TOPIC-1
JUDICIAL ACTIVISM BLESSING OR DISGUISE Judicial Activism Judicial activism is a critical term used to describe judicial rulings that are suspected to be based upon personal and political considerations other than existing law. Judicial restraint is sometimes used as an antonym of judicial activism. The term may have more specific meaning in certain political contexts. Concerns of judicial activism are closely tied to constitutional interpretation statutory construction and separation of powers. Judicial activism is important for common people who are lacking money and are unable to compete with rich people because rich people use money as a weapon to shade their illegal activities. Judicial activism in recent years is a widely debated issue between the judiciary and the Executive. Black's Law Dictionary 60th Edition (1891-1991) defines judicial activism as "The judicial philosophy which motivates judges to depart from strict adherence to judicial proceeding in favour of progressive and new social policies which are not always consistent with restraint expected of appellate judges. It is commonly marked by decisions calling for social engineering and occasionally these decisions represent intrusion in legislative and executive matters." This obviously is a difficult explanation for a layman to understand. But, the above statement can be explained in a simplified manner as- under the Constitution of India, the three branches of the government, namely the Legislative, Executive and the Judiciary, have been assigned their own separate roles. It is when the Judiciary steps into the shoes of the Executive or the Legislature and embarks on the work of law-making rather than interpreting laws, it can be deemed to be judicial activism. When the Executive and the Legislature are apathetic and fail to discharge their obligations, then the bureaucracy shows absolute indifference to its mandatory duties. Also, when the law enforcing authorities show brutality in the process of implementation of law, it becomes the responsibility of the Judiciary to adopt this activistic approach. The Supreme Court of India has been assigned the widest powers under
the Constitution for protection of the Constitutional rights of citizens. There is no reason why the court should not adopt an activistic approach and issue directions to the State and Union governments and other governmental organisations and take positive action with a view of enforcing fundamental rights of citizens. The judges of the Supreme Court must not merely isolate themselves in an ivory tower and neglect the needs and problems that plague our society. Instead, they should understand the problems of society and exercise judicial powers in a fair manner so as to protect the fundamental rights of society. Branches of Government of India The Government of India officially known as the Union Government and also known as the Central Government, was established by the Constitution of India and is the governing authority of a union of 28 states and seven union territories collectively called the Republic of India. It is seated in New Delhi. the capital of India. The government comprises three interdependent branches: the executive, the legislative and the judiciary. The Executive branch headed by the President who is the Head of State and exercises his or her power through a Council of Ministers led by the Prime Minister. The Legislative branch or the Parliament consists of the lower house, the Lok Sabha and the upper house, the Rajya Sabha as well as the president. The Judicial branch has the Supreme Court at its apex, 21 High Courts and numerous civil, criminal and family courts at the district level. The basic civil and criminal laws governing the citizens of India are set down in major parliamentary legislation, such as the Civil Procedure Code, the Indian Penal Code and the Criminal Procedure Code. The union and individual state governments consist of executive, legislative and judicial branches. The legal system as applicable to the federal and individual state governments is based on the English Common and Statutory Law. Legislative branch The constitution designates the Parliament of India as the legislative branch to oversee the operation of the government. India's bicameral parliament consists of the Rajya Sabha (Council of States) and the Lok
Sabha (House of the People). The Council of Ministers is held responsible to the Lok Sabha. The government can enact laws and ordinances as required for the governance of the country. However, laws and ordinances have to be passed by the legislative branch in order to be effected. Parliament sessions are conducted to discuss, analyze and pass the laws tabled as Acts. Any law is first proposed as a bill in the lower house. If the lower house approves the bill in current form, the bill is then proposed to be enacted in the upper house. If not, the bill is sent for amendment and then tabled again so as to be passed as an Act. Even if the bill is passed in the lower house, the upper house has the right to reject the proposed bill and send it back to the government for amending the bill. Therefore, it can be said that the governance of India takes place under two processes; the executive process and the legislative process. Ideally, the governance cannot be done through the individual processes alone. After the Bill is passed by both the houses, the President signs the Bill as an Act. Thus the legislative branch also acts under the name of the President, like the executive branch. Ordinances are laws that are passed in lieu of Acts, when the parliament is not in session. When the parliament is in recess, the President assumes the legislative powers of both the houses temporarily, under Part V: Chapter III - Article 335 of the Constitution of India. The government has to propose a law to the President during such periods. If the President is fully satisfied with the bill, and signs the bill, it becomes an ordinance. The powers of ordinances are temporary, and each ordinance has to be tabled in the parliament when the houses reassemble. The President also has the right to withdraw an ordinance. Executive branch The Executive branch of the Indian government includes: y
President
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Vice president
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Council of ministers
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Governor
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Attorney General of India
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All ministries of central Govt.
