Introduction
There exists an inequality of bargaining power between the consumer and the producer which leads to the exploitation of the consumer[1]. Consumer protection covers not only the right and privileges accorded to the consumers but also various issues relating to the welfare of the consumers and is also concerned with empowering them so as to improve their standard of living and social as well as political well being.
The UN Guidelines for Consumer Protection[2] recognizes the interests and needs of consumers in all countries, particularly those in developing countries and recognizes that consumers often face imbalances in economic terms and that consumers have the right of access to non-hazardous products, as well as the right to promote just, equitable and sustainable economic and social development and environmental protection. The general principles under the Guidelines provide that policies for promoting sustainable consumption should take into account the goals of eradicating poverty and developing adequate infrastructure. More importantly, it specifically lays down eight consumer rights, namely, 1) right to have access to basic needs, 2) right to safety 3) right to be informed 4) right to choose 5) right to be heard 6) right to redress 7) right to consumer education and 8) right to a healthy environment.
The consumers in India, like in other countries, are largely unorganized. As a consequence, united efforts on the part of consumers to protect their interest against unscrupulous trade and business practices have become almost impossible. Over time, India’s policy shifted towards liberalization, globalization, and privatization and this created a new place for consumers to participate in and be considered as important in the society and market.
The spirit of protection of consumer rights is reflected in the Constitution, particularly in Parts dealing with the fundamental rights and the Directive Principles of State policy.
On this background, the authors make an effort to examine the jurisprudence of consumer protection within the frame work of the Indian Constitution.
CONSUMER RIGHTS AND THE CONSTITUTION
The preamble of the Constitution of India declares its resolve to secure socio-economic justice to all the citizens of India. Article 38(1) provides that “the state shall strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social economic and political, shall inform all institutions of the national life”. Besides, Article 47 discusses the duty of government to raise the level of nutrition and standard of living and improve public health.
Nevertheless, the most important provision is Article 39 which lays down that the State shall, in particular, direct its policy towards ensuring that the ownership and control of the material resources of the community are so distributed as best to sub-serve the common good; and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. Further, Article 46 of the Constitution says that the state should promote the educational and economic interests of the weaker sections of the population. Our Constitution contains a number of Articles which has a bearing upon the right to healthy environment. Article 48-A calls upon the state to “endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country”. Article 42 dealing with labour standards is also important in this context. Similarly, Article 51-A imposes a similar duty upon the citizens.
Art.19 (1) (g) of the Constitution guarantees to all citizens the right to “practice any profession, or to carry on any occupation, trade, or business”. Clause (6) of Article19, nevertheless, empowers the State to impose by law “reasonable restrictions” on the exercise of this right in the interest of general public. Article 19 provides sufficient power to the state to discharge the constitutional duties laid down under Articles 38, 47 and 39. Hence, in order to fulfil these duties and in the exercise of this power the Parliament has enacted the Consumer Protection Act of 1986 which specifically enumerates certain consumer rights as contained in International documents.
Consumer Rights as Manifestations of Fundamental Rights
The judiciary has interpreted Article 21 to include a number of consumer rights.
The Right to Food:
Ever since the Maneka Gandhi decision[3] the Supreme Court has repeatedly held that the right to life under Article 21 must be interpreted as a right to live with basic human dignity. In Shantistar Builders v. Narayan Khimlal Totame[4] It has been held that the ‘right to life guarantees the right to food’. In Tapan Kumar Sadhukan v. FCI[5] the court held that this right also meant that the consumers are protected from having to eat substandard food.Right to Health and Medical Assistance:
The right to health has been interpreted as a fundamental right under Article 21[6]. In Vincent Panikulangara v.UoI[7] it was held that this right included a right against the sale of injurious drugs. In Parmananda Katara v. Union of India[8] it has been upheld that ‘Article 21 casts an obligation upon the state to preserve life. It is the obligation of those who are in charge of community’s health to preserve life’. The court, thus concluded that it is the professional obligation of all doctors, whether government or private, to extend medical aid to the injured immediately to preserve life. Following this, in Paschim Bang Khet Mazdoor Samity v. State of W.B[9] the Supreme Court held that denial of medical aid by government hospitals to an injured person on the ground of non-availability of beds amounted to violation of Article 21.Right to Adequate Housing:
The right to adequate housing as a constitutional obligation of the state arise from Article 21 as well as Article 19(1)(e) which guarantees the right of every citizen to reside and settle in any part of the country. In Olga Tellis v. Bombay Municipal Corporation[10], it was held “ the eviction of the pavement or the slum-dweller is the destruction of his house itself and destruction of a dwelling house is the end of all that one holds dear in his life. In Shantistar Builders Case[11] the Court went on to say that “a reasonable residence is an indispensable necessity for fulfilling the constitutional goals under Article 21.” In Chameli Singh v. State of U.P.[12] the court was of the view that shelter for human being is not a mere roof over his head. The right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation.Right to Economic and Social Security:
In LIC of India v. Consumer Education & Research Centre[13], it has been held that the “right to life and livelihood” as interpreted in Olga Tellis Case[14] and several other cases by the Supreme Court, includes the ‘right to life insurance policies of LIC of India’ and it must be within the paying capacity and means of the insured. The preamble and the chapters on fundamental rights and Directive Principles accord right scheme of socio-economic justice to the people, in particular to the middle class and lower middle class and all affordable people. The appropriate life insurance policy within the paying capacity and means of the insured to pay premia is one of the social security measure envisaged under the constitution to make right to life meaningful, worth living and right to livelihood a means for substance. Therefore, the court held that arbitrary denial to accept policies would amount to violation of Article 21 of the Constitution. It was also held that the terms and conditions imposed by the LIC for accepting policy must be just, fair and reasonable. The policy cannot be restricted only to the salaried class.Right to safety:
Right to safety means the right to be protected against products, production processes and services, which are hazardous to health or life. This right is explicitly provided under the Consumer Protection Act, 1986. In Dr. Ashok v. Union of India[15], a PIL filed for banning import, sales and use of certain pesticides and additives which are health hazards and have been banned in US and other advanced countries, the Supreme Court held that the right to safety is part of the protection under Article 21. In another PIL[16] filed by Consumer Education and Research Centre on the working conditions in the asbestos industry, the Supreme Court held that ‘right to safety, health and medical care is a fundamental right under Article 21.’Right to Choice and Information:
The right to choice deals with the issue of choosing between different alternatives. Consumers also have the right to be informed about the quality, quantity, potency, purity, standard and price of goods or services, so as to make the right decision. Besides this, consumers should also have the right to access information related to public affairs, which is dealt with by government and its agencies. Various interpretations of Article 19(2) of the Constitution of India, clearly state that there should be a definite policy or uniform guidelines on the part of the state to help consumers make an “informed choice”. The Right to Information Act, 2005 is another large step taken towards ensuring that citizens can access any information related to government functioning in the country. Despite being one of the most open information law in the world, inter-play of many institutions / Ministries with little co-ordination is an obstacle in the way of implementation of some of the provisions of this law. Without any comprehensive legislation or definite guidelines (covering all products and services), consumers may still not be able to make proper use of the information provided.Right to be Heard and Redress:
The right to seek redress is set out in the preamble, where it is declared that people has the right to strive for justice. The Supreme Court has repeatedly held in a number of cases such as Suk Das v. Union Territory of Arunachal Pradesh and Others[17], that “free legal aid and assistance at the cost of the State is a fundamental right, of a person accused of an offence’. M.H Haskot judgement[18] emphasized that representation and legal aid are ‘the duties of the State and not Government’s Charity’. Though these cases were related to persons alleged to have committed criminal offences, these judgements confirm the right to representation and redressal as a fundamental right originating from the constitutional guarantee under Article 21. Article39-A directs the State to provide free legal aid to the needy.
Since a number of consumer rights, particularly, the rights related to basic needs are fundamental rights; consumers can file writ petitions for enforcement of these rights invoking Articles 32 or 226 of the Constitution.
Right to Consumer Education:
The right to consumer education includes the right to acquire the knowledge and skills to be an informed consumer. Although the right to consumer education is not specifically provided for in the Constitution of India, it deals with in detail the right to education and now right to education is enumerated as a separate fundamental right under article 21-A. However, the Ministry of Consumer Affairs through the Consumer Welfare Fund has made provisions to provide financial support to consumer education programmes undertaken by consumer groups, schools, universities or State Governments.Right to Healthy Environment:
The Supreme Court has also upheld several times that Article 21 includes the right to healthy environment. It was in RLEK v. State of UP[19] that the Supreme Court recognized a right to live in ‘wholesome environment’ as part of the right to life under Article 21. In Oleum Gas Leakage case[20], the SC once again impliedly came to recognize the right to live in pollution free environment. The Court held that the enjoyment of life and its attainment guaranteed under the constitution embraced the protection and preservation of nature’s gifts without which, life could not be enjoyed. Thereafter in a number of cases, Supreme Court has upheld this right.Right to Privacy:
Right to privacy is an emerging domain of consumer rights. Privacy includes the right of a person to control his personal information; to be more specific, the ability to determine how such information should be accessed by others, obtained and used. Today this right is particularly important in the context of alleged and apprehended sharing of personal information by social media and other e-media as well as the increasing invasion of the press into the private life individuals under the pet name ‘sting operations’.
