Dr. Manoj Kumar Padhy
The term “consumer” is a comprehensive expression. It includes a person who buys any goods or commodity for a consideration either as eatable or otherwise from a cooperative store or grocer or approved ration shop for private or public services.[i] The term “consumer” also includes any person who uses such commodities with the permission of the buyers though he is not himself a buyer.[ii] Any person who hires any service for a consideration is also a consumer under the Consumer Protection Act, 1986.[iii] Therefore, consumers by definition include us all. They are the largest economic group affecting and affected by almost every public and private economic decision. Two-thirds of all spending in the economy is by consumers. But they are only important group in the economy, who is not effectively organized, whose views are often not heard.[iv] The fact that all citizens regardless of their income or social standing have basic rights as consumer is recognized in India as well as abroad.[v]. Thus it can be no wrong in saying that the State has a legitimate and compelling interest to protect the interest of consumers.Therefore, all States starting from the most lenient to authoritarian one have put in place legal regime to protect the rights and interest of the consumers[vi]. The Indian state has also taken many legislative, administrative and other measures to protect the interests of consumers from the exploitative deeds and deceptive or fraudulent trade practices of unscrupulous market operators.
Constitution is the grundnorm of the Indian legal system. Hence, the aim of the legal system is to achieve the goals enshrined in the constitution. For this reason, laws should be consistent with the spirit of Constitution. Similarly, the aim of the consumer protection laws is to achieve the goal of consumer protection and at the same time they should also be consistent with the spirit of constitution. In order to examine a consumer protection law in the light of constitution we require constitutional mandate on consumer protection. But a question arises, as to whether, the constitution carries any provision relating to consumer protection. On this background an effort has been made in this paper to examine the jurisprudence of consumer protection within the framework of Indian Constitution.
- Consumer Protection under the Indian Constitution
Though not expressly mentioned anywhere, the philosophy of consumer justice is permeated and reverberated through the Preamble, Fundamental rights and Directive Principles of State Policy of the Indian Constitution.[vii] The preamble talks about the social, economic and political justice. It should be noted here that justice is the genus of which consumer justice is one of its species. Consumer justice is an aspect of and integral to justice- social[viii] and economic[ix], which the state is obligated to secure to its citizens. The aim of consumer justice is to ensure that the consumer gets what he has paid for in quality and in right measure, and to enforce his rights, if he does not get the right thing in right measure for which he has paid the value. The concept of consumer justice also involves some kind of safeguards for these members of society from all sorts of malpractices and exploitative deeds of market operators, the incidence of which in the ultimate analysis affects adversely the individual in the society. The notion of consumer justice also involves the idea of redressal of consumers’ grievances and the remedy of restitution and compensation. It may be considered as an aspect of social justice because like the latter, it is a dynamic device to mitigate the sufferings of the poor, weak and deprived sections of society and so to elevate them to the level of equality to live a life with dignity of person. Having an unequal bargaining position vis-à-vis manufacturers, traders, sellers, and distributors consumers need legal protection to attain substantial degree of economic equality in the market place which is the legitimate expectation and the concept of social justice is a devise to attain the same. Consumer justice is also an aspect of economic justice whose aim is to establish an “economic democracy” and a “Welfare State”. It is another name for “distributive justice” embodied in Articles 38[x] and 39[xi] of the Indian Constitution. The concept of distributive justice, it is to be noted, connotes inter alia the removal of economic inequalities rectifying the injustice resulting from dealings and transactions between unequals in society. Apart from this, the word “socialism” which was inserted under the 42nd amendment, implies a system of government in which the means of production is wholly or partially controlled by the state[xii].
