THE ROLE OF
JUDICIARY IN CONSUMER PROTECTION
By:
KHADIM
HUSSAIN TUNIO
District & Sessions Judge,
Tando Muhammad Khan
Abstract: Consumers are important to
both the Government and corporate entities. In the Indian sub-continent, the
history of consumer protection is quite sketchy. The British were the first to
introduce a semblance of consumer laws in pre-partition united
INTRODUCTION
The Network (2010) defines a consumer as a person who
acquires goods and/or services for personal consumption or production of other
goods and services. Though, according to GOP (2010: 238),
Saunders & Harris (1990) find that consumer
powerlessness is endemic in many areas of state provision. However, even the
presence of competitive markets does not eliminate information lags as well as
search and transport costs needed to make discreet choices (Khan & Mansoor,
1996). In the Pakistani scenario, a low literacy rate of 57 percent (GOP, 2010)
puts the naive and ignorant consumers at the mercy of producers and retailers.
This is becoming increasingly so, since with privatization, 167 public enterprises
(PC, 2010), including some monopolies, have been transferred to the private
sector. While the public sector may have fixed prices with some politically
motivated welfare preferences in mind, the private sector is driven exclusively
with profit motive. Privatization or rise of the private sector has also put an
already ignorant consumer at an even greater disadvantage. However, Saunders
& Harris (1990) think that privatization has not made the consumer worse
off.
UN (2003) advocates a strong case for Government
intervention to protect the rights of consumers. It provides detailed
guidelines for their guidance and protection. According to the United Nations
(2003: 1),
"Governments should develop or maintain a strong
consumer protection policy ... [E]ach Government should set its own priorities
for the protection of consumers in accordance with the economic, social and
environmental circumstances of the country and the needs of its population,
bearing in mind the costs and benefits of proposed measures."
This means that the onus for consumer protection falls
on the Government of each respective country. It is for the Governments to
implement or promote the implementation of suitable measures, including legal
systems, safety laws, domestic, global or voluntary standards, and the keeping
of safety records to make sure that products are safe for either planned or
normally anticipated use.
This paper aims to recount the historical and current
developments in consumer protection in
Consumer Rights during the British Raj
The history of consumer protection is quite old in the
Indian sub-continent. Even before the creation of
The Indian Penal Code, 1860 contained general
provisions for the protection of Indian citizen from any act which caused
mental and physical disturbance. Though the Act did not include any specific
provisions for protecting the consumer, various clauses could indirectly help
him in protecting his rights. Waqas: Please add 2 sentences
how they indirectly protected the consumer.
The Indian Contract Act, 1872 had jurisdiction over
the whole of
The Sale of Goods Act, 1930 also extended to the whole
of
The first Act to protect the consumers from
malpractices of drugs industry was passed in 1940 named Drugs and Cosmetics
Act, 1940.
List of Laws Existing in
1. The
Indian Penal Code, 1860 General
2. The
3.
4.
5.
6. Khairpur
Prevention of Adulteration Act, 1941Food
7.
8. Drugs
and Cosmetics Act, 1940 Pharmaceutical
Consumer Rights in
After the creation of
This historical legacy of ignoring the consumers has
led to a situation where they were completely excluded or only partially
accommodated in the legislative scheme. There is total absence of consumer
welfare thinking. There are no adequate procedures for consumers to obtain
redress. Compensation or damages due for the harm suffered by consumers is
consistently omitted or denied. The state and legislators have failed to
provide compensation and damages as statutory remedies (Ansari & Hafeez,
2000). Therefore, they are always in a disadvantageous position as compared to
manufacturers or suppliers (Khan & Hafeez, 2000).
Even where laws exist, constraints, like information lags, weak infrastructure,
financial crisis, lack of technical know-how etc. impede their implementation
laws (Khan & Aftab, 2000).
Article 18(b) of the 1973 Constitution of the Islamic
Republic of Pakistan mandates that it is the duty of the state to regulate
trade, commerce or industry in the interest of free competition.
The first important law promulgated
in
Though these and other laws were present in the
country, poor implementation and enforcement made the legal scene not very
promising for the consumers. The situation became worse as the consumers were
not aware of their rights and possible remedies available if they were
exploited (Khan & Hafeez, 2000).