So is the case of mushrooming number of Fintech companies. These are primarily technology based start ups undertaking traditional financial activities.They work on the basis of customer profiling. It is also alleged that these companies are, without the consent of the consumers, sharing such information with other service providers and business partners for promotions and for availing benefits, offers, etc.. Today transactions over these online platforms often require the consumers to divulge large amounts of personal information including credit/ debit card details and delivery details. Also, the possession of such information gives e-business the opportunity to analyze it, discovering the trends and increasing the efficiency of their business dealings.[21]Consumers usually, have no idea about the potential uses of such information, and as such have no idea as to the possible misuse of such information and the violation of their privacy that could happen.
In a historic judgement in the ‘Phone tapping case’[22], the Supreme Court had held that telephone tapping is a serious invasion of an individual’s right to privacy which is part of the right to life enshrined under Article 21 of the Constitution, and it should not be resorted to by the state unless there is a public emergency or interest of public safety requires. In this case, the court laid down exhaustive guidelines to regulate the discretion vested in the State under section 5 of the Indian Telegraph Act for the purposes of telephone tapping and interceptions of other messages. However, the applicability of this case in relation to internet content has not yet been clarified by the judiciary. The authority of the Post office officials to open and read private letters is also important in this context.
Also, recently there have been allegations that personal details of patients in many of the ‘corporate’ hospitals are being shared with medical insurance institutions and personal wellness products manufactures or distributors. This is done without obtaining the consent of the patients or by obtaining their consent by providing the terms in unnoticeable, complicated or vague manner.
Conclusion
Consumer rights are now becoming fundamental on account of technological and scientific advancements and disappearance of trade barriers around the Globe. The Constitution of India lays down a concrete and salubrious foundation for an effective legal framework for protecting the interests of consumers. Even though many of the important consumer protection provisions are contained in the non-enforceable Directive Principles, they are guiding principles for governance. The various judicial decisions through which the fundamental rights have been expanded to include major consumer rights go a long way to ensure that the requirements of consumer justice and social welfare are satisfied.
However, in view of the fact that in India, still, the majority is disadvantaged by poverty, illiteracy, ignorance etc. in terms of asserting their consumer rights, it is indispensable to specifically entrench consumer rights in the Constitution.
[1] B.W Harvey and D.L Parry, The Law Of Consumer Protection and Fair Trading (Butterworth’s 1996) 13-14
[2] E/1999/INF/2/Add.2 , Annex, paras 35-37
[3] Maneka Gandhi v. Union of India, AIR 1978 SC 597
[4] AIR 1990 SC 630
[5] (1996) SCC 101
[6] Kirloskar Brothers Ltd. V. ESI Corporation, (1991) 2 SCC 682)
[7] AIR 1987 SC 990
[8] AIR 1986 SC 424
[9] (1996) 4 SCC 37
[10] 1985 (3) SCC 545
[11] Shantistar (n 8)
[12] (1996) 2 SCC 549
[13] (1995) 5 SCC 482
[14] Olga Tellis (n 13)
[15] AIR 1997 SC 2298
[16] CERC v. Union of India, (1995) 3 SCC 42
[17] 1993 AIR SC 217
[18] AIR 1978 SC 1548
[19] AIR 1987 SC 2426
[20] M.C. Mehta v. Union of India, (1987) 4 SCC 463
[21] Meirong Guo, ‘A Comparative Study on Consumer Right to Privacy in E-Commerce’ [2012] Modern Economy, 402
[22] People’s Union for Civil Liberties v. Union of India, AIR 1997 SC 568
- Swathy Nair & Swetha Nair
Ms. Swathy Nair and Swetha Nair are twin sisters at ILS Law College Pune. They actively participate in various moots and has published 3 research papers on socio-political issues in Malayalam journals. They can be reached on , minnaminnisnairsnair@gmail.com, and swethanairminnu@gmail.com, respectively.
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