Chetan Prabhakar
On December 24th, Nation Consumer Day is celebrated across the country.This time UTs of Jammu and Kashmir & Ladakh will also celebrate National Consumer Day as Consumer Protection Act,1986 [ Act No.68 0f 1986] which came into operation on December 24th,1986, and now, the same has been extended to these UTs under the J&K Reorganization Act,2019. With this Act, we bade goodbye to erstwhile Jammu and Kashmir Consumer Protect Act, 1987. The Consumer Protection Act,2019 received assent of the President of India on August 9,2019 and was published in the Gazette of India and hence, became law of the land and repealed the Consumer Protection Act,1986.However, as per Schedule fifth of 1986 Act is extended to these UTs till the Central Government issues required notification. We will, however, soon celebrate World Consumer Rights Day on March 15, next year. I wonder, are there any consumer courts/consumer councils etc. in the two UTs carved out of J&K State? Indeed NO! This is done as a sequel of abrogation of Articles 370 and 35-A of the Constitution of India. Going through the print media, a news item published in almost all newspapers in the Union Territory issue dated December 19,2019 & Daily Excelsior front page titled ‘High Court seeks compliance on rules for Commission, Forums’, I feel my duty to highlight some important aspects on the subject.
Consequent upon the abrogation of Articles 370 and 35A of Indian Constitution & coming into operation of J&K Reorganization Act ,2019,the provisions of Consumer Protection Act,2019, subject to issuing of notification contemplated under section 1(3), was extended to the State of Jammu and Kashmir, the latter issued Order No.1145-GAD of2019,dated 23.10.2019 in terms ‘Consequent upon repeal of the Jammu & Kashmir Consumer Protection Act, 1987 by the Jammu and Kashmir Reorganization Act, 2019, sanction is hereby accorded to the winding up of Jammu and Kashmir State Consumer Disputes Redressal Commission with effect from 31-10-2019 i.e. the appointed date for the formation of the Union Territory of Jammu and Kashmir and Union Territory of Ladakh.’ Simultaneously however by a separate Government order District Consumer Disputes Redressal Forums constituted under the State Act of 1987 also met the similar fate. Consequently, State Consumer Commission and all District Forums became non-functional, multiplying miseries of the consumers of J&K State, now UTs of J&K & Ladakh. Subsequent to the above order, exercising powers under Section 103 of Reorganization Act, 2019, MHA (Department of Jammu and Kashmir) issued notification/ S.O. No.3219, dated 30.10.2019[Jammu and Kashmir Reorganization Act, 2019(Removal of Difficulties)], dated 30.10.2019.Clause 17 of this order says, “Any authority constituted under any law in the existing State of Jammu and Kashmir immediately in force before the appointed day shall be deemed to have been constituted under the corresponding provisions of Central Laws applicable to the Union Territory of Jammu and Kashmir and Union Territory of Ladakh, under newly constituted unless new authority is constituted law applicable to Union Territory of Jammu and Kashmir and Union Territory of Ladakh, as the case may be and proceeding initiated or action taken by such authority shall for all purposes be deemed to be valid and operative.”
In view of the above closing down of all consumer forums in twin UTs vide order dated 23.10.2019 is completely unlawful and not only against the spirit of MHA order dated 30.10.2019 but also against clear provisions of Reorganization Act,2019, needless to say that GAD Order dated 23.10.2019 is only administrative in nature.
In fact after John F. Kennedy, then US President launched a campaign for protection of consumer rights, Indian legislature passed Consumer Protection Act, 1986 and erstwhile State of Jammu and Kashmir also legislated Consumer Protection Act, 1987 with almost similar provisions and framed Consumer Protection Rules,1988 for smooth running of consumer fora, initially on Divisional level and then on District level, since December 11,2011. It is after J&K state being fragmented and reduced to UTs of Jammu and Kashmir & Ladakh by virtue of the Jammu and Kashmir Reorganization Act,2019, the Government ordered the winding up of consumers courts in both the Union Territories and resolutely ensured that there shall be no courts for redressing grievance of consumers in these UTs after 31.10.2019 on the sole ground that the Jammu and Kashmir Consumer Protection Act,1987 stood repealed by the Consumer Protection Act,2019, the latter having been extended to whole of India(including the Union Territories of Jammu and Kashmir and Ladakh). According to the Jammu and Kashmir Consumer Protection Act,1987 a two tier hierarchy was envisaged for redressal of consumers’ complaints and High Court of Jammu and Kashmir had the jurisdiction to hear appeals against orders of State Consumer Commission as against three tier system of hearing consumer complaints envisaged under the Central Act with the exception that the Supreme Court of India of the country would hear appeals against orders of National Commission, headed by a retired Judge of Supreme Court. So, at present there are no fora/Commission for hearing consumer complaint/appeals in twin UTs, in spite of the fact that all consumer courts at District, State and National level have been uninhibitedly functioning in other parts of the country.