CONSUMER PROTECTION LAWS IN DIFFERENT SECTORS
Food Sector Legislation
The Pure Food Ordinance, 1960 has various provisions
to protect consumer from the malpractices of manufacturers and resellers
regarding food products. It prohibits the mixing, coloring, staining and
powdering of food with any matter and giving false warranty. Products which are
adulterated, misbranded and sub-standard are
prohibited for sale. All the importers, manufacturers and resellers have to
comply with provisions regarding the manufacturing, processing or preparation,
packaging, labelling, consignment, delivery and standard of quality of food
items. There are also special provisions for products such as margarine,
banaspati and fat. This Act also set rules for the appointment of analysts and
inspectors for the purpose of enforcing the Ordinance within their
jurisdiction. This Act also specifies various penalties and procedures through
which the cases are dealt in a Court of law.
Though applicable to the whole
In 1976, The Pakistan Hotels and Restaurants Act was enacted. Its purpose is to provide procedures for
controlling and regulating the standards of service and facilities for tourists
in hotels and restaurants. This Act regulates the sale of food and beverages
which are injurious to health or which are contaminated due to lack of cleanliness
in the hotel. The owner or manager is required to undertake scientific tests of
water, food and other articles of human use through any agency to make sure the
food and other articles conform with health and
hygiene standards.
The authorized officer can any time inspect the
quality of foodstuff and other appliances. It is mandated a hotel to get
license and registration for operation. The law is limited in the sense it does
not provide procedures for lodging a complaint in case of injury to a consumer.
Furthermore, it does not state compensation due to a consumer.
The Pakistan Standards and Quality Control Authority
(PSQCA) Act, 1996 lists provisions for maintaining standards of quality to make
sure that the products are safe for consumption. Although this Act cannot be
characterized exclusively as a food law, it provides for standardization and
quality control services which are related to the health and safety of food.
Representatives of Ministry of Food and Agriculture and Ministry of Health are
members of the advisory council of PSQCA. This Act provides for necessary
measures for the testing of products and services for their quality,
specifications and characteristics. It also regulates the quality labelling
standards which shall state ingredients, performance, specification, usage,
methods and other relevant quality control matters. It also prohibits the
manufacture, sale and storage of any article including food items which does
not conform with the quality standards of
Health Sector Legislation in
The first legislation in the sector were
formulated before the independence of
Pharmacy Act, 1967 stipulates the establishment of
Pharmacy Councils to regulate the practices of pharmacy and to protect consumer
rights. This Act specifies procedures and examinations to qualify a person as a
pharmacist. It mandates the Pharmacy Council as a regulatory body to hold
exams, approve the course of study and practical training, prescribe the conditions
and requirements of admission, and to lay down and
maintain teaching standards.
The Drugs Act, 1976 is another major Act that
regulates the import, export, manufacturing, storage, distribution and sale of
drugs. According to this Act, the federal Government will regulate the import
and export of drugs, while the provincial Governments will regulate their sale
which must be in a manner safe for public use. The Act impressed upon the
provincial Governments to constitute Provincial Quality Control Board. The
Board has the authority to inspect any location where any drug is being
manufactured or sold and to recommend to the suitable authority the
cancellation or suspension of the license to manufacture or sell drugs. It
analyses the reports of provincial Inspectors and also of Government Analysts
responsible for testing drugs sent to them by the Inspectors. The Board is an
apex body at provincial level that advises Governments on the methods to
guarantee the quality control of drugs in the province. It recommends measures
to upgrade drug testing laboratories and provide training to Government
analysts.
The Board or its representative can inspect premises
where drugs are being manufactured, stocked and sold and, seal it if engaged in
activities in contravention of this Act. This Act prohibits the sale,
manufacture, import and export of any fake drug, counterfeit, misbranded,
adulterated, substandard, drug after its expiry date, drug which is not
registered or is in conflict with the conditions of registration. It also
prohibits the sale of any drug without a warranty bearing the name and batch number of the drug issued or use an incorrect batch number.
It also regulates the advertisements of drugs.
This Act protects the consumer by levying various
penalties on manufacturers, importers or distributors of drugs. Whoever
exports, imports, manufactures or sells any drug whcih is counterfeit, non registered, false warranted or do such act without a
license will be punishable with imprisonment and fine. This Act also mentions
about the formation of drug Courts where a complaint about any drug
manufacturer, seller, importer and exporter can be filed.
