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Awareness Regarding Law of Torts in India

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S.noContents
1.Introduction
2.Types and Features of Law of Torts in India
3.Principles of Torts in India
4.Lack of Awareness Regarding the Law of Torts in India
5.Implications of Lack of Awareness Regarding the Law of Torts in India
6.Various Steps to Increase Awareness Regarding the Law of Torts in India
7.Conclusion

Introduction

The law of torts in India is a complex and multifaceted area of law that governs civil wrongs or injuries caused to a person, property, reputation, or rights. This body of law has developed over time through judicial decisions, statutes, and other sources of law. Throughout history, the law of torts has evolved from homomorphic retaliation to compensatory damages, from negligent liability to multiple liabilities, from absolute liability to relative liability, and then to absolute liability. Since modern times, continental European law has established the status of tort law, while UK and US torts have flourished based on case law. In general, legal law has always had a remedial and preventive function, but the dominant functions have varied in different periods. However, tort has not flourished in India as rapidly as it should have. India largely inherited tort law from Britain, which introduced common law in India in the 18th century. In the quarter century following the 1857 rebellion, the legal system was rationalized and systematized. Mr Frederick Pollock drafted a Civil Law Bill in 1886 which was prepared for the Government of India, although it was never codified. 

Losses were common between 1914 and 1965 but were few and far between during those 52 years. This trend continued and it was found that there were fewer incidents of harm reported. In the current situation, the number of reported cases is increasing, but this is not a justified increase. It is not true that the court would not emphasize its importance, because individual cases have spoken about the right to compensation and its importance. In one such case, Jay Laxmi Salt Works (P) Ltd v State of Gujarat, the court said that “Indeed, the whole law of tort is founded and built on the moral that no one has the right to harm or injure others intentionally or even innocently. It would therefore be primitive to classify strictly or to close the ultimate horizon of tort liability, which is always expanding and growing. Even from the point of view of social development, orderly growth of society and cultural complexity, a liberal approach to damage liability by the courts is more favourable.

In this article, we will provide a detailed explanation of the law of torts in India, including its scope, principles, and remedies. The article with throw light on the basic aspects of the Law of Torts, with defining reasons why the Law of Torts are still ambiguous to the Majority of People in the Country and suggestions for improving it.

Types and Features of Law of Torts in India

Torts in India are primarily based on English common law, which has been modified by local legislation and judicial interpretations. The term “tort” comes from the French word “tort,” which means “wrong.” Torts are civil wrongs that are committed by one party against another, resulting in harm or injury. The injured party has the right to seek compensation or other forms of relief for the harm suffered. The Three prominent Types of Law of Torts are as follows:

Intentional Torts: Intentional Torts are those where the defendant intentionally or with a deliberate motive causes harm to the plaintiff. The harm may be physical, emotional, or financial. Examples of intentional torts include assault, battery, false imprisonment, trespass to land or property, defamation, and conversion.

Negligent Torts: Negligent Torts are those where the defendant’s conduct falls below the standard of care that a reasonable person would exercise under similar circumstances, and this conduct causes harm to the plaintiff. Examples of negligent torts include medical negligence, professional negligence, motor vehicle accidents, and premises liability.

Strict Liability Torts: Strict liability Torts are those where the defendant is held responsible for harm caused to the plaintiff, regardless of whether the defendant was at fault or not. In other words, the defendant is liable even if they did not intend to cause harm, and there was no negligence on their part. Examples of strict liability torts include product liability cases, where a defective product causes harm to the consumer, and liability for hazardous activities like transporting hazardous chemicals, where the harm caused cannot be avoided even with reasonable care

Principles of Torts in India

There are several key principles of tort law in India that help to define and clarify the scope of the law. Some of these principles include:

  • Duty of Care: The principle of duty of care holds that a person has a legal obligation to take reasonable care to avoid causing harm to others. This principle is central to many negligence torts, as it establishes the standard of care that a defendant is expected to meet.
  • Causation: Causation is the principle that a defendant’s conduct must have caused the harm suffered by the plaintiff. In order to establish causation, the plaintiff must show that their injury was a direct result of the defendant’s conduct.
  • Proximate Cause: Proximate cause is the principle that a defendant is only liable for harm that is reasonably foreseeable as a result of their conduct. This principle helps to limit liability to those harms that are closely connected to the defendant’s conduct.
  • Contributory Negligence: Contributory negligence is the principle that a plaintiff’s own negligence may contribute to the harm suffered, and may therefore limit their ability to recover damages.
  • Res Ipsa Loquitur: Res Ipsa Loquitur is a Latin term that means “the thing speaks for itself.” This principle applies in cases where the harm suffered is so obviously the result of the defendant’s conduct that no further proof of causation is necessary.

