A Law Teacher Hard to be Found

(By P.B.Sahasranaman,Advocate, High Court of Kerala)

Late Sri.T.P.Kelu Nambiar, Senior Advocate was respected by the learned lawyers and judges for the reason that he is a good guide. If somebody commits mistakes affecting the legal system he used to tell them boldly and sometimes write articles on the same in his inimitable style.

His Article in the KLT tilted “Heard Both Sides” criticises the casual manner in which writ petitions are disposed of. The legal profession seems to be injured from shoulder to foot, he expressed his unhappiness.

Obituary reference of lawyers were made after a long gap, sometimes together. If you think we are doing the right thing, perish the thought. I should think, it borders on absurdity. It is objectionable from Alapha to Omega, he has written in his inimitable style in the article titled “R.I.P.”. In the said article he has expressed his last wish: Do not wake me in my grave long after my interment only to convey your last regrets and rehearsed recollections. He has also written an article “Insult not the dead” when the judges death was given more preference though reference is due to lawyers who died earlier. After these articles the system of having reference for lawyers in the evening is stopped and the present practice of standing for two minutes. The present Chief Justice in recognition of the principle has given more respect to them by showing their names in every court and offices, respecting the soul of the lawyers.

Sri.Nambiar is of the view that a Judge, while hearing a cause should never look at his cause-list; should hide his watch and respect the brief before him. What should be the feeling of a party to the cause and his counsel, when they see the rapid ‘throw-away” of the brief book. Every brief contains the information enough to perceive the important truth relating to the cause.

Criticising the manner in which the discussions are being done on matters pending in Court, Sri.Nambiar has written an article tilted “What Ho ! Contempt”. The participants in the media show very heavily crossing the LOC (Line of Contempt) by venturing strong views against the observation and orders of the presiding judge. Even the appearing counsels were seen opinionated. And, they all were mis-fuelling, when the proceedings were pending. For a clear answer, brood over the matter sitting for some time under the green-wood tree.

Memorandum of Second Appeal “Cribbed, Cabined and Confined by Kalliani”, that was the title of an article written by him criticizing the judgment by which the Court has held that the memorandum of second appeal does not state the facts and grounds, only the question of law.

Sri.Kelu Nambiar is not with us. But his passion towards the profession is respected by all. He was a teacher for both the bench and bar. The Court can render good judgment only with the help of such good lawyers. When the question of interference by the High Court in Devaswom matters was questioned it was Sri.Nambiar who helped the court as amicus curiae. His submission was that the High Court has got ‘inherent jurisdiction’ (a reserve power) not conferred by the statute to protect the interest of a religious or a charitable trust or deity, the class of persons who cannot, on their own, take proceedings to protect or safeguard their interests and set right the abuses or mismanagement or maladministration. Appreciating the said submission the Court observed when the question regarding jurisdiction was argued at length by the learned Additional Solicitor General, the presence of inherent jurisdiction in this Court, as stated above, was put in the forefront by Mr. Nambiar.¹

We need guidance from such veterans for a good judicial system to work. Bar and bench should help each other to produce quality judgments. A good understanding will make better work.  I would like to quote Justice V.R.Krishna Iyer in this regard.

“My life-long and experience at the bar and the Bench is that Judges cannot shine without the Bar lending great support and so each is complementary to the other.”

1. C.S.Rajan v. State (AIR 1994 Ker.174).

“The Protection of Human Rights Act 1993”–Needs Radical Change

(By Devi A.R., Section Officer, Law Department, Govt.Secretariat, Trivandrum)

  Human rights are those inalienable rights, owed to every person simply because he is a human being. Human rights are held only by human beings but equally by all; they did not follow from office, rank or relationship¹. Earlier times the “enforcement of the human rights” was more meaningful against the State because the State regulated the human behavior as a part of maintaining law and order later, the change in the concept of State from police State to welfare State vested duty upon the State to protect the individual’s human rights. But the duty of the State to protect the individual’s human rights got worldwide acceptance after the Universal Declaration of Human Rights,1948 and this became transformed into legally binding standards after the International Covenant on Civil and Political Rights, 1966 (ICCPR) and International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR). 

As far as our Nation is concerned the  protection of human right are there in our law of the land itself and can be explicitly seen in the preamble, fundamental rights and directive principles of State policy. But after being the signatory   to the ICCPR and ICESCR Indian Parliament was conventionally bound to vote for a statute to recognize the protection of human rights and consequently passed Protection of Human Rights Act 1998. The Protection of Human Rights Act intended for the better protection of human rights by constituting National Human Rights Commission, State Human Rights Commission and Human Rights courts.

