Trifling With Criminal Justice - An Indian Experience
Content
1
Trifling with Criminal Justice – An Indian experience
****
Any law that provides for punishment of fine and imprisonment though merely called as provision for penalties belongs to the realm of Criminal Law and therefore, the implementation of such criminal law has to be necessarily consigned to the domain of criminal justice. In this view of the matter, we are particularly concerned with Sec. 27 of the Consumer Protection Act 1986 as it stood before the advent of consumer protection (Amendment) Act 2002 as also after the said amendment. Over a period of time an erroneous impression gained currency and acceptability to the effect that Sec 27 of the consumer Protection Act is designed to be harnessed as yet another provision with coercive trappings for the effective execution of awards passed by the adjudicatory machinery created by the Consumer Protection Act 1986 herein after called ―the Act‖ for brevity. If one cares to punctiliously examine and construe
upfront the language of Sec 27(1) of the Act it is abundantly clear that it is first and last a penal provision than anything else. SubSection (1) of Sec 27 currently in force reads as follows:
27. Penalties.-(1) Where a trader or a person against whom a complaint is made [or the complainant] fails or omits to comply with any order made by the District Forum, the State commission or the National Commission, as the case may be, such trader or person [or complainant] shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousands
rupees but which may extend to ten thousand rupees, or with both:
2
The omission contemplated by the said section of law is not only characterized as an offence if one goes by the explicit expression in this behalf used in sub section 3 of this very same section but also marked to be punished with imprisonment or fine or both. It is
therefore obvious that Sec. 27 of the Consumer Protection Act has to be strictly construed only as a piece of Criminal Legislation.
In the understanding of a piece of criminal legislation, one has to necessarily keep Article 20 and Article 21 of the Constitution of India at the back of one‘s mind. In this enquiry we are concerned more with Article 21 which reads as follows:
―No person shall be deprived of his life or personal liberty except according to procedure established by Law ―
Article 21 which is enshrined in Part III of the constitution exclusively dealing with fundamental rights, unequivocally postulated that in the matter of state action involving deprivation of life or liberty ―procedure established by law‖ itself is a fundamental right and guarantee. If it could be shown that Sec 27 is wanting in this essential feature any incarceration in pursuance of conviction or pendente lite under sec 27 emerges as illegal attracting state liability for illegal confinement notwithstanding the illusory belief that such internment is justifiable in the exercise of powers presumed to be available and supposedly flowing out from a combined reading of the three sub-sections of the present version of sec 27 without offering even that much of justification for the imprisonments of both
3
kinds imposed under the earlier dispensation prior to its amendment.
The Karnataka High court held that Sec. 27 of the Consumer Protection Act as it stood before the Amendment of 2002 was partly unconstitutional. It is that part which is held to be unconstitutional as opposing Article 21 of the Constitution that clothed the District Consumer Disputes Reddressal Forums, State Consumer Disputes Reddressal Commissions, and National Consumer Disputes Reddressal Commission together known as ―Consumer Disputes Reddressal Agencies‖ as per Sec 9 of the Act, with powers to punish a person either the trader or person against whom a complaint is made or the complainant himself or herself within the meaning of the Consumer Protection Act for disobedience of the orders passed by the Consumer Disputes Reddressal Agency. For a better appreciation of the point presently being made out, it is useful to have the old Sec 27 of the Act right in front of us:
"Penalties - Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or complainant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than rupees two thousand, but which may extend to rupees ten thousand or with both :
Provided that the District Forum, the State Commission or the National Commission, as the case may be if it is satisfied that
4
the circumstances of any case so require, impose a sentence of imprisonment or fine, or both, for a term lesser than the minimum term and the amount lesser than the minimum amount, specified in this section."
In Parmajit Singh V Union of India and others1 the Karnataka High Court knocked out the very jurisdiction of the Consumer Disputes Reddressal Agencies to exercise criminal powers by holding:
“6. As the proviso to section 27 of the Act authorizes the Forum and the Commissions to impose a sentence of imprisonment or fine without providing any procedure resulting in deprivation of the rights conferred upon the persons under Articles 20 and 21 of the Constitution, the same is liable to be struck off being unconstitutional. The striking off of the proviso to section 27 of the Act would not, however, render the whole section unconstitutional. As the section creates the offence and provides the penalty, we are of the opinion that such offence has to be dealt with, tried and concluded in accordance with the provisions of the Code of Criminal Procedure. 9. We are, therefore, of the opinion that the proviso to section 27 being violative of the fundamental rights as enshrined under Articles 20 and 21 of the Constitution of India is liable to be quashed. We are further of the opinion that but for the proviso, there is no unconstitutionality in the main section. It is, therefore,
1
[1999 (2) Car. L. J. 54 A (DB)]
5 held that the offences created and penalties provided under section 27 can be tried and imposed only in accordance with the observations made hereinabove by filing a complaint before a criminal court in accordance with the procedure prescribed in that behalf.”
The said decision did not touch the substantive clause of Sec. 27 which indeed conceived the offence in question but only struck down the proviso, entailing the devastating effect of wholly setting at naught the power of the Consumer Disputes Reddressal Agencies to act as criminal courts and thereby impose the punishment contemplated by the substantive provisions of Sec. 27 for the simple reason that in the whole of Sec 27 it is the proviso only that identified, that too incidentally, the District Forums, the State commissions, and the National commission as being the machinery for imposing punishment in a collateral context of the imposition of lesser than the minimum term of imprisonment or minimum amount of fine. Naturally, in the absence of any decision reversing the Judgment of the Karnataka High Court the law laid down by the Karnataka High court continues to have adverse effect on the powers of those Consumer Disputes Reddressal Agencies to embark upon Criminal trials calculated to end up in either conviction or acquittal of the persons allegedly disobeying their orders. Though in a later Judgment rendered by the Supreme Court in State of Karnataka Vs Viswabharathi House Building Property Society and others2 as also in some judgments on the subject prior thereto, the constitutional validity of Sec. 27 has come to be impliedly upheld in
2
( I (2003) C.P.J 1 SC)
6
as much as the whole act was scanned in the said decision which ultimately upheld the constitutional validity of the Consumer
Protection Act in its entirety, It is pertinent to point out here that the Supreme Court had no occasion in those cases to deal with the decision of the Karnataka High Court in Parmajit Singh V Union of India and others and expressly reverse it or bestow complete attention to the eccentricities inhering in Sec 27.
On the other hand, the decision of the Karnataka High court in Parmajit Singh V. Union of India and others has directly come up for consideration by way of an appeal in a recent judgment of the Supreme Court dated 2-3-20063. However, in the said case the issue of Constitutional validity of old Sec. 27 was not decided on the ground that the controversy thereof became academic with the advent of Consumer Protection (Amendment Act) 2002. It was held therein as follows:
―It is to be noted that by the Consumer Protection (Amendment Act), 2002 (62of 2002), as contained in Section 23 of the Amending Act, the proviso which was struck down as un-constitutional by the High Court has been omitted. Sub-Section (2) has been introduced which provides that the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of First Class for the trial of offences under the Act and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the First Class of the Code. The amendments have been made effective with effect from 15.03.2003. The controversy has, therefore, become academic.‖
3
2006 C.T.J 419 (Supreme Court) (C.P).
7
The fact remains therefore that the Karnataka High Court struck down the proviso to the main clause of Old Sec. 27 of C.P. Act. And that finding was not disturbed by the Apex Court. As is already submitted the main clause of Sec. 27 stipulates the elements of the offence and punishment to be given for disobedience of the orders of the Consumer Disputes Reddressal Agencies while It was only the proviso that invested those Agencies with the power to try and punish the offence of disobedience of the orders of the District Forum etc., In other words, it is only the proviso that created the Judicial Authorities in this behalf by breathing life into the Consumer Disputes Reddressal Agencies for the purpose of administering criminal justice within the framework of Sec 27. By striking down the said proviso the Karnataka High Court wiped out of existence the very instrument of such administration of criminal justice. When the decision of the Karnataka High court which caused such far-reaching effect as expatiated in the foregoing discussion was challenged before the Supreme Court, the Supreme Court did not in so many words reverse the judgment of the Karnataka High court nor did it approve the judgment of the Karnataka High court. In order to figure out the meaning and effect of the reticence on the part of the Supreme Court in respect of a vital issue which still remained relevant as is presently shown, we are obliged to rely upon such artificial contrivances like legal inferences and issue estoppel and above all the doctrine of merger. It is almost a well settled proposition of law that when a controversy comes up before a Court by way of an appeal against the finding of
8
a lower court on such a controversy, the silence of the Appellate Court on that controversy operates as the approval of such finding given by the lower court. Thus in the instant case the finding of the Karnataka High Court has to be taken to have been upheld by the Supreme Court especially by the operation of the doctrine of merger incorporating the combined effect of a judgment and the appellate judgment upon it in the same litigation carried in appeal to a higher court. The devices of general application like the law of authoritative precedents and stare decisis hardly apply in a situation governed by the doctrine of merger peculiarly tailored to apply in multi-layered litigations. Generally it is widely believed that the finding of a lower court becomes final if the appellate court keeps mum on that very same issue. In these circumstances, naturally a doubt arises as to the validity of the convictions by the District Forums etc. acting under the old Sec. 27 of C.P. Act as a decision striking down a provision of law as unconstitutional relates back to the date of inception of such provision rendering it virtually still born except very rarely in cases where the court resorts to an unusual course of making it applicable prospectively. As a matter of fact, this doubt could have been characterized and dismissed as merely didactic in the absence of any pendency of further action in pursuance of such convictions. But the situation is otherwise. There are still some cases pending with the respondents remaining un-apprehended to undergo the punishments imposed under those convictions. Thus this is a matter of great anxiety to the presiding officers of the Lower Forums.
9
Now coming to the amended Sec. 27 of C.P. Act the story is even more puzzling. The Consumer Protection (Amendment) Act, 2002 has come into force on 15-3-2003. The new Sec. 27 did not
automatically invest the Forums with powers to try the offences envisioned by Sec 27(1) and impose punishments. Over and above the provisions apparent in the text of Sec. 27 (2), the requirement of a sort of conferment of powers of judicial Magistrate of First Class on District forums, State commissions and National Commission is lying hidden therein as essential before those agencies can claim to take cognizance of the offences of disobedience of their orders. The question that next emerges for consideration is who is competent to Confer? We do not find an answer to this question anywhere in the Act much less in the Provisions of Sec 27 of the Act. In spite of this lacuna in the Act and more Particularly in Sec 27 of the Act it never occurred to any one that such lacuna could have been cured by promptly invoking within the prescribed 2 years period the
Removal-of-doubts provision euphemistically called Henry VIII clause. Even in the face of such a lacuna the Government of
Andhra Pradesh probably on account of the ignorance or innocence of its scribes of law proceeded with such conferment of powers through a Notification dated 28-2-2005 without citing any kind of enabling provisions of law. Assuming for a moment that the Government of Andhra Pradesh has got such unchartered power this belated notification which can hardly be given retrospective effect as per the dicta contained in various decisions4 of yore as AIR 1933 Pesh 97 (1) mentioned in Sohoni‘s the Code of Criminal AIR 1933 Pesh 97 (1) mentioned in Sohoni‘s the Code of Criminal Procedure 1973, 18th Edition at Page: 207 footnotes.
4
10
Procedure 1973, 18th Edition at Page : 207 footnotes, raises two important questions. The first question is whether further
proceedings as steps for apprehension etc., on the basis of convictions made by various Consumer Disputes Reddressal Agencies during the interregnum between 15-3-2003 and 28-2-2005 can be validly proceeded with by the consumer forums? The second question that arises is as regards the empowerment of the State Government to issue such a notification conferring powers on the Consumer Dispute Reddressal Agencies situated within its territorial jurisdiction in the absence of any specific provision to that effect in Sec. 27(2) of the Consumer Protection Act. In this regard, it is apt to keep in mind that Sec. 27(2) did not in so many words authorize the State Government to issue such a notification. It is also necessary to bear in mind the entire scheme of the Act which made clear cut division of the rule-making power between the Central Government and the State Governments. Such authorization in favor of either the State Governments or the Central Government in the matter of conferment of magisterial powers upon the consumer Disputes Reddressal Agencies is conspicuous by its absence in Sec. 27(2) of C.P. Act. There is however a line of superficial thinking that the State Government can as well draw its power in this regard from the Criminal Procedure Code Sec. 11(3) r/w 32 or kindred provisions if any, basing on the language of Sec. 27 (2) & (3) which reads as follows:
2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) the District Forum or the State Commission or the National Commission, as the case may be, shall have the power
11
of a Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the First Class for the purpose of the Code of Criminal Procedure, 1973 (2 of 1974). 3) All offences under this Act may be tried summarily by the District Forum or the Station Commission or the National Commission, as the case may be.
The truism that state government can hardly claim any such power can be demonstrated by adverting to all the sections of Criminal Procedure Code which bear resemblance to the provisions that embody empowerment to confer magisterial powers on others. In this connection even Sections 11,13, 16, and 18 of Cr.P.C. do not bear scrutiny leave alone Sec 27 of the Act which is totally silent on the aspect as to which authority is competent to accord conferment of powers contemplated by the last mentioned section. It is therefore in this view of the matter that the aforementioned sections of the Criminal Procedure Code are set out below in extenso for ready perusal: 11. Courts of Judicial Magistrates. (1) In every district (not being a metropolitan area), there shall be established as many, Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify: [Provided that the State Government may, after consultation with the High Court, establish, for any, local area, one or
12
more Special Courts of Judicial Magistrate of the first class or of the second class to try any particular case or particular class of cases, and where any such Special Court is established, no other court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established.] (2) The presiding officers of such Courts shall be appointed by the High Courts. 13. Special Judicial Magistrates. (1) The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has held any post under the Government all or any of the powers conferred or conferrable by or under this Code on a Judicial Magistrate [of the first class or of the second class, in respect to particular cases or to particular classes of cases, in any local area, not being a metropolitan area]: Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify. (2) Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for such term, not exceeding one year at a time, as the High Court may, by general or special order, direct. [(3) The High Court may empower a Special Judicial Magistrate to exercise the powers of a Metropolitan Magistrate in relation to any metropolitan area outside his local jurisdiction.]
16. Courts of Metropolitan Magistrates. (1) In every metropolitan area, there shall be established as many courts of Metropolitan Magistrates, and at such places, as the State Government may, after consultation with the High
13
Court, by notification, specify. (2) The presiding officers of such courts shall be appointed by the High Court. (3) The jurisdiction and powers of every Metropolitan Magistrate shall extend throughout the metropolitan area. (3) The High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial Service of the State, functioning as a Judge in a Civil Court. 18. Special Metropolitan Magistrates. (1) The High Court may, if requested by, any Central or State Government so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by or under this Code on a Metropolitan Magistrate, in respect to particular cases or to particular classes of cases If [***] in any metropolitan area within its local jurisdiction: Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify. (2) Such Magistrates shall be called Special Metropolitan Magistrates and shall be appointed for such term, not exceeding one year at a time, as the High Court may, by general or special order, direct. (3) The High Court or the State Government, as the case may be, may empower nay Special Metropolitan Magistrate to exercise, in any local area outside the metropolitan area, the powers of a Judicial Magistrate of the first class.
The avowed purpose of compelling the party liable to comply with the order of the Agency is frustrated essentially on two grounds that
14
either no such powers were ever conferred validly on District Forums, state commissions and the national commission created under this Act, to convict the respondent in a proceedings U/S 27 of consumer Protection Act (the only section embodying the complete code of criminal action) or even if conferred any which way such authority conferring those powers itself did not possess any such power inasmuch as the section itself remained silent about that aspect and the ingredients of sections 11,13, 16 and 18 of Cr. P. C hardly apply to the situation on hand not to speak of the fact that such an approach of having to think of applying those sections did not seem to have ever occurred to the persons responsible to effect a valid empowerment. Apart from the verifiably patent inapplicability of the sections extracted above the argument calculated to ascribe willy-nilly the power to issue notification of conferment to Cr. P. C. suffers from the vice of begging the question. Such construction involves first reading the provisions of Cr.P.C. into Sec. 27(2) and then locating the power to issue notification conferring the powers. But a plain reading of Sec. 27(2) makes it amply clear that the applicability of the relevant provisions of Cr.P.C. will be activated only after conferment of powers.
In the present dispensation there is yet another formidable difficulty in the matter of conferment of magisterial powers on District Forums, State commissions, and National commission that escaped the attention of law makers and interpreters of law alike. The difficulty is two pronged – one pertaining to the tenability or
15
otherwise of conferment of magisterial powers on a group of persons enbloc and the other relating to the constitutionality of conferment of judicial powers on a group of persons consisting not only persons with judicial background but also others.
Sections 9, 10, 16, 20 of The Consumer Protection Act, 1986 deal with the establishment, the composition and the constitution of the 3-layered Consumer Disputes Reddressal Agencies. None of those provisions allow a Member (Which term means and includes the president of the Agency concerned) sitting single and disposing of any dispute cognizable by the Agency as a whole or in Circuit benches of more than one member as ordained by the Act itself. Thus in the context of conferral of judicial powers of a Magistrate on the Consumer Reddressal Agencies there is no way of
individualizing the incumbent. It is an obvious fact that at present there is no law that allows the vivisection of the office of Judicial Magistrate First Class as it can be occupied only by one person but not a group. Sec 32 of Criminal Procedure Code makes it abundantly clear. Section 32 reads: 32. Mode of conferring powers. (1) In conferring powers under this Code, the High Courts or the State Government, as the case may be, may, by order, empower persons specially by name or in virtue of their officers or classes of officials generally by their official titles.
(2) Every such order shall take effect from the date on which is communicated to the person so empowered
16
No doubt Sec 27 of the Act intends to convert all the Consumer Disputes Reddressal Agencies manned by more than one as authentic Judicial Magistrates of First Class within the meaning of the Criminal Procedure Code confined though to the sphere of consumer protection under the Act in spite of the fact that none of the provisions of the Criminal Procedure contemplate any office of Judicial Magistrate of First Class being filled up by a plurality of persons and Sec 27 was brought forth with all the baggage of
defects forming the subject matter of this essay exemplified by the deficiency in Sec 27 to effect a valid conferral of powers which is very basic in the sense it failed to predicate with precision as to which authority - the Central Government or the State Governments or the High Courts in which the respective Consumer Disputes Reddressal Agencies are situated – that is clothed with the power to issue the notification effecting the conferment of powers.
Furthermore Sec 27 seeks to confer judicial powers on a group of persons manning the Agency though in most of the cases one or more of them is likely to be a person without qualification to become a judicial officer. No doubt such an impediment is sought to be surmounted by ingeniously employing a non-obstante clause calculated to avoid the applicability of the provisions of Cr. P. C. to the contrary. But that does not relieve Sec 27 from a greater vice of offending not only the provisions of the constitution but also international conventions postulating the inviolability of the rule of entrusting judicial functions only to persons with legal training and expertise. Such an emphasis found in the Constitution of India is
17
discernable from some of its provisions enshrined in CHAPTER VI.—SUBORDINATE COURTS:
233. (1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. (2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment. 234. Appointments of persons other than district Judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. 235. The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the Conditions of his service prescribed under such law. 236. In this Chapter— (b) the expression ―judicial service‖ means a service consisting exclusively of persons intended to
18
fill the post of district judge and other civil judicial posts inferior to the post of district judge.
Obviously inspired by the kind of constitutional intendment manifest in the articles extracted above, the Supreme Court of India understandably made it very clear, time and again that the judicial duties have to be entrusted only to persons trained in legal studies. In a serial of judgments in W. P (civil) No.1022/1989 titled: All India Judges ‗Association. Vs. Union of India And Others
5
which is a
cause kept pending perennially to pass orders as and when necessary to protect the interests of Subordinate Judiciary comprising District Judges and the judges below in the hierarchy, the Supreme Court of India articulated brilliantly various unique characteristics of the judiciary including the importance of possessing skills of law. This position is reiterated in several other cases that decided questions of constitutionality of the formation of Tribunals as distinguished from regular courts yet meant to discharge judicial functions. In UNION OF INDIA & ANR. Vs. DELHI HIGH COURT BAR ASSOCIATION & ORS6 the Supreme court succinctly explained how tribunals are no less than regular judiciary and by the way underscored the importance of tribunals too being manned by persons adept in law in the following terms:
5
a 1992 AIR 165 ;1991( 2 b 1994 AIR 2771 1994 SCALE (4 c 2002 AIR 1752, 2002( 2 d 2006 AIR 2018, 2006(1
6
)Suppl.SCR 206; 1992( 1 )SCC 119, 1991( 2 )SCALE969 ; 1991( 4 )JT285 1994 SCC (6) 314 )SCR 712, 2002( 4 )SCC 247, 2002( 3 )SCALE291 , 2002( 3 )JT 503 )Suppl.SCR553 , 2006(12 )SCC148 , 2006(5 )SCALE84 , 2006(6 )J
2002 AIR 1479, 2002( 2 )SCR 450, 2002( 4 )SCC 275, 2002( 2 )SCALE668 , 2002( 3 )JT 131
19
―Such tribunals, whether they pertain to Income-tax or Sales-tax or Excise and Customs or Administration, have now become an essential part of the judicial system in this country. Such specialised institutions may not strictly come within the concept of the judiciary, as envisaged by Article 50, but it cannot be presumed that such tribunals are not an effective part of the justice delivery system, like courts of law. It will be seen that for a person to be appointed as a Presiding Officer of a Tribunal, he should be one who is qualified to be a District Judge and, in case of appointment of the Presiding Officer
of the Appellate Tribunal he is, or has been, qualified to be a
Judge of a High Court or has been a member of the Indian Legal Service who has held a post in Grade-I for at least three years or has held office as the Presiding Officer of a Tribunal for at least three years. Persons so appointed as Presiding Officers of the Tribunal or of the Appellate Tribunal would be well versed in law to be able to decide cases independently and judiciously…………‖
Even the international consensus is in favor of such regulation as borne out from the excerpt down below:
Basic Principles on the Independence of the Judiciary Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.
The Section relevant to the theme of this article is set forth hereunder: Qualifications, selection and training
10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial
20 selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, color, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.
The Indian ethos insisting that judicial functions should be invariably entrusted to persons skilled in law cannot be explained any better than by citing the relevant provision common to the three important sections of law 13, 16, and 18 of Cr.P.C couched as under: “Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify.” In this article an attempt is made to demonstrate rather clearly that the 2002 amendment all the more goofed up the very applicability of Code of Criminal Procedure and the new Sec 27 turned out to be crippled especially in the arena of conferment of powers of Judicial Magistrate of First Class on Consumer Disputes Reddressal Agencies, so also, to bring home the chaotic enforcement profile of the old Sec 27 what with different agencies taking to different procedures of varied hues betraying the utter lack of understanding of the true nature of the proceedings envisaged by Sec 27 whether it is old or new. It is not out of place to submit that some agencies characterized the proceedings under Sec 27 as actions for contempt of court while yet other agencies treated it as providing procedure for coercive execution like under the Civil Procedure Code which provided interalia for arrest and detention of the judgment-debtor conveniently forgetting that a plain literal
construction of Sec 27 both old and new of the Act would lead us to
21
effortlessly appreciate and come to an irresistible conclusion that Sec 27 has been all along a downright penal provision which should be enforced like any other piece of Penal code. As a result all the convictions under Sec 27 0f the Consumer Protection Act 1986, if any, handed down all these years throughout India cannot escape the blot of illegality.
This Article has surfaced several issues of utmost importance which are apt to impact protection of Human rights and Rule of Law among other questions. It is for all concerned to give it anxious consideration by delving deep into the matter for not only the control but also the prevention of any further damage to constitutional values and justice.
Trifling with Criminal Justice – An Indian experience
****
Any law that provides for punishment of fine and imprisonment though merely called as provision for penalties belongs to the realm of Criminal Law and therefore, the implementation of such criminal law has to be necessarily consigned to the domain of criminal justice. In this view of the matter, we are particularly concerned with Sec. 27 of the Consumer Protection Act 1986 as it stood before the advent of consumer protection (Amendment) Act 2002 as also after the said amendment. Over a period of time an erroneous impression gained currency and acceptability to the effect that Sec 27 of the consumer Protection Act is designed to be harnessed as yet another provision with coercive trappings for the effective execution of awards passed by the adjudicatory machinery created by the Consumer Protection Act 1986 herein after called ―the Act‖ for brevity. If one cares to punctiliously examine and construe
upfront the language of Sec 27(1) of the Act it is abundantly clear that it is first and last a penal provision than anything else. SubSection (1) of Sec 27 currently in force reads as follows:
27. Penalties.-(1) Where a trader or a person against whom a complaint is made [or the complainant] fails or omits to comply with any order made by the District Forum, the State commission or the National Commission, as the case may be, such trader or person [or complainant] shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousands
rupees but which may extend to ten thousand rupees, or with both:
2
The omission contemplated by the said section of law is not only characterized as an offence if one goes by the explicit expression in this behalf used in sub section 3 of this very same section but also marked to be punished with imprisonment or fine or both. It is
therefore obvious that Sec. 27 of the Consumer Protection Act has to be strictly construed only as a piece of Criminal Legislation.
In the understanding of a piece of criminal legislation, one has to necessarily keep Article 20 and Article 21 of the Constitution of India at the back of one‘s mind. In this enquiry we are concerned more with Article 21 which reads as follows:
―No person shall be deprived of his life or personal liberty except according to procedure established by Law ―
Article 21 which is enshrined in Part III of the constitution exclusively dealing with fundamental rights, unequivocally postulated that in the matter of state action involving deprivation of life or liberty ―procedure established by law‖ itself is a fundamental right and guarantee. If it could be shown that Sec 27 is wanting in this essential feature any incarceration in pursuance of conviction or pendente lite under sec 27 emerges as illegal attracting state liability for illegal confinement notwithstanding the illusory belief that such internment is justifiable in the exercise of powers presumed to be available and supposedly flowing out from a combined reading of the three sub-sections of the present version of sec 27 without offering even that much of justification for the imprisonments of both
3
kinds imposed under the earlier dispensation prior to its amendment.
The Karnataka High court held that Sec. 27 of the Consumer Protection Act as it stood before the Amendment of 2002 was partly unconstitutional. It is that part which is held to be unconstitutional as opposing Article 21 of the Constitution that clothed the District Consumer Disputes Reddressal Forums, State Consumer Disputes Reddressal Commissions, and National Consumer Disputes Reddressal Commission together known as ―Consumer Disputes Reddressal Agencies‖ as per Sec 9 of the Act, with powers to punish a person either the trader or person against whom a complaint is made or the complainant himself or herself within the meaning of the Consumer Protection Act for disobedience of the orders passed by the Consumer Disputes Reddressal Agency. For a better appreciation of the point presently being made out, it is useful to have the old Sec 27 of the Act right in front of us:
"Penalties - Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or complainant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than rupees two thousand, but which may extend to rupees ten thousand or with both :
Provided that the District Forum, the State Commission or the National Commission, as the case may be if it is satisfied that
4
the circumstances of any case so require, impose a sentence of imprisonment or fine, or both, for a term lesser than the minimum term and the amount lesser than the minimum amount, specified in this section."
In Parmajit Singh V Union of India and others1 the Karnataka High Court knocked out the very jurisdiction of the Consumer Disputes Reddressal Agencies to exercise criminal powers by holding:
“6. As the proviso to section 27 of the Act authorizes the Forum and the Commissions to impose a sentence of imprisonment or fine without providing any procedure resulting in deprivation of the rights conferred upon the persons under Articles 20 and 21 of the Constitution, the same is liable to be struck off being unconstitutional. The striking off of the proviso to section 27 of the Act would not, however, render the whole section unconstitutional. As the section creates the offence and provides the penalty, we are of the opinion that such offence has to be dealt with, tried and concluded in accordance with the provisions of the Code of Criminal Procedure. 9. We are, therefore, of the opinion that the proviso to section 27 being violative of the fundamental rights as enshrined under Articles 20 and 21 of the Constitution of India is liable to be quashed. We are further of the opinion that but for the proviso, there is no unconstitutionality in the main section. It is, therefore,
1
[1999 (2) Car. L. J. 54 A (DB)]
5 held that the offences created and penalties provided under section 27 can be tried and imposed only in accordance with the observations made hereinabove by filing a complaint before a criminal court in accordance with the procedure prescribed in that behalf.”
The said decision did not touch the substantive clause of Sec. 27 which indeed conceived the offence in question but only struck down the proviso, entailing the devastating effect of wholly setting at naught the power of the Consumer Disputes Reddressal Agencies to act as criminal courts and thereby impose the punishment contemplated by the substantive provisions of Sec. 27 for the simple reason that in the whole of Sec 27 it is the proviso only that identified, that too incidentally, the District Forums, the State commissions, and the National commission as being the machinery for imposing punishment in a collateral context of the imposition of lesser than the minimum term of imprisonment or minimum amount of fine. Naturally, in the absence of any decision reversing the Judgment of the Karnataka High Court the law laid down by the Karnataka High court continues to have adverse effect on the powers of those Consumer Disputes Reddressal Agencies to embark upon Criminal trials calculated to end up in either conviction or acquittal of the persons allegedly disobeying their orders. Though in a later Judgment rendered by the Supreme Court in State of Karnataka Vs Viswabharathi House Building Property Society and others2 as also in some judgments on the subject prior thereto, the constitutional validity of Sec. 27 has come to be impliedly upheld in
2
( I (2003) C.P.J 1 SC)
6
as much as the whole act was scanned in the said decision which ultimately upheld the constitutional validity of the Consumer
Protection Act in its entirety, It is pertinent to point out here that the Supreme Court had no occasion in those cases to deal with the decision of the Karnataka High Court in Parmajit Singh V Union of India and others and expressly reverse it or bestow complete attention to the eccentricities inhering in Sec 27.
On the other hand, the decision of the Karnataka High court in Parmajit Singh V. Union of India and others has directly come up for consideration by way of an appeal in a recent judgment of the Supreme Court dated 2-3-20063. However, in the said case the issue of Constitutional validity of old Sec. 27 was not decided on the ground that the controversy thereof became academic with the advent of Consumer Protection (Amendment Act) 2002. It was held therein as follows:
―It is to be noted that by the Consumer Protection (Amendment Act), 2002 (62of 2002), as contained in Section 23 of the Amending Act, the proviso which was struck down as un-constitutional by the High Court has been omitted. Sub-Section (2) has been introduced which provides that the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of First Class for the trial of offences under the Act and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the First Class of the Code. The amendments have been made effective with effect from 15.03.2003. The controversy has, therefore, become academic.‖
3
2006 C.T.J 419 (Supreme Court) (C.P).
7
The fact remains therefore that the Karnataka High Court struck down the proviso to the main clause of Old Sec. 27 of C.P. Act. And that finding was not disturbed by the Apex Court. As is already submitted the main clause of Sec. 27 stipulates the elements of the offence and punishment to be given for disobedience of the orders of the Consumer Disputes Reddressal Agencies while It was only the proviso that invested those Agencies with the power to try and punish the offence of disobedience of the orders of the District Forum etc., In other words, it is only the proviso that created the Judicial Authorities in this behalf by breathing life into the Consumer Disputes Reddressal Agencies for the purpose of administering criminal justice within the framework of Sec 27. By striking down the said proviso the Karnataka High Court wiped out of existence the very instrument of such administration of criminal justice. When the decision of the Karnataka High court which caused such far-reaching effect as expatiated in the foregoing discussion was challenged before the Supreme Court, the Supreme Court did not in so many words reverse the judgment of the Karnataka High court nor did it approve the judgment of the Karnataka High court. In order to figure out the meaning and effect of the reticence on the part of the Supreme Court in respect of a vital issue which still remained relevant as is presently shown, we are obliged to rely upon such artificial contrivances like legal inferences and issue estoppel and above all the doctrine of merger. It is almost a well settled proposition of law that when a controversy comes up before a Court by way of an appeal against the finding of
8
a lower court on such a controversy, the silence of the Appellate Court on that controversy operates as the approval of such finding given by the lower court. Thus in the instant case the finding of the Karnataka High Court has to be taken to have been upheld by the Supreme Court especially by the operation of the doctrine of merger incorporating the combined effect of a judgment and the appellate judgment upon it in the same litigation carried in appeal to a higher court. The devices of general application like the law of authoritative precedents and stare decisis hardly apply in a situation governed by the doctrine of merger peculiarly tailored to apply in multi-layered litigations. Generally it is widely believed that the finding of a lower court becomes final if the appellate court keeps mum on that very same issue. In these circumstances, naturally a doubt arises as to the validity of the convictions by the District Forums etc. acting under the old Sec. 27 of C.P. Act as a decision striking down a provision of law as unconstitutional relates back to the date of inception of such provision rendering it virtually still born except very rarely in cases where the court resorts to an unusual course of making it applicable prospectively. As a matter of fact, this doubt could have been characterized and dismissed as merely didactic in the absence of any pendency of further action in pursuance of such convictions. But the situation is otherwise. There are still some cases pending with the respondents remaining un-apprehended to undergo the punishments imposed under those convictions. Thus this is a matter of great anxiety to the presiding officers of the Lower Forums.
9
Now coming to the amended Sec. 27 of C.P. Act the story is even more puzzling. The Consumer Protection (Amendment) Act, 2002 has come into force on 15-3-2003. The new Sec. 27 did not
automatically invest the Forums with powers to try the offences envisioned by Sec 27(1) and impose punishments. Over and above the provisions apparent in the text of Sec. 27 (2), the requirement of a sort of conferment of powers of judicial Magistrate of First Class on District forums, State commissions and National Commission is lying hidden therein as essential before those agencies can claim to take cognizance of the offences of disobedience of their orders. The question that next emerges for consideration is who is competent to Confer? We do not find an answer to this question anywhere in the Act much less in the Provisions of Sec 27 of the Act. In spite of this lacuna in the Act and more Particularly in Sec 27 of the Act it never occurred to any one that such lacuna could have been cured by promptly invoking within the prescribed 2 years period the
Removal-of-doubts provision euphemistically called Henry VIII clause. Even in the face of such a lacuna the Government of
Andhra Pradesh probably on account of the ignorance or innocence of its scribes of law proceeded with such conferment of powers through a Notification dated 28-2-2005 without citing any kind of enabling provisions of law. Assuming for a moment that the Government of Andhra Pradesh has got such unchartered power this belated notification which can hardly be given retrospective effect as per the dicta contained in various decisions4 of yore as AIR 1933 Pesh 97 (1) mentioned in Sohoni‘s the Code of Criminal AIR 1933 Pesh 97 (1) mentioned in Sohoni‘s the Code of Criminal Procedure 1973, 18th Edition at Page: 207 footnotes.
4
10
Procedure 1973, 18th Edition at Page : 207 footnotes, raises two important questions. The first question is whether further
proceedings as steps for apprehension etc., on the basis of convictions made by various Consumer Disputes Reddressal Agencies during the interregnum between 15-3-2003 and 28-2-2005 can be validly proceeded with by the consumer forums? The second question that arises is as regards the empowerment of the State Government to issue such a notification conferring powers on the Consumer Dispute Reddressal Agencies situated within its territorial jurisdiction in the absence of any specific provision to that effect in Sec. 27(2) of the Consumer Protection Act. In this regard, it is apt to keep in mind that Sec. 27(2) did not in so many words authorize the State Government to issue such a notification. It is also necessary to bear in mind the entire scheme of the Act which made clear cut division of the rule-making power between the Central Government and the State Governments. Such authorization in favor of either the State Governments or the Central Government in the matter of conferment of magisterial powers upon the consumer Disputes Reddressal Agencies is conspicuous by its absence in Sec. 27(2) of C.P. Act. There is however a line of superficial thinking that the State Government can as well draw its power in this regard from the Criminal Procedure Code Sec. 11(3) r/w 32 or kindred provisions if any, basing on the language of Sec. 27 (2) & (3) which reads as follows:
2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) the District Forum or the State Commission or the National Commission, as the case may be, shall have the power
11
of a Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the First Class for the purpose of the Code of Criminal Procedure, 1973 (2 of 1974). 3) All offences under this Act may be tried summarily by the District Forum or the Station Commission or the National Commission, as the case may be.
The truism that state government can hardly claim any such power can be demonstrated by adverting to all the sections of Criminal Procedure Code which bear resemblance to the provisions that embody empowerment to confer magisterial powers on others. In this connection even Sections 11,13, 16, and 18 of Cr.P.C. do not bear scrutiny leave alone Sec 27 of the Act which is totally silent on the aspect as to which authority is competent to accord conferment of powers contemplated by the last mentioned section. It is therefore in this view of the matter that the aforementioned sections of the Criminal Procedure Code are set out below in extenso for ready perusal: 11. Courts of Judicial Magistrates. (1) In every district (not being a metropolitan area), there shall be established as many, Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify: [Provided that the State Government may, after consultation with the High Court, establish, for any, local area, one or
12
more Special Courts of Judicial Magistrate of the first class or of the second class to try any particular case or particular class of cases, and where any such Special Court is established, no other court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established.] (2) The presiding officers of such Courts shall be appointed by the High Courts. 13. Special Judicial Magistrates. (1) The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has held any post under the Government all or any of the powers conferred or conferrable by or under this Code on a Judicial Magistrate [of the first class or of the second class, in respect to particular cases or to particular classes of cases, in any local area, not being a metropolitan area]: Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify. (2) Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for such term, not exceeding one year at a time, as the High Court may, by general or special order, direct. [(3) The High Court may empower a Special Judicial Magistrate to exercise the powers of a Metropolitan Magistrate in relation to any metropolitan area outside his local jurisdiction.]
16. Courts of Metropolitan Magistrates. (1) In every metropolitan area, there shall be established as many courts of Metropolitan Magistrates, and at such places, as the State Government may, after consultation with the High
13
Court, by notification, specify. (2) The presiding officers of such courts shall be appointed by the High Court. (3) The jurisdiction and powers of every Metropolitan Magistrate shall extend throughout the metropolitan area. (3) The High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial Service of the State, functioning as a Judge in a Civil Court. 18. Special Metropolitan Magistrates. (1) The High Court may, if requested by, any Central or State Government so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by or under this Code on a Metropolitan Magistrate, in respect to particular cases or to particular classes of cases If [***] in any metropolitan area within its local jurisdiction: Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify. (2) Such Magistrates shall be called Special Metropolitan Magistrates and shall be appointed for such term, not exceeding one year at a time, as the High Court may, by general or special order, direct. (3) The High Court or the State Government, as the case may be, may empower nay Special Metropolitan Magistrate to exercise, in any local area outside the metropolitan area, the powers of a Judicial Magistrate of the first class.
The avowed purpose of compelling the party liable to comply with the order of the Agency is frustrated essentially on two grounds that
14
either no such powers were ever conferred validly on District Forums, state commissions and the national commission created under this Act, to convict the respondent in a proceedings U/S 27 of consumer Protection Act (the only section embodying the complete code of criminal action) or even if conferred any which way such authority conferring those powers itself did not possess any such power inasmuch as the section itself remained silent about that aspect and the ingredients of sections 11,13, 16 and 18 of Cr. P. C hardly apply to the situation on hand not to speak of the fact that such an approach of having to think of applying those sections did not seem to have ever occurred to the persons responsible to effect a valid empowerment. Apart from the verifiably patent inapplicability of the sections extracted above the argument calculated to ascribe willy-nilly the power to issue notification of conferment to Cr. P. C. suffers from the vice of begging the question. Such construction involves first reading the provisions of Cr.P.C. into Sec. 27(2) and then locating the power to issue notification conferring the powers. But a plain reading of Sec. 27(2) makes it amply clear that the applicability of the relevant provisions of Cr.P.C. will be activated only after conferment of powers.
In the present dispensation there is yet another formidable difficulty in the matter of conferment of magisterial powers on District Forums, State commissions, and National commission that escaped the attention of law makers and interpreters of law alike. The difficulty is two pronged – one pertaining to the tenability or
15
otherwise of conferment of magisterial powers on a group of persons enbloc and the other relating to the constitutionality of conferment of judicial powers on a group of persons consisting not only persons with judicial background but also others.
Sections 9, 10, 16, 20 of The Consumer Protection Act, 1986 deal with the establishment, the composition and the constitution of the 3-layered Consumer Disputes Reddressal Agencies. None of those provisions allow a Member (Which term means and includes the president of the Agency concerned) sitting single and disposing of any dispute cognizable by the Agency as a whole or in Circuit benches of more than one member as ordained by the Act itself. Thus in the context of conferral of judicial powers of a Magistrate on the Consumer Reddressal Agencies there is no way of
individualizing the incumbent. It is an obvious fact that at present there is no law that allows the vivisection of the office of Judicial Magistrate First Class as it can be occupied only by one person but not a group. Sec 32 of Criminal Procedure Code makes it abundantly clear. Section 32 reads: 32. Mode of conferring powers. (1) In conferring powers under this Code, the High Courts or the State Government, as the case may be, may, by order, empower persons specially by name or in virtue of their officers or classes of officials generally by their official titles.
(2) Every such order shall take effect from the date on which is communicated to the person so empowered
16
No doubt Sec 27 of the Act intends to convert all the Consumer Disputes Reddressal Agencies manned by more than one as authentic Judicial Magistrates of First Class within the meaning of the Criminal Procedure Code confined though to the sphere of consumer protection under the Act in spite of the fact that none of the provisions of the Criminal Procedure contemplate any office of Judicial Magistrate of First Class being filled up by a plurality of persons and Sec 27 was brought forth with all the baggage of
defects forming the subject matter of this essay exemplified by the deficiency in Sec 27 to effect a valid conferral of powers which is very basic in the sense it failed to predicate with precision as to which authority - the Central Government or the State Governments or the High Courts in which the respective Consumer Disputes Reddressal Agencies are situated – that is clothed with the power to issue the notification effecting the conferment of powers.
Furthermore Sec 27 seeks to confer judicial powers on a group of persons manning the Agency though in most of the cases one or more of them is likely to be a person without qualification to become a judicial officer. No doubt such an impediment is sought to be surmounted by ingeniously employing a non-obstante clause calculated to avoid the applicability of the provisions of Cr. P. C. to the contrary. But that does not relieve Sec 27 from a greater vice of offending not only the provisions of the constitution but also international conventions postulating the inviolability of the rule of entrusting judicial functions only to persons with legal training and expertise. Such an emphasis found in the Constitution of India is
17
discernable from some of its provisions enshrined in CHAPTER VI.—SUBORDINATE COURTS:
233. (1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. (2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment. 234. Appointments of persons other than district Judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. 235. The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the Conditions of his service prescribed under such law. 236. In this Chapter— (b) the expression ―judicial service‖ means a service consisting exclusively of persons intended to
18
fill the post of district judge and other civil judicial posts inferior to the post of district judge.
Obviously inspired by the kind of constitutional intendment manifest in the articles extracted above, the Supreme Court of India understandably made it very clear, time and again that the judicial duties have to be entrusted only to persons trained in legal studies. In a serial of judgments in W. P (civil) No.1022/1989 titled: All India Judges ‗Association. Vs. Union of India And Others
5
which is a
cause kept pending perennially to pass orders as and when necessary to protect the interests of Subordinate Judiciary comprising District Judges and the judges below in the hierarchy, the Supreme Court of India articulated brilliantly various unique characteristics of the judiciary including the importance of possessing skills of law. This position is reiterated in several other cases that decided questions of constitutionality of the formation of Tribunals as distinguished from regular courts yet meant to discharge judicial functions. In UNION OF INDIA & ANR. Vs. DELHI HIGH COURT BAR ASSOCIATION & ORS6 the Supreme court succinctly explained how tribunals are no less than regular judiciary and by the way underscored the importance of tribunals too being manned by persons adept in law in the following terms:
5
a 1992 AIR 165 ;1991( 2 b 1994 AIR 2771 1994 SCALE (4 c 2002 AIR 1752, 2002( 2 d 2006 AIR 2018, 2006(1
6
)Suppl.SCR 206; 1992( 1 )SCC 119, 1991( 2 )SCALE969 ; 1991( 4 )JT285 1994 SCC (6) 314 )SCR 712, 2002( 4 )SCC 247, 2002( 3 )SCALE291 , 2002( 3 )JT 503 )Suppl.SCR553 , 2006(12 )SCC148 , 2006(5 )SCALE84 , 2006(6 )J
2002 AIR 1479, 2002( 2 )SCR 450, 2002( 4 )SCC 275, 2002( 2 )SCALE668 , 2002( 3 )JT 131
19
―Such tribunals, whether they pertain to Income-tax or Sales-tax or Excise and Customs or Administration, have now become an essential part of the judicial system in this country. Such specialised institutions may not strictly come within the concept of the judiciary, as envisaged by Article 50, but it cannot be presumed that such tribunals are not an effective part of the justice delivery system, like courts of law. It will be seen that for a person to be appointed as a Presiding Officer of a Tribunal, he should be one who is qualified to be a District Judge and, in case of appointment of the Presiding Officer
of the Appellate Tribunal he is, or has been, qualified to be a
Judge of a High Court or has been a member of the Indian Legal Service who has held a post in Grade-I for at least three years or has held office as the Presiding Officer of a Tribunal for at least three years. Persons so appointed as Presiding Officers of the Tribunal or of the Appellate Tribunal would be well versed in law to be able to decide cases independently and judiciously…………‖
Even the international consensus is in favor of such regulation as borne out from the excerpt down below:
Basic Principles on the Independence of the Judiciary Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.
The Section relevant to the theme of this article is set forth hereunder: Qualifications, selection and training
10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial
20 selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, color, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.
The Indian ethos insisting that judicial functions should be invariably entrusted to persons skilled in law cannot be explained any better than by citing the relevant provision common to the three important sections of law 13, 16, and 18 of Cr.P.C couched as under: “Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify.” In this article an attempt is made to demonstrate rather clearly that the 2002 amendment all the more goofed up the very applicability of Code of Criminal Procedure and the new Sec 27 turned out to be crippled especially in the arena of conferment of powers of Judicial Magistrate of First Class on Consumer Disputes Reddressal Agencies, so also, to bring home the chaotic enforcement profile of the old Sec 27 what with different agencies taking to different procedures of varied hues betraying the utter lack of understanding of the true nature of the proceedings envisaged by Sec 27 whether it is old or new. It is not out of place to submit that some agencies characterized the proceedings under Sec 27 as actions for contempt of court while yet other agencies treated it as providing procedure for coercive execution like under the Civil Procedure Code which provided interalia for arrest and detention of the judgment-debtor conveniently forgetting that a plain literal
construction of Sec 27 both old and new of the Act would lead us to
21
effortlessly appreciate and come to an irresistible conclusion that Sec 27 has been all along a downright penal provision which should be enforced like any other piece of Penal code. As a result all the convictions under Sec 27 0f the Consumer Protection Act 1986, if any, handed down all these years throughout India cannot escape the blot of illegality.
This Article has surfaced several issues of utmost importance which are apt to impact protection of Human rights and Rule of Law among other questions. It is for all concerned to give it anxious consideration by delving deep into the matter for not only the control but also the prevention of any further damage to constitutional values and justice.