Lack of Awareness Regarding the Law of Torts in India

Despite the significance of tort law in India, there is a lack of awareness regarding this area of law. Many people are not aware of their rights and remedies under the law of torts, which can lead to a lack of accountability and redressal for wrongful conduct. There are several reasons for the lack of awareness regarding the law of torts in India:

  • Inadequate education and awareness: The first and foremost reason is the lack of adequate education and awareness about Torts laws in India. Most people in India are not aware of what Torts are and how they can be enforced. As a result, they don’t know how to seek compensation or take legal action in the event of an injury or harm caused by someone else’s negligence or intentional act.
  • Limited legal literacy: Legal literacy in India is limited, and there is a significant lack of knowledge about the legal system and its procedures. This lack of knowledge leads to people not knowing how to access legal resources or how to file legal claims, including Torts claims.
  • Poor enforcement: Another significant reason is the poor enforcement of Torts laws in India. There is a lack of judicial efficiency in India, with a large number of cases pending in courts. This leads to delays in settlement of claims, which discourages people from pursuing legal action.
  • Lack of legal aid: Many people in India do not have access to legal aid or representation, which makes it difficult for them to seek justice in the event of harm caused by others. This is especially true for marginalized and vulnerable populations, who are more likely to be victims of harm.
  • Limited media coverage: There is limited media coverage of Torts laws in India. The media often focuses on criminal cases, and civil cases, such as Torts cases, are not given much attention. This lack of media coverage contributes to the overall lack of awareness of Torts laws in India.

In conclusion, the lack of awareness of Torts laws in India can be attributed to several factors, including inadequate education and awareness, limited legal literacy, poor enforcement, lack of legal aid, and limited media coverage. Addressing these factors could help increase awareness and understanding of Torts laws and improve access to justice for those who have been harmed

Implications of Lack of Awareness Regarding the Law of Torts in India

The lack of awareness regarding the law of torts in India can have several implications that affect the working of the Law of Torts in the Country. Due to people’s wrong interpretation of the Law of Torts and their failing to understand these laws, the Law of Torts still poses to be an issue that is untouched. The implications can be as follows:

  • Denial of justice: One of the most significant implications of the lack of awareness regarding the law of Torts is the denial of justice. When people are not aware of their rights under the law of Torts, they may suffer harm without any remedy. This leads to a sense of helplessness among victims, who may not know how to seek compensation or take legal action in the event of harm caused by someone else’s negligence or intentional act.
  • Increased incidents of harm: Lack of awareness of the law of Torts can also lead to an increase in incidents of harm. People may not take necessary precautions or exercise due care to avoid causing harm to others if they are not aware of their legal obligations. This can lead to an increase in accidents and injuries, which could have been avoided if people were more aware of their legal responsibilities.
  • Burden on the legal system: When people are not aware of their rights under the law of Torts, they may not seek legal recourse in case of harm. This leads to a reduced number of cases being filed. However, this also puts a burden on the legal system as cases that could have been avoided or settled through alternative means end up in court, leading to longer wait for times and delays in justice.
  • Inefficiency in compensation: The lack of awareness of the law of Torts can also lead to inefficiencies in compensation. Victims may not know how to assess the damages they have suffered or what compensation they are entitled to under the law. This can lead to inadequate compensation or overcompensation, depending on the circumstances.
  • Negative impact on business and the economy: Lack of awareness of the law of Torts can also have a negative impact on business and the economy. Businesses that are not aware of their legal obligations may cause harm to customers, employees, or other stakeholders, leading to legal liability and financial losses. This can have a ripple effect on the economy, leading to reduced confidence among investors and consumers.
  • Inefficiency of the Legal System: The lack of awareness regarding tort law can lead to inefficiencies in the legal system as victims of wrongful conduct may not pursue legal action due to lack of knowledge.