 State Human Rights Commission consists of a Chairperson and two members and other staff as prescribed by the statute. These Chairperson and members are appointed by Governor after obtaining the recommendation of a Committee consisting of the Chief Minister as chairperson, Speaker of the Legislative Assembly, Ministers in-charge of the Department of Home in that State, Leader of the Opposition in the Legislative Assembly. While dealing with the complaints the commission could act as a civil court and also could take sou moto complaint against the issues involving human rights violations. Though the commission has such powers its orders have no conclusiveness. The commission can only make recommendations to the Government on the issues involving human rights violations. Human Rights Commission being a statutory body obviously its limits are fixed there in the statute.

The validity of the orders of the Human Rights Commission was challenged before the legal forums at different times and finally it ends in the statutory limits of the commission. In N.C.Dhoundial v. Union of India & Ors.² the Honb’le Supreme Court observed that “…The Commission which is an ‘unique expert body’ is, no doubt, entrusted with a very important function of protecting the human rights, but, it is needless to point out that the Commission has no unlimited jurisdiction nor does it exercise plenary powers in derogation of the statutory limitations. The Commission, which is the creature of statute, is bound by its provisions. Its duties and functions are defined and circumscribed by the Act. Of course, as any other statutory functionary, it undoubtedly has incidental or ancillary powers to effectively exercise its jurisdiction in respect of the powers confided to it but the Commission should necessarily act within the parameters prescribed by the Act creating it and the confines of jurisdiction vested in it by the Act…”

Later a positive appreciation by the judiciary on the validity of the orders of the commission may be seen in the judgment pronounced by the Allahabad High Court in State of U.P. v. NHRC³, wherein the Hon’ble High Court held that the State is duty bound to comply with the orders of Human Right Commissions, in the absence of it being set aside. This significant observation was made by the Court in a petition by the State Government challenging the direction to it by NHRC to submit a compliance report along with a proof of payment of the compensation to next-of-kin of the deceased prisoner. The Prisoner who was an under trial had died while in prison due to some chronic disease. The Hon’ble Court observed as follows:

“The basic question is whether the use of the expression “recommend” in Section 18 (a)
can be treated by the State Government or by an authority as merely an opinion or a suggestion which can be ignored with impunity. In our view, to place such a construction on the expression “recommend” would dilute the efficacy of the Commission and defeat the statutory object underlying the constitution of such a body. An authority or a Government which is aggrieved by the order of the Commission is entitled to challenge the order. Since no appeal is provided by the Act against an order of the Commission, the power of judicial review is available when an order of the Commission is questioned. Having regard to the importance of the rule of law which is but a manifestation of the guarantee of fair treatment under Article 14 and of the basic principles of equality, it would not be possible to accept the construction that the State Government can ignore the recommendations of the Commission under Section 18 at its discretion or in its wisdom. That the Commission is not merely a body which is to render opinions which will have no sanctity or efficacy in enforcement cannot be accepted. This is evident from the provisions of clause (b) of Section 18 under which the Commission is entitled to approach the Supreme Court or the High Court for such directions, orders or writs as the Court may deem fit and necessary. Governed as we are by the rule of law and by the fundamental norms of the protection of life and liberty and human dignity under a constitutional order, it will not be open to the State Government to disregard the view of the Commission. The Commission has directed the State Government to report compliance. The State Government is at liberty to challenge the order of the Commission on merits since no appeal is provided by the Act. But it cannot in the absence of the order being set aside, modified or reviewed disregard the order at its own discretion. While a challenge to the order of the Commission is available in exercise of the power of judicial review, the State Government subject to this right is duty bound to comply with the order. Otherwise the purpose of enacting the legislation would be defeated.”

The decision of the Allahabad High Court in State of U.P. v. NHRC is an affirmative approach on the powers of the commission but it has only persuasive effect as far as the Court of law in other States  are concerned and also the Court of law is supposed to interpret law in accordance with legislative provisions. It’s upon the legislature to make amendments in the law according to the requirements of the society.  The Protection of Human Rights Act, 1998 requires radical change in its Jurisdiction, Enforceability and Cost.

Enforceability

If the substantive rights are well defined in a law but there is no procedure prescribed for implementing the rights then such law is only a tiger without nail. Likewise, even how beautifully narrated legal points are there in an order, if it lacks decree part, then it is a only a plant that can’t bear fruits. Human Rights Commission is a well constituted statutory body with enormous powers but its orders has recommendatory value only and moreover these recommendations are not binding on the respondent. This is a circumstance wherein the entire work of the commission turns out to be of no consequence. It dissipates the time and man power of the entire team of the commission especially, the highly qualified and highly paid chairperson and members, who are of in equal status of a High Court Judge. The statute may be modified so as to include a provision which make sure that the order of the commission will not be sidelined as a simple recommendation.

