Date of Judgement:
14 September 2021
Coram:
Justice Sunil B Shukre
Justice Anil S Kilore
Parties:
Petitioner – Vijaykumar Bhima Dighe
Respondents – Union of India & 3 Others.
Subject
In State and District Commissions, a member must be a person of ability and standing with adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, as broad general categories. The need to conduct written test to assess the knowledge of persons is justifiable.
Legal Provisions
- Section 10 of the Consumer Protection Act, 2019 - Establishment of Central Consumer Protection Authority.
- Section 16 of the Consumer Protection Act, 2019 - Power of District Collector.
- Section 29 of the Consumer Protection Act, 2019 - The Central Government may, by notification, make rules to provide for the qualifications, method of recruitment, procedure for appointment, term of office, resignation and removal of the President and members of the District Commission.
- Section 43 of the Consumer Protection Act, 2019 - The Central Government may, by notification, make rules to provide for the qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of the President and members of the State Commission.
- Section 71 of the Consumer Protection Act, 2019 - Every order made by a District Commission, State Commission or the National Commission shall be enforced by it in the same manner as if it were a decree made by a Court in a suit before it and the provisions of Order XXI of the First Schedule to the Code of Civil Procedure, 1908 shall, as far as may be, applicable, subject to the modification that every reference therein to the decree shall be construed as reference to the order made under this Act.
- Section 101 of the Consumer Protection Act, 2019 - Power of Central Government to make rules.
- Rule 3 of the Consumer Protection Rules, 2020 - Qualifications for appointment of President and members of the State Commission.
- Rule 4 of the Consumer Protection Rules, 2020 - Qualifications for appointment of President and member of District Commission.
- Rule 6 of the Consumer Protection Rules, 2020 - Procedure of appointment.
- Article 323A in the Constitution of India - Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government.
Overview
- The Rules framed under the Consumer Protection Rules, 2020 provides for eligibility for the post of President and Members for State Commission as 20 years of experience in consumer affairs, law, public affairs, administration, economics, commerce, industry, finance, management, engineering, technology, public health or medicine and 15 years for District Commission.
- Rule 6 of the said Rules provides for Selection Committee to set its own procedure for appointment. The Maharashtra Government constituting a Selection Committee and invited applications for President and Members for its State and District Commissions. The same is the subject matter in of this PIL.
- It was prayed inter alia in the PIL that Rule 6(9) be struck down as arbitrary and unconstitutional and to conduct the written examination for the post.
- The Counsel for the Petitioners contended that Rule 6(9) is in contravention to the directions of the Supreme Court in State of Uttar Pradesh V. All Uttar Pradesh Consumer Protection Bar Association (2017), referred to as UPCPBA. It was also contended that the required period of experience of 20 years and 15 years is again in contravention of direction of the Supreme Court in Madras Bar Association V. Union of India (2020), referred to as MBA-2020. The observation of Supreme Court in MBA-2020 case was that the existing conditions would hinder the opportunity of Advocates who are qualified and have 10 years of experience.
- The Counsel for the respondent contended that the Selection Committee was granted the power under the Rules and that there were numerous applications for the vacant posts and it was difficult and time consuming in conducting both written test and viva voce.
- After considering the facts and contention of the parties, the court allowed the petition and held that Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) as arbitrary and unconstitutional and ordered for it be to be quashed.
Issue
- Whether Rule 6(9) is arbitrary and violative of constitutional principle?
Judgement Analysis
- The Court observed that Article 323A and 323B of the Constitution was envisaged to reduce the burden of the High Courts by establishment of the Tribunal. It was brought into effect as it can provide deeper technical insights of the issue. However, when the powers and duties were transferred, issues regarding uniformity of rules and regulation surfaced.
- After reading of Rule 9(6),it was held that this gave absolute discretion to the Selection Committee and referred to the observation in the UPCPBA that the issue with this discretion is that this will result in lack of uniformity, and in absence of the same, there might be wide distortions and subjectivity allowing political interference.
- Section 71 of the Act states that order made by the Commission shall be enforced as if it were a decree made by a Court in a suit before it. Hence the qualification of a President and its members of the concerned commission shall be that of judge. Hence, written examination should not be foregone.
- The Court, while touching upon delegated legislation referred to in State of Rajasthan V. BasantNahata (2005), observed that when the function of legislating is delegated to the Executive, it should be guided and a framework should be provided and should not be left to the whims and fancies of the Executive.
- Answering the contention of the respondent that the courts cannot interfere and quash a rule/notification that it is against a Supreme Court judgement, it laid emphasis on importance of uudicial autonomy and independence and referred to judicial directions and orders in Sampath Kumar v. Union of India (1987).
Conclusion
Tribunals were brought into effect for providing technical insights and to mainly reduce the burden on High Courts. As the orders passed by the Tribunal will have the same effect as the order of a Civil Court, it should also be made sure that the members of the tribunal are as nearly qualified as a judge. The delegated legislation should be to supplement the object of the legislation and the courts and not to supplant them.
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Questions to Analyse –
- Under which part of the Constitution establishment of Tribunal are mentioned?
- Does the order/ decree of a Tribunal be enforced in the same manner as a Civil Court?
