restrictive Trade Practices Act, It has been amended in 2007 and again in Food and Safety Standard Act, 2006: This Act consolidates various acts and orders that had been dealing food related issues in various ministries and departments. Various acts and orders like Prevention of Food Adulteration Act, 1955 and orders related to fruit products, meat food products, vegetable oil products, edible oils packaging, solvent extracted oil, milk and milk products were repealed after this Act came into existence. The Act establishes an independent statutory authority - the Food Safety and Standards Authority of India (FSSAI) to enforce various provisions of the act dealing with maintaining safety and standard of food. 5 Legal Metrology Act 2009: 4 Retrieved from 5 See reference no 5

14 The Legal Metrology Act, 2009 replaces the Standards of Weights and Measures Act, 1976 and the Standards of Weights and Measures (Enforcement) Act, It also provides for establishing uniform standards of weights and measures to regulate trade in weights, and other goods which are sold or distributed by weight, measure or number. Under this Act, a person has to get approval of the model of a weight or a measure before manufacturing or importing it by the competent authority. 3. Consumer Rights and Human Rights Discourse Are Consumer Rights Human Rights? Simply said, human rights are those rights that an individual possesses by virtue of being a human being per se. They include those rights and claims which are essential for maintaining dignity as human being. When a person buys any good or avails any service s/he enters into a contract with those responsible for producing or selling such goods and services. There are always explicit or implicit terms and condition of market transaction. Those who are engaged in production processes claim certain quality, quantity, safety standard, purity, price, warranty, after sale services etc. to the consumers. It is both the contractual and moral right of consumers to be treated fairly in such transaction. That means that both the terms of transactions and claims of transactions should be adequately fulfilled. Producer or service provider is liable for his production and service. Thus, since the consumer has the moral right to be treated fairly in the contract, consumer rights are also recognized as human rights. 6 What are the Consumer Rights? Right to Safety The right to safety refers to the right to be protected against the production processes or marketing goods which are hazardous to the health or life of an individual, community or property thereof. In the present context, profit-driven industries often indulges into unfair trade practices or neglects the safety concern of consumers while bringing unsafe products into the market. Serious injury or death can be caused to the user due to defective ingredients or design, poor workmanship, or any other reason. This right entails that manufacturer should ensure that goods produced by him/her are safe for either intended or foreseeable use. Persons who are engaged in different stages of production and sale process including manufacturers, retailers, importers, exporters and the like should take care that goods are not rendered unsafe due to improper storage or handling. Vital safety information is needed since consumers are often unaware of the possible hazards for improper and untimely use of the products. So, it is the responsibility of the manufacturer to properly instruct the consumer about the mode of use or possible risks involved in the improper use of the product. If any good is placed in the market, and the producer become aware of its hazardous effect, it should notify the proper authorities without any delay. Sometimes, products are seriously defective and even proper use of such products may result in severe 6 See reference no. 8

15 hazards. In such cases, manufacturers should be made liable for modifying or replacing the hazardous product or supplying substitute for the product. If such actions are not possible within reasonable time, consumers should have the right to be adequately compensated. Thus, this right confers responsibility upon traders or manufacturers to safeguard the safety of life, health or property of consumers. Right to Information: Right to information is inter-connected with right to safety and right to choice. It is very important for a consumer to have adequate information about the quality, quantity, potency, purity, standard and price of goods or services before purchasing. Without this information, consumers are vulnerable to misleading advertisements and unfair trade practices. Right to information entails compulsion on the producers of goods and service providers not only to inform the consumers about the nature of the product, but also to inform about the terms of transactions, e.g. guarantee and warranty, after sale services etc. This information is very important for consumers to make an informed and intelligent choice among the available products and services. Government should make policy or legislation to ensure that producers disperse maximum information in the products to be sold or services to be provided. Governments can also certify the quality or standards of goods by formulating standard of various products and also can afford for comparative study of products. In India, the central government has made it legally obligatory for producers to provide vital information in their products, especially agricultural products. Description: Publication by Department of Consumer Affairs, Government of India Source: Accessed on 12/02/2016, 03:16 p.m. For facilitating quality assurance and safety of products, the Bureau of Indian Standards (BIS), as the National Standards Body of India, has been prescribing stringent standards and engaging in activities like product certification, management system certification and hallmarking. The BIS has taken several measures to promote a culture of quality in the manufacturing process. It has developed over 19,000 quality standards and enforces conformity to standards in diverse sectors across over 28,000 licensees who use the ISI quality mark in manufacturing their products.

