Notification no. S.O. 390[E] dated 15th April 1987 was an historical event, the day Consumer Protection Act came into force in the whole of India except the state of Jammu &Kashmir .Yet it was not a pleasing note for the big business houses. Resentment and opposition had started from the day one and consumer forums could not be established immediately.The first consumer forum was set up on 19.8.1988 in Delhi after a lot of persuation and PIL filed by by NGO’s Since then the Govt ,the Apex court had always extended helping hand to this welfare act , enhanced the scope of consumer forums by every new amendment. Number of services in connection with banking ,financing ,insurance ,transport, processing, supply of electrical or other energy,boarding or lodging or both ,housing construction ,entertainment ,amusement or the purviewing of news or other information etc.were also brought under the ambit of CPAct apart from goods .It was a real jolt to the whole industrial, commercial set ups as well as professional groups and there was an outburst resulting into retaliation in the form of challenge to the act itself alleging it an unconstitutional and unlawful attempt of creating a parallel judicial system against well established civil courts and that Indian parliament has no jurisdiction to pass such an act.
The case of Vishwabharti house building co-operative society v Karnataka state &others SC 2002 came up for hearing before the Hon’b Supreme court and the apex court made its pronouncement in the year 2002 that“Act is made under the provisions of the constitution vii) schedule ,list i ,ii & iii Article 246 part- 2 wherein it is said that parliament can constitute any judicial system other than Supreme court & High court.
This is how we landed up in a situation that consumer courts are still functional as on date.
But all is not well with the consumer forums today. The pity condition of consumer forums is a matter of great concern of the day from whom public had great expectations when enough provisions have been made to deal with the cases under summery provision for speedy disposal . Bench is expected to work on regular day to day basis even if one member out of three is not present for any reason. Supreme court gave direction to the Government to henceforth take care that proper infrastructure is provided to the forums and vacancies in the forums are filled well before time vide their judgement in the matter of Dr J J Murchant V Shrinath Chaturvedi in2002 [SC] page 635.Central ministry also acted promptly supporting directions by the apex court and issued circular dt 20th June 2005 suggesting at para (!) of the circular to maintain the forums and initiate the proceedings for filling the vacant post and preparing the panel well before time . This was done as a precausion because every order is to be signed by the president and at least one member as per section 14 of the act and in case post of president is vacant,no order in the forums/commissions can be passed.
But it is very unfortunate that sitting judges appointed for the post of presidents in some cases make the department wait for more than a year to join. In recent past in Delhi,consumer courts which remained without Presidents from November 2009 till Feb end 2011 in various forums in Delhi, could not pass any orders for almost one year because the vacancies of presidents which had fallen vacant in November 2009[one],Feb 2010,[one]April 2010 [one] May 2010[one] and in July 2010[two] were advertised on 18th march 2010 only and could be filled finally on Feb 2011,when the appointed presidents retired as judges in district courts.
The debate is ripe now on the issue as to whether sitting judges should apply for the posts in tribunals or not .The issue is taking momentum for the reasons –firstly sitting judges may try to influence the selection process and secondly if their tenure is yet to be over, they make the department wait for their retirement.Justice R S Sodhi ,former Delhi High court judge feels judges applying while still in service denigrate the judicial system.Sharply criticizing this phenomenon Justice Sodhi said ‘this is the crisis of morality within the judiciary .Its so deep that we have a situation where judges are vying with each other for a post after retirement .Ideally,in my view a sitting judge should never apply ‘What kind of judicial independence we are talking about if judges start applying like this with the government”said justice Sodhi
Further,the judicial officers so appointed are accustomed to work under civil procedure code in the civil courts. Presidents of the forums can be either retired judicial persons or advocates having seven years experience as an advocate .Those who come from judicial background have their mind set tunned to civil procedure code ,go more with the tendency of advocates rather than coming to the level of consumers to make the forum friendly court.It is invariably seen that Advocates promptly refer to CPC,file application after application under order so and so ,rule so and so.Retired judicial officer with their CPC tunned mind instead of disposing off the application there and then, routinely gives it to consumer for comments which will further lead to argument on the application . Poor consumer is in a flux-does not know what is Order and Rule of CPC and on the next date comes with advocate .Generaly presidents do not discourage advocates from quoting CPC provision and subsequently consumer forums are now functioning like civil court .This was really not desired ,neither is the intention of this welfare legislature.
Contribution of other two Members of the forum is negligible firstly because they lack legal knowledge to share with the Presidents who had been functioning independently through out their tenure as judges. There is hardly any occasion when other two members are in sharing position with the presidents and discussing their viewpoint. Members also, who are not equipped with legal background, enjoy the comfort of easy way going things and for all practical purposes ,it has become a one man show defeating the purpose of three members composition of the forum.It is much desired to enhance the requisite qualification of members, at least law graduates to meet the purpose .
Appointed presidents are to look after administrative work of the forum also which is again an obtrusive issue .,Administration work suffer for the reasons presidents do not have experience of administration.They have even not developed a habit of sitting in the office after court hours. They pack up and walk away after get up from the dias,stenographer is called at home,dictations given as per their convenience at home.With the result,member also walk away,staff enjoys liberty to close their shop as and when desire.Advocates/consumers coming for copies of the orders or with other queries find-computer ,printer or photocopy in non-working condition-none is there to help them ,to hear them or redress their grievance .
Regarding administrative control over the consumer forums by the Sec-cum-commissioner of the state ,there is a special director in the ministry who looks after and controls all the consumer court affairs and is responsible for running the forums .By virtue of this arrangement,Presidents in the forums are to work with commissionor office for all practical purposes –for providing reports of cases disposed off,cases pending and other infrastructural problems.But it is unfortunate to note that presidents of the forums are unwilling to work with executives controlling the forums for the very reason that they had been pronouncing orders and directing for the executives throughout their service tenure and now not ready to accept any control over them . Executive-judiciary conflict is visible here also depicting a very sad scenario..
Above situation is not favourable for consumer forums. There is a lot of hue and cry –long pendency of cases every where ,different modes and methods are being adopted –arbitration ,mediation counseling ,tribunals and forums, lok adalat and legal aid authority etc etc.But see the pity condition of consumer forums which were expected to work under summery procedure and to decide the matters within ninty days .There is a need to appoint registrar in each forum to look after administration work like consumer commissions so that the repair can be done at grass root level at district forums.Seperate cadre of employees working in the forum is also much desired because transfer of employees from forum to other departments makes it very difficult to train the employee tunning to the court system every now and then .
Dr Prem Lata –