THE Supreme Court has broken a new ground opportunity wise through its latest judgement in the case –The Secretary, Ministry of Consumer Affairs v. Dr Mahindra Bhaskar Limaye & Others, delivered on March 3, 2023, for the younger set of lawyers, all over the country with the minimum ten years standing in the profession by upholding the judgment delivered by Justice Sunil B. Shukre and Anil S. Kilor, at Nagpur Bench of the Bombay High Court on September 14, 2021, dismissing the challenge posed to it by the Central Government and the State of Maharashtra through their three Special Leave Petitions.

Through the impugned common judgement, the HC has struck down and has declared Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9)of the Consumer Protection (Qualification for Appointment, Method of Recruitment, Procedure of Appointment, Term of Office, Resignation and Removal of President and Members of State Commission and District Commission) Rules, 2020 as arbitrary, unreasonable and violative of Article 14 of the Constitution of India. The Union Ministry of Consumer Affairs has framed these Rules.

The Supreme Court division Bench Consisting of Justice M.R. Shah and Justice M.M. Sundresh have noted that before declaring these provisions unconstitutional, unreasonable and arbitrary, the HC has considered the historical background of tribunalisation and the fact that the tribunals are endowed with the judicial functions with a duty to decide the matters in judicious manner. Therefore the HC had opined and observed that the standards expected from the judicial members of the tribunals and standards applied for appointing such members, should be as nearly as possible as applicable to the appointment of judges exercising such powers. That thereafter, following the decisions of this Court (SC) in the cases –State of Uttar Pradesh v. All UP Consumer Protection Bar Association-(2017) 1 SCC 444 and Madras Bar Association v. Union of India & Another – MBA III- (2017) 7 SCC 369, the HC concluded and passed the impugned judgment, allowing the PIL and partly allowing the writ petition.

According to the SC taking into consideration, all these decisions, the HC in its judgement and order has rightly observed and held that the quashed provisions have been contrary to these SC decisions. Even otherwise also, the SC is of the opinion that Rule 6(9) lacks transparency and it confers uncontrolled discretion and excessive power to the Selection Committee. Under Rule 6(9), the Selection Committee is empowered with the uncontrolled discretionary power to determine its procedure to recommend candidates to be appointed as President and Members of the State and District Commissions. The transparency and selection criteria are absent under Rule 6(9). In absence of any criteria on merits the undeserving and unqualified persons may get appointment which may frustrate the object and purpose of the Consumer Protection Act.

The SC has pointed out that as rightly held and observed by the HC, considering the object of the Consumer Protection Act, 2019, such uncontrolled discretionary power to determine its procedure for making its recommendation for appointment of President and Members of the district and the State Commissions is arbitrary and unreasonable. It is always desirable that while making the appointment for these Commissions, there is a need to assess the skill, ability and competence of the candidates, before they are empanelled and recommended to the State Government the Rules, 2020 do not contemplate written examination so as to test the merits of the candidate. In its decision of the UPCPBA case, SC has already expressed deep concern over the political and bureaucratic interference in the process of these appointments.

The SC has noted, at this stage, that mechanism of having written examination was confirmed by the SC which has been removed under the new Rules, 2020. It has been also noted that earlier under Consumer Protection Act, 1986, there were Rules, 2017 in so far as some of the States are concerned and Rules, 2019 so far as the State of Maharashtra is concerned, which provided for a written examination and vive voce, which was under the 1986 Act.

The Consumer Protection Act, 1986 has been repealed and now the new Act of 2019 has replaced it from July 24, 2020 with a sole intention to provide adequate safeguards to the consumers and the pecuniary jurisdiction of the District and State Commissions have been enhanced substantially. However, there is no substantial change in the scheme with respect to the adjudication of the consumer disputes. No justification at all has been shown to do away with the written examination while framing the Rules, 2020 under the new Act of 2019.

Therefore, as has been rightly observed by the High Court, the Rule 6(9) of the Rules, 2020 which now stand quashed, was unconstitutional, unreasonable, arbitrary and violatory of Article 14 of the Constitution, more particularly in the situation, when the same is wholly impermissible to override/overrule the earlier decisions of the Supreme Court and that too without any justification. The SC has stated that it is in full agreement with the view taken by the HC. According to the SC, so far as the Rule 3(2)(b) and Rule 4(2)(c) of the Rules, 2020 are concerned, the HC has rightly quashed the said provisions, which required minimum 20 years’ experience for appointment as a Member in State Commission under the Rule 3(2)(b) and minimum 15 years’ experience for appointment as a Member in a District Commission under Rule 4(2)(c).

The SC has suggested that the Central and State Governments Will have to amend Rules, 2020, more particularly the Rule 6(9), providing that the Selection Committee shall follow the procedure for appointment as per Model Rules 2017 and to make the appointment of President and Members of these Commissions, on the basis of performance and written test consisting of two papers of 100 marks each and 50 marks for vive voce. The apex court has further asked the Governments to amend the Rules, 2020 to provide 10 years’ experience to become eligible for appointment of President and Member of the State Commission as well as the District Commission instead of 20 years and 15 years respectively, provided in the quashed Rules. Till these amendments are made, the Supreme Court has under its exclusive powers under Article 142 of the Constitution of India, to do complete justice, directed that in future and hereinafter, a person possessing bachelor’s degree from any recognised University in India and having minimum 10 years’ experience in consumer affairs and other business and professions detailed in the judgement will be treated as qualified for appointment to these posts in these Commissions, on the basis of performance in the written test. As before the High Court, Advocate Dr Tushar D Mandlekar (from Nagpur) appeared in the Supreme Court for the respondents-consumers. Attorney General R. Venkataramani represented the Union of India.