Safeguarding Consumer Interests

SANJOG MAHESHWARI

                                                           

                                                CONSUMER IS NOT THE KING!

                                                                                                                -SANJOG MAHESHWARI

              Not long ago, in a consumer case, taking cover under Article 227 of the Constitution, ICICI Bank managed to obtain a stay order from the Hon’ble Delhi High Court on the order passed by the Hon’ble State Consumer Commission who had asked it to pay Rs 55 lakh to an aggrieved consumer as punitive damages for its act of employing goons to recover money from him who had taken loan from the bank.  In the process, the goons employed by the bank as recovery agents, bashed up and inflicted grievous injuries on the driver of the car- a friend of the consumer besides seizing the vehicle from him.

              Article 227 confers on the High Court the Power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Clause (2) and (3) of the Article invest it with the power to make rules, prescribe forms and settle the tables of fees to be allowed to the workers, officers, practicing advocates, attorneys and pleaders of such courts as may be under its jurisdiction exercisable in a manner not inconsistent with the provisions of any law for the time being in force, and shall require the previous approval of the Governor.” (Emphasis provided)

              The apparent intention here seems to keep the proceedings and justice delivery mechanism of Consumer Courts, or for that matter other such specific purposes courts conceptualized, created and subjected to functioning under the provisions of specific purpose legislation, free from the corruption-contaminated civil court culture- a Raj legacy.  While there are multiple reasons that made way for this culture to seep-and that too in a very big way and substantially- in the working and system of the consumer courts that function under Consumer Protection Act and Rules as well, the main culprit is the presence of advocates and lawyers in these courts whose main claim to fame and fortune lies in employing dilatory tactics, seeking frequent adjournments and exploiting technicalities and loopholes in a legislation to purposefully evade and/or avoid imminent court decisions not favouring their rich and powerful clients. The ICICI case cited above is not an exception. While the above example is just illustrative and by no means purported to be an exhaustive one and there are technicalities galore frequently employed to snub genuine consumer interests in every consumer fora as well all over the country, it invariably happens every time some Mighty and Powerful is involved in a consumer dispute- and they involve too frequently to the comfort of the poor, middle-level consumers pitted against them for the very obvious reasons that more than 80% of the Services are provided by giant organizations whether in Public Sector or in Private Sector for whom the rule of law does not seem to exist. Those who are Somebody do not need courts of law as their interests are automatically taken care of without requiring them even to lift their little finger.

              Further, Section 21 of the Consumer Protection Act, 1986 (as amended up to date), inter-alia,  prescribes that the National Consumer Commission shall have the jurisdiction to entertain  appeals against the orders of any State Commission, and call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Besides this u/s 24 B, ibid, it also exercises administrative control over all the State Commissions in certain matters.

It would thus appear that while the power of superintendence of all courts and tribunals functioning in the territory of its jurisdiction is vested (confined to prescribed areas) in the High Court, the National Commission has, inter-alia, the exclusive jurisdiction to entertain appeals against the orders of any State Commission.

              In the matter cited above, it appears that the lawyers of the bank- a giant banking institution which can easily afford the luxury of employing legal brains expert in exploiting the  technicalities and loopholes in the law- have somehow managed to mislead the Hon’ble High Court on at least three counts: (1) By confusing the  award granted to the complainant against the bank by way of compensation /punitive damages for the loss and injury u/s 14 (d) and (f) with that of imposition of penalties under section 27 of the Consumer Protection Act; (2) By arguing that the occupant of the car, the bank’s goons had bashed ( mistaking him for the consumer himself, a case of mistaken identity), was not the consumer himself but his friend only, and, therefore, the consumer not eligible for any compensation and (3) With regard to the jurisdiction.

              Without going into the nitty gritty of the laws and other issues involved in the matter, it would be pertinent to scan the method of the lawyers of the ICCI Bank in procuring the stay order from the High Court by invoking its supervisory jurisdiction under Article 227.  Whereas the power to control and regulate the working of such courts, granted to the High Court under the said Article is conditional in so far as  the exercise should (a) not be inconsistent  with the provision of any law for the time being in force, and (b) shall require the previous approval of the Governor.”, appeal against the decision of a State Commission u/s 21 of the CPA lies exclusively with the National Commission which, as pointed out above, which u/s. 24B ,ibid, also exercises administrative control over all the State Commissions in certain matters. Here the Administrative control is not subject to any conditions. High Court’s power of superintendence seems to be general in nature and is mainly about making of rules, prescribing of forms and settling the tables of fees to be allowed to the workers, officers, practicing advocates, attorneys and pleaders of such courts as may be under its jurisdiction. Read together in conjunction and not in isolation, the above said provisions of the Article and the Act seem to put the grant of stay on any case decided by any consumer fora in consumer matters beyond the jurisdiction of the Hon’ble High Court. Only the Hon’ble Supreme Court has been empowered to entertain an appeal against an order made by the National Commission u/s 23 of the CPA.