Section 95(1) of the Reorganization Act,2019 envisages ‘All Central laws in Table -1 of the Fifth Schedule to this Act, on and from the appointed day, shall apply in the manner as provided therein, to the Union territory of Jammu and Kashmir and Union Territory of Ladakh’ and sub-section 2 provides that ‘ All other laws in the Fifth Schedule applicable to existing State of Jammu and Kashmir immediately before the appointed day, shall apply in the manner as provided therein, to the Union territory of Jammu and Kashmir and Union Territory of Ladakh’. There is no ambiguity in Sub-section 95(1) of the Act in as much it clearly envisages that barring all Central laws shown in Table-1 of Schedule Fifth shall apply here in the manner as provided therein and sub-section 2 of section 95 provides that ‘all other laws in the Fifth Schedule, ‘which were already in existence in the State, prior to the appointed date, shall apply in the manner as provided therein’. Now looking at Annexure-I (read with Table-3) it shows an exhaustive list of the Repealed Acts of the State and among others, the Consumer Protection Act,1987 appears at serial no.25 meaning that J&K Act of 1987 stands repealed.Table-2 in Fifth Schedule shows the list of State Laws which will be applicable to the twin UTs. Similarly,Table-1 of Fifth Schedule provides a list of Central Laws made applicable to these newly created UTs. At serial number 13, it is shown that the Consumer Protection Act,1986 (Central Act & Rules framed u/s 30 which are already in existence) is made applicable to these two UTs. In the light of these unambiguous provisions in the Reorganization Act, 2019 read with clause 17 of MHA (Department of Jammu and Kashmir) issued under notification/ S.O. No.3219, dated 30.10.2019[Jammu and Kashmir Reorganization (Removal of Difficulties) Act, 2019], dated 30.10.2019, the Government’s stand before the Hon’ble High Court in a PIL is only dilatory in nature and calculated to deprive consumers of UTs of their valuable rights guaranteed under law. It is said Legislature never wastes even a single word and as such, it can be safely said that Reorganization Act, 2019 has taken every care not to leave any vagueness and lacunae.
In view of the above legal aspect of the matter, the steps taken by the government in winding up of consumer courts in the state are arbitrary and unfriendly to consumers of UTs. The government is persistently harping at two issues mainly viz; 1) that the Consumer Protection Act, 1987 (J&K Act) has been repealed and; 2) in spite of operation of Consumer Protection Act, 2019 coming into being, rules are yet to be framed, therefore, consumer courts cannot be continued. This argument is totally fallacious and untenable and, hence unsustainable in the light of legislature making provision for extending Consumer Protection Act,1986 & rules framed thereunder to these two UTs and therefore, it is in the interests of the consumers of these UTs that order passed for winding up of consumer courts must be recalled and functioning of the District Forums and State Commission must be restored before it is too late. In view of the relevant transition provisions, consumer courts need to be reconstituted with the same Presidents and Members who were lawfully appointed when the J&K Act of 1987 was in operation. This will be no exaggeration to say that in view of transitional provisions the authorities already appointed when the Consumer Protection Act,2019 came into force, ‘shall continue to hold such office as President or member, as the case may be, till completion of their term’. This provision has not been interpreted harmoniously rather a very casual & narrow interpretation is advanced on behalf the Government which only renders the consumer-friendly legislation non est. The argument on behalf of the Government in this regard is that above provision can be applied only in cases President or Member is appointed under the Central Act laying emphasis on the words “a person appointed as the President or as a member before the commencement of the consumer protection [Amendment Act, 2002]” & no President or member was appointed under the said Act. True, it is. But it is no use shutting eyes that this 1986 Act was never applicable in the erstwhile State of Jammu and Kashmir. This cannot also be denied that on the advent of CPA, 2019 these provisions are applicable all over India and UT of J&K/Ladakh are no exception. The present position of State of Jammu and Kashmir is absolutely unique and exceptional in nature after abrogation of article 370 of Constitution of India and applicability of Reorganization Act, 2019. No such situation ever arose after 1947 and of courts, after Reorganization and State of Jammu and Kashmir had a host of its own laws under relevant constitutional privileges extended to the State. Obviously, therefore provisions of Consumer Protection Act, 1986 must apply, mutatis mutandis, in this state and narrow interpretation of consumer-friendly Act will serve no purpose except causing irreparable harm to the consumer moment in this country. There is plethora of law recommending interpret provision of law harmoniously and in favor of those, for whom the same is legislated. It is not too late. The UT Governments should refrain from causing damage to the consumer in vindicating their valuable rights.
Well, if we waited for the Rules to be framed in order to reconstitute consumer courts the consumer movement that gained momentum in the last more than thirty years is sure to be pulverized causing irreparable loss to consumer of UTs of J&K/Ladakh. There is no fate of the pending complaints and appeal. The consumer feels stranded. It will be celebration of National Consumer Day in real sense that the Government comes forward with an announcement that consumer courts in both the UTs are made functional.
(The author is an Advocate of J&K High Court)
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