30 December, 2016

The courts, which lack qualified members, serve very little purpose to the citizen

In 2010, a client approached me with a case against an automobile manufacturer he had filed before a consumer forum in Delhi in 2006. He was changing lawyers and when he brought the case to me, it was listed for final arguments. Ideally, the case should have finished in two more dates at the most. But years later, the case is still listed for final arguments.

Another consumer forum in Delhi was shut for over seven months because a few rooms in the building were getting renovated. Yet another one was shut for over a year because the stenographer was on leave. I was once in a State Consumer Forum where a judge was arguing with a litigant that if a medical negligence victim is already dead, what is the point of seeking compensation? This happened in a forum in the national capital, next door to the seat of the government and the Supreme Court of India. (Don’t ask.)

Earlier this year, during a hearing in a case ‘State of Uttar Pradesh and Ors. v All U.P. Consumer Protection Bar Association’, the apex court appointed a committee, which, among other things, found out that the consumer courts suffered from “…grossly inadequate infrastructure, absence of adequate and trained manpower and lack of qualified members in the adjudicating bodies. Benches of the state and district fora sit, in many cases for barely two or three hours every day, and remain non-functional for months due to a lack of coram.” The committee also found out that often relatives of politicians and bureaucrats were being appointed as judges to these forums and there was little or no attempt to appoint qualified people.

In its judgment in the aforementioned case, the apex court notes that “A systemic overhaul of the entire infrastructure is necessary if the Consumer Protection Act, 1986 is not to become a dead letter”. While I completely agree with the court, unfortunately, the court cannot and did not attempt an ‘overhaul’. The court did issue directions to the central Government and the National Consumer Disputes Redressal Commission to frame model rules which would (if ideally and seriously implemented) bring improvement in the quality of judges, improve administration of consumer forums and more, but to no avail. For instance, directions to bring about police reforms were issued by the apex court in 2006 but very little have been achieved ever since.

There are some problems which were not touched upon by the Supreme Court at all in the case and, in fact, remain unaddressed even by the Consumer Protection Bill, 2015. For instance, consider a feature aggressively promoted by the government in awareness campaigns - the fact that you don’t need a lawyer to file and pursue a case before consumer forums. In practice, not hiring a competent lawyer often has terrible consequences. Many litigants are not aware that there is something called a period of ‘limitation’ which also governs cases before consumer forums. I have heard too many stories of victims of medical negligence and his/her loved ones approaching the court only after the person has recovered, at which point the period of limitation (the period of time within which you must file a case or give it up forever) has already expired.

There are no functional legal aid cells at most consumer forums and so, many consumers suffer because of their ignorance of the law. Another example where consumers suffer for lack of competent legal advice is that in cases involving issues of medical negligence, complicated case law and doctrines govern how cases will be decided. People approach consumer forums without a lawyer because of the assurances from the government and courts that no help is needed but in the process, end up suffering the consequences. For instance, did you know that the opinion of an ‘expert witness’ is often a decisive factor in deciding disputes of medical negligence? Many people don’t. Often because of incompetent judges, corporates tell courts that the case cannot be heard by the consumer forum since there was an arbitration clause in the contract between them and the consumer even as the law says that cases can be heard by consumer courts despite there being an arbitration clause.

The new consumer protection bill (not passed by parliament yet) does not deal with any of these issues and, in fact, creates yet another regulatory body to protect the rights of consumers. I have never understood this perpetual belief of the government that creating more institutions will solve problems.

Insofar as medical negligence is concerned, the sight of those cases being heard by ill-equipped, untrained consumer court judges is nothing short of tragic. It is my opinion that medical negligence cases need to be heard by a separate and specialized tribunal having the specific training to deal with these cases. As for the rest of the cases, I believe that despite the fact that normal courts are overburdened and they suffer from multiple problems, they need to be shifted to regular civil courts. They are far better equipped to deal with these cases. If this doesn’t happen, the government’s ‘Jago grahak jago’ tagline will just turn out to be ‘bhago grahak bhago’ (from consumer forums).