Jurisdiction

Human rights are those fundamental rights which are not supposed to be taken away from the individuals at any circumstances either by the State or by other individuals. It is not feasible for an individual to live with dignity in a society where there is no recognition and protection of human rights. The scope of these rights largely depends on the recognition given to this right by the legislature and the judiciary. The classification of human right violators into State and non State will deceive the basic objective of protection of human rights. The Human Rights Commission, which is constituted for the better protection of the human rights, has no jurisdiction over the private individuals and private corporations even in case of grave human rights violation. The affected party cannot approach the commission for the same or rather the commission will be legally forced to reject the complaint at prima facie. Human Rights Commission as it stands now is just a statutory body to make recommendation to the Government on human rights violation committed by the public authorities.

Cost

The object of awarding costs is to indemnify a party against the expenses incurred in successfully maintaining his rights and the compensatory cost is indeed for against the false or vexatious claims or defences. Here in the instant situation, inclusion of the provision for awarding cost is highly necessary to avoid false and vexatious claims. It will, to a large extent, assure that the complaints coming before the commission are genuine. This will also restrict encroachment of the so called human rights activist in the human rights of others and also the commission could save its valuable time and will be able to concentrate on the genuine complaints at hand.

Foot Note:

1.   Ramesh Thakur, The growing threats to Human Rights. The Hindu, December 5, 2009 city edition, Thiruvananthapuram.

2.   https://www.sci.gov.in/jonew/judis/25688.pdf visited on 13.2.2019.

Human Rights Commissions are to be Well Awakened

(By Sajeer.H, Section Officer, Law Department, Govt.Secretariat, Thiruvananthapuram)

It is common trait that torture is pervasive and a daily routine in everyday life irrespective of whether the arrests are made by the Police or the Para-military forces or the army. Rape is a common form of torture. The Police may abuse women to carry out a proxy war against their men folk. The police in many States make armed robbery carried out  by the gangs of young men and decided to blind suspects as deterrence to offenders. It is recently reported that in one of the States in India about 30 men and boys were deliberately blinded by using thick needles and acid. Forces severely attacks poor ladies in many States. The police authorities often behaved themselves as legally licensed goondas (not all of them, but some erred), for extracting confession. Most people are not ready to complaint against these injustices because of fear.

We all know the 11 directions of the Honourable Supreme Court in D.K.Basu v. State of West Bengal.These directions were stuck in every police station and in all conspicuous places of the public at large. But such guidelines were not complied by the police authorities literally. Almost all police stations become the centres of inhuman behaviour and those who use third degree acts even to poor people for extracting confession and include them in false cases. The torture may be either physical or emotional. It is very strange to realise that the police stations not yet give FIR copy to the informant free of cost in Kerala. Article 20(3) of the Constitution, Sections 330 and 331 of the Indian Penal Code and Section 29 of the Indian Police Act of 1881 clearly forbid torture. Rule 3 of the Police Code of Conduct lays down that “the Police should not usurp the functions of judiciary and sit in judgment on cases, nor should they avenge individuals and punish the accused.” Section 101 of the Indian Evidence Act clearly stipulates that the arrested person has the right to have the benefit of the presumption of innocence till his guilt is proved. But all these mandates were not abided by the authorities yet now.

Why such type of incidents has been spreading day to day. Is it because of the failure of the establishment of a stubborn body in the State to monitor and if so found, to deter these types of atrocities. Therefore the Universal Declaration of Human Rights and other covenants urged the need of establishment of Human Rights Commissions in every State who are the signatories of it.

Let us look into the present form of Human Rights Commission Act .The Protection of Human Rights Commission Act, was enacted by the Parliament in the year 1993.

The object clause of the Act says that, it is an Act to provide for the constitution of National Human Rights Commission, State Human Rights Commission in States, and Human Rights Courts for the protection of human rights and the matters connected therewith and incidental thereto. That means the object of the Act is only for establishment of Commissions and the matters connected for its establishment and incidental thereto. The narrow definition regarding human rights is given under Section 2(1)(d) of the Act. It reads that it is the rights relating to life, liberty and equality of individual guaranteed by the Constitution or embodied in the international covenants and enforceable by courts in India. That means the Act limits human rights as to the rights relating to “life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the international covenants.” This definitely limits the scope of the Commission within the four walls of life, liberty, equality and dignity. No say about the Justice, Solidarity, Social responsibility and evolution of peace and non violence. Really human rights are those rights which were inherent in our nature and without which we cannot live as human beings. These rights allow us to use and develop fully our human qualities, intelligence, talents, conscience and to satisfy our spiritual needs. These rights are universal and are applicable to all persons irrespective of any discrimination and it cannot be denied under any circumstances by framing of any laws.