Even if for argument’s sake, it is presumed that the High Court, in fact has the proper and necessary jurisdiction in all consumer matters and is vested with the power to grant stay on the orders of each and every consumer fora right from the District Forum to the National Commission, would it not be more desirable and in the interests of the consumers, an otherwise a hapless lot, if such a power is sparingly exercised only where the settled principles of law have been disturbed by some such  order and certainly not in cases where a grossly aggrieved consumer is sought to be deprived of his rightful compensation by employing the devious technicalities and loopholes in the law? (In this particular case, however, it would appear, that in fact there were no loopholes in the law as such, but were created by the wily lawyers of the bank and, the Hon’ble High Court was taken for a ride, just to deprive the aggrieved consumer of his right to punitive damages/compensation and absolve the banker of their liability to pay it to him).

  In consumer matters the spirit of the law and the orders passed in consonance with it should be honoured more than the technicalities or the dead letters of the law, if at all we want to minimize the trauma which the consumers invariably experience when they are pitted against the unscrupulous corporate giants- “Sharks”, “Dons” and “Kings” of industries, services and business both in the public and private sectors who, aided and abetted by the wily lawyers on their pay-rolls, do not think twice in short-changing gullible consumers.

                                                                                                                -SANJOG MAHESHWARI

 

Safeguarding Consumer Interests

SANJOG MAHESHWARI

C-1-A/42 B M.I.G. FLATS

                                                                                                                JANAKPURI, NEW DELHI.

                                                CONSUMER IS NOT THE KING!

                                                                                                                -SANJOG MAHESHWARI

              Not long ago, in a consumer case, taking cover under Article 227 of the Constitution, ICICI Bank managed to obtain a stay order from the Hon’ble Delhi High Court on the order passed by the Hon’ble State Consumer Commission who had asked it to pay Rs 55 lakh to an aggrieved consumer as punitive damages for its act of employing goons to recover money from him who had taken loan from the bank.  In the process, the goons employed by the bank as recovery agents, bashed up and inflicted grievous injuries on the driver of the car- a friend of the consumer besides seizing the vehicle from him.

              Article 227 confers on the High Court the Power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Clause (2) and (3) of the Article invest it with the power to make rules, prescribe forms and settle the tables of fees to be allowed to the workers, officers, practicing advocates, attorneys and pleaders of such courts as may be under its jurisdiction exercisable in a manner not inconsistent with the provisions of any law for the time being in force, and shall require the previous approval of the Governor.” (Emphasis provided)

              The apparent intention here seems to keep the proceedings and justice delivery mechanism of Consumer Courts, or for that matter other such specific purposes courts conceptualized, created and subjected to functioning under the provisions of specific purpose legislation, free from the corruption-contaminated civil court culture- a Raj legacy.  While there are multiple reasons that made way for this culture to seep-and that too in a very big way and substantially- in the working and system of the consumer courts that function under Consumer Protection Act and Rules as well, the main culprit is the presence of advocates and lawyers in these courts whose main claim to fame and fortune lies in employing dilatory tactics, seeking frequent adjournments and exploiting technicalities and loopholes in a legislation to purposefully evade and/or avoid imminent court decisions not favouring their rich and powerful clients. The ICICI case cited above is not an exception. While the above example is just illustrative and by no means purported to be an exhaustive one and there are technicalities galore frequently employed to snub genuine consumer interests in every consumer fora as well all over the country, it invariably happens every time some Mighty and Powerful is involved in a consumer dispute- and they involve too frequently to the comfort of the poor, middle-level consumers pitted against them for the very obvious reasons that more than 80% of the Services are provided by giant organizations whether in Public Sector or in Private Sector for whom the rule of law does not seem to exist. Those who are Somebody do not need courts of law as their interests are automatically taken care of without requiring them even to lift their little finger.

              Further, Section 21 of the Consumer Protection Act, 1986 (as amended up to date), inter-alia,  prescribes that the National Consumer Commission shall have the jurisdiction to entertain  appeals against the orders of any State Commission, and call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Besides this u/s 24 B, ibid, it also exercises administrative control over all the State Commissions in certain matters.

It would thus appear that while the power of superintendence of all courts and tribunals functioning in the territory of its jurisdiction is vested (confined to prescribed areas) in the High Court, the National Commission has, inter-alia, the exclusive jurisdiction to entertain appeals against the orders of any State Commission.

