#lawschool Archives - Page 22 of 55

Introduction

What is Collegium Framework?

The Collegium Framework is a framework under which arrangements/height of judges/legal counsellors to the High Court and moves of judges of High Courts and Summit Court are chosen by a gathering of the Central Equity of India and the four senior-most adjudicators of the High Court.’ There is no notice of the Collegium either in the first Constitution of India or in progressive corrections.

The suggestions of the Collegium are restricting the Focal Government; assuming the Collegium sends the names of the appointed authorities/attorneys to the public authority for the subsequent time.¹

What does the Constitution really recommend?

Article 124 arrangements with the arrangement of Justices for the highest court. It says the arrangement ought to be made by the President after conference with such appointed authorities of the Great Courts and the High Court as the President might consider significant. The CJI is to be counseled in all arrangements, aside from their own. Article 217 arrangements with the arrangement of High Court judges. It says an appointed authority ought to be designated by the President after counsel with the CJI and the Legislative leader of the state.

The Main Equity of the Great Court concerned too ought to be counselled.²

What are the Techniques for Legal Arrangements

For the Chief Justice of India

The Leader of India delegates the CJI and the other SC judges. Taking everything into account, the active CJI suggests his replacement. Practically speaking, it has been stringently by rank since the supersession debate of the 1970s.

For Supreme Court Judges:

For different adjudicators of the SC, the proposition is started by the CJI. The CJI counsels the remainder of the Collegium individuals, as well as the senior-most adjudicator of the court hailing from the High Court to which the suggested individual has a place. The consultees should keep their viewpoints recorded as a hard copy and it ought to frame part of the document. The Collegium sends the suggestion to the Law Pastor, who advances it to the Head of the state to prompt the President.

For Chief Justice of High Courts:

The Main Equity of the Great Court is delegated according to the approach of having Boss Judges from outside the particular States. The Collegium accepts the approach the rise. High Court judges are suggested by a Collegium containing the CJI and two senior-most adjudicators. The proposition, be that as it may, is started by the active Boss Equity of the Great Court worried in conference with two senior-most partners. The suggestion is shipped off the Main Clergyman, who encourages the Lead representative to send the proposition to the Association Regulation Priest.³

Evolution of system

First Appointed authorities Case, 1982

A request was documented in 1982 in the High Court of India which is known as the S.P.Gupta Case or First Adjudicators case. The High Court examined 2 significant focuses during the procedures of this case

At the point when found out if “conference” in the protected article 124 actually implies “simultaneousness”; the High court overruled this and denied saying that Counsel doesn’t mean simultaneousness. The President not will undoubtedly go with a choice in view of the counsel of the High Court.

The court expressed discussion under Article 124 doesn’t mean simultaneousness (unanimity). In view of this judgment, the President isn’t limited by CJI’s recommendation.

One more significant point in the conversation, for this situation, was the part where the High Court concluded that a High Court Judge can be moved to some other high court of a state even despite his desire to the contrary.

Second Appointed authorities Case, 1993

One more request was documented in 1993 by the High Court Backers on Record Affiliation (SCARA). For this situation, the High court overruled its previous decision and changed the significance of meeting to simultaneousness. Hence restricting the Leader of India with the interviews of the Main equity of India.

Further CJI is expected to figure out its recommendation in view of a collegium of judges comprising of CJI and two senior-most SC judges

This brought about the introduction of the Collegium Framework.

Third Appointed authorities Case, 1998

In the year 1998, the official reference to the High court was given scrutinizing the importance of the word counsel in articles 124, 217, and 222 of the Constitution.

The court extended the collegium to a five-part body to incorporate the CJI and the four senior-most adjudicators of the court after the CJI.

The central equity won’t be the only one as a piece of the interview interaction. Interview would incorporate a collegium of 4 senior-most adjudicators of the High court. Regardless of whether 2 of the appointed authorities are against the assessment, the CJI won’t prescribe it to the public authority.⁴

Need for Collegium Framework

It isolates the legal executive from the impact of the leader and administrative. This guarantees unbiased and autonomous working. Thus, the collegium framework reinforces the standard of partition of abilities (no organ of State ought to mediate in the working of another).

The State is the principal disputant in Indian Courts. Around 46% of absolute cases forthcoming in India relate to the public authority. In the event that the ability to move the adjudicators is given to the chief, the apprehension about the move would block equity conveyance. The chief organ isn’t a subject matter expert or doesn’t have the information in regard to the necessities of the Adjudicator. Consequently, it is better if the collegium framework chooses Judges.

The political weakness in India-The public authority dealing with the exchanges and arrangements is inclined toward nepotism. For instance, there are more than adequate measures of confirmation where the government workers were moved for political increases. This can’t be plausible with the present collegium framework. Further, the collegium framework gives dependability to the adjudicators.⁵

Analysis of Collegium Framework

Non-straightforward – There is no open information on how and when a collegium meets, and how it takes its choices.

No endorsed standards – It is viewed as a shut entryway undertaking with no recommended standards in regard to qualification measures or even the choice system.

Contrary to the standards of Regular Equity – The legal framework wherein Judges choose to decide contrary to the standards of Normal Equity has made an imperium in imperio (domain inside a realm) inside the High Court.

Can only with significant effort decide merit – The other proviso with the framework is in regards to the value of judges which can’t be discovered simply based on rank.

Past interpretive purview – The law commission report said that expansion of words like ‘collegium’ isn’t reasonable under the interpretive ward of the High Court. On the off chance that the constitution creators had expected the development of a council for the arrangement of judges, they would have explicitly accommodated a similar in the actual constitution.

Anxiety toward nepotism and individual support – Regulation Commission of India 2009 condemning the collegium framework said that nepotism and individual support are common in its working.⁶

Conclusion

It is obvious to see that there is no responsibility in the arrangement of judges. On one hand, the collegiums framework limits the obstruction of the chief in the arrangement cycle which is great since the legal cerebrum can pass judgment on the skill of an individual in regulation, however then again the arrangement of judges under this framework is totally non-straightforward and the benefits and bad marks of a competitor are likewise not recorded which makes the joke of the whole legal interaction. The Leader of India has really been stripped of his power by the SC. Since, he must choose the option to acknowledge the name, even after he dismissed it once, assuming that it’s repeated by the Collegium. Then he will undoubtedly acknowledge. That unequivocally occurred on account of KM Joseph, whose name was dismissed by the President between alia on the grounds of being excessively junior (42nd among HC judges); yet he was force selected by the collegium. The collegiums framework allies might contend that this is the most ideal way since it keeps the supremacy of the legal executive however there is a need to change the ongoing procedure for selecting the adjudicators to the higher legal executive. The collegiums framework should not see itself over the protections of straightforwardness and responsibility as they are the foundation of a majority rules government.⁷

References:

This article is written by Cheshta Bhardwaj, from Delhi Metropolitan Education (GGSIPU).

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Is the consumer king?

A positive relationship between producers and consumers is necessary for the economy. A person who utilizes a good or service offered by a producer or provider of services is referred to as a consumer. If a product or service needs to survive in the market, the consumer must like it. Its shelf life in the market is too brief if it does not meet consumer expectations. Therefore, the customer is king.

But many a time, consumers are fooled by following practices that are derogatory towards them. Such practices need to be checked and removed from the market so that the economy can flourish.

To ensure this protection, Parliament enacted the Consumer Protection Act of 1986. After a lot of amendments to the Act of 1986, it was observed to be necessary to enact a new Act for the protection of consumers as per the present conditions prevailing in the market. The Consumer Protection Act of 2019 became the official name of this legislation, and it became effective on August 9. A repeal of the Act of 1986 was made by Section 107 of the Act of 2019.

The preamble to the Act itself is enough to know the objective of the Act which states that the Act is enacted for the protection of the consumers and to provide for the establishment of the authorities under the Act for its better execution.

Who is a consumer?

The term “consumer” shall have the meaning given in sub-section (7) of section 2 of the Consumer Protection Act of 2019.

If someone purchases any goods for consideration,
- Paid
- Promised to be paid
- Partial payment and partial promise.

It also covers anyone using such products with the buyer’s consent. It excludes anyone who bought the goods with the intention of reselling them or using them for business.

OR

any service is hired or made available for payment.
- Paid
- Promised to be paid
- Partly paid
- Partially paid and partially promised to pay.

Additionally, it covers anyone who makes use of the aforementioned services with the consent of the person who hired the service.

It excludes anyone who makes use of such a service for profit.

“Commercial purpose” as provided in the explanation to the above section not to include any use of such goods or services exclusively used by him for livelihood, employing self-employment.
The terms “buys any goods” and “hires or avails any services” refer to both offline and online business dealings involving teleshopping, direct selling, and multi-level marketing.

In Dinesh Bhagat v. Bajaj Auto Ltd¹, the scooter purchased was under the possession of the buyer’s friend right from the time of purchasing with the approval of the original buyer. The court rejected the respondent’s contention that the appellant is not a consumer since the scooter was not booked in his name, and held that the appellant had the approval of the original buyer to use the good and hence included in the definition of consumer.

In Smt. Pushpa Meena v. Shah Enterprises (Rajasthan) Ltd², the appellant purchased a jeep to use as a taxi. The use of a jeep as a taxi was included under the expression “commercial purpose” by the Rajasthan State commission.

So it is eminently clear that the legislators wanted to exclude big business from the definition of the consumer. This is because the goods are used by the business entities as the raw material or asset for producing other goods or services. Hence they are not to be considered consumers even though they purchase goods.

If the goods are used by the purchaser for his self-employment even if he employs two or three people for such self-employment, he is to be considered a consumer. This is because the legislature intended to save the small consumers from being betrayed and it also helps in the promotion of the trade.

Rampion Pharmaceuticals v. Dr. Preetam Shah³ is a case where the National Commission rejected the argument by the appellant that respondent is a professional and has used the machine for commercial purposes and held that the respondent, a medical professional is not running a huge hospital and only working as a professional for self-employment, therefore he is to be included in the definition of the consumer.

There is a plethora of cases in which the dispute was made on the buyer being included in the definition of the consumer or not. This point of law is so much important because if the purchaser of the goods succeeds in maintaining its status as a consumer, all the rights provided under the Act come to the rescue of such person. Similarly, the seller argues against holding a such status of the consumer to the purchaser to avoid liability under the Act.

What are the rights given to the consumer under the Act?

Sub-section (9) of Section 2 of the Consumer Act, 2019 provides for consumer rights.

1. Right to safety: The consumer is protected against marketing goods and services hazardous to life and property. The consumer has the right to know the ill effects of using such goods. A clear warning or instruction as to how to use such hazardous goods or services. Not only this, but if the manufacturer becomes aware of the ill effects of the goods after they are sold to the consumer, the seller has to inform the consumers about such hazards. The consumer is protected against such hazards. If the goods are hazardous even if they are used with precautions, the sellers or manufacturers must recall such goods and replace them, or provide compensation to the consumer.

a. Section 90 provides the punishment if the manufacturer, seller, distributor, storekeeper, or importer deals with any product containing adulterants and

i. If The consumer is injured, then imprisonment extends to 6 months, and a fine extends to 1 lacs.
ii. Injury is not grievous, then imprisonment extending to 1 year and fine extending to 3 lacs.
iii. Injury is grievous, then imprisonment extending to 7 years and fine extending to 5 lacs. This offence is cognizable and non-bailable.
iv. Death of the consumer will fetch imprisonment which shall not be less than 7 years but which may extend to life imprisonment and also to a fine which shall not be less than 10 lacs. This offence is cognizable and non-bailable.

b. Similarly, under section 91, different punishments are provided for spurious goods.

i. Injury is not grievous, then imprisonment extending to 1 year and fine extending to 3 lacs
ii. Injury is grievous, then imprisonment extending to 7 years and fine extending to 5 lacs. This offence is cognizable and non-bailable
iii. Death of the consumer will fetch imprisonment which shall not be less than 7 years but which may extend to life imprisonment and also to a fine which shall not be less than 10 lacs. This offence is cognizable and non-bailable.

c. Suspension of license up to 2 years is also a punishment on first conviction and cancellation of the license on second or subsequent conviction besides the above-mentioned punishments either under section 90 or section 91.

2. Right to information: The quality, quantity, potency, purity, standard, and price of goods or services is to be informed to the consumers to curb unfair trade practices. Information is wealth in this world. When the consumer is informed about the products or goods provided by the manufacturer, the consumer will have more autonomy in making the decisions regarding choices of purchasing different goods provided by a different manufacturer in a segment. This right also ensures competition in the market.

a. If any service provider or manufacturer misleads or gives false information as an advertisement that is prejudicial to the interests of the consumers is liable to be punished with imprisonment extending to 2 years and a fine extending to 10 lacs under section 89.

b. Subsequent offence under section 89 will lead to imprisonment extending to 5 years and a fine extending to 50 lacs.

3. Right to choose: the consumer is provided with the right to choose from a variety of goods as per his/ her requirements. The consumer is not to be forced to use a particular good. This can be ensured by fair competition in the market.

4. Right to statutory remedies: The consumer Protection Act, 2019 has provided for the statutory forums to look into the redressal of the consumers. Different authorities have been made under the Act to recognize the grievance of the consumer, These authorities are:

National Consumer Dispute Resolution Commission (NCDRC) at the national level
State Consumer Dispute Resolution Commission at the state level
District Consumer Commission at the district level

These authorities are quasi-judicial. Rule of evidence does not apply in the proceedings under these authorities in a strict sense and principles of natural justice are observed in these bodies. Hence there is no need to consult legal counsel for such matters. No fee is required up to the limit of Rs. 5 lacs for filing the complaint under the Act. Acknowledgement of the complaint is mandatory within 48 hours of receipt of the complaint. The only requirement is for being a consumer in the strict sense of the Act.

5. Right to awareness: The statutory bodies are duty-bound to disseminate the information and practices of the market to the consumers through a public forum. Section 5, section 7, and section 9 under chapter II of the Act ask the central council, the state council, and the district council respectively for advice on the protection and promotion of consumer rights within their jurisdictions.

6. Right to sue: The consumer is eligible to sue the seller who sold him the goods. If there is a manufacturing defect in the goods sold by the seller, the consumer has the right to sue the seller as well as the manufacturer.

To protect these rights, the Consumer Protection Act provided under section 17, that the consumer may register a complaint

whose rights are violated;
against the unfair trade practices
false or misleading advertisements prejudicial to their interests as a class;

in writing or electronic mode to

District Collector or
Regional commissioner’s office
Central authority’s office.

In Section 83 under chapter VI, the complainant is entitled to bring a product liability action against the product manufacturer and product seller for any harm caused due to the defect in the goods sold to the consumer, provided the product is not misused, altered, or modified as provided under section 87