The present Human Rights Commission consists of high dignitaries. The National Human Rights Commission shall consist of a Chair Person who has been a Chief Justice of the Supreme Court, one member who is/has been a Judge of the Supreme Court, one member who is/has been Chief Justice of a High Court and two other members who have knowledge and practical experience in the field of human rights. Their appointments shall be governed by a body consisting of the Prime Minister as Chairperson, Speaker of House of People, Home Affairs Minister, Leader of Opposition in the House of People, Leader of Opposition in the Council of States and Deputy Chairman of the Council of States are members. While in the case of State Commissions, the Chair Person is or has been a Chief Justice of the State and such other members. Their appointments shall be made by a committee which shall consist of the Chief Minister as its Chairman and Speaker of Legislative Assembly and others. On a conjoined reading of these sections it can be seen that the appointment shall be under the hands of politics and the ruling party.

Section 12 of the Act says that the Commission shall, inquire suo motuor on a petition presented to it by a victim on any complaint of violation of human rights  or abetment thereof, or negligence in the prevention of such violation by a public servant, intervene in any proceedings involving any allegation of violation of human rights pending before a court with the approval of that court, visit any jail or other institution under the control of the State Government where persons are detained or lodged for the purpose of treatment reformation or protection, for the study of the living conditions and make recommendations thereon. On going through the powers in the first and second limp of Section 12, it is seen that it has wide and ample power to inquire any matter relating to the violation of human rights. But on going through the remaining limps it can be seen that, if it found any violation of human rights it cannot do any active/coercive action other than a recommendation to the Government. Human Rights Commission shall not have the power to punish a person who intentionally insults a Judicial Officer of the Commission or any other officer of it, but shall forward a complaint to a nearest magistrate for taking cognizance. Suppose a public servant willfully disobeying the recommendations of the Commission or insult judicial officers the commission cannot take up the matter and proceed against him. In short Human Rights Commission is silencing the complainant by accepting a complaint from them.

Section 18 of the Act says that, where an inquiry discloses violation of human rights or negligence for the prevention of such violation it may recommend to the Government to make payment of compensation or damages to the complainant or his family or to initiate proceedings against that person or to approach Supreme Court or High Court for such a direction. If we follow this section literally, it is evident that the Commission is not a mere recommendative body but a protector of human rights, having the power to approach even Supreme Court or High Court, for enforcing its recommendations. But unfortunately neither State Human Rights Commissions nor National Human Rights Commission were yet to resort such relief.

Let us examine how Human Rights Commission is dealing with  a complaint. Regulation 17 of the Kerala Human Rights (Procedure) Regulation 2001, says the Commission may dismiss in limineany complaint which are illegible, vague, anonymous, pseudonymous, trivial, frivolous, or filed after one year from the date of arising of cause of action, allegation not disclosed the involvement of a public servant, civil nature, service matters, labour or industrial disputes pending before any court or tribunal, matter is pending before any other commissions, photo copy of the petition or the matter is outside the purview of the Commission. Regulation 23 drives us to know how a complaint is dealt with and how it to be disposed of. When a complaint is received in the Commission the registry shall number the complaint and then forward the same to the assistant concerned or the section officer of that section for assigning the same to the assistant. The assistant shall not have the power to process the complaint, as what he did in bureaucracy, but to submit after docketing it, before the Registrar for placing before the Commission. The Commission after considering the complaint and all other facts either directs its investigation wing to investigate the matter or forward the same to the authorities for furnishing report before the commission within a stipulated time. If the report as aforesaid is filed, the Commission may issue notice to the complainant for appearance and for filing objections. Thereafter it either disposes of the case or makes recommendation to the Government for damages or compensation to the complainant and took appropriate action against the public servant.

Here one important thing worthy to note is that any complaints against the police officers were also investigated by the police itself. Suppose if a person is brutally manhandled in the Camp or Lockup of the police, he may approach the Commission with a Himalayan hope of protecting his human rights or to prove his innocence with all relevant documents including wound certificate. The Commission at first without giving any posting date to him sent the case to the investigation wing for report. The staffs of the investigation wing were police officials on deputation from the Home Department. They cannot be blamed if they file a report having leniency towards their colleagues. Moreover, suppose if the Commission finds that a police torture has happened and a gross human rights violation had been done, it recommend the Government under Section 18 of the Act for paying compensation or damages to the complainant. It is not mandate to the Government to comply with the recommendation of the Commission and its pros and cons. If the Government had not taken any action on the recommendations the Commission have no power to execute its recommendations. If it is so, what justice will have to be imparted by the commission to the poor persons those who had suffered injuries (either mentally or physically) from the authorities. Then what is the use of this forum.