Various Steps to Increase Awareness Regarding the Law of Torts in India

Increasing awareness regarding the law of torts in India is crucial to ensure that victims of wrongful conduct receive adequate redressal and that tortfeasors are held accountable for their actions. Here are some steps that can be taken to increase awareness regarding tort law in India:

  • Public education campaigns: Public education campaigns can be launched to increase awareness regarding the law of Torts. This can be done through media channels such as TV, radio, newspapers, and social media. The campaigns can be designed to target specific groups, such as consumers, employees, and business owners.
  • Workshops and training sessions: Workshops and training sessions can be organized for lawyers, law students, and other legal professionals to increase their knowledge and understanding of the law of Torts. This can help them provide better legal advice and representation to clients and ensure that justice is served.
  • Inclusion in school curriculum: The law of Torts can be included in the school curriculum to increase awareness among young people. This can be done by introducing the concepts of Torts and their implications in civics and social studies classes.
  • Collaboration with industry bodies: Industry bodies such as chambers of commerce and trade associations can collaborate with legal bodies and conduct awareness campaigns among their members. This can help ensure that businesses are aware of their legal obligations and can take necessary steps to avoid causing harm to others.
  • Legal aid clinics: Legal aid clinics can be set up in various cities and towns to provide legal advice and representation to those who cannot afford to pay for legal services. This can help ensure that people are aware of their legal rights and can seek legal recourse in case of harm caused by others.
  • Simplification of legal language: Legal language can be simplified to make it more accessible to the general public. This can help ensure that people are not intimidated by legal jargon and can understand their legal rights and obligations.

Conclusion

The law of torts in India is an important branch of civil law that governs civil wrongs or injuries caused to a person, property, reputation, or rights. Despite its significance, there is a lack of awareness regarding tort law in India. This lack of awareness can lead to a lack of accountability and redressal for wrongful conduct, an increase in wrongful conduct, and inefficiencies in the legal system. To increase awareness regarding tort law in India steps such as incorporation in legal education, public awareness campaigns, translation of legal material, legal aid services, and inclusion in the school curriculum should be taken. Despite the many areas where the public can go to court, Indian tort remains very underdeveloped and unexplored.

One reason that has remained unchanged in the past and present, which has caused the lack of tort cases, is the lack of codified legal laws, which creates a lot of uncertainty in the regulation and resolution of these cases. In addition, the lack of precedents is a problem, as few cases come to court. To promote this goal in a growing country like India, codification and general public awareness are necessary to inform them about their rights and the remedies available in case of violation of those rights. Local conditions must be vigorously addressed and assistance provided so that people can trust the laws. In addition, lawyers and judges who have played an important role in advancing tort law must continue to facilitate these cases.

 If these issues are taken care of, the law can certainly get a good hold in the Indian context due to the growing economic activities which may also involve large-scale violations. This would help give lay people the opportunity to seek redress for any wrong done to them and would be a much-needed development in legal proceedings. It is crucial that the general public is aware of their rights and remedies under the law of torts to ensure that they are protected from wrongful conduct and that tortfeasors are held accountable for their actions.

This article is authored by Rishaan Gupta, a 1st year Student at National Law University, Delhi.

Read More Articles on Similar topics:

  1. Development of the Law of Torts and the Role in Shaping Indian Judiciary, http://lexpeeps.in/development-of-the-law-of-torts-and-the-role-in-shaping-indian-judiciary/
  2. Law of Torts: An Overview, http://lexpeeps.in/law-of-torts-an-overview/
  3. Definitions and Development of Law of Torts, http://lexpeeps.in/definitions-and-development-of-law-of-torts/
  4. Relevance of Torts in Present Scenario, http://lexpeeps.in/relevance-of-torts-in-present-scenario/

Victims of Crime- Restoration and Legal Care under Indian Criminal Jurisprudence

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This article has been written by Nashrah Fatma, a third-year law student at the Faculty of Law, Jamia Millia Islamia.
This article aims to discuss the various aspects of victim restoration under Indian law.