The rights of the consumer flow from the rights enshrined in Articles 14 and 19 and 21of the Constitution of India. Equality before the law under Article 14 is not only a Constitutional right but it is an essential ingredient for making a state into just and effective welfare state.[xiii] The right to be informed about the quantity, quality, potency, standard, purity and price of product are crucial to the exercise of other consumer rights. In India the “right to know” and the “right to receive and impart information” have been recognized as a part of the right to “freedom of speech and expression” guaranteed under Article 19(1)(a) of the Indian Constitution. Time and again the Supreme Court has held that a citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. The freedom to telecast on the Doordarshan has been recognized by the apex court in the Doordarshan cases[xiv]. The right to receive information regarding products and services from advertisements in the print media has been expressly recognized by the Supreme Court in the Tata Yellow Pages case[xv]. In this case the Supreme Court speaking through Justice Kuldeep Singh observed:
“The public at large has a right to receive the commercial speech. Article 19(1)(a) not only guarantees freedom of speech and expression, it also protects the rights of an individual to listen read and receive the said speech. So far as the economic needs of a citizen are concerned, their fulfillment has to be guided by the information disseminated through the advertisements. The protection of Article 19(1)(a) is available to the speaker as well as to the recipient of the speech. The recipient of commercial speech may be having much deeper interest in the advertisement than the businessman who is behind the publication. An advertisement giving information regarding a life-saving drug may be of much more importance to general public than to the advertiser who may be having purely a trade consideration”.
Article 21 of the Indian Constitution guarantees the right to life and personal liberty which includes variety of rights and attributes. In R.P.Ltd v. Indian Express Newspapers[xvi], the Supreme Court held that the people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to know is a basic right which citizens of a free country aspire in the broader horizon of right to live in this age in our land under article 21 of our constitution. The apex court further added the said right has reached new dimension and urgency and put greater responsibilities upon those who take upon the responsibility to inform.
Articles 32 and 226 of the Indian Constitution are also relevant towards consumer protection because the Supreme Court in many cases has diluted the concept locus standi and allowed the public spirited individuals or organizations to enforce the rights of oppressed and backward section of the society. For example, the Supreme Court in S.P.Gupta v. Union of India[xvii] opined:
“It must now be regarded as well as settled law that where a person who has suffered a legal wrong or legal injury or whose legal right or legally protected interest is violated , is unable to approach the court on account of some disability or it is not practicable for him to move the court for some other sufficient reasons , such as his socially or economically disadvantaged position , some other person can invoke the assistance of the court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or the injury caused to such person does not go unaddressed and justice done to him”.
Now coming to the Directive Principles of State Policy, Article 38(1) of the Constitution imposes an obligation on the State to promote the welfare of the people by securing and protecting a social order in which social, economic and political justice shall inform all institutions of the national life. In particular, the State is required to direct its policy in such a manner that men and women shall have the right to an adequate means of livelihood[xviii]. The State is also duty bound to direct its policy towards securing the distribution of the ownership and control of the material resources of the community in such a way as to subserve the common good.[xix] The economic system of the nation has to be operated in such a way that it does not result in concentration of wealth and means of production to common detriment[xx]. Thus, a duty is cast upon the State to protect the consumers from exploitative and monopolistic practices indulged in by the big unscrupulous business houses. Besides, the Constitution demands that the State should strive to promote the health and strength of the workers and to ensure a decent standard of life to them[xxi]. It should also strive to protect the children from exploitation and raise the level of nutrition and the standard of living of its people[xxii]. The State is required to endeavor to protect and improve the environment and to safeguard the forests and wild life of the country.[xxiii]
Article 39-A imposes a duty on the state to secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall in particular provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The clause “any citizen by reason of economic or other disability” may be interpreted in the light of consumer. Due to poverty, ignorance and lack of organization the consumers are unable to assert their right through the court of law. Article 46 of the Indian Constitution provides that state shall endeavor to protect the economic interest of the weaker section of its population and also protect them from social injustice and all forms of exploitation. The term “social injustice and all forms of exploitation” besides other things may be interpreted to include consumer exploitation including all kinds of harassment and fraud in the marketplace. It is the duty of the state to protect the health of its people and to strive to raise the level of nutrition and standard of living of people.[xxiv] So, the State is under an obligation to check effectively in the market place, the flow of adulterated food stuff and consumable goods injurious to public health and safety.