The Drugs (Labelling and Packaging) Rule, 1986
specifies that drug must have information about the weight, volume or dose. The
name of manufacturer, license number, registration number, date of expiry, Urdu
version of the drug name, distinctive batch number, date
of manufacture and maximum retail price must be mentioned on the label of the
container. Drug label must mention about its usage i.e. whether for internal or
external use or it is for a physician as a sample. In case, the drug is meant
for Government institution or veterinary use, the label must contain
information about it. Non sterilized surgical instruments must have information
printed on it stating about its status. Each finished drug must be packaged in
a container for retail sale to a hospital dispensary, clinic, or any other such
institutions.
The Emergence of a Modern Era for Consumers
A modern era for consumers emerged in the country when
the federal Government formulated the first legislation for the protection of
consumer rights in the federal capital,
Islamabad Consumer Protection Act, 1995 became a model
for the provinces to follow. NWFP (now renamed Khyber Pakhtunkwa) legislature
passed The North West Frontier Province Consumer Protection Act, 1997. This Act
aims to protect the rights of consumers by controlling unfair trade practices
like false representation of goods and services, prohibiting the sale of
substandard goods, giving misleading information, false guarantee and warranty
and misleading the public regarding price of the product etc. This act
obligates manufacturer to publish maximum retail price on the container of
every product, the nature, standard and other specifications of the product
like the weight, size or volume and manufacturing and expiry date. Information
should be made available for non packaged products at the point of sale.
Receipt shall be issued to purchaser which states the date of sale,
specifications of goods sold, the quantity, name and
address of seller. The act also obligates the formulation of Consumer
Protection Council on lines similar to Islamabad Consumers Protection Act,
1995.
The Act also specifies a mechanism for the redress of
consumer complaints. A complaint regarding any goods sold or services provided
can be filed with the District Magistrate of the District concerned. The
District Magistrate may either dispose off the complaint itself or move the
same to a lower magistrate. The magistrate can direct the seller if found guilty
to remove defect, to replace goods with new one, to return the price or any
charges paid by the customer or to pay compensation to the consumer for any
loss. The magistrate can also punish the seller with fine or imprisonment.
The Punjab Assembly passed a similar Act called
"The Punjab Consumer Protection Act, 2005" to provide protection and
promote the rights and interest of consumers on
Though these consumer specific legislation have their
own demerits in terms of restrictive definitions, under representation of
non-official members, tight time limits, slow and expensive judicial process
etc.(Ansari & Hafeez, 2000)
The table below provides an overview of similarities
and differences between the three Acts.
COMPARISON OF CONSUMER PROTECTION LAWS OF
Consumer
Protection Laws
Jurisdiction,
Offences, Complainants, Procedure, Enforcement, Comments
Islamabad
Unfair trade Practice, False Advertising
A
consumer, Consumer Association, Federal Government
Submission of complaint with the Court of Session,
Imprisonment, Fine, Confiscation of property.
Narrow definition of consumer, Slow and expensive judicial
process.
THE
The whole of
Unfair
trade Practice, False Advertising
A consumer, Consumer Association, Govt. or Civic
development Authority.
Any
complainant can file a complaint with the District Magistrate.
Imprisonment, Fine, Compensation to victim,
Confiscation of property.
Effectively
operates in favour of the supplier.
slow and
expensive judicial process.
THE
The whole of
Defect
in Product, Defective or false service, Unfair trade
Practice, False Advertising, etc.
A consumer, Consumer Protection Council, Provincial Government.
Any
complainant can file a complaint with the district coordination officer.
Imprisonment, Fine, Compensation to victim.
Consumer
became powerful, Effectively operates in favour of the
consumer, slow and expensive judicial process.
Rise of the Regulatory State
Even with the establishment of regulatory agencies
such as NEPRA, OGRA and PTA, there is no evidence of a clear and consistent
consumer welfare policy. However, under their respective laws, a consumer has
been recognized as an affected party with a legitimate interest in the process
of fixing the tariffs (Ansari & Hafeez, 2000).
Electricity and Power Sector Legislation in
The most notable act regarding electricity and power
is "Regulation of Generation, Transmission and Distribution of Electric
Power Act, 1997". According to this Act, National Electric and Power
Regulatory Authority (NEPRA) will regulate the electric power in the country
and define the term and conditions of license, standard maintenance and tariff
setting. This Act also makes the Authority responsible for consumers, who will
be protected against monopolistic and oligopolistic competition, provide
opportunity to consumers to participate in tariff setting process and make
procedures for resolving disputes between consumers and service providers.
The Act lists detailed procedure for lodging a
complaint and getting redressal if not action is taken by the service provider.
The complaint can be filed by a consumer directly in a written form. If the
consumer is not satisfied with the redress, a copy of the complaint can be sent
to the authority as a proof that the service provider is aware of the
complaint. The complaint must specify the loss suffered and the remedy sought.
If the service provider violates any section of the Act, its licence can be
revoked.
The Act was reinforced with the help of different
standards and rules which were prepared by NEPRA and approved by the Government
of
Telecommunications Sector Legislation in
"Pakistan Telecommunication (Re-Organization)
Act, 1996" was enacted in 1996 to regulate the telecommunication sector in
The Act lists detailed step by step procedure for
getting redressal by a consumer. Though a consumer can complain directly to
PTA, it is considered appropriate to first approach the service provider in
writing. If the consumer is not satisfied with the actions of a service
provider, he can complain to PTA in written form. The complaint must specify the
loss suffered and remedv sought. PTA will send a notice to the service provider
concerned for violating the Act. If the service provider doesn’t satisfy the authority,
it can be fined and in extreme case, its licence can be terminated.
Telecommunications Consumer Protection Regulations,
2009 provides real protection to consumers by setting standards and benchmarks
for the telecom service operators. According to the Regulations, a consumer is
free to select an operator of his choice and he must provide the service in
fair, cefficient and non-biased manner. An Operator cannot withdraw its
services without giving prior notice to a consumer and must follow the laid
down procedure in case of suspension or disconnection. The Act defines a code
of ethics for the operators. It specifies that an operator shall not use unfair
practices to sell its services to customers and mislead or misinform him
regarding contest, prizes or any competitions. The operator must make sure that
no tax or tariff is charged from consumer without the approval of Pakistan
Telecom Authority. Consumers must be informed about all the charges, tariff
rates and taxes for using the service. All the operators are also bound to
provide detailed billing information to the consumer.
The Regulations stipulate that the operators must
entertain the consumer complaints in a timely manner. They must maintain a
computer complaint handling mechanism and must publicise it to inform the
consumers. Every operator is bound to maintain a round the clock call centers
to help the consumers. All operators shall ensure the confidentiality of
consumer information and no such information is to be made available to third
party.
To protect the public from harmful rays of cellular
service antennas, some rules and regulations have been enacted called
Protection from Health Related Effects of Radio Base Station Antenna
Regulations, 2008. The provisions of this Act aim to protect the public from harmful
effects of radio waves of cellular antennas.
Oil and Gas Sector Legislation in
Natural Gas Regulatory Authority Ordinance, 2000 was
promulgated to regulate the natural gas sector in
In order to resolve the complaints of consumers, OGRA
legally binds every licensee to form a complaint resolution system which must
be approved by the authority. Any person can file a complaint with the
registrar for any omission done by a licensee or dealer in breach of Ordinance,
rules and regulations, for non-conformity by the licensee with service
standards or billing, connection or disconnection of service, metering,
unjustifiable delay in service provision, safety practice, quality and quantity
of natural gas, LPG or CNG supplied and prejudiced practices. Complaints are
governed by Complaints Resolution Procedure, 2003 formulated by OGRA and
approved by the Government of Pakistan.
An application can be filed within 90 days. The
complainant must mention the redress sought from the licensee. The designated
officer will advance a copy of the application to the licensee asking him for a
response within 15 days of receiving the copy of application or any other period
specified by the officer. Before making a decision, the designated officer
shall consider the response of the licensee and may take reasonable steps to
deal with the application including arranging a meeting between complainant and
licensee, examination of site, sample or quantity. If the complaint is proven
correct, the cost shall be paid by the licensee or the dealer. The complainant
or licensee, if not satisfied with the decision of the designated officer, can
appeal against the decision within thirty days of the decision.
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