Human Rights Commission is simply acting as an Enquiry Commission. It conduct enquiry to a particular case and then to recommend punitive measures against the offensive officers before the Government and to take up the matter. The Commission does not have power of prosecution or give a direction to Government to comply its order.

Then what will be the remedy. That is nothing but the amendment of the Protection of Human Rights Act in order to achieve more.  Almost all sections of the Act is to be amended.

Amendment of The Protection of Human Rights Act

In the Protection of Human Rights Act, Amendment of Section 18.-- ln Section 18 wherever the word recommend” or “recommendation” are used the word “Order” shall be substituted.

After Section 29 a new section, Section 29A is to be inserted

“Section 29A.-- (l)Where a public servant against whom a complaint is made fails or omits to comply with any order made by the National Human Rights Commission or a State Human Rights Commission as the case may be, such public servant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to seven years or with fine which shall not be less than two thousand rupees but which may extend to one lakh rupees, or with both;

(2) Notwithstanding anything contained in the Code of Criminal Procedure,1973 the National Human Rights Commission or State Human Rights Commission, as the case may be, shall have the power of a Chief Judicial Magistrate for the trial of offences under this Act, and on such conferment of powers, the National Human Rights Commission and the State Human Rights Commission as the case may be, on whom the powers are so conferred, shall be deemed to be a Chief Judicial Magistrate for the purpose of the Code of Criminal Procedure,1973 (2 of 1974).

All offences under this Act may be tried by the National Human Rights Commission or the State Human rights Commission, as the case may be.

Procedure.-Offences under this Act shall be cognizable, non-bailable and non compoundable.”.

The above said amendment is not exhaustive. The Parliament has to decide such a change in the Act for the protection of human rights and to give safeguard to those who suffered from torture. If the existing system of dispensing justice prevailed then there is no need of these types of forums. The National Human Rights Commission or The State Human Rights Commission, headed by high dignitaries of the judiciary will not suppose to act as the investigating agency of the State, but to act as the protector of the Constitution and the watchman of the protection of human rights.

Hence the teeth of these Commissions are to be sharpened and will be given power to enforce its orders/recommendations by resorting to provisions of the Criminal Procedure Code. Then only the people will place their faith upon democracy and on the Commissions.

Salient Features and Limitations of the Consumer Protection Bill, 2018

(By Sajeer H., Section Officer, Law Department, Government Secretariat, Trivandrum)

The Consumer Protection Bill, 2018, which was approved by the Union Cabinet, is an exhaustive change of the Consumer Protection Act 1986. But the proposed bill is not completely armed for curbing the wrongdoers and for protecting the consumer’s rights and their interest.

The object clause of the Act says that, it is an act for the establishment of authorities for timely and effective administration and settlement of consumer’s disputes and for the matters connected therewith or incidental thereto.

Clause 2 of the Bill introduces certain new definitions like Advertisement, Consumer rights, Design, Direct Selling, Director General, District Commission, E-Commerce, Electronic
Service Provider, Harm, Injury, Misleading Advertisement, Product Liability, Product Liability, Action, etc. The bill says that the consumer has the right to be protected against marketing of goods, products or services which are hazardous to life and property. The consumer has the right to be informed about the quality, quantity, potency and purity of the goods, products and services. The consumers have the right to be protected against the unfair trade practices and to be assured to access to a variety of goods and products or services. Whenever a harm or personal injury or illness or death or mental agony or emotional distress may occur, in relation to the use of any property or goods, the action can be termed as harm. When an advertisement leads to mislead the consumers relating to any product or service, such acts here comes under the purview of misleading advertisement. Here, not only the manufacturer but also the celebrities who mislead the consumers were also jointly and severally liable for action.

As compared with the Consumer Protection Act, 1986, there is no change in the definition of consumer in the new born bill, except the addition of the expression “buys any goods” “hires or avails any services”. It is to be given wider definitions as to, that it includes online and offline transactions through electronic means or by teleshopping or direct selling or multi level marketing.

One of the novel steps in the bill is that the introduction of a new powerful authority for dealing the consumer complaints in a speedy manner. Clause 10 of the Bill provides for the establishment of Central Consumer Protection Authority. It shall consist of a Chief Commissioner and such number of other commissioners which the Central Government may be prescribed. Its head quarters shall be at Delhi and shall have regional offices in any other places in India which it may decide. Like that of the Human Rights Commission, the Central Consumer Protection Authority shall have an investigation wing headed by the Director General, who shall have experience and training in the field of investigation. There shall be such number of Additional Director General, Director, Joint Directors, Dy.Director and Assistant Directors who shall be selected from among the persons who have experience in investigation. The investigation wing shall have the power to inquire the matter or investigate the same. The inquiry report or the report of investigation shall be submitted before the Central Consumer Protection Authority within the time which may be stipulated in the order. Any persons who have the complaint of violation of consumer rights or unfair trade practice or false or misleading advertisement, he can directly approach the CCPA or the District Collector with a complaint in writing or submit the same through electronic mode as may be specified.