16 Description: ISI mark and AGMARK issued by Government of India for certification of quality standard Source: and Accessed on 12/02/2016, 03:20 p.m. Right to Choose: Availability of variety of goods and services at competitive prices in the market and accessibility of these goods and services for ordinary citizens are vital preconditions for ensuring right to choice. In the present context, many unfair trade practices like abusive or restrictive market, monopolization of certain products by big companies lead to curtailment of available options for a consumer. Fair and effective competition needs to be ensured by various policy measures so that consumers can be provided with the greatest range of choices among products and services at the lowest cost. Consumers satisfaction depends upon the availability of various options at competitive and reasonable prices. Right to Be Heard: Right to be heard or right to representation is an essential element of justice principle. The right to be heard means that consumers should be allowed to voice their opinions and grievances at appropriate forums. For example, if a consumer has been cheated in the market place in terms of quality, quantity or purity of products, or deprived of the right of quality services, s/he should have the right to complain and her/his complaint should be given due attention by the authorities. Consumers should also have the right to participate in the decision making processes of legislation or policy formulation on issues pertaining to them, individually or collectively. Thus, consumers should be able to express their views or grievances in appropriate forums so that their rights can be protected. Right to Redressal: Consumers should have right to seek redress against unfair trade practices or unscrupulous exploitation of consumers. It is the duty of the government to establish or maintain legal and administrative measures to enable consumers to obtain redress through formal or informal procedures. Such procedures should be expeditious, fair, inexpensive and accessible. Apart from such measures, all enterprises should try to settle the dispute and adequately address their grievances through mediation. Consumers should have adequate information about their rights and circumstances where they can obtain redress by

17 compensation or replacement for unsatisfactory product or service or any violation of contract. Laws enacted for consumer welfare should be widely publicized by government or consumer groups. In India, consumers have three tier redress forums established under Consumer Protection Act, The Department of Consumer Affairs has been widely publishing and revising the provisions of consumer laws so that the rights of ordinary citizens can be protected. Description: Publication by Department of Consumer Affairs, Government of India Source: Accessed on 12/02/2016, 03:25 p.m. Right to Consumer Education: Right to consumer education is an important enabling right which entitles every consumer to be aware of his/her rights and responsibilities, remedies against exploitation of such rights and impact of his/her consumer choices and behavior, particularly for sustainable

18 environment. Consumer education can be spread through print or electronic media, school/college curriculum and other cultural activities. Right to Healthy Environment: There is a growing consciousness worldwide about the continued deterioration of global environment with unsustainable patterns of production and consumption. The industrialized nations of the world are major contributors in environmental degradation; however, the people of developing countries are more vulnerable to the ill-effects of unsustainable production or production processes. Right to Basic Needs: Consumers are entitled to the right to basic needs as human beings. Right to basic needs entails that essential commodities like food, water, sanitation facilities should be available or affordable for all consumers since it is crucial for their survival. It is very important to prevent unfair trade practices like hoarding and public distribution of essential commodities in minimal prices by government or other authorities. Government has the responsibility to eradicate poverty and hunger among the disadvantaged strata. Right to Boycott: As already discussed, consumers should have the right to boycott the use of certain products which are hazardous to their life and safety, or which threat the public health and environment. This right is also used as a last resort to pressurize the commercial enterprises to pay heed to the grievances of consumers. I. Consumer Responsibilities: Consumer rights are always associated with the certain responsibilities. Consumers should try to avail of the information regarding quality, quantity, and purity, safety standard and environmental effect of the product before taking purchasing decision. S/he should demand the concerned persons/authorities to furnish such information. A Consumer should always demand receipt of purchased product and services and other relevant document for future reference or as proof in case of getting redress for defective good or deficient good. S