              In the matter cited above, it appears that the lawyers of the bank- a giant banking institution which can easily afford the luxury of employing legal brains expert in exploiting the  technicalities and loopholes in the law- have somehow managed to mislead the Hon’ble High Court on at least three counts: (1) By confusing the  award granted to the complainant against the bank by way of compensation /punitive damages for the loss and injury u/s 14 (d) and (f) with that of imposition of penalties under section 27 of the Consumer Protection Act; (2) By arguing that the occupant of the car, the bank’s goons had bashed ( mistaking him for the consumer himself, a case of mistaken identity), was not the consumer himself but his friend only, and, therefore, the consumer not eligible for any compensation and (3) With regard to the jurisdiction.

              Without going into the nitty gritty of the laws and other issues involved in the matter, it would be pertinent to scan the method of the lawyers of the ICCI Bank in procuring the stay order from the High Court by invoking its supervisory jurisdiction under Article 227.  Whereas the power to control and regulate the working of such courts, granted to the High Court under the said Article is conditional in so far as  the exercise should (a) not be inconsistent  with the provision of any law for the time being in force, and (b) shall require the previous approval of the Governor.”, appeal against the decision of a State Commission u/s 21 of the CPA lies exclusively with the National Commission which, as pointed out above, which u/s. 24B ,ibid, also exercises administrative control over all the State Commissions in certain matters. Here the Administrative control is not subject to any conditions. High Court’s power of superintendence seems to be general in nature and is mainly about making of rules, prescribing of forms and settling the tables of fees to be allowed to the workers, officers, practicing advocates, attorneys and pleaders of such courts as may be under its jurisdiction. Read together in conjunction and not in isolation, the above said provisions of the Article and the Act seem to put the grant of stay on any case decided by any consumer fora in consumer matters beyond the jurisdiction of the Hon’ble High Court. Only the Hon’ble Supreme Court has been empowered to entertain an appeal against an order made by the National Commission u/s 23 of the CPA.

Even if for argument’s sake, it is presumed that the High Court, in fact has the proper and necessary jurisdiction in all consumer matters and is vested with the power to grant stay on the orders of each and every consumer fora right from the District Forum to the National Commission, would it not be more desirable and in the interests of the consumers, an otherwise a hapless lot, if such a power is sparingly exercised only where the settled principles of law have been disturbed by some such  order and certainly not in cases where a grossly aggrieved consumer is sought to be deprived of his rightful compensation by employing the devious technicalities and loopholes in the law? (In this particular case, however, it would appear, that in fact there were no loopholes in the law as such, but were created by the wily lawyers of the bank and, the Hon’ble High Court was taken for a ride, just to deprive the aggrieved consumer of his right to punitive damages/compensation and absolve the banker of their liability to pay it to him).

  In consumer matters the spirit of the law and the orders passed in consonance with it should be honoured more than the technicalities or the dead letters of the law, if at all we want to minimize the trauma which the consumers invariably experience when they are pitted against the unscrupulous corporate giants- “Sharks”, “Dons” and “Kings” of industries, services and business both in the public and private sectors who, aided and abetted by the wily lawyers on their pay-rolls, do not think twice in short-changing gullible consumers.

                                                                                                                -SANJOG MAHESHWARI

 

C1-A/42 B M.I.G. FLATS,

JANAKPURI, NEW DELHI-110058.

DIVISIVE POLITICS

SANJOG MAHESHWARI

                                                                                                                                                           THE ANATOMY & THE HISTORY OF THE DIVISIVE POLITICS

                                                                                                                  -SANJOG MAHESHWARI

 

              We started out on our journey as republic with divisive politics.  In fact, the malady is inextricably ingrained in the very system of our governance.  It was for  his successively leading the Congress Party to the winning post in all the general elections fought under his leadership on the strength of solid Muslim votes assiduously cultivated, fostered and nourished by him, that India’s first Prime Minister, Jawaharlal Nehru earned the tag: “The First Muslim Prime Minister of India.”

             

              He  inherited the British policy of ‘Divide & Rule’ disguised it in “Quota & Reservation in jobs etc. for the selected sections of the society” on the basis of their ‘social’ as against ‘economic’ status, which has since reinvented itself, many times over, and in multiple forms, penetrating deep in the civic society and the polity, and has since come to be universally recognised, with loads of trepidation and frustration, as “Divisive Politics.”  Thus it is the same "Divide & Rule" policy of the Britishers in its new avatar.

 

              While the minority (read Muslim) vote-bank still continues to remain the mainstay of the Congress Party’s political culture, the divisive politics, over the years, has displayed the uncanny tendency to blossom forth into multiple strains as it hybridized into V.P.Singh’s “Muslim-S.C &S.T.-OBC” variety, several years ago,  but is still being fondly cultivated. fostered, and nurtured by  the likes of Mulayam Singh, Mayawati, Amar Singh- the list is long. Public memory is proverbially short, but not so short as to forget how this strain of divisive- identity politics once catapulted the one of the wiliest cats of the jungle of U.P. politics to the top post, and brought the other one dangerously close to grab it.

 

              However, in the sixties when it tried to spread its vicious tentacles in Maharashtra, the awakened and enlightened Marathi people could not resist but to counter it by breeding and developing its yet another strain. Their great leader- Bal Thackeray- founded Shiv Sena.  (It further branched out as Maharashtra Nav Nirman Sena under the leadership of his nephew Raj Thackeray).

        Shiv Sena went ahead to cultivate and  breed “ Regional-cultural-linguistic” variety of the divisive politics: “Maharashtra for Marathi  Manush.”  Nothing new about it except that in the case of Maharashtra the evil is perpetuated under the leadership of a non-Congress party political outfit , and the results and reactions are harsher and more cruel than those caused by the slow-poison, called ' Sons-of-the-Soil theory' invented right at the dawn of Independence, and  is surreptitiously being followed everywhere else in the country by every other ruling-class- irrespective of  its colour, shade and ideology.

    While Article 370 lends it legitimacy in Jammu &Kashmir, Article 371  make special provisions with respect to several other states. Not to be left behind, some other remaining states also follow the suit , enact similar laws in the guise of protecting the interests of the subjects of that particular state, and in the process the citizens' fundamental rights enshrined in the Article 19 of the Constitution of the country are compromised.  People belonging to other states of the union, are barred to purchase and own immovable assets in other states of their choice- even well-within the territory of the Union of India.

   

    As the poison kills poison, this culture is now drawing public attention towards the perils inherent in the divisive politics but also pointing the finger at those who have been reaping bumper harvest of political gains by gleefully perpetuating it for the furtherance of their own entrenched vested interests for several decades now. It looks extremely ridiculous on the part of the villains of the piece to now criticize Thackerays  for something- as vicious as identity politics of vote bank-  that they and their own leadership had earlier invented and used to the hilt to repeatedly gain political mileage over its rivals in the politics in all its spheres.  During the earlier seventies, the writer of these lines spent about 5 years in Nagpur where he, even then as a very  young school-going boy, could palpably perceive the all pervading influence of the Shiv Sena leaders over the people.

 

               Even now, the divisive politics of quota/Reservation in government jobs, seats in the educational institutions and other such matters selectively for certain targeted groups,draped and decked with the covering of social justice, is going full steam- doing what it invariably does i.e.Dividing the nation,. Such act of preference to selective groups or communities, by any name, certainly disadvantages other communities, and as a consequence, keeps the nation divided. Unfortunately, the politicians across the board, cutting across the party-lines, keep sitting pretty while the governments run by them perpetuate this worst form of racism albeit in disguise of social justice, caring two hoots for the results: Fragmentation of society, and the division of the nation on the lines of caste, community, region and religion. Divisive politics by any other name cannot get any less vile.  You cannot fool all the people all the time.

 

              Where this politics of exclusiveness, quota/reservation, identity and vote-bank, religious-cultural-linguistic chauvinism, the stuff by which the Divisive Politics is made, would lead us to?-  Balkanisation of the nation; where else?

 

              The interesting, though hugely disturbing,  aspect of the phenomenon is that the quick-fix-solutions, instead of containing the malady which is inextricably intertwined with our very system of governance, go only to fuel the growth of divisive politics, in different strains and forms, and prove counterproductive. Further, as under the present arrangement of the things, no political outfit or individual can gain any ascendency over its rivals without resorting to it, it would be futile and downright in the bad taste to blame any individual politician or political party for using it as a weapon for achieving their cherished political ambitions.

 

              The culture of identity and selective politics and the politics of vote bank is integral to our system of governance and we will have to live with the evil so long as this system lasts.  For winning the next election, all that a ruling political party needs to do is to distribute huge largesse from the Exchequer among the selected, targeted groups at the material time, during  the run up of general elections. Thanks to the system, such ad-hoc measures have paid rich political dividends all the time in every  election in the past, and can safely be relied upon for gaining political mileage over the rivals in the politics, in future as well.

 

              The divisive politics has its roots in our system and as such it will require overhauling the system itself, if we are interested in destroying it-lock, stock and barrel. Blaming the individual politicians or the political parties for the evil is tantamount to not seeing the wood for the trees, and will prove counterproductive.

 

                The remedy lies only in replacing this system with the American Presidential model, and sooner we replaced our Westminster type Parliamentary form of governance by the Presidential model, the better it would be for the health of our democracy.  

 

                                                                                                                   -SANJOG MAHESHWARI