Report No. 105
5.7. Some suggestions have been made for higher or additional sanctions. For example, the Government of Andhra Pradesh favours rigid quality control and test checking of the products at the stage of manufacture itself.1
Professor Manubhai Shah, in his meeting with the Member-Secretary, has suggested that there should be a system of recalling of goods, to ensure that either the manufacturer himself recalls goods not fit for consumption or a governmental agency is empowered to do it.2
1. Law Commission File No. F.2(1)/84-L.C., S. No. 9.
2. See para. 5.12, item (2) infra.
5.8. In regard to the comments which suggest a wider coverage, we may observe straightaway that the scope of the present report is limited to the protection of the consumer in respect of certain types of electrical appliances which are costly and which are purchased only once in a way. One of the reasons in so limiting the proposal has been our consciousness that infrastructural facilities of the nature and magnitude that would be needed if the coverage is made very wide do not, at present, exist in the country. In particular, public analysts may not be available in sufficient number for testing the quality of all goods within a reasonable time and at reasonable fees. Without such facilities on an adequate scale, consumer protection in the area dealt with in this Report would not be a reality.
5.9. One High Court, in its comment1 on the Working Paper, has stated that the proposal should cover not only consumer goods, but also consumer services like dry cleaning, accommodation in public auditoria and the like. While we appreciate the suggestion that consumer services also may have to be regulated, the proposal of the Commission is only with reference to consumer protection of costly electrical appliances. Any legislation that may be required in regard to regulation of consumer services will naturally have to run on different lines.
1. Law Commission File No. F.2(1)/84-L.C., S. No. 16.
5.10. The Government of West Bengal has suggested that there should be penal provisions which could be put into operation if the specified articles do not conform to the prescribed standards. An emphasis on prosecution has also been placed by the Government of Andhra Pradesh.1
1. Law Commission File No. F.2(1)/84-L.C., Nos 7 and 9.
5.11. After careful consideration, the Commission does not favour the inclusion of penal provisions in the legislation recommended in the present Report. Proposals of the nature put forth here are primarily intended to give effective relief to the consumer. No doubt, penal provisions for large scale violations of consumer laws may not necessarily be ruled out. But the insertion of such a liability will be a question involving a consideration of several aspects, including the gravity of the deviation, the requisite mental element and the aspect of enforcement. It will also necessitate a consideration of the question whether the provisions of the general criminal law-and also of certain special Acts which impose criminal liability-are not, for all practical purposes, sufficient.
5.12. It may at this stage be mentioned that Professor Manubhai Shah, Managing Trustee, Consumer Education and Research Centre, Ahmedabad, visited the Law Commission and had an informal discussion with the Member-Secretary on the subject of Consumer Protection. A gist of the general observations made in this behalf by Professor Shah is given below.-
(1) Standard.-In case of inherently dangerous goods, the system of compulsory certification should be introduced.
(2) Recalling.-A system of recalling of goods should be introduced. Steps should be taken to ensure that either the manufacturer himself recalls the goods which are not fit for consumption, or a Governmental agency does it.
(3) Standards.-The role of the Indian Standards Institution should not be confined to putting its marks on the products. It may also be empowered to issue compulsory certificates. It may further be entrusted with supervisory role in such matters.
(4) Remedy.-Government should establish a forum which could be approached by the consumers to obtain proper remedies for the goods which are detrimental to the general health of the public.
(5) Testing any product.-A system should be devised whereby, either on a complaint being made by a Member of the public or otherwise, any product could be tested by the manufacturer.
(6) Cost of testing.-It may also be necessary to provide for cases of liability to bear the cost, that is to say, who should bear the cost of testing the products, the manufacturer or the consumer? There is every likelihood of the goods getting damaged during testing, in either of the two ways:-
(i) the process of testing itself requires the breaking of the product/ goods.
(ii) the breaking of the goods in the process of testing owing to negligence or mishandling.
Suitable provision should be made in this behalf to ensure liability. We have made a note of these suggestions made by Professor Shah. The suggestions at (1) to (4) are outside the range of this Report, whose scope is linked as already pointed out. The suggestion at (5) also raises practical problems of administrative machinery and the like. The point raised at (6) above should, we think, be taken care of by rules. However, practical difficulties experienced in the working of the proposed legislation could, and should be tackled by appropriate amendment.
5.13. We may finally refer to the views expressed by the Secretary, Ministry of Food and Civil Supplies, Department of Civil Supplies, in reply to the Working Paper issued by the Commission. Shri M. Subramanian, Secretary, Department of Civil Supplies, appeared before the Commission on 4th September, 1984, and informed us that Government has under consideration proposals to amend the Indian Standards Institution (Certification of Marks) Act, 1952 and the Standards of Weights and Measures Enforcement Act, by a Bill which was introduced in the last session of Parliament.1 According to Shri Subramanian, Government seeks to empower itself to prescribe certain standards in respect of consumer goods and it is envisaged that a suitable enforcement machinery be set up by simplifying the procedures in the Courts to give quick relief to the consumers.
During the course of the discussion, he appreciated the suggestion of the Commission in the Working Paper to provide a right to the consumer to obtain test report of the specified products from a Public Analyst. He informed us that Government would duly consider incorporating the Commission's recommendations in the proposed legislation which the Government contemplated to undertake in the forthcoming session of Parliament. He also informed that the Government is contemplating to set up a statutory All India Consumers Protection Council. He also mentioned that the Delhi Administration and the Government of Madhya Pradesh have initiated legislation on consumer protection.
1. Law Commission File No. F.2(1)/84-L.C., S. No. 12.
5.14. We have noted these developments as intimated to us. We should, in this context, record that, as stated earlier, the object of the present proposal is to give relief to consumers in respect of certain costly electrical appliances. Whether, having regard to the information and the resources available, the scope of quality control should be enlarged to cover all consumer goods, are wider questions which are outside this Report.
5.15. Having considered the views expressed on the Working Paper, we proceed to set out our detailed recommendations in the next Chapter.