- Legislative Competence
Turning to legislative competence of Parliament and State legislatures to enact legislation on an aspect of consumer affairs, it is governed by Articles 245 to 255 of the Constitution. The Constitution divides the powers between the Union and the States in three lists – The Union List, the State List and the Concurrent List[xxv]. The Union List consists of 97 subjects[xxvi]. The subjects mentioned in the Union List are of national importance, viz. defense, foreign affairs, banking currency and coinage, union duties and taxes. The State List consists of 66 subjects[xxvii], but entries 19[xxviii], 20[xxix], 29[xxx] and 36[xxxi] have been deleted by the constitutional amendments. These are of local importance such as public order and police, local government, public health and sanitation, agriculture, forest, fisheries, education, state taxes and duties. The states have exclusive power to make laws on subjects mentioned in the State List. The Concurrent List consists of 47 subjects[xxxii]. New entries 11-A[xxxiii], 17-A[xxxiv], 17-B[xxxv], 20-A[xxxvi] and 33-A[xxxvii] have been added by subsequent constitutional amendments. Both Centre and State government can make laws on the subjects mentioned in the Concurrent List but in case of conflict between Central and the State law on concurrent subjects, the central law will prevail.
Although, the term “consumer” is not expressly mentioned in any of the three lists, it should not present any difficulty for Parliament to enact legislations on different aspects of consumer protection because most of the items concerning such protection are already included in either Union List or Concurrent List. For instance, railways, national highways, shipping and navigation, ports, carriage of passengers and goods by railways, ship or air, or by national water ways in mechanically propelled vessels, banking, bills of exchange, cheques etc., insurance, establishment of standard of weight and measure, film censorship, terminal taxes on goods or passengers, carriage by railway, sea, air, taxation on railway transactions and freights, offences against law with respect to any of the matters in List I etc., are items that find their place in List I. Likewise, the matter of concern to consumers such as crimes and criminal procedure, adulteration of food stuff and other goods, drugs and poisons, commercial and industries monopolies, combines and trusts, legal, medical and other profession, price control, trade and commerce and the production, supply and distribution of food stuffs including edible oil seeds and oil, weight and measures, electricity, newspapers, books and printing presses etc., find their place in Concurrent List. These are the item on which both Parliament and State Legislatures have power to enact legislation subject to limitation imposed by the Constitution.
For regulation of commercial advertising Parliament has the competence to make any law on telephone, wireless broadcasting and other like forms of communication and this power also extends to commercial advertising by radio, television, and Internet. This apart, Parliament can also make any law relating to taxes on the sale or purchase of newspaper and on advertisements published therein. Power to regulate commercial advertising is also implicit in the power of the Parliament and State Legislature to enact legislation on newspapers, books and printing presses.
The States can make law on the subject mentioned in the State List and the concurrent list. But, in case of conflict between the Centre or States law on concurrent subject, the central law will prevail. Most significantly, the Parliament is vested with the residuary legislative power by Article 248 of the Constitution, which says that Parliament can make any law with respect to any matter not enumerated in the Concurrent list or the State list. Entry 97 of the Union List also lays down that the Parliament has exclusive power to make laws with respect to any matter not mentioned in the State list or the Concurrent list including any tax not mentioned in either of these Lists.
Consumers are the largest economic group and have always been remaining as a game changer for economic activities and therefore, treated as the king in changing business scenario. Despite the fact that the consumer protection is a crucial and sensitive affair, it is surprising to note that the consumer affair is not expressly mentioned anywhere in the Indian Constitution i.e. the Indian Constitution carries no express provision relating to consumer protection. But since consumer justice is an integral component of social and economic justice which the state is duty bound to secure to its citizens, the central and state government are mandated by the Constitution to recognize and protect the rights of the consumers in general and safeguard them. As we have seen above, the idea of consumer protection is permeated through the Preamble, Fundamental Rights and Directive Principles of the State Policy of the Constitution. Although Directive Principles of State Policy are not enforceable by any court, still, these are fundamental in governance of the country and it shall be the duty of the State to apply these principles in making laws.[xxxviii] So, it can be said that, it is one of the constitutional obligations imposed on the State to protect the consumers from all sorts of exploitation in the market place. The discussion also reveals that “consumer affair” as a subject has not been mentioned in Union, Concurrent and State List expressly. But it is evident from the foregoing discussion that the State is mandated by the Indian Constitution to protect consumers against restrictive trade practices, unfair trade practices and other exploitative practices against consumers. Further, Parliament has legislative competence to legislate on consumer affairs. State Legislature is also competent to legislate on those aspects of consumer affairs which fall within the state list. As it has been observed, consumer protection is a sensitive and serious matter. So, merely reading the consumer protection jurisprudence in between the lines of the Constitution is not sufficient. There should be express provision for consumer protection under the Indian Constitution. Therefore, it is humbly submitted that the Constitution of India should be amended to accommodate express provisions regarding consumer welfare and consumer protection. There is also a need to include “consumer affairs” as an item in the Concurrent List in the Seventh Schedule of the Indian Constitution. Schedule 11 should also be suitably amended to secure the active involvement of the Panchayati Raj Institutions in the implementation of the consumer welfare programmes and activities.