19 Description: Publication by Department of Consumer Affairs, Government of India Source: Accessed on 12/02/2016, 03:35 p.m. 4. Consumer Protection Act, 1986 and Subsequent Amendments to the Act: Introduction: We have already discussed the pre-independence and post independence legislations which were/are upholding the interests of consumers. Apart from these legislations, we have a comprehensive legislation namely, The Consumer Protection Act, 1986 which provides better protection of the interests of consumers and fulfils the existing legal void in the area of consumer protection. It was enacted on 24 th December 1986 and major amendments to the Act was made in the year 1991 (Act 34), 1993 (Act 50) and 2002 (Act 62). The Act provides for the establishment of the Consumer Councils and other authorities for redressing the grievances of the consumers. The purpose is to enable ordinary citizens to secure less expensive and speedy redressal of their grievances. Did You Know? Till today, India is the only country in the world, which has exclusive courts for redressal of grievances of consumers. The developed countries were encouraged to follow the initiatives taken by Indian state in the area of consumer protection at the 13 th World Congress of International Organizations of Consumer Unions (IOCU) held at Hong Kong in July Scope of the Act: The Act applies to the whole goods and services unless otherwise expressly provided by the central government by notification. It extends to whole of India except the State of Jammu and Kashmir.

20 Objects and Reasons for Enactment of Consumer Protection Act, 1986 The Act seeks to promote and protect various important consumer rights mentioned above. Its main objective is to safeguard the right to be protected against hazardous goods, right to be informed about the quality, quantity, potency, purity, standard and price of goods to prevent unfair trade practices. It aims at sustaining competition in markets to give assurance to the consumers for access of goods at competitive prices. It makes provision for receipt of due consideration of consumers interests in appropriate forums. It mandates for setting up quasi-judicial machinery for speedy and simple redressal against unfair trade practices or against unscrupulous exploitation of consumers. These Dispute Redressal Agencies are functioning at three levels; District, State and center. All these forums are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to consumers. There is also provision for ordering penalties for noncompliance of orders of these forums. I. Important Definitions Who is a Consumer? In general, a consumer is a person who buys goods or avails or hires services. However, the Consumer Protection Act defines consumer for the purpose of clarity. The Act widens the generic sense of the term by including not only person who hires or avails services, but also the beneficiary of services other than the person who hires or avails services. However, it excludes those persons who obtain goods for resale or for commercial purposes or avail services for commercial purposes. Here, the expression commercial purposes excludes the use of bought goods and services exclusively for the purposes of earning livelihood or means of self-employment by a person. Thus, the Act intends to exclude big business houses with profit motive from the scope of the Act. On the other hand, it is very important to save the interests of the small consumers who buy goods for self employment to earn their livelihood, e.g. farmer purchasing fertilizer for her crops, a Rickshaw puller buying rickshaw for self employment. Consumer can seek redressal against wide range of persons or companies across the chain of production: manufacturer, producer, supplier, wholesaler and retailer. 7 Section 2 (d)(i) and 2 (d)(ii) of the 1986 Act defines consumer as mentioned below: Consumer means any person who Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred 7 This was clarified in the judgment, Morgan Stanely Fund vs. Kartick Das, 1994 AIR SCW 2801 (1994) 4 SCC 225: JT 1994 (3) SC 654