1.INTRODUCTION
2.ORIGIN AND DEVELOPMENT OF VICTIMOLOGY IN INDIA
3.WHO IS A VICTIM?
4.COMPENSATION TO VICTIMS
5.VICTIM RIGHTS AND VICTIMOLOGY IN INDIA
6.RIGHT OF PRIVACY OF RAPE VICTIMS
7.CONCLUSION

INTRODUCTION

Crime affects a large number of people. It is a violation of interpersonal relationships. The criminals or perpetrators are punished for their criminal acts but the plight of the sufferers or victims of the crime cannot be ignored. Victimization refers to any form of pain endured by the victim of a crime experienced by a victim of an assault. When a victim reports a crime, law enforcement acts, and the victim’s journey through the criminal justice system begins. The trauma may worsen due to all these procedures in the criminal justice system, and re-victimization may also play a role. Victimology is the study of victimization, which includes a scientific analysis of the connection between the victim’s physical and psychological distress and the crime.

Benjamin Mendelsohn, a criminologist, is credited with being the first to use the term “victimology”. Between the 1940s and 1950s, he and his colleague Hans von Hentig examined victimology with a focus on what types of behaviours or qualities the victim exhibited that drew the attention of the offender and resulted in the victimization. They are regarded as the “Father of Victimology Study.”

Von Henting examined homicide victims and found that they were more likely to be of the “depressive type”, who were easy prey for criminals. Following this approach, another victimologist postulated that “many victims precipitate homicide was in reality caused by the unconscious inclinations of the victims to commit suicide”.

The criminal justice system has largely ignored the victims of crime, despite the fact that they frequently get support and help from their families, tribe, or community. Only recently have criminal law jurisdictions come to the realization that victims must be treated with empathy and that their basic rights and dignity must be safeguarded.

The scientific study of victimization, including the interactions between victims and offenders, the criminal justice system, the police, courts, correctional personnel, and victims, can be roughly referred to as victimology. However, the study of victimology is not just defined by these relations but also by other forms of human rights violations that are not necessarily crimes.

ORIGIN AND DEVELOPMENT OF VICTIMOLOGY IN INDIA

The goal of the criminal justice system in India during the early Vedic era was not only to punish offenders but also to make amends for the victims. Throughout the Mughal and British periods of Indian history, the focus was more on punishing perpetrators than providing victims with compensation. The only things the criminal justice system cared about were guiding offenders and attempting to change them. However, since the 1980s, and mainly as a result of legal action, the protection of victims has garnered more attention.[1]

WHO IS A VICTIM?

The victim as defined by Section 2(wa) of the Code of Criminal Procedure is as follows: ‘Victim’ refers to a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged, and the victim includes his or her guardian or legal heirs. The concept of victim includes any person who experiences an injury, loss, or hardship due to any cause.[2]

The primary victims are those who are most directly impacted by the offence, but there are also other victims, including witnesses, members of the affected community, and family members of both the victims and the offenders. It is imperative to address the relationships that were impacted by the crime. Responses to the variety of needs and damages felt by victims, offenders, and the community constitute restoration.

COMPENSATION TO VICTIMS

Traditionally, compensation was awarded according to the principle “Ubi remedium ibi jus” (where there is a remedy, there is a right principle. Criminal law was not a concept in any prehistoric culture. Every crime, including murder, might be made up for financially. Every crime was, in fact, a civil wrong rather than an offence against society as a whole. The phrase “Ubi Jus ibi remedium” -where there is a right, there is a remedy” holds true in the present times. The idea of compensation nowadays is that no one should go without compensation.[3]

There are some general and specialized laws with provisions relating to compensatory relief in India.

Sections 357 (1) and (2) of Cr.P.C. empower the trial court to award compensation to the victims of crime. The compensation provided in S. 357(1) includes costs, damage, or injury, suffered or loss caused due to death or monetary loss incurred due to theft or destruction of property, etc. Similarly, Sec.357-A is inserted by Amendment Act 2008 in Cr.P.C. and it provides a scheme relating to victim compensation. Accordingly, every State Government is required to prepare a scheme for providing funds for the purpose of payment of compensation to a victim or his dependent who has suffered any loss or injury due to the crime.

