Tag: #lawblogs

INTRODUCTION

In India, marriage is considered a sacred union between two bodies of opposite sexes. Sharing a common room, their life, and the commitment to live with each other makes it unbreakable bondage not only for one life but for seven lives. It is believed that when two souls will unite in every sense that is physical, mental, and psychological, a new soul will come into existence which is termed “PROGENY” which is very important and that is how life will move ahead. It is believed that this relationship is built by God in Heaven and no one should question this, even the “Husband and Wife”. But what if one of the spouses isn’t happy with this sacramental knot and wants to break it? Is he or she allowed to do so?

The answer changes with time. Before this century, even the thought of separation was deemed to be a very sinful thing but today it is not. The main reason behind this is that people are now more advanced. The development in the field of communication, education, understanding, and societal norms has developed the social strata of society. People have now started giving importance to their mental health and that is good in every sense.

BACKGROUND

Historically, there is no proper law that considers the ground of “Irretrievable Breakdown of Marriage” for the ground of Divorce. Under the Hindu Marriage Act, 1955, Section 13 deals with the various ground on which divorce can be obtained. They are:

Fault Ground [Section 13(1)]

1. Desertion, Adultery, Cruelty, Insanity, Leprosy, and Venereal Disease¹.
2. Apart from this, Conversion and Renunciation of the world can also be used as a valid ground for Divorce in Hindu Religion. Under this case, 2 conditions should be met and they are:
3. The spouse has ceased to be a Hindu, and
4. He or she has converted to another religion².

In the case of Teesta Chattoraj vs. Union of India³, the court held that conversion of religion by one spouse can be used as a valid ground for divorce. Similarly, in the case of Sital Das vs. Sant Ram⁴, the court held that if someone undergoes the traditions, rites, and ceremonies of religion, that person will be considered to have entered the religious order but if that individual cohabits then it cannot be considered a valid ground because he or she has no longer renounced the world.

Divorce by Mutual Consent [13B (1)]⁵

According to this section, if the spouses are not happy with each other and want to separate and lead a new life away from each other, they can file for divorce based on the ground of “Divorce by Mutual Consent”.

Customary Divorce [Section 29 (2)]⁶

Proceeding further, Section 27 and Section 28 of the Special Marriage Act, 1954⁷ also deals with the grounds of divorce in a solemnized marriage. But nowhere it is explicitly mentioned that the ground of “Irretrievable breakdown of Marriage” is a valid ground. In this respect only, the Law Commission of India in its 71^st Report recommended that the ground of “Irretrievable Breakdown of Marriage” should be explicitly mentioned and stated in the Hindu Law. But this lapsed as there was a high level of resistance and lack of support from some major women-led NGOs. The reason which was put forthwith was that the ground of “mutual consent” already covers this and a new addition will only complicate things further.

In the case of Munish Kakkar vs. Nidhi Kakkar⁸, the court itself expressed that a dead letter marriage would only create a strenuous relationship between the spouses. It would be better if they split and move ahead in their lives “as the recognition of the futility of a completely failed marriage being continued only on paper….”

That is why, in the case of Naveen Kohli vs. Neelu Kohli⁹, the Supreme Court itself stated that adding the ground of “Irretrievable breakdown” in the Hindu Marriage Act, 1955 is reasonable. The individuals are right if they go with this option.

LEGAL FACET

Though there is no specific provision present in the current judicial system, there are instances where the Supreme Court has collapsed the marriage on the ground of irretrievable breakdown under the power conferred by Article 142 of the Constitution of India.

In the case of Pramod Kumar Mittal and Another vs. Kanchan Devi¹⁰, the Court exercised its power under Article 142 of the Constitution of India and dissolved the marriage between the appellant and the respondent. Here, there were 4 daughters also who were born out of wedlock but the Court maintained that the husband is maintaining them till now and he will continue to do so. A reasonable opportunity will be given to the wife to meet her daughters if she has any intentions or desire for doing so.

Similarly, in the cases of Sanghmita Ghosh vs. Kajal Ghosh¹¹, Samar Ghosh vs. Jaya Ghosh¹², K Srinivas Rao vs. D.A. Deepa¹³, Sukhendu Das vs. Rita Mukherjee¹⁴, the court exercised its power under Article 142 and dissolved the marriage on the ground of “Irretrievable Breakdown”.

And, the recent case in this regard is R. Srinivas Kumar vs. R. Shametha¹⁵. Here, the petitioner claimed that he suffered mental cruelty because of the respondent and that is why he filed for divorce under the Section 13(1)(i-a) and (ib) of the Hindu Marriage Act, 1955 which was dismissed in the Family Court as the husband failed to prove the ground of cruelty. When he then appealed to the Higher Court, it was again dismissed. After this, he moved to the Supreme Court and presented his case where it was mentioned that both the spouses are not living with each other for the past 22 years and this should be considered as a ground for an “Irretrievable Breakdown” of marriage. Then, the SC exercised his power under Article 142 and granted Divorce.

Sometimes, there are situations like when the spouses cannot bear each other in a matrimonial relationship for even the time period of 1 year or 6 months. In that case, the SC did exercise its power again and dissolved the marriage. This was done in the case of Manish Goel v. Rohini Goel¹⁶, where the court held that “the court is competent to waive of the statutory period of six months in the exercise of its jurisdiction under Article 142 of the Constitution.” This case is also important from the view that, in this case, the Court passed an order contrary to another law. Generally, no court has the power to issue a direction that is in contravention of the statutory provisions because courts are the institutions that are meant to enforce the rule of law and not pass an order which is in contravention of that. But in the case of, Laxmidas Morarji (dead) by L.Rs. v. Behrose Darab Madan¹⁷, the Court has held that the power under Article 142 of the Constitution of India is constitutional and therefore, cannot be restricted by any statutory enactments. This doesn’t mean that now the Court can act or pass an order which is inconsistent with the statutory enactments about the case. The power has to be exercised only in cases where existing provisions of the law are not able to bring complete justice between the parties.

Likewise, there are a series of Judgments where the Supreme Court pronounced judgments in the exercise of its power under Article 142 of the Constitution of India and granted divorce to the spouses who no longer wanted to live with each other in a matrimonial relationship because it continuity will only prove to be fruitless and further cause emotional roller coastal ride on the lives of the individuals involved. The sooner it ends, the better it would be for both parties as there is no reason of continuing or be tied in a sacramental knot that has no sense in reality.

CONCLUSION

No doubt marriage is an institution that is very pious and sacramental in its own sense. When it happens, there is a birth of a new soul in this world which only brings happiness and happiness. Not only that, but it also grants individuals some legal rights which are not in place when the individual is single. It is only extended to married people that are:

1. Right to inherit spouse’s property upon death
2. Right to receive spouse’s social security, pension, worker’s compensation, or disability benefits
3. Right to receive “marriage” or “family rate” on health, car, and/or liability insurance.

But still, that does not mean keeping two people in a relationship where both parties or even one party is unhappy. If the marriage proves to be meaningless and pointless, it should be dissolved. Apart from this, our legal judicial system cannot turn a blind eye when one or both parties find it laborious to continue in a relationship. It is a very miserable situation where only quarreling, bickering, bitterness, and many other things reside. And in that case, it cannot be said as an immoral activity when one party tries to break it. Because all the responsibilities and duties come after humanity. It is to be noted that “Irretrievable Breakdown of Marriage” is not a recognized ground for Divorce under the actual Hindu Marriage Act, 1955 or any law. It has been only accepted as a ground-based on precedents.

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REFERENCES

1. Hindu Marriage Act, 1955, Section 13(1).
2. ibid
3. Teesta Chattoraj vs, Union of India, 2012 SCC OnLine Del 1949 
4. Sital Das vs. Sant Ram, 2011 SCC OnLine Mad 681
5. Hindu Marriage Act, 1955, Section 13 (B) (1)
6. Hindu Marriage Act, 1955, Section 29 (2)
7. Special Marriage Act, 1954, Section 27 and 28
8. Munish Kakkar vs. Nidhi Kakkar, (2020) 14 SCC 657
9. Naveen Kohli vs. Neelu Kohli, 2006 (4) SCC 558
10. Kanchan Devi vs. Promod Kumar Mittal, (1996) 8 SCC 90
11. Sanghamita Ghosh vs. Kajal Ghosh (2007) 2 SCC 220
12. Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511
13. K.Srinivas Rao vs. D. A. Deepa, (2013) 5 SCC 226
14. Sukhendu Das vs. Rita Mukherjee, (2017) 9 SCC 632
15. R. Srinivas Kumar vs. R. Shametha, AIR 2019 SC 4919
16. Manish Goel vs. Rohini Goel, (2010) 4 SCC 393
17. Laxmidas Morarji (DEAD) by LRS. vs. Behrose Darab Madan, (2009) 10 SCC 425

This article is written by Deeksha Singh, from Lloyd Law College, Greater Noida.

Introduction

India is one of the top producers of valuable minerals like chromite, iron ore, coal, and bauxite on a global scale. In the quarter from 2019 to 2020, mining contributed 2% to the nation’s gross value added (GVA). This industry supplies the fundamental raw materials used by the majority of the nation’s infrastructure and manufacturing sectors. In India, the mining industry is heavily regulated, and in the last five years, the legal system has undergone significant modifications that have made the system more effective and transparent.

The Legal System

According to the Seventh Schedule of the Indian Constitution, the central government and the individual State governments are each assigned a portion of the regulatory authority over the country’s mines and minerals industry, which is governed under a federal system. For the governance of the mining industry in India, both the federal government and the state governments are accountable.

To the extent that such control is deemed by the Parliament to be in the public interest, the central government has the authority to regulate mines and mineral development under entry 54 of the Union List. Under entry 23 of the State List, the State government has the authority to control mines and mineral development in conformity with the authority of the Central Government.

The primary law controlling the mineral sector in India (aside from petroleum and natural gas) was created by the central government in 1957 and is known as the Mines & Minerals (Development and Regulation) Act (MMDR Act). The MMDR Act establishes the legal framework for the development of all minerals and the control of mines. Minor minerals and significant minerals are the two categories of minerals. Building stones, common clay, common sand, gravel, and other minerals designated as minor minerals by the federal government are included in the category of minor minerals. Major minerals include coal, manganese ore, iron ore, other minerals utilized in industry, and minerals that cannot be classified as minor minerals.

Significant reforms were made to ensure a transparent and non-discretionary environment for the grant of mineral concessions with the introduction of the Mines and Minerals (Development and Regulation) Amendment Act 2015. The Act was changed further, mining leases that are issued in other ways than through auction and are utilized for captive consumption were able to be transferred as of the 2016 amendment. In order to maintain mining operations, the 2020 Amendment permitted the transfer of licenses, approvals, and clearances (including environmental and forestry clearances) from the previous licensee to the new licensee for a two-year term following the issuance of the new lease.

Regulatory bodies

• State governments: In accordance with the MMDR Act’s requirements, each State government has the authority to grant mineral concessions and to levy royalties, dead rent, and taxes on behalf of its residents.
• Mines Ministry (MoM): It is a division of the Indian government and serves as the main administrative body for the mining industry. It is responsible for the MMDR Act’s administration, the exploration and mining of all minerals (apart from coal, natural gas, and petroleum), and the metallurgy and mining of non-ferrous metals.
• The mission of the Indian Bureau of Mines (IBM), a division of the Ministry of Mines, is to advance the methodical and scientific use of India’s natural resources while maintaining environmental protection.
• The Ministry of Coal (MoC) is in charge of overseeing coal exploration in India and is responsible for carrying out the activities in a sustainable manner. Additionally, it seeks to build the infrastructure needed for reliable coal supplies to satisfy the demands of other industries.
• The Petroleum and Natural Gas Regulatory Board Act of 2006 created the Ministry of Petroleum and Natural Gas (MoPN) to oversee the exploration and utilization of petroleum resources, including natural gas. Additionally, it plans, guarantees the growth and control of, and supports all industries connected to the MoPN.

Changes proposed

In August 2020, the MoM released a notice outlining a few changes that will be made to the MMDR Act. The “Atmanirbhar Bharat” initiative, which aims to increase private investment, create jobs, and introduce cutting-edge technology into the mining sector, is the entire strategy that underpins the proposed shift. By allowing the private sector to engage in exploratory activities in addition to the general exploration and survey work carried out by government agencies, it seeks to increase exploration activity.

The suggested changes consist of:

• To increase the number of mineral blocks up for auction, a seamless exploration, mining, and production system will be implemented.
• By overcoming old problems, to transition to an auction-only system for allocating mineral resources.
• To eliminate the disparity between captive and non-captive mines, sell excess or unused minerals, and transfer mining leases with permission to improve mining and production efficiency.
• For various minerals, a clear national mineral index will be created.
• The regulations should be streamlined to calculate stamp duty on mining leases.

Conclusion

The Government has taken a stride toward achieving mineral security in India with the reforms. The former 1957 Act’s restrictive practices were repealed by the new legal system, which also addressed other mining-related concerns such as auctions, the transfer of statutory clearances, the operation of District Mineral Foundation (DMF) Trusts, etc. The change is made to generate jobs, raise the mining industry’s GDP contribution, and lure both domestic and foreign investment. However, it will be interesting to see how the new legal system will do under judicial scrutiny and time.

However, without efficient application of regulations, the current revisions in mining regulations are insufficient. India’s government is required by international law to defend its citizens’ human rights against violations by mining companies and other businesses. There are laws in India that are intended to accomplish this, but some of them are so shoddily constructed that it seems as though they were created to fail. Others have lost their effectiveness because of poor implementation, enforcement, or corruption on the part of elected authorities or government employees. As a result, significant government watchdogs watch as out-of-control mining operations jeopardize the landscapes, livelihoods, and health of entire people.

In other instances, public institutions have also been defrauded of substantial sums of money that may have gone toward bolstering governments’ shoddy delivery of vital services like health and education. Experience has taught us that without strong government control, not all businesses in India and around the world will act ethically. Despite their best efforts, some businesses will fail if there is insufficient government regulation. Therefore, proper execution of the regulation is necessary with the introduction of new regulations and changes to current regulations.

References

1. Aqa Raza, Mukesh Dwivedi, Regulatory Framework of Minerals and Mining Industry in India in Relation to Environmental Concerns: A Critical Analysis, July 9, 2019, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3415706.
2. TLCJ, September 24, 2021, https://journal.thelawcommunicants.com/indian-mining-regulatory-regime/.

This article is written by Kanika Arora from Delhi Metropolitan Education (Affiliated to GGSIPU).

INTRODUCTION

A virtual asset is a digitalized representation of an item that has a proper value in a particular environment, for example, Bitcoin, Litecoin, or Dogecoin. In virtual assets, the medium of exchange or the property can be traded, transferred, or invested digitally. Over a decade virtual currencies are also considered virtual assets, virtual currencies are a digital representation of value that has a unit of account, store of value, and medium of exchange, it has also proliferated and has the potential for abuse, corruption, and illicit activity. Virtual assets have potential benefits like they could make payment easier, faster, and cheaper. The Financial Action Task Force (FATF) is an inter-governmental body that aims at preventing the laundering of money and terrorist financing.

All virtual assets are considered to be digital assets, but not all digital assets are virtual assets. Digital assets like bank records, which represent ownership are not considered to be virtual assets. The virtual asset must-have features like whether it can be traded or transferred and used for payment. If the asset is merely just ownership it is not considered a virtual asset. NFT (Non-Fungible Token) is a digital asset that is unique and interchangeable; it is considered to be a digital asset unless used for payment or investment purposes. Worldwide NFT is classified as a non-taxable asset and in the future, it should be considered that the Crypto token is different from digital NFT. Cryptocurrency is a kind of virtual currency that is distributed across an oversized number of computers which makes it impossible to counterfeit or double spend. It is a new paradigm of money. Bitcoin is the most popular cryptocurrency. Other cryptocurrencies are Binance Coin, Solana, and Cardano.

BACKGROUND

The first virtual digital asset, the digital coin Bitcoin was introduced in the year 2009 and now there are nearly 10,000 different types of different assets. In recent years the prices of virtual assets are growing rapidly. Since 2017 the government monitors the development of the virtual asset sector and it also aims to develop the market, prevent unlawful activities and improve transparency in financial transactions. The government also promotes blockchain technology so that innovation can be brought in several areas. The government helps to improve transparency in virtual asset transactions.

VIRTUAL ASSET SERVICE PROVIDER (VASP)

Virtual Asset Service Providers means organizations or persons who conduct activities related to the transfer, exchange, or administration of virtual assets. Regulating the Virtual Asset Service Provider can play an important role in preventing terrorist funding and money laundering. The Virtual Asset Service Provider is an entity that conducts –

1. Exchange between virtual assets and fiat currencies
2. Transfer of virtual asset
3. Exchange between one or more forms of virtual asset
4. Administration of virtual asset
5. Participation in the provision of financial services

FATF closely monitors the development in the crypto-sphere mostly in the virtual asset sector. With the help of G20, FATF has some standards to prevent the misuse of money, laundering, and terrorist financing. FATF standards ensure that virtual assets are treated fairly and the rules apply when they can be exchanged for fiat currencies. VASP includes virtual asset trading service providers, virtual asset safekeeping and administrative service providers and virtual asset digital wallet service providers, and virtual asset digital wallet services that are engaged in purchase and sale, safekeeping and administration, and virtual asset transactions. VASP is engaged to report their transactions to KoFIU. KoFIU set up guidelines in 2018 for anti-money laundering regulations. While dealing with VASP, details are provided about types of suspicious transaction activities while using virtual assets so the bank rejects the opening of the new account for VASP when user information is not provided.  KoFIU has oversight and supervisory function over the virtual asset sector. The government will continue to upgrade the regulatory framework to enhance supervision and risk management.

UNION BUDGET 2022

The Finance Minister announced a scheme for the taxation of virtual digital assets like Cryptocurrencies, Non-Fungible Tokens at the rate of 30%. As there is an increase in the magnitude and frequency of these transactions there is a need to provide a specific tax regime. The income which is proposed under this regime is to be computed without reducing the effect of deduction. Any loss arising out of this would not be allowed to be set off income in any other head. The Budget proposed to introduce TDS at a 1% rate on the transfer of virtual assets. Virtual Digital Asset gifts are also taxed at an applicable rate. The provisions are effective only from April 1, 2022, if a cryptocurrency is transferred before April 1, 2022, these provisions are not applicable.

It was also clearly stated that mere recognition of the digital asset under the income tax is not amounting to granting legal status. This tax is similar to a tax on gambling as it mainly focuses on the interest of an investor. By this budget of 2022, it is clear that if you hold the cryptocurrencies then income derived from these will be taxed to 30 percent and any profit generated by the cryptocurrency trade will be taxed 30 % including the gifts and transfer of these assets. The government has kept a fixed rate of 30% so that all investors pay an equal percentage to the government in the form of tax. The cryptocurrency tax method includes the HIFO method. HIFO inventory helps to decrease taxable income in the company where the highest cost of goods is sold. HIFO method is very beneficial for investors those who often use the highest cost basis coin and apply it to coin sold.

TAXATION

The tax imposed by the central government is quite harsh. The 30% tax rate and restriction to set off losses is a significant deviation from the existing tax principles. It is tough to accept that gifts with respect to digital assets are also taxed. The taxation is clearly defined. Taxation of virtual digital currency means the crypto asset will not be banned. The Cryptocurrency and Regulation of Official Digital Asset Currency Bill, 2021 was also established which threw away the concern of virtual currencies being banned in India. This is another drastic move where even this is recognized as alternate investment equity. Most probably in the future, the RBI may launch its own cryptocurrency. The identity of the payee is difficult to be found in digital asset trade, if the PAN is not available then the TDS will be 20% and provisions related to TDS can also lead to some complications. Government should also allow the gaming industry and others to be developed without the tax burden.

CONCLUSION

Taxation of cryptocurrency to 30% is a positive move as it brings some faith in the investors. The taxation and recognition of crypto is an asset for income tax but it does not provide recognition under the law. When we use cryptocurrency the transaction cost is so low and the transaction can be made at any time and there is no limit for the purchases and withdrawal. It is good that people are exposed to new kinds of digital assets. The main disadvantage of cryptocurrency is that it may have many illegal transactions and it is not possible for the government to keep track down of all of its users. There is a high risk of loss of data, if the user loses the private key to their wallet they will not get it back. Cryptocurrencies within the market are controlled by their creators and some organization. These cryptocurrencies familiarize Indians with the benefits and efficiency of cryptocurrency; it builds an appetite for crypto and employment opportunities that can be given in the field of cryptocurrency. Cryptocurrencies are a worldwide phenomenon that may replace general currencies. It progresses to a cashless society.