21 payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes. What is a complaint? What is its nature? The Act specifies the grounds on which a written complaint can be made by an aggrieved consumer to the National Commission, State Commission or District Forums. The written complaint should contain the allegations in detail, so that the consumer can obtain correct relief provided under the Act. The Act also defines who may file a complaint or who may be complainant under the Act; a. A consumer (actual buyer/user or beneficiary as defined), b. Any voluntary consumer association registered under the Companies Act, 1956 or under other law for the time being in force, c. The central government or any state government, d. One or more consumers where there are numerous consumers having the same interest, e. In case of death of a consumer, his/her legal heir or representative, who or which makes a complaint. Nature of the Complaint: In India, there are wide ranges of issues, which are sought to be corrected or compensated by the consumer through the said forums. The 1986 Act and subsequent amendments to the Act make provision for complaint in regards of the issues mentioned below: Allegation in writing made by the complainant that, a. An unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider; b. The goods bought by him/her or agreed to be bought by him/her, suffer from one or more defects; c. The services hired or availed of or agreed to be hired or availed of by him/her suffer from deficiency in any respect; d. A trader or service provider, as the case may be, has changed for the goods or for the service mentioned in the complaint a price in excess of the price. fixed by or under any law for the time being in force displayed on the goods or any package containing such goods;

22 agreed between the parties e. Goods which will be hazardous to life and safety when used or being offered for sale in the public f. Services which are hazardous or likely to be hazardous to life and safety of public when used. It was stated in section 3 of the Act that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Thus, the said Act supplements and not supplants the jurisdiction of the criminal courts or other statutory authorities. Goods and Defect: In general, goods are movable property. The 1986 Act accepted the definition of goods as defined in section 2 (7) of the Sale of Goods Act The definition reveals that a. Goods must be movable; b. Things attached to or forming part of land which can be severed satisfy the mobility criteria; c. Actionable claim and Money have been specifically excluded from definition of goods. The term defect is defined as any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard of in relation to goods. Service and Deficiency The Acts specifies what can be termed as service or deficiency for the sake of clarity in terms of what can be complained about under the Act. Section 2(1)(o) of the Act provides that service means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or loading or both, housing construction, entertainment, amusement or the purveying of news or other information. It should not include the rendering of any service free of charge or under a contract of personal service. From this definition, the Consumer Forums have been considering wide range of sectors or services which are not specified in the Act but fulfill the criteria of availability to potential users, which incur costs and which are not contract of personal service. As such the services of Advocates, Airlines, Chartered Accountants, Courier, Chit Fund, Education, Gas Cylinder/LPG, Medical services, Postal services, Railways, Investment related services, and Telephone services are considered from time to time in these forums. Thus, the Act does not exclude the services rendered by Government bodies from the purview of the Act if such services are not free of costs.

23 On the other hand, "deficiency" is measured by the standards of prevalent laws or terms of contract. Any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in relation to any service is regarded as deficiency in service. Grievance Redressal Mechanisms under the Act 8 : Consumer Protection Councils: Consumer Protection Councils are created at centre, state and district levels to advice and assist the consumers in seeking and enforcing their rights. These councils investigate and publish matters concerning consumer interests. These councils take step towards furthering consumer education and awareness. Keeping the interests of consumers, they advice government in matters of policy formulation, however, their recommendations are not mandatory for government. The composition, power and jurisdiction of Consumer protection Councils are mentioned in the chapter II of Consumer Protection Act, The Central Consumers Protection Council: The Consumer Protection Act, 1986 provides that the central government should constitute Central Consumers Protection Council with the minister-in-charge of the Consumer Affairs in the central government as its Chairman along with other official and non-official members representing the interests of the consumers. It was ensured that the composition of Central Council should be representative of the interests of all relevant segments of society, e.g. farmers, traders, industries, consumer organizations, women, scheduled castes and scheduled tribes. It was also aimed to establish parity between representatives of central and state governments. The Act also provides for establishment of State Consumer Protection Councils in every state by the respective state governments. It was laid down that such State Councils would be constituted by official and non-official members representing the interests of consumers and as prescribed by the state government, official and non official members nominated by the central government and minister-in-charge of Consumer Affairs in the State as it chairman. Likewise, the state government is directed to establish District Consumer Protection Councils in each district of the respective states consisting of collector of the district as its chairman and other official and non-official members representing consumer interests and as prescribed by the state government. It lays down that Central Council should meet at least once in a year and State and District Councils should meet at least twice in a year. In addition, these Councils can meet as and when necessary. 8 See reference no. 7