Dr KK Aggarwal & Advocate Ira Gupta
The Consumer Protection Bill, 2018 was introduced in Lok Sabha on 05.01.2018 and the same was passed in the Lok Sabha on 20.12.2018. Before introducing the said Bill, the same would have been open for public discussions and suggestions. It is very astonishing that when the Bill was open for public discussions and suggestions, no association objected to the same. Even after the introduction of the Bill in Lok Sabha, none of the association of any field objected to the said Bill and now when the same has been passed by Lok Sabha, everybody is criticizing it.
Even if any association or any individual want to raise objection to the said Bill, then the same should be done collectively by all industries as Consumer Protection Bill is not only confined to medical or health care sector. It applies to all industries and sectors and if all sectors raise their objections collectively, only then will the Government consider their objections and suggestions.
One still has time before the Bill is passed in Rajya Sabha.
Composition of the Commissions could violate the principle of separation of powers
· The District, State and National Consumer Disputes Redressal Commissions will adjudicate complaints on defective goods and deficient services of varying values. (Section 28, Section 42 and Section 53 of the Consumer Protection Bill, 2018).
· District Commissions have been given the powers of a civil court under Section 38 of the Bill, 2018. The State and National Commissions act as appellate bodies on the decisions of the District and State Commissions, respectively under Section 41 and Section 52 of the Bill, 2018.
· Appeals from the National Commission will be heard by the Supreme Court under Section 67. Therefore, these Commissions are quasi-judicial bodies with the National Commission being on par with High Courts.
· The Bill specifies that the Commissions will be headed by a ‘President’ and will comprise other members. However, the Bill delegates to the Central Government the power of deciding the qualifications of the President and members. In particular, the Bill does not specify that the President or members should have minimum judicial qualifications. This is in contrast with the existing Consumer Protection Act, 1986, which states that the District Commission will be headed by a person qualified to be a District Judge. Similarly, the State and National Commissions are headed by a person qualified to be a High Court or a Supreme Court judge, respectively. The 1986 Act also specifies the minimum qualification of members. The earlier 2015 Bill too specified judicial members to head the State and National Commissions, though it permitted the District Commission to be headed by the district magistrate in addition to a person qualified to be a district judge.
· If the Commissions were to have only non-judicial members, it may violate the principle of separation of powers, which is against the basic structure of the Constitution of India.
Jurisdictions of the Commissions have been increased
· These Commissions will be set up at District, State and National level, with pecuniary jurisdiction up to Rs one crore, Rs one crore to Rs 10 crore, and above Rs 10 crore, respectively. In case of unfair contracts, the State Commissions will hear complaints where the value is up to Rs 10 crore, and National Commissions will hear complaints above that value. These Commissions can declare unfair terms of such contracts to be null and void.
· Increase in the pecuniary jurisdictions of the Commissions is with the purpose to allow consumers to file complaints in district commissions as many small consumers find it difficult and costly to file a complaint in State Commission and National Commission.
· Though this is in correlation to the pecuniary jurisdiction of the District Courts and High Courts of the States but at the same time, this may lead to many complaints being filed for each and every surgery and treatment undertaken by the doctor or hospital as filing the complaint at the District Commission is still cheaper than filling the complaint at the State Commission and National Commission.
Commissions will dispose the complaint within 3 months
· The Commissions will attempt to dispose a complaint within three months, if the complaint does not require analysis or testing of commodities. If analysis and testing is required, the complaint will be disposed within a period of five months.
· There is no provision as per which it is mandatory for the Commissions at all levels (District, State and National) to have any judicial member and any medical experts for scrutinizing medical negligence cases or any other case relating to healthcare, in that situation there will be conflicting judgments and mostly all judgments will suffer from understanding of the medical procedure and treatment undertaken by the doctor.
· Moreover, the period of 3 months and 5 months, in case of inquiry, is too less for any person to understand the medical treatment and procedure, the medical literature relating to the case, standard operating procedures followed by the doctors etc.
· In such a situation, State Commissions and National Commissions will be folded with more appeals as compared to present day.
· This may in turn affect the health sector drastically as the doctors and hospitals will be more occupied with the complaints and appeals under the new Bill thereby neglecting their other patients which is against the Constitution of India as Right to health is a fundamental right under Article 21.
No provision for frivolous and vexatious complaints
· There is no provision in the Bill w.r.t. filling of the frivolous and vexatious complaints which was present in 1986 Act under Section 26 of the Consumer Protection act, 1986 as per which the frivolous and vexatious complaints were to be dismissed with penalty.
· In the present Bill, 2018 there is provision for vexatious search being conducted by Director General or any other officer but there is no provision for frivolous and vexatious complaints.
· As there is no provision against frivolous and vexatious complaints, all the commissions i.e. District, State and National Commission will be flooded with many frivolous and vexatious complaints as complaints does not have any fear of penalty being imposed upon them for such frivolous and vexatious complaints.
Composition and role of the Consumer Protection Councils
· The Bill establishes Consumer Protection Councils (CPCs) at the district, state and national levels, as advisory bodies. The Councils will advise on promotion and protection of consumer rights. Under the Bill, the Central Council and the State Council will be headed by the Minister-in-charge of Consumer Affairs at the central and state level, respectively. The District Council will be headed by the District Collector.
· The Bill states that these bodies shall “render advice on promotion and protection of consumer rights”. It is unusual for a body headed by a Minister or the District Collector (who are implementing authorities) to be given an advisory role. Further, the Bill does not specify whom the CPCs will render the advise to whom.
· The 1986 Act provides for such Councils but their role is to promote and protect consumer rights (which is not an advisory role). The Bill has vested the Central Consumer Protection Authority with this duty.
Some Definitions need to be more explanatory
· Definition of deficiency has changed which can invite more cases against doctors for even small or post - surgery ailments on the point that doctor did not informed about the post - surgery precautions or risks to the patients and his relatives.
(11) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes— (i) any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and (ii) deliberate withholding of relevant information by such person to the consumer;
· The term “illegally” has to be explained as whatever doctors do and practice as per books and standard operative procedures, then he cannot be said to have acted illegally which deciding whether injury has been caused to the complainant or not under Section 2(23) of Bill, 2018 which is reproduced as:
(23) “injury” means any harm whatever illegally caused to any person, in body, mind or property;
· The definition of “service” includes healthcare which means every type of health care is under the purview of Bill. 2018.
Dr KK Aggarwal
Padma Shri Awardee
President Elect Confederation of Medical Associations in Asia and Oceania (CMAAO)
Group Editor-in-Chief IJCP Publications
President Heart Care Foundation of India
Past National President IMA