Updated: Nov 8, 2020
As many lawyers would testify, strange things can happen when facts meet law, the post pandemic world seems to be the world of even “stranger things”. This incident shows that the world was not any less strange even before the pandemic, it also shows that law does not necessarily need facts to create peculiar, unusual situations; subjective interpretations regarding the operation of the law itself are enough to enforce a law that wasn’t.
The Consumer Protection Act, 2019 was passed on 06.08.2019 by Parliament of India, through which the old Act of 1986 was repealed and replaced. The new Act had brought some overhauling changes amongst which the most prominent ones were regarding definition of “consumer” and recognition of “unfair contracts” on the recommendation of 199th Report the Law Commission of India. While the new Act received the assent from the President on 09.08.2019 and notified in the official gazette on the same day, the provisions of the Act were meant to come into force on the date that was to be notified by the central government (Section 1(3), Consumer Protection Act, 2019). The Ministry of Corporate Affairs has notified that most of the provisions of the Act will come to force on 20.07.2020. In between this was the basis of the conundrum that came before the Himachal Pradesh State Consumer Disputes Redressal Commission (hereinafter referred as “State Commission”) in Sh. Sukhdev Singh. vs Sh. Janak Raj. & Ors. that is
“Whether the words “Central Govt. may by notification appoint” mentioned in section 1(3) of Consumer Protection Act 2019 would mean the same as “date of notification of Act in official Gazette of Central Govt. of India w.e.f. 09.08.2019”.
In other words, whether the provision of the Consumer Protection Act, 2019, will come into force on the date of the publication in the Official gazette itself despite Section 1(3) of the Act, which provides that
“It shall come into force on such date as the Central Government may, by notification, a point and different dates may be appointed for different States and for different provisions of this Act.”
The state commission answered in affirmative and applied various provisions of the Consumer Protection Act, 2019 in the facts of the case. The Commission held that an Act comes into operation when an Act receives assent of Hon'ble President of India and it is notified in official Gazette.
Further, the State Commission relied on Article 366 (19) of the Constitution to state that since the Central Government had notified the Act in the Gazette of India, it had been publicly notified and hence the Act has come into force.
“Article 366. (19) public notification means a notification in the Gazette of India, or, as the case may be, the Official Gazette of a State”.
The State Commission was of the opinion that the power of the Central Govt. to appoint different dates for different States mentioned in Section 1(3) of Consumer Protection Act 2019 was only discretionary in nature and not mandatory provision for Central Govt. However, it failed to note that provisions such as section 1(3) of the Act are used by the parliament in various Acts as a tool of delegated legislation by the parliament to the Central Government, the power to appoint a date as it deems fit on which the Act will come into force. This position taken by the State Commission is controversial to say the least, as it is in contradiction with the various Supreme Court Judgements where it has been held that to determine the date of coming into force of the Act, the notification issued by the Central Govt. is to be relied upon.
In the case of A.K Roy vs Union of India AIR 1982 SC 710, the Supreme Court has clarified that
“for determining the date with effect from which the Constitution stands amended in accordance with the terms of the Bill, one has to turn to the date on which the President gave, or was obliged to give, his assent to the Amendment but for determining the date with effect from which the Constitution. as amended, came or will come into force, one has to turn to the notification, if any, issued by the Central Government”
The Supreme Court held that it is not open to this Court to issue a writ in the nature of mandamus to the Central government to bring a statute or a statutory provision into force when according to the said statute the date on which it should be brought into force is left to the discretion of the Central Government.
A five-judge Bench of Hon’ble Supreme Court in the State of Kerala and Ors. v. Mar Appraem Kuri Company Ltd. and Ors. AIR 2012 SC 2375, had an opportunity to examine the question of the date on which a law is said to be made, whether it is on the date of obtaining the assent of the President or on the date of notification of coming into force. The Hon’ble Court stated,
“irrespective of the date of enforcement of a Parliamentary or State enactment, a Bill becomes an Act and comes on the Statute Book immediately on receiving the assent of the President or the Governor, as the case may be, which assent has got to be published in the official gazette. The Legislature, in exercise of its legislative power, may either enforce an Act, which has been passed and which has received the assent of the President or the Governor, as the case may be, from a specified date or leave it to some designated authority to fix a date for its enforcement. Such legislations are conditional legislations as in such cases no part of the legislative function is left unexercised. In such legislations, merely because the Legislature has postponed the enforcement of the Act, it does not mean that the law has not been made.”
In this regard, however, the Supreme Court has made certain departures from the A.K. Roy case in its subsequent judgments. In the case of Aeltemesh Rein Vs. Union of India and Ors. AIR 1988 SC 1768, the Supreme Court took notice of the fact that the [the Advocates Act, 1961] Act had passed in 1961 and nearly 27 years had elapsed since it received the assent of the President of India. The court issued a writ in the nature of mandamus to the Central Government to consider within a period of six months whether section 30 of the Act should be brought into force or not by holding that
“In these circumstances, we are of the view that the Central Government should be directed to consider within a reasonable time the question whether it should bring section 30 of the Act into force of not.”
Admittedly, the Supreme Court made a reservation by holding that if in case in consideration of the facts and circumstances, if the central government still feels that the prevailing circumstances are such that section 30 of the Act should not be brought into force immediately, then that will be a different matter.
In Supreme Court Legal Aid Committee v. Union of India and Ors. (1998) 5 SCC 762, where section 1(3) of the Legal Services Authorities Act, 1987, provided that the Act and its various provisions could come into force only by a notification of the Central Government. The three-Judge Bench of the Supreme Court gave a direction to the Union Government to take steps to issue the notification applying the provisions of Chapter III of the Legal Services Authorities Act, 1987, to the States/Union Territories to which such provisions had not been made applicable, within two weeks of the passing of the order.
Further the Delhi High Court, in the case of Common Cause Vs. Union of India 78 (1999) DLT 638, has held that the observation of the Supreme Court in the A.K.Roy case do not show that a prayer for a direction in the nature of mandamus directing the Central Government to discharge its duty to bring into force the legislation in respect of which power is vested in the Central Government to issue a notification for enforcing its operation would be accepted in no circumstances. The court held that unlike the present case, the Supreme Court in the case of A.K Roy did not find that the Central Government had expressed its inability or refusal to bring into force the legislation.
While the above mentioned judgements may provide sound precedents for a competent court to order the Central Government to issue the requisite notification in a case where the central government uses its power to sit over the Act forever and veto the will of the Parliament but they provide little support to the assertions made by the State Commission, which implemented and enforced the provisions of the Act which was not in force. This whole fiasco, however, is only one of the consequences of the chronic problem we have in our country where the Central Government takes a millennial to put an Act in force, which the parliament has already passed. As per a report by the Vidhi Centre for Legal Policy, it takes an average of 261 days for a parliamentary law to come into force. While the past is laden with many such examples in the present case, the Central Government has taken more than 10 months to notify the provisions of the Consumer Protection Act, 2019 after it was published in the official gazette. Even this is dwarfed by certain cases where the Central Government has taken decades to notify the will of the Parliament. The Central Government must avoid failing in its duties towards the parliament by not misusing the power of delegated legislation and citizens of the country by not leaving them bereft of enjoyment of welfare legislation such as the Consumer Protection Act, 2019.