A Bench of Justice MR Shah and MM Sundresh passed the interim order after it was informed that many members of the Consumer Forums in Maharashtra were due to retire this month and in January 2023. The Court wanted to ensure that the litigants are not troubled in any way owing to this.
"In the meantime, by way of an interim order, it is directed that wherever the post of President and members of the State Commission or the District Commission are vacant due to respective President or Members' term of tenure coming to an end, they shall be continued up to March 1, 2023, to see that the Tribunals continue to function and there is no inconvenience to the litigants. This interim relief is limited only to Maharashtra", the Court ordered.
The Supreme Court was hearing special leave petitions filed against the judgment of the Bombay High Court (Nagpur Bench) that
quashed certain provisions of Consumer Protection Rules, excluding lawyers with 10 to 20 years of experience from appointments to Consumer Commissions.
When the matter was taken up for hearing today, Attorney General for India R Venkataramani informed that the Centre is currently, in touch with the states for deliberations and would come back with a final proposal regarding rules on the appointment of persons to the Consumer Forums.
"In the meanwhile, I looked into UP. In 2019, it took them a year and 3 months to conduct an examination", the AG added.
Leaving the selection process to the search committee would lead to arbitrariness, the Bench opined.
"Our suggestion concerning examination was not the only thing. It should not be left to the search committee, saying okay, we like this, we select this... We have seen so many disastrous results also. There have to be some guidelines......We are not on examination. For example, maybe judges who have retired may not be ready to appear for examinations. We are saying that there should be some norms, and uniform criteria for guidance to the search committee. Otherwise, it is just left to them, it will lead to arbitrariness."
The AG, too, said that asking experienced persons to give an exam may not be doable.
"These aspects may be built into the rules. I am yet to receive some more inputs. There is a wide range of aspects covered. So asking members with over 10 to 15 years of experience to give an exam and viva voce may not be practical."
The Bench then suggested having better eligibility criteria with regard to the appointment of persons to the Commissions under the Act.
"You can see if you can have better eligibility criteria and consideration for appointment. There may be different criteria for judicial and technical members. So we are saying from experience, ultimately, the appointments are made by the Government. Even if one of the members is the nominee of the Chief Justice, we hardly get further time and input to consider the candidature."
The AG then said that he would try to place the Draft Rules of the procedure on record.
The petitioners submitted that over a year was already invested into making the Model Draft Rules on the subject, which was even approved by the Court.
"One and a half years were spent preparing the Draft Model Rules. This Court approved it and thereafter it was sent to all states because in the earlier Act the power was with the State. There are four modes of recruitment: sitting judges and retired judges don't require to give an examination. Other two modes: advocates and non-judicial members, there has to be a criterion. All 4 different modes were incorporated into the Model Rules. This Court approved and gave direction to adopt this.."
Adding on, it was contended that the difficulty was the fact no amendments have been made especially in the light of many members as well as the President of the Consumer forums retiring soon. And so, the Court passed the interim order while posting the case on February 2.
The Bombay High Court had struck down provisions of the new Consumer Protection Rules 2020, which prescribe a minimum professional experience of 20 years and 15 years for adjudicating members to the State consumer commissions and District forums, respectively.
The Court also struck down the provision that gives each state's selection committee the power to determine its procedure to recommend names for appointment in the order of merit for the State Government to consider.
The order pertains to the New 2020 Rules framed by Central Government u/s 101 of the Consumer Protection Act, 2019 for appointments, qualifications, eligibility, removal of members of the State Consumer Commission, and District Consumer Forums functioning in India.
A Division Bench of Justices Sunil Shukre and Anil Kilor struck down Rule 3(2)(b), 4(2)(c), 6(9) for being unconstitutional and violative of Article 14 in petitions filed by Advocate Dr Mahindra Limaye and Vijaykumar Bhima Dighe.
The High Court referred to the Supreme Court's judgments in the series of Madras Bar Association(MBA-2020 and MBA-2021) cases which held that advocates with experience of 10 years should be considered for appointment as members of Tribunals.
In light of this, the Court observed that the Rules are an attempt to circumvent Supreme Court's directions.
It may be noted that another bench of the Supreme Court led by Justice Sanjay Kaul, which has passed suo motu directions to States to fill up the vacancies in Consumer Commissions, has exempted Maharashtra from it given the High Court judgment.
Case Title: The Secretary, Ministry of Consumer Affairs versus Dr.Mahindra Bhaskar Limaye and others SLP(c) 19492/2021, State of Maharashtra versus Dr.Mahindra Bhaskar Limaye and others SLP(c) 20135/2021, State of Maharashtra versus Vijaykumar Bhima Dhige SLP(c) 19888/2021.