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REFERENCES

1. Quimbayo, C. V., & Broby, D. (2021). The Regulation of Initial Coin Offerings, Virtual Assets and Virtual Asset Service Providers.
2. Besley, T., & Persson, T. (2013). Taxation and development. In Handbook of public economics (Vol. 5, pp. 51-110). Elsevier.

This article is written by Sree Lekshmi B J, third year law student of Sastra University, Thanjavur.

Every individual irrespective of occupation, age, community, gender, caste, race, or religion, is a consumer. Consumer rights and protection are the structural part of the life of every person and we all have made use of them at some point in our day-to-day life. The consumer is the genuine deciding agent for all economic activities. It is now globally accepted that the expanse of consumer protection is the true measure of the level of progress in a nation. This article is an attempt to examine, analyse and review consumer protection in India.

Introduction

The concept of consumer protection is as old as human civilisation. Protecting the buyers’ interests is among the prime considerations of the business. Mahatma Gandhi’s political ethics said that the consumer is allowing the entrepreneurs to serve him and he is the subsequent purpose of the business; we can even go to the extent of saying that according to certain studies of some Indian traditions, consumer/customer is equivalent to God but the profit motive of the marketers and dealers is resulting in consumer exploitation through deceitful and immoral market practices. Consumer protection is a socio-economic day-to-day activity that is to be carried out by government and businesses with the prime objective of protecting the interest of consumers and their fair satisfaction. The duty to protect the consumer interests and rights is the responsibility of the government through constructing policies and laws. Consumer Protection Act 1986 is considered a turning point in the history of India for consumer rights. This Act inspects the background and evaluation of the Consumer Protection Act over a while.

Who are consumers?

A person who purchases goods and services is called a consumer. Consumer rights generally refer to laws that give power to consumers against exploitation and misconduct, misinformation, and misguiding by producers and sellers and force them of goods; to protect the interests of consumers.

The Rights of consumers

The essential rights of consumers that are striving to be upgraded and protected are:

1. The protection against the marketing of goods and services which are hazardous to life and property.

2. To notify the customers about the quality, quantity, potency, purity, standard, and price of goods, or services against unfair practices.

3. The right to be guaranteed and retrieve a variety of goods and services at competitive prices.

4. The right to be informed and to be assured that consumers’ welfare will receive due deliberation at relevant forums.

5. The right to pursue amends against biased trade practices or prohibited trade practices or unethical exploitation of consumers.

6. Consumer education rights.

Changing Phase of consumer protection since ancient India

The theory of consumer protection against prejudiced and biased malfunction practices safeguarding the interests of consumers was a part of Indian tradition and management for centuries in ancient times. It can be seen in ancient Indian Dharmasastras like Manu Smriti, the Yajnavalkya Smriti, the Brihaspati Smriti etc., illustrated the living standards of the people of that period and were grounds on the dharma to be abided at that period. Manu Smriti was one of the persuasive and authoritative scripts that treated various consumer affairs. During the Mughal period (Mediaeval period) who ruled India, like Alauddin Khilji, Sher Shah Suri and Akbar, etc., thought about protecting consumer rights and they enacted strict laws for the same. They introduced weights and measured the standardisation process. The British Rule, also called modern India, combine the previous customs and cultures with a unified nationwide system that had similarities with the laws already enacted in Britain. Britishers introduce Acts like the Indian Penal Code, 1860, the Carriers Act, 1865 Law of Tort, The Indian Contract Act, 1872, Sales of Goods Act 1930, and the Agricultural Product (Grading and Marketing) Act 1937. After Independence, many laws were passed in India for shielding innocent customers from unfair and restrictive trade practices. The Acts that were enacted and protected the whole of the Republic of India are: the Drugs Control Act 1950, the Industry’s Development And Regulations Act 1951, The Drugs And Magic Remedies Objectionable Advertisements Act 1954, The Prevention Of Food Adulteration Act 1954, The Essential Commodities At 1955, The Trade And Merchandise Marks At 1958, The Monopolies And Restrictive Trade Practises At 1969, The Cigarettes Regulation Of Production, Distribution And Supply At 1975, The Standards Of Weights And Measures Act 1976, The Prevention Of Black Marketing And Maintenance Of Supplies Of Essential Commodities At 1980, The Standards Of Weights And Measures Enforcement Act 1985, The Bureau Of Indian Standards Act 1986.