A powerful weapon in the armoury of the CCPA is that it has the power to take up any complaint by suo motuand inquire the matter by its own. CCPA also have the power for filing complaint before the District Commission or the State Commission or National Commission for preserving consumer rights. When we move through this clause we could see that the CCPA is subordinate to District Consumer Commission.

Though the CCPA is subordinate to District Commission it can entertain complaints and conduct preliminary enquiry upon them. Thereafter if it satisfied that there exist a prima faciecase, it shall direct its investigation wing, to investigate and report the matter.

The District Collector may, upon receipt of such complaint or a reference made to him by the CCPA, to inquire the matter or investigate the same and submit his report before the CCPA either it received through it or directly.

After getting such report where the central authority is satisfied that there is sufficient evidence to show violation of consumer rights, it may pass such order for recalling of goods which are circulating in the markets or withdrawing services which are dangerous or unsafe or reimburse the price of goods to the consumers.

If CCPA is being satisfied that any advertisement is fake and is prejudicial to the interest of any consumers, it directs the Trader, Manufacturer, Endorser, Advertiser or Publisher to discontinue such advertisement or to modifying it. If any person violates the directions as foresaid said, it imposes penalty for the first offence for an amount of rupees 10 lakhs and for every subsequent contraventions imposes 50 lakhs as compensation and to prohibit such goods for a period of three years for circulating it in the market.

The central authority shall also have the power to search and seize any document, record and article etc., which may be detained or kept by the above persons, for protecting consumer rights, as per the procedure of the Cr. P.C.

Clause 24 of the bill provides that if a person aggrieved by any order passed by the central authority may prefer appeal to National Commission within 30 days from the date of receipt of the order.

Clause 28 of the bill renamed the present Consumer Disputes Redressal Forums as District Consumer Disputes Redressal Commissions. Its pecuniary jurisdiction stands extended up to One Crore from the existing limit of 20 lakhs. The pecuniary jurisdiction of the State Commissions also enhanced from One to Ten Crore instead of the earlier limit of above twenty lakhs up to one Crore.

As a gift to consumers, the bill provides a clause for Alternate Disputes Redressal System, for the speedy disposal of the pending cases herein. Clause 37 of the bill provides that at the first hearing of the complaint after its admission or at any later stage the District Commission or the State Commissions or the National Commission as the case may be refer the matter to mediation, if the parties give a written consent on that behalf to it. Pursuant to that mediation if any agreement is reached between the parties with respect to all of the issues involved in the consumer disputes, the mediator shall prepare a settlement report and forward the same to the commissions, where the case had been forwarded. The commissions, where the case stands pending, shall pass suitable orders by recording such settlement of the consumer disputes and dispose off the case within seven days.

Insertion of product liability is another feature of the bill. Product liability means the responsibility of a product manufacturer or product seller of any product to compensate any harm that may be caused to a consumer. Product liability action means filing of complaint by a person seeking compensation from the erred seller or manufacturer or Product Service Provider, as the case may be. All the above persons would have been liable, if it proved that product contains manufacturing defects or does not confirm express warranty or faulty service. Product Liability Action cannot be entertained if the product is modified or alters or misused at any point of time after sale.

The proposed bill has strong protective arms over the consumers by way of enhanced penalties against the wrong doers. If any person is found guilty of adulteration and thereby caused the death of the consumer the offender shall be liable for imprisonment for a term which may extent up to seven years and fine of rupees 10 lakhs.

Limitations

Though the new born bill provides perfect accommodation for the consumers and deters the wrong doers, it has some limitations.

First of all the process of mediation as envisaged in the bill is seen defective. The mediators only have the duty to record the settlement between the parties who were present before him and sent the same to the commissions which referred the matter. No mediators have the power to pass an award as part of that settlement as what in Section 21
of the Legal Services Authority Act, 1987. Wherein every such award shall be treated as decree of a civil court and the court fees if any remitted can be refunded in the manner as provided in the Court Fees Act 1870. Such Award shall be final and binding on all parties to the dispute. No appeal shall ordinary lie over it. But here no such clause. The report of the mediators can be retracted by the parties at any time before the matter is taken for orders by the commissions. A written authority of both sides is needed for a reference to mediation, but no such formality can be seen under the Legal Services Authority Act. No judicial member is appointed for the mediation proceedings is another drawback of the bill. If the enactment is for the speedy disposal of consumer complaints and for protecting their rights and interest then the Legislature ought to have given application of the provisions of Legal Services Authority Act, in the new bill.