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Independent departments of central govt.
PRESIDENT According to the Indian Constitution the President of India is elected by the electoral college. The electoral college consists of the members of both the Houses of Parliament namely Lok Sabha and Rajya Sabha. The Legislatures of the constituent states also play an important role in electing the President of India. Being elected for a term of 5 years, the President of the country heads the State and Supreme Commander of the Defense Forces. Although the President of India exercises his executive powers in an indirect way, yet he has been conferred with the highest rank in the Executive Branch of Indian Government. The President of India is the ultimate authority who signs the bills of Parliament prior to the passing of the same. Also, every year the first session of the Parliament is addressed by the President of the nation. In case of pending bills and other kinds of provisions the President of India convey messages to Lok Sabha and Rajya Sabha. Both the houses of Indian Parliament can be called upon by the President of India as and when required. Vice President of India The Vice President of India, as per Article 63 of the Indian Constitution, is elected by both Rajya Sabha and Lok Sabha members. Elected for a period of five years, the Vice President of India is both the head of Rajya Sabha as well as a prime figure of the Indian Executive Branch. In cases of resignation, death or removal of the President, the Vice President acts as the head of the nation. The major functions of the Vice President of India include: y
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Performing as the Chairman of Rajya Sabha Functioning as the Presiding Officer in either or both the Houses of Parliament
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Functioning as the Acting President of India under such circumstances as death, resignation or removal of the actual President Offering consultation regarding various policies of the states of India Visiting other countries as a goodwill ambassador Keeping a track of all the issues pertaining to the Central Government of India.
Council of Ministers Article 74(1) of the Indian Constitution clearly defines the presence of a Council of Ministers in the Executive Branch of Government of India. The Prime Minister heads the Council of Ministers and offers important piece of advice to the nation's President. The Council of Ministers, on the other hand, is selected by the Prime Minister and the formal sign of approval goes from the President. Ministers of state, Cabinet Ministers and Deputy Ministers are included in the Council of Ministers in India. The Council of Ministers is directly accountable to the Lok Sabha which is one of the houses of the Indian Parliament. Governor India has 28 states within its territory. The Constitution of India states that each and every state of the nation should have a Governor. The governor of every state enjoys the executive powers. The President of India appoints the Governor for each of the state of the country. The Prime Minister, along with other members of the Council of Minsters, provides assistance to the Governor. Attorney General of India The Constitution of India, under Article 76, states that the Attorney General should be appointed by the President of India. Elected by the ruling government of India, the Attorney General performs the function of a chief legal advisor. For being nominated as the Attorney General of India the concerned candidate should possess all the qualifications to take seat of the judge of the Supreme Court. During the sessions of the Parliament, the Attorney General of India has the right to participate in the same. However,
he or she does not have any right to vote in the Parliament. In order to take various legal decisions in a smooth and faster way, 1 Solicitor General and 4 Additional Solicitor Generals assist the Attorney General of India. The Attorney General is also required to perform all legal functions that are delegated to him by the President of India. Apart from the President, Vice President, Prime minister, Council of Ministers, Attorney General and Cabinet Ministers, the Executive Branch of Indian Government also includes many other ministries. Some such departments and ministries are mentioned below: Independent Departments of Central Government y
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Department of space Department of Atomic energy
Judicial branch India's independent judicial system began under the British, and its concepts and procedures resemble those of Anglo-Saxon countries. The Supreme Court of India consists of a Chief Justice and 25 associate justices, all appointed by the President on the advice of the Chief Justice of India. In the 1960s, India moved away from using juries for most trials, finding them to be corrupt and ineffective, instead almost all trials are conducted by judges. Unlike its US counterpart, the Indian justice system consists of a unitary system at both state and federal level. The judiciary consists of the Supreme Court of India. High Courts at the state level, and District and Session Courts at the district level.
To illustrate the importance of the role of the Judiciary when it comes to Judicial Activism, let us examine the following cases.
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In the landmark judgment of Vishaka vs State of Rajasthan (AIR 1997 SC 3011), the Supreme Court has laid down exhaustive guidelines to prevent sexual harassment of women in the work place, until an exhaustive legislation has been enacted for the purpose. It was held that it is the duty of every public as well as private owner to prevent sexual harassment of woman in the work place. Also, it was made mandatory to display the guidelines given by the Supreme Court conspicuously and the legislature was directed to make a comprehensive law on this issue.
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Similarly, in the case of D.C. Wadhwa vs. State Of Bihar ( AIR 1987 SC 579) -- the Petitioner, a professor of political Science who had done substantial research in the state's administration, was deeply interested in ensuring proper implementation of constitutional provisions. He challenged the practice followed by the state government of Bihar in repromulagating a number of Ordinances without proper approval from the legislature. The S.C., in its positive action, directed the state government to pay the petitioner Rs. 10,000/- for his excellent research that brought to light this repressive action. M.C. Mehta vs Union of India M.C. Mehta, the noted ecologist has made several petitions for protection of ecology and pollution control. The Supreme Court has always taken positive action in the protection of the environment. As can be seen in the following: The S.C. has ordered the closure of tanneries at Jajmau near Kanpur, which polluted the Ganges. The S.C. also ordered the Kanpur Mahanagarpalika to shift the dairies on the banks of Ganga, remove the waste accumulated by those dairies & also lay sewage lines. In another petition by the same petitioner, the Supreme Court's attention was drawn towards the hazardous chemical industries established around the Taj Mahal. The court issued appropriate orders asking the chemical industries to relocate themselves and thereby protect our ancient monument
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In a significant judgment, the Supreme Court has held that has held that it is the paramount obligation of the members of the medical profession to provide aid to every injured citizen, brought for treatment, immediately, without waiting for procedural formalities. This action was taken by the SC on the basis of a report, published in the Hindustan Times, titled "Law helps the injured to die".
Judicial Activism as a blessing Judicial activism is closely tied with the personal standpoint of "liberal." It is basically being more "activist" or more in turn with "adding" to the U.S. Constitution rather than merely interpreting it (judicial restraint). Three major cases that have been touted as judicial activism abuse include Roe v. Wade, Lawrence v. Texas, and Brown v. Board of Education (abortion, homosexuality, and racial segregation, respectively). Without judicial activism, the U.S. would still be stuck with the Dredd Scott decision and Plessy v. Ferguson, regarding African Americans' rights. Without judicial activism, Lochner v. New York would stand as a legal precendent, and the minimum wage would be illegal on the basis that it violates the right to business contracts. Additionally, it could be argued that judicial activism is necessary because it is difficult to decide court cases based on the U.S. Constitution when the framers' are long dead, their intent unknown, and the Constitution written in an age before the modern or digital age. Judicial Activism as a Disguise Unfortunately, however, some pitfalls are inherent to the process of Judicial Activism. Though we do not strictly adhere to the principles to the Separation of Power in India, there is always a danger of misuse of power. As Plato has quoted, "Power corrupts and absolute power corrupts absolutely when vested in one person." Even though the courts issue directions for the enactment of certain laws, it is always the discretion of the Legislature to enact it at its will and leisure. The principal function of the courts is to impart justice to the litigants. However, if the judges indulge in the function of law making, they digress from their principal function, thereby adding to the huge pendency of cases in our courts. It cannot be denied that the opinion of a single judge is essentially a subjective opinion. It cannot be as objective as a decision made 560 Parliamentarians. Thus, it becomes clear that the law, enacted by the Legislature will be more substantive to society.
Judicial activism has a definite role in the monitoring of the other two branches of our democratic government. However, it is important that the judges and the courts should take care to prevent the misuse of this process in order to further their own personal gains or glory. THE WORLD TODAY The world today passing through the mostnay, difficult in gravely human history when the isvery survival of humanity, life phase itself, is endangered. The threats come not only from the huge nuclear stockpile of over 36,000 warheads but also from the alarming rise in pollution levels worldwide and the ever-widening ecological imbalance. Recently, a new and probably far deadlier threat has emerged in the form of international terrorism which is a direct result of international lawlessness and lack of international laws which are enforceable in all nations of the world. NEED OF THE HOUR Now that the United Nations has admitted its inability to safeguard the rights of the children for a safe future, and the leaders of various countries are unwilling or incapable of either arresting the global stockpiling of weapons of mass destruction or reversing the massive tide of environmentally damaging and ecologically destructive activities worldwide, the need of the hour clearly is for an international law-making body, