I.

Declining Role of Judgee and Judiciary in the Consumer Protection Bill, 2018

The members of Customer Dispute Redressal Agencies are appointed by the central government
in case of national commission and by the state government in case of State Commission and
District Forums. All these appointments are done on the recommendation of the selection
committee.

Selection committee for appointment of president and members of National Commission consists
of sitting judge of Supreme Court of India, who is nominated by the Chief Justice of India. He
acts as the chairman of the committee.1 The selection committee also has two more Secretaries of
Union government.

Selection committee for appointment of members of State Commission along with President and
members of District Forum consists of judge of High Court of India (Former/Sitting), who is also
the President of State commission and Chairman of the Selection committee, appointed in
consultation with the Chief Justice of High Court. The selection committee also has two more
Secretaries of State government.

The Role selection committees which is clearly prescribed in the Act is removed from the Bill of
2018. Now the central government has power to make rules to provide for qualifications,
appointment, term of office, salaries and allowances, resignation, removal and other terms and
conditions of service of the President and members of the District/State/National commission
through notification.2

The position of Supreme Court judge (also includes former judge of Supreme Court), appointed
by the central government on the recommendation of the Selection committee at National level,
who acts as the President of National Commission3 is now removed.

The position of High Court judge (also includes former High court judge), appointed by the State
government in consultation with the Chief Justice of High Court, who acts as the President of
State commission4 is also removed.

1
Section 20 of Consumer Protection Act, 1986
2
Section 29, 43 and 55 of Consumer Protection Bill, 2018
3
Section 20 of Consumer Protection Act, 1986
 The position of District Court judge, appointed by the State government on the recommendation
of Selection committee at State level, who acts as the President of District Forum5 is removed.

II. Consumer forums are Tribunals

In the UNION OF INDIA v. R. GANDHI, PRESIDENT, MADRAS BAR ASSOCIATION

constitutional bench of Supreme Court held, “Tribunals can be either private Tribunals (Arbitral
Tribunals), or Tribunals constituted under the Constitution (Speaker or the Chairman acting
under Para 6(1) of the Tenth Schedule) or Tribunals authorized by the Constitution
(Administrative Tribunals under Article 323A and Tribunals for other matters under Article
323B) or Statutory Tribunals which are created under a statute (Motor Accident Claims
Tribunal, Debt Recovery Tribunals and consumer fora).”

III. Significance Of Role Of Judge And Judiciary

1. Hallmarks Of Judiciary: Impartiality, Independence, Fairness And Reasonableness.

„Impartiality‟ is the soul of Judiciary and „Independence‟ is the life blood of Judiciary. Without
independence, impartiality cannot thrive. Independence is not the freedom for Judges to do what
they like but, the independence of judicial thought including freedom from interference and
pressures which provides the judicial atmosphere where to work with absolute commitment to
the cause of justice and constitutional values.

Independence of Judiciary has always been recognized as a part of the basic structure of the
Constitution. Some attributes of independence include:

 Security in tenure,
 Freedom from ordinary monetary worries,

4
Section 16 of Consumer Protection Act, 1986
5
Section 10 of Consumer Protection Act, 1986
Union of India vs. Sankalchand Himatlal Sheth 1977 (4) SCC 193
  Freedom from influences and pressures within (from others in the Judiciary) and without
(from the Executive)6.
2. Article 50: Separation Of Power- Independence Of Tribunal Vested With Judicial
Powers From Executive.

When it is said that Legislature has the competence to make laws which will decide whether the
disputes will be decided by courts or by tribunals, it is subject to constitutional limitations,
without encroaching upon the independence of judiciary. This will be done keeping in view the
principles of Rule of Law and separation of powers. If tribunals are to be vested with judicial
power hitherto vested in or exercised by courts, such tribunals should possess the independence,
security and capacity associated with courts.7. Judicial independence and separation of judicial
power from the Executive are part of the common law traditions implicit in a Constitution like
the Constitution of India which is based on the Westminster model.

3. Article 14: Right To Equality Includes Right To Adjudication By An Independent

Forum.

The fundamental right to equality before law and equal protection of laws guaranteed by Article
14 of the Constitution clearly includes a right to have the person‟s rights, adjudicated by a forum
which exercises judicial power in an impartial and independent manner, consistent with the
recognized principles of adjudication. Therefore, wherever anyone access to courts to enforce
such rights if sought to be abridged, altered, modified or substituted by directing him to approach
an alternative forum, such legislative act is open to challenge if it violates the right to
adjudication by an independent forum.8

7
R. K. Jain vs. Union of India, 1993 (4) SCC 119
8
The State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75, relied on “Orderly & Effective Insolvency
Procedures – Key Issues” annexed to Eradi Committee Report, referred to.
4. Judge or person capable of being judge to be the presiding officer/member of the
redressal commission/ Tribunal.

If the tribunals are intended to serve an area which requires specialized knowledge or expertise,
no doubt there can be Technical Members in addition to Judicial Members. Where however
jurisdiction to try certain category of cases are transferred from courts to tribunals only to
expedite the hearing and disposal or relieve from the rigours of the Evidence Act and procedural
laws, there is obviously no need to have any non-judicial Technical Member. In respect of such
tribunals, only members of the Judiciary should be the Presiding Officers/members of such
tribunals. Therefore, when transferring the jurisdiction exercised by courts to tribunals, which
does not involve any specialized knowledge or expertise in any field and expediting the disposal
and relaxing the procedure is the only object, a provision for Technical Members in addition to
or in substitution of judicial members would clearly be a case of dilution of and encroachment
upon the independence of the Judiciary and Rule of Law and would be unconstitutional.9

5. Eligibilty/Qualification Laid By Legislation Is Subject To Judicial Review To Check

Enchroachment By Legislation/Executive.
While constituting tribunals, the Legislature can prescribe the qualifications/eligibility
criteria. The same is however subject to judicial review. If the court in exercise of judicial
review is of the view that such tribunalisation would adversely affect the independence of
judiciary or the standards of judiciary, the court may interfere to preserve the independence
and standards of judiciary. Such an exercise will be part of the checks and balances measures
to maintain the separation of powers and to prevent any encroachment, intentional or
unintentional, by either the legislature or by the executive.10

In L Chandra Kumar, Constitutional bench of the court held, “The Judges of the superior courts
have been entrusted with the task of upholding the Constitution and to this end, have been
conferred the power to interpret it. It is they who have to ensure that the balance of power
envisaged by the Constitution is maintained and that the legislature and the executive do not, in
the discharge of their functions, transgress constitutional limitations. It is equally their duty to
9
R. K. Jain vs. Union of India, 1993 (4) SCC 119, relied on L. Chandra Kumar v. Union of India (1997) 3 SCC 261,
referred to.
10
UNION OF INDIA v. R. GANDHI, PRESIDENT, MADRAS BAR ASSOCIATION
 oversee that the judicial decisions rendered by those who man the subordinate courts and
tribunals do not fall foul of strict standards of legal correctness and judicial and judicial
independence.” There, independence of judiciary has to be maintained and if consumer forums
are vested with judicial power, they are to be independent institutes not within the control of
executive.

IV. Power of states is decling in Consumer Protection Bill, 2018

In the Consumer Protection Act, 1986, clear provisions, related to the power of state government
to appoint members of State commission and District Forums, are stated. This clear demarcation
of the powers is quintessential to ensure no conflict takes place between power centers.

Section 29 Consumer Protection Bill, 2018 states, “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 bill, states similarly that, “ 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.”

V. Conclusion

In an era which although cannot be criticized but at least can be alleged for the threat to
institutional autonomy. The allegations are levied due to conflicts/controversies arising out from
the episodes of FTII, CBFC, JNU, CBI, NIFT, ECI and even Defence Acquisition Council.
Senior journalist remarks that when he goes to secretariat, it feels everyone is nothing and a man
is everything. Some journalists were fired from the News Channels and again allegations were
made that the reason behind was the critical analysis of government programs and exposure of
„fixed‟ interaction with farmers done by them. We have also witnessed the way Uttarakhand
Government was dismissed, similar thing happened to Arunachal Pradesh Government.
Government of NCT of Delhi and Pondicherry are also raising protests against the alleged
excessive interference by their respective Lieutenant Governors, who is known as the agent of
the central government, in the functioning of the governments. Therefore, reasonable
apprehensions also arise in case to consumer redressal commission.

Consumer Commissions are the institutions which are quasi-judicial spread across districts and
states. In India, we have federation as well as independence of judiciary. Therefore the role of
states as well as judiciary becomes significant in these bodies to ensure „Separation of Power‟
along with „Distribution of Power‟. We can never be sure about the intention of the central
government. Intention is an abstract term. The contention that Central Government only has
failures in respect to federal structure is also not true. Where there are shortcomings, there are
successes as well. Wonderful display of Cooperative Federalism was seen in GST. Until now, no
decision was taken by GST council (which comprises of finance ministers of all states and union
ministers of finance) by division/voting since, in every issue a consensus was made by properly
addressing everyone‟s apprehensions. But, critical questions/doubts regarding the working of
government are the foundation stones of Democracy.

One important function of the written Constitution is to divide power between the national
government and the state governments. This division of authority is referred to as “federalism.”
The federal government is very strong, with much power over the states, but at the same time, it
is limited to the powers enumerated in the Constitution. The essence of a federation is the
existence of the Union and the States and the distribution of powers between them. Federalism,
therefore, essentially implies demarcation of powers in a federal compact11. In, Regulating Act
1773, there was no clear demarcation between the powers of Governor General and Supreme
Court and hence a number of conflicts arose between them including the infamous cossijurah
case and Kamaluddin case.

Constitution is the governing law for the State of India. Similarly, Consumer Protection bill,
2018 can be deemed to be the prospective statute for governing of Consumer Dispute Redressal
Agencies. Therefore, provisions where exclusive power has been given to central executive, in
respect to making rules, by notification, to provide for the qualifications, method of recruitment,
procedure for appointment, term of office, resignation and removal of the President and members

11
S.R. Bommai vs Union Of India (1994)
of the District/State Commission, reasonably give birth to the doubts related to unitary
characteristics of the bill.

John Emerich Edward Dalberg Acton said, "Power tends to corrupt, and absolute power corrupts
absolutely. Great men are almost always bad men." Therefore, Federalism is the remedy to the
centralized power. It is an instrument of decentralization. Also, the doctrine of separation of
powers has also been always considered to be a part of the basic structure of the Constitution.
Also, „Distribution of power‟ is also the basic structure. Therefore, clear provisions for the
position and power of judges, judiciary and states should be there in the consumer protection bill.
These sort of provision creates various apprehensions at least when autonomy of institutes is
allegedly being interfered with.