The Consumer protection authority has the power to entertain a matter either on a complaint or on suo motu. But no such suo motupower is to be given to any of the commissions in the court array. On going through the bill in detail it can be seen that the authority have wider power than that of the Consumer Commissions, though it is subordinate to it. The commissions will remain in four corners of the court room and is set in to motion only on filing of a complaint by the consumer. But as far as other commissions like State Human Rights Commissions, Child Rights Commission etc. have the power to take up a matter in to file on suo motu.

The bill is remaining silent of the fact that whether a consumer can file a petition simultaneously in the Consumer Commission and the CCPA. If so whether both of it continues warranting different judgment/orders or any stay of suit can be possible to.

No exclusive jurisdiction and original jurisdictions were specified in the bill. Though the online transactions were included in the bill no territorial jurisdiction is to be fixed in the bill.

The bill provides complaint can be filed electronically. The admissibility of the complaint shall be ordinarily being decided within 21 days from the date of receipt of such complaint. If a decision on that behalf is not taken within 21 days, then the complaint shall deemed be taken as admitted. Here the hindrance is that, without hearing the complainant the Commissions shall be bound to take up the matter in the open court and take up a decision on it.

Another drawback is that no inherent power is to be given to the commissions (Like Section 151 of C.P.C.) for taking up any action or procedure by its own. Therefore, If any complaint is dismissed for default no restoration is possible in the new bill and no review can be entertained.

Though the bill has such types of limitations, introduction of certain new clauses are positive new changes for the existing consumer protection laws in the country.

Dissent Note on “Sreeja v. Commissioner of Police” Reported in
2018 (4) KLT 644

(By H. Sajeer, Section Officer, Law Department, Government Secretariat, Trivandrum)

A custom once disallowed cannot be again brought forward. This is the meaning of the maxim “Consuetudo semel reprobate non protest amplius induci”. Certain customs prevailed in the society are for the betterment of the people at large. Whenever laws began to overreach, then it may cause the destruction of society and invites untold miseries and diseases.

The facts in the title case was that, a lady aged 40 years, is raising an allegation that her ‘lesbian partner’, Ms. Aruna, aged 24 years is under illegal confinement of her parents, against her free will. She seeks a writ of Habeas Corpus for commanding for the production of the corpus of the alleged detenue and to set her at liberty. She alleged that the alleged detenue is in close relationship with her and that they are unable to separate. They intended to live together as life partners. She also alleged that on 13.08.2018 the detenue left her parental home and joined with her. Then the parents had lodged a case before the police authorities about the missing of the alleged detenue. The police authorities registered an F.I.R, under Section 57 of the Kerala Police Act, 2011. The police had taken the alleged detenue into custody and produced her before the Judicial First Class Magistrate-II, Neyyattinkara, on 14.08.2018. The learned Magistrate had set the alleged detenue at liberty. But, it is alleged that the parents of the alleged detenue forcibly taken her into custody after assaulting the petitioner, with respect to which the petitioner had lodged another complaint in the same police station. The alleged detenue had informed the petitioner that her parents had admitted her in the Government Mental Hospital at Peroorkada. When the petitioner met the alleged detenue in the said hospital, she was ready and willing to come along with the petitioner. But the hospital authorities insisted for production of a court order for her release and for sending her along with the petitioner. Alleging that the parents are keeping the alleged detenue under illegal confinement at the Mental Hospital, the petitioner approached for a writ of habeas corpus.

On receipt of notice, the parents appeared before the Honb’le High Court and produced the alleged detenue. When the Honb’le court interacted, the alleged detenue said that she had completed the age of 23 years and is a Post Graduate in Economics and undergoing coaching for P.S.C test. She conceded about her relationship with the petitioner and about their decision to live together. She expressed her strong desire to go along with petitioner to her house at West Kallada, Kollam. She is not prepared to go back to her parental home along with her parents. According to the alleged detenue, she is being illegally detained by her parents and was taken to the Mental Hospital, despite the fact that she is in perfect mental condition, by giving much reliance to the decision in Navtej Singh Johar v. Union of India(2018 (4) KLT 1 (SC) the Honourable Supreme Court held that the live in relationship between the petitioner and the alleged detenue will any manner offend any provisions of law or it will become a crime in any manner. Hence the alleged detenue is set at liberty to go along with the petitioner, as desired by her.