[i] Section 2(1)(d)(i) of the Consumer Protection Act, 1986; See also Lucknow Development Authority v. M. K. Gupta, (1994) 1 SCC 243 at 253.
[ii] Section 2(1)(d)(i) of the Consumer Protection Act, 1986; See also D.V Lakshminarayana v. Div. elec. Eng., (1991) II CPJ 303 AP.
[iii] Section 2(1)(d)(ii) of the Consumer Protection Act, 1986.
[iv] John. F. Kennedy, Special Message to the Congress on “Protecting the Consumers Interest” on March 15, 1962, available at https://www.presidency.ucsb.edu/ws/?pid=9108, accessed on 10/24/2013.
[v] President Johnson of USA said: “For too long, the consumer has had too little voice and too little weight in the government. As a worker, as a business man as a farmer, as a lawyer or as a doctor, the citizens are well represented. But as a consumer, he has had to take a back seat. That situation is changing. The consumer is moving forward, we cannot rest content until he is in the front row, not displacing the interest of the producer, yet gaining equal rank and representation with that interest. What is the new is the concern for the total interest of the consumer, recognition of certain basic consumer rights: right to safety, right to be informed, the right to choose and the right to be heard”, President Lyndon B. Johnson of USA, Special Message to the Congress on “Consumers Interest” on February 5, 1964, available at https://www.presidency.ucsb.edu/ws/?pid=26058, accessed on 11/12/2013.
[vi] For details on the rights of the consumers see generally, Harvey and Parry, The Law of Consumer Protection and Fair Trading, 1992; Dr. Rakesh Khanna, Consumer Protection Laws. (Central Law Agency, Allahabad, 2002);, P Leelakrishnan (ed.), Consumer Protection and Legal Control(Eastern Book Co. Lucknow); Robert Lowe and, Geoffrey Woodrffe, Consumer Law and Practice (Sweet and Maxwell, London, 1995); Rajendra Kumar Nayak, Consumer Protection Law In India (N.M. Tripathi Pvt. Ltd., Bombay 1991); D.N. Saraf, Law of Consumer Protection in India (N.M. Tripathi Private Limited, Bombay, 1995); Avtar Singh, Law of Consumer Protection Principles and Practice (Eastern Book Company, Lucknow, 2000).
[vii] For details see generally, Durga Das Basu, Constitution of India (Wadhwa and Company, Nagpur, 2002); M. Seervai, Constitutional Law of India, (Universal law Publishing Co. Pvt. Ltd. ND, 4th edn., Vol. 1, 2011; M. Hidayatullah, Constitutional Law of India (Gulab Vazirani for Arnold – Heinemann Publishers (India) Pvt. Ltd., New Delhi, 1984); V.N. Shukla, Constitution of India (Eastern Book Company, Lucknow, 2004).
[viii] In All India Statutory Corporation v. United Labours Union, AIR 1997 SC 645, a three judges bench of the Supreme Court has explained the concept of social justice in Article 38 as follows: “The concept of ‘social justice’ consists of diverse principles essential for the orderly growth and development of personality of every citizen. “Social justice” is an integral part of justice in generic sense, justice is the genus, of which social justice is one of its species. Social justice is a dynamic device to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and so elevate them to the level of equality to live a life with dignity of person … The Constitution therefore, mandates the states to accord justice to all members of the society in all facets of human activity. For further detail on social justice, see generally V.R. Krishna Iyer, Social Justice: Sunset or dawn, (Lucknow: Eastern Book Co., 1987); V.R. Krishna Iyer, Ambedkar Centenary Social Justice and the Undone Vast, (Delhi: B.R. Pub. Co., 1991); David Miller, Social Justice (Oxford: Clarendon Press, 1976).
[ix] The banishment of poverty, not by expropriation of those who have, but by the multiplication of the national wealth and resources and an equitable distribution thereof amongst all who contribute towards its production, is the aim of the state envisaged by the Directive Principles, Economic democracy will be installed in our sub-continent to the extent that the goal is reached. In short, economic justice aims at establishing economic democracy and a welfare state, D.D. Basu, Introduction to the Constitution of India (New Delhi: Prentice Hall of India Pvt. Ltd., 1997), p. 24. For further details see generally, Kailash Rai, The Constitutional Law of India (Allahabad: Central Law Publications, 2005); J.N. Pandey. Constitutional Law of India (Allahabad : Central Law Agency, 1997); V.N. Shukla. Constitution of India (Lucknow : Eastern Book Company, 2004); H.M Seervai. Constitutional Law of India. (Bombay : N.M. Tripathi Private Ltd., 1991); M. Hidayatullah. Constitutional Law of India (New Delhi: Gulab Vazirani for Arnold – Heinemann Publishers (India) Pvt. Ltd., 1984).
[x]Constitution of India, Article 38(1) runs: The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which social, economic and political, shall inform all the institution of national life; Article 38(2) runs: The State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status. Facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.
[xi]Article 39 of the Indian Constitution provides: the State shall, in particular, direct its policy towards securing- (a)that the citizens men and women equally, have the right to an adequate means of livelihood; (b) thatthe ownership and control of the material resources of the community are so distributed as best to sub serve to common good; (c)that the operation of economic system does not result in the concentration of wealth and means of production to the common detriment; (d)that there is equal pay for equal work: (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter vocation unsuited to their age of strength; and(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
[xii] In D.S.Nakara v. Union of India, AIR 1983 SC 130, the Supreme Court has held that the basic framework of socialism is to provide a decent standard of life to the working people and especially provide security from cradle to grave.
[xiii] R. K. Nayak, “Justice for Consumers: A Cry” Indian Consumer Cooperator, 1 (April 1974).
[xiv]In Odyssey Communication (P.) Ltd. v. Lokvidayanm Sangathan, (1988) 3 SCC 410, the right of a citizen to exhibit films on the Doordarshan subject to the terms and conditions to be imposed by the latter has been recognized; In Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, (1995) 2 SCC 161. The apex Court made it clear that an individual has a right under Article 19(1)(a) to have an access to telecasting, which is subject to the limitation on account of use of public property, i.e. the air waves involved in the exercise of the right can be controlled and regulated by the public authority even on grounds not strictly covered under Article 19(2) of the Constitution.
[xv] Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., (1995) 5 SCC 139.
[xvi] AIR 1989 SC 190; also see PUCL v. Union of India, JT 2003 (2) 528, where the supreme court observed that fundamental rights in themselves has no fixed contents, most of them are empty vessels into which each generation must pour its content in the light of its experience.
[xvii] (1981) Supp. SCC 87
[xviii] Article 39(a) of the Constitution of India.
[xix] Id., Article 39(b).
[xx] Id., Article 39(c).
[xxi] Id., Article 39(e).
[xxii] Id., Article 43.
[xxiii] Id., Article 48(A).
[xxiv] Id., Article 47.
[xxv] Id., Article 246.
[xxvi] Id., Article 246, Seventh Schedule, List I.
[xxvii] Id., Article 246, Seventh Schedule, List II.
[xxviii] Constitution (Forty-Second Amendment) Act, 1976.
[xxxi] Constitution (Seventh Amendment) Act, 1956.
[xxxii] Article 246, Seventh Schedule List III of the Constitution of India.
[xxxiii] Constitution (Forty-Second Amendment) Act, 1976.
[xxxviii] Article 37 of the Constitution of India.