There was a need for a focused and strong law to ensure better protection of the interests of consumers and to save them from unfair trade practices and for this The Consumer Protection Act 1986 was enacted by the Indian Government. The motive is to make provision for the organization of consumer councils and other dominance for the arrangement of consumer disputes and matters connected therewith.

Landmark Judgements

The State Commission of Andhra Pradesh in the case of Narasamma v. LIC of India¹ on 20 March, 2018 decided that the widow of the insured is also a consumer and is entitled to benefits.

Morgan Stanley Mutual Funds versus Karthik Das², the court held that the person who has applied for shares cannot be called a consumer till the time the shares are allotted to him.

V. N. Shrikant v. Anita Sena Fernandes³, it was decided that in cases of medical irresponsibility, there is no strait waistcoat formula to decide when the consumer’s source of action arose. In the face of such trauma and pain, the applicant has been inadequate to come up with a clear statement for why she has not contacted her doctor for the past 9 years. The applicant’s actual claim for reimbursement is sabotaged by her tranquility. As an effect, the contested order was altered, and the applicant’s complaint was dispersed.

Springs Meadows Hospitals v. Harmony Ahluwalia⁴, The National Consumer Disputes Redressal Commission held that since the incumbent doctor and nurse were staff of the hospital, both were liable and reimbursed ₹12.51 Lakh to the child and ₹5 Lakh to the parents for genuine psychological trauma.

In the ultramodern times, the desires and beliefs of the consumer have advanced in the wake of rising knowledge and proliferation and thus the protection of the rights of consumers is foremost. The Consumer Protection act 1986 almost a three-decade-old act was replaced by a new Consumer Protection Act, 2019.

The difference between the Act of 1986 and 2019:

Consumer Protection Act 1986 – This Act was narrower in scope it covers only six types of Unfair/ Deceptive Trade Practices. There were no provisions for product liability, unfair contacts, alternative dispute resolution mechanisms, and E-commerce and direct selling. The role of the Central Protection Councils was to promote and protect the rights of Consumers. There were different committees prescribed for the selection of members in consumer dispute Redressal Commissions.

Consumer Protection Act 2019 – This Act is broader in scope it adds more than 3 new unfair trade practices and contains the provisions of Product Liability, unfair contacts, E-commerce, direct selling, and mediation/ alternative dispute resolution. The regulator by the name of the Central Consumer Protection Authority shall be established. The Central government has the power to appoint the members. This act has advisory bodies for the promotion and protection of Consumer rights. A person failing to comply with the orders of the commission can face imprisonment up to three years or a fine not less than Rs 25000 which may extend to Rs one lakh or both.

Conclusion

The Consumer Protection Act simply says that there should not be any restraint or bar to the rights of the customers. While explaining, it is simplified in such a way that the rights of the customers are safeguarded against the unfair trade practices in the market. Consumers should always be conscious of their rights. In some cases, Supreme Court asked the Commission to be broad-minded when constructing the law and take a sensible view of consumer rights. It’s good that the Consumer Protection Act of 2019 was sanctioned contemplating all the ongoing events but still, there is a need for genuine execution of the act. Still, many consumers in our country don’t know much about their legal rights and have a conception that the court work is time taking as a result of which they are in doubt to file the case. The Government of India should try to upskill the consumers on their legitimate rights and should also clarify the case filing structure.

Citations

¹ (1992) CPJ 128 (NC).

² 1994 SCC (4) 225, JT 1994 (3) 654.

³ [SC/0868/2010].

⁴ 1998(2) SCALE 456 (SC).

This article is written by Ashmita Dhumas, who has done her BA LLB from Agra College and is currently doing a diploma in Corporate Law from Enhelion.