When we travel along with the case in hand we could realise that emotions and feelings have a limited role in the administration of justice. But an undisputed fact in the world is that father and the mother are the only visible gods one’s have. Nothing can equate with the security, affection, care and protection which we get from them. The parents are the most dependable persons in the home. They share everything for their sons and daughters. They seldom expect anything from them except their better future. It is their right to lead their sons and daughters in to a right path, whenever they mislead, and then they act as torch bearers for leading them to a right aim. When a member of the family began to live in a manner against the nature of law (homosexual-gay-lesbian relationship) it is the duty of the parents to correct them or to prefer a correctional treatment, not only for themselves but also for the other members of the family for saving it from the wrath and abuse of the public at large.

Ms.Aruna, was an educated young lady, desired to live with a lady for lesbian relationship and disappeared from home on that purpose. The parents of her have no other way than to file a petition before the police authorities. They had taken her and produced before the magistrate court. After getting the order of the magistrate she was taken by her parents. Because of her indifferent behaviour the parents admitted her in to the mental hospital, for psychiatric treatment as advised by the doctor. Being perplexed that if the alleged detenue may change her mind on treatment, the petitioner utilises the opportunity of getting the benefit of habeas corpus writ and with an unclean hands, approached the honourable High Court with a prayer that her lesbian partner was in the illegal confinement of parents in the mental hospital. When the alleged detenue shows certain types of behavioural changes, her parents had consulted a clinical psychologist and a Psychiatrist for correctional treatment. The lady was admitted in the hospital only because of the advice of a doctor and the admission of the lady in the mental hospital for treatment does not mean that she was a mental patient or she was in the illegal confinement of her parents. Once a person is not in illegal confinement then the writ of habeas corpus cannot be taken into. Therefore, the petitioner has no locus standifor seeking the benefit of a Writ Petition in the nature of habeas corpus for obtaining a relief for seeking the assistance of a lesbian partner. The case law not discussed that aspect in limini.

One more thing is to be noted that, the honourable court had relied certain judgments while deciding this case. Let us go along with such cases one by one. In Muhammed Riyad v. State Police Chief(2018 (2) KLT 914) the honourable High Court permitted the parties to live in a live in relationship outside the marital bond, though the parties were incompetent to enter in to marriage contract. In that case, Rifana Riyad aged 19 years and a minor Hanize aged 18 years were permitted to lead a live in relationship till they attained majority. In Nandakumar and Anr. v. State of Kerala(2018 (2) KLT 783 (SC)) the Honourable Court permitted Nandakumar, (aged less than 21 years) and Thushara (aged 19 years) to lead a live in relationship. In Shafin Jahan v. Asokan(2018 (2) KLT 571 (SC)) also the honourable court took such a view. In all the above cases parties were belonging to different sex and their relationships are no way affected by the law of nature. But in the instant case, the petitioner is a lesbian lady and the alleged detenue was a prey which accidently and innocently fell in to the trap of her lust.

For the time being, one more aspect is to be taken for worthy consideration. The crux of the judgment in Navtej Singh Johar v. Union of India(2018 (4) KLT 1 (SC)) is that it approves the authority of transgender sex and severed it from the deterrence of Section 377 of the Indian Penal Code.

The act of the consenting adults in any case is clearly against the nature and a deviation from conventional sexual morality as it envisages in Section 377 IPC. If the act of such a nature is permissible that will be the destruction of the sexual morality which was concreted from time immemorial in the society. Statistics show that the rate of suicide amount of the lesbian, gay, bisexual or transgender youths have alarmingly increased in India. India having an “Arsha Bharat Culture” shows Indian lesbians were twice as likely to attempt suicide as heterosexual women. In general, suicide attempts by gay men are more severe than those of their heterosexual counterparts. Many lesbian, gay, bisexual, and transgender youth leave their home because of stresses in the family environment. Many foster homes will not accept openly gay, lesbian, bisexual, or transgender youth because of homophobia and fear of predation on other children in the home. About 6% of all runaway youth identify themselves as gay or lesbian. Many lesbian, gay, bisexual, and transgender youth have low self-esteem and resort to prostitution to survive and to escape physical, sexual, and emotional abuse in their homes and schools. On the street, they are victims of rape, exploitation, drug misuse, and at risk of contracting HIV. Recent evidence suggests that it is possible to transmit diseases from woman to woman through sexual activity.

Summing up, if judiciary permits the lesbians-gay-homosexuals to lead a live in relationships, then the same will become settled. The result of which will be that, the parties may later either commit suicide or affected with mental stress. The only solution for this is for giving better counselling and psychiatric treatment to them. If anyone is put for correctional treatment, that may not be treated as illegal confinement. Therefore, Sreeja’s case as above said is not a good law.