The current criminal justice system is predicated on the idea that the conviction of the offender is sufficient to recognize the rights of a crime victim. The Ministry of Home Affairs Committee on Reforms of the Criminal Justice System, chaired by Justice Dr. V.S. Malimath, recognized “justice to victims” as one of the core principles of Indian criminal law in its Report presented to the Government of India in March 2003. By permitting, among other things, involvement in criminal processes as well as compensation for any loss or injury, it suggests a comprehensive justice system for the victims.

Victimology was not formally acknowledged as a branch of criminology until the 1970s. The founding of the World Society of Victimology by criminologist Hans Schneider in 1979 was one of the significant turning points in the history of victimology. It is presently a nongovernmental, nonprofit organization with Special Category consultative status with the Council of Europe and the Economic and Social Council (ECOSOC) of the United Nations.[4]

As the word implies, victimology is the study of victims. The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985, defines a “victim of crime” as a person or group of persons who have been harmed, individually or collectively, by acts or omissions that violate criminal laws in effect within the Member States, including those laws proscribing criminal abuse of power.[5]

VICTIM RIGHTS AND VICTIMOLOGY IN INDIA

Victims’ rights have been given recognition by the Indian Criminal Jurisprudence. By submitting an F.I.R. under Section 154 of the Code of Criminal Procedure or a complaint before the Magistrate under Section 200, the victim or any other person initiates the legal process. The victim has the right to be present at every process, including the bail application, the investigation, the inquiry, the trial, and any future sentencing or parole hearings. It recognizes the harm done to the victim as well as his interest.

When an F.I.R. is filed, the police launch an investigation. However, the police cannot begin an investigation if there is a report of an offence that is not cognizable without the consent of a magistrate who has the power to try the case or commit it for trial. The office in charge of the Police Station need not go in person or appoint a subordinate officer to conduct an inquiry immediately in the case of a cognizable offence when the information is presented against any person by name and the situation is not serious. Officer-in-Charge of the Police Station shall not examine the case if it appears that there is insufficient justification for opening an investigation.

Additionally, the option to complain to the Magistrate has been provided. A magistrate who receives a complaint about an offence must examine the complainant and any present witnesses.

RIGHT OF PRIVACY OF RAPE VICTIMS

In numerous instances, the privacy of the victims is infringed. Their name or place of residence is made public which may cause them to suffer even after restoration or rehabilitation. The Supreme Court, in Raja Gopal’s case,[6] observed that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing, education, etc. because the right to privacy is inherent in the right to life and liberty guaranteed under Article 21 of the Constitution. However, despite the fact that the CrPC specifically states that rape cases must be tried in secrecy, the privacy of the victim is breached throughout a criminal prosecution. In Gurmeet Singh’s case, the Supreme Court was forced to reiterate the law as it is stated in Section 327 of the CrPC.[7]

A victim may be authorized to instruct a pleader as a prosecutor in any Court pursuant to Section 301(2). In such a case, the prosecution will be handled by the public prosecutor or assistant public prosecutor in charge of the case.
Section 12 of The National Legal Service Authority Act, of 1987 reinforced the idea of free legal aid. It provides that every person who has to file or defend a case shall be entitled to legal services under this Act if that person is a Scheduled Caste or Scheduled Tribe member, a woman, a child, a person who is mentally ill or otherwise disabled, an industrial worker, a victim of a major disaster, or a person in custody of a protective home as defined by clause (g) of Section 2 of the Immoral Traffic (Prevention) Act, 1956 and people whose annual income is less than Rs. 9,000 or another higher amount that may be prescribed by the State Government if the case is before a court other than the Supreme Court, and less than Rs. 12,000 or another higher amount that may be prescribed by the Central Government if the case is before the Supreme Court.[8]

In the State of Himachal Pradesh v. Prem Singh,[9] the Supreme Court has held that the delay in lodging F.I.R. in a case of sexual assault cannot be equated with a case involving other offences. There are several matters that weigh the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint and in such cases of sexual assault, the victim’s psychological and mental torment should definitely be considered.

In India, the higher courts have traditionally taken great care to ensure that victims of crime receive compensation. Since the Supreme Court’s formation, the first instance in which a person received monetary compensation for the violation of one of his or her fundamental rights was the case of Ruddal Shah v. State of Bihar[10] that a person is entitled to compensation for the loss or injury caused by the offence, and this includes the victim’s wife, spouse, parents, and children. The ruling, in this case, is a landmark one since it sparked the development of compensatory jurisprudence for constitutionally protected fundamental rights violations. It is significant in this regard that this verdict was based on the Court’s interpretation of the Indian Constitution and that there is no clear provision in the text of the Indian Constitution for awarding compensation and that this judgment was on the basis of the Court’s interpretation of the extent of its remedial powers.

In the case of Bhim Singh v. State of Jammu & Kashmir,[11] the court ordered a compensation of Rs. 50,000 to the petitioner, a member of the Legislative Assembly, for the violation of his legal and constitutional rights after finding that he was maliciously and deliberately detained and arrested by the police in order to prevent him from attending the assembly session. The court observed that the malicious intention of the arrest and detention is not washed away by his later release.

The victim or his family cannot be neglected by the court in its efforts to uphold and defend the human rights of the convict if the victim dies or becomes otherwise unable to support himself as a result of the convict’s criminal act. The victim is certainly entitled to reparation, restitution, and safeguarding of his rights. In the criminal justice system, a victim of a crime cannot be ignored. He has endured the most hardship. His family is completely destroyed, especially in the event of death or severe physical harm. This is in addition to considerations like humiliation and reputational damage. An honour that is lost or a life that is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace. This was observed in the case of the State of Gujarat v. Hon’ble High Court of Gujarat.[12]

For a variety of reasons, witnesses and victims of crime are hesitant to cooperate with the criminal justice system and actively participate in court procedures. When called to the police station for questioning, witnesses are scarcely ever treated with respect. Additionally, they do not receive any compensation in the form of TA and DA reimbursement, as required by section 160(2) of the CrPC. The court’s repeated adjournments of cases, the subordinate courts’ lack of basic amenities, and the failure to pay TA and DA for witnesses’ attendance in court all cause a significant amount of difficulty for the witnesses. The prosecution would brand the witnesses hostile for not backing the statement recorded by the IO or the overzealous defence attorney would browbeat them for being questioned after a long interval of 5 to 10 years after the incident.

The limitation of the aforementioned legal provisions is that when the accused is exonerated of the allegation, which occurs in roughly 93% of instances in India, compensation cannot be granted by the court. The United Nations General Assembly has advised states to compensate crime victims when the criminal or other sources are unable to provide it in full. The urgent needs of crime victims are not being addressed by Indian legislators. Despite being required to comply with the terms and conditions of the International Covenant to Protect Human Rights and Fundamental Freedoms, India has not passed any legislation to provide compensation to the victims when the accused is found not guilty by a criminal court. As a result, the victims of racial strife, dacoity, arson, rape, etc. are not receiving any recompense.[13]

CONCLUSION

The study of victims in the contemporary criminal justice system and providing restoration remains the sole focus of mainstream victimology. This emphasis has affected how crime is measured and the role that victims play in addition to increasing awareness and understanding of crime victims. Additionally, society as a whole is morally responsible for the crime because it is a result of some unfavourable socioeconomic conditions. If the State fails to eliminate certain issues from society, it must provide compensation.

Organized crimes, such as drug trafficking, shootings, money laundering, extortion and murder for rent, fraud, and people trafficking, in particular, are rapidly raising the crime rate in India. A survey indicates that every two minutes, a crime against a woman is reported in India. The data emphasize how vital it is to create effective law and order in the country and suitable victim compensation mechanisms.

References

  1. L. D. Dabhade & N. A. Qadri, Present Scenario of Contempt and Development of Victimology in India, 2 IJRSSIS 61-64 (2015).
  2. Ibid.
  3. Ibid.
  4. Ibid.
  5. Ibid.
  6. (1994) 6 S.C.C. 632 (India).
  7.  (1996) 2 S.C.C. 384 (India).
  8. Ibid.
  9.  2009 Cr LJ 789 (S.C.).
  10. (1983) 4 S.C.C. 141 (India).
  11. (1985) 4 S.C.C. 677 (India).
  12.  (1998) 7 S.C.C. 392 (India).
  13. R K Bag, Perspectives in Victimology in Context of Criminal Justice System, 41 JILI 78 (1999).

Consumer Protection: Through The Modern Indian Spectrum

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“A market without consumers will be a night sky without the stars and moon.”

The Concept Of Consumer Protection

The consumer movement started in developed countries almost a century ago.  An American businessman was once quoted saying, “God created masses of mankind to be exploited. I exploit them. I will do his will.” This, though may not be the approach of every business person, is by and large true and hence proves the need for Consumer protection. Consumer protection guidelines or consumer protection laws came up as an answer to the malignant exploitation which the consumers faced at the hands of sellers and businessmen. 

Previously it was the buyer’s duty to carefully examine goods for any defects or deficiencies before buying them. This was a time when the maxim “Caveat Emptor” was followed, meaning “let the buyer be aware.” However, gradually it was noticed that since there was no way by which a consumer could know or identify any inherent defect in a product (due to reasons such as lack of knowledge), they were being taken undue advantage of by the sellers. This resulted in the consumer movement. Protests and campaigns worldwide finally resulted in the shift from “Caveat Emptor” to “Caveat Venditor,” meaning, “let the seller be aware. Thus the obligation slowly shifted from the buyers to the sellers. 

Consumer Protection In India

The Government had enacted various legislations for protection of the interest of the consumers after independence including, The Prevention of Food Adulteration Act 1954, The Standard of Weights and Measures Act 1976, The Bureau of Indian Standards Act 1986, The Monopolistic Restrictive and Unfair Trade Practices Act, 1969. However, India still lacked comprehensive legislation benefiting the interests of the consumers. Consumer Protection Act, 1986 was the first step towards safeguarding the rights of consumers in India. It guaranteed some fundamental rights to the consumers, which are explained as follows:

RIGHT TO SAFETY

This right confers the consumers with the power to insist on the quality of goods before buying them. They have the right to be protected against the marketing of hazardous goods and services. Consumers must buy products marked with ISI, AGMARK.

RIGHT TO BE INFORMED

Consumers have a right to be informed about the quality, quantity, standard, potency, and price of the goods as a means of protection from unfair trade practices.

RIGHT TO CHOOSE

Access to a variety of goods and services at a competitive price also is a right of the consumers. In the case of monopolies, the consumers must be ensured of a good quality of product at a fair price and must be protected from any unfair advantages which the seller might try to take. 

RIGHT TO BE HEARD

The consumers have a right to voice their grievances at consumer forums and receive due compensation for any damages incurred.


RIGHT TO SEEK REDRESSAL

The rights to a fair settlement in cases of a genuine grievance and protection against unfair trade practices or exploitation of consumers have also been guaranteed under this Act.

RIGHT TO CONSUMER EDUCATION

 To successfully implement the goal of consumer protection, consumers must be made aware of their rights and ways in which they can exercise them effectively. Rural consumers need special attention in this aspect as they face the most exploitation on account of lack of awareness.

The same Act also introduced a three-tier grievance redressal mechanism. Unfortunately, people in India, less aware of their rights as well as remedies, could not utilize the provisions to their full advantage. To correct this problem, the Government has undertaken measures to educate the consumers about their rights. One such popular campaign was ‘Jago Grahak Jago’ in 2005, which aimed at creating awareness on consumer protection.

Throughout the last decade we have seen an evolution in the ways of trade. As online shopping portals became the go-to place for an increasing number of people, the Parliament realized the loophole in the present Consumer Protection Act, 1986, as it did not cover online transactions. The legislature’s objective was to leverage the power of consumer protection, which had previously been limited to products and services under the Consumer Protection Act of 1986, to include complaints and difficulties stemming from the expansion of virtual markets. The legislature, keeping in mind all the new provisions that needed to be added to keep pace with the digital age, scraped the old statute and enacted the Consumer Protection Act, 2019 which included new concepts such as e-commerce, product liability, mediation, and the establishment of a Central Consumer Protection Authority as an executive authority for settlement of all consumer grievances. 

E-Commerce And Its Inclusion

Under Consumer Protection Act, 2019, e-commerce has been defined as “means buying or selling of goods or services including digital products over a digital or electronic network” Unlike the previous legislation, it includes all online transactions shielding customers of online shopping portals from getting cheated or online frauds. Liabilities such as maintaining a fair trade practice, reimbursing or compensating consumers in return for products, and correct and accurate advertising of products were placed on e-commerce entities and online sellers. Also, incorporating all e-commerce organizations under the Companies Act, 2013 was made compulsory through this Act. 

The new Act has enhanced consumer rights by making e-retailers more accountable and creating a transparent redressal procedure, which has helped customers in making more informed decisions when purchasing products and services. Effective implementation of rigorous restrictions, as well as penalties and punishment, has acted as a catalyst in deterring the producers and retailers from using dishonest and exploitative practices. In addition to this, convenient grievance resolution mechanisms have encouraged more consumers to engage in online transactions and strengthened consumers’ confidence in e-retailers, finally resulting in the development of this sector and an increased flow in profits.

Product Liability Under CONSUMER PROTECTION ACT, 2019

Under Chapter VI of the Consumer Protection Act, 2019, the concept of product liability has been defined. It was not previously included in the 1986 act and is a new addition in order to make the product manufacturers, sellers, and service providers more stringently liable against any defective product sold or poor service delivered. This concept was developed based on the maxim of “Caveat Venditor” Under the following circumstances, and if any harm is suffered by a consumer, they can bring in liability action against the manufacturer or seller:

  1. If a product contains any manufacturing defect or is defective in design
  2. It does not conform to the express warranty
  3. The product does not have sufficient information about the correct method of usage or any warning against any potential harm or injury that could be suffered on account of any incorrect use. 
  4. In the case of a service provider, if he was negligent in providing the service, which resulted in an injury to the consumer, or the service delivered was deficient and inadequate, he could be made liable.
  5. A product seller can be made liable in cases where he had a substantial amount of say over designing, manufacturing, packaging, or labeling of the product that caused harm.
  6. If a product seller altered or modified the product while selling it, then also he could be made liable.

One important point to note is that the liability of the product manufacturer is absolute under all circumstances. Even if he claims to have taken substantial care and there was no negligence on his part, he cannot escape his liability. In comparison, there are certain exceptions allowed to product sellers. In cases where at the time of the accident, the product had been altered or misused, the product seller cannot be made liable.

The Supreme Court, in a case, pointed out that in issues relating to Product Liability, the court will adjudge the matters based on the facts and the evidence presented in the court of law.

Mediation Under CONSUMER PROTECTION ACT, 2019

Alternative Dispute Resolution methods have become an increasingly popular method of settling disputes in the corporate sectors. Through the 2019 act, the Government allowed mediation to be used as a process for addressing the grievance of consumers. In the case of Afcons Infrastructure Ltd v. Cherian Varkey Construction Co. (P) Ltd, the Supreme Court ruled that all the matters related to commerce, trade, consumer dispute, or contract could be mediated. It is placed a duty on the State Government to establish mediation cells, the mediating officers of which, while moderating a case, must follow the principles of natural justice. 

The guidelines to be followed in the process of mediation were laid down by the Supreme Court in the case of Bijoy Sinha Roy V Biswanath Das & Ors. According to the guidelines, if at any point while hearing the consumer disputes, the officer feels that such an issue can be effectively settled through mediation, then with the consent of both the parties, it can be referred for mediation. 

Conclusion

The Consumer Protection Act, 2019, in its true sense, has made it easier for consumers to voice their dissatisfaction with products or services obtained and get remedies for the same. The inclusion of online sale services and the introduction of settlement dispute mechanisms such as mediation have made a positive impact. Also, the undertaking of campaigns to create awareness among consumers has resulted in an informed citizenry resulting in less exploitation of consumers.

The article is written by Debasmita Nandi, a first year law student of CHRIST (DEEMED TO BE UNIVERSITY), LAVASA.

The article is edited by Shubham Yadav, pursuing B.com LL.B. (4th Year) from Banasthali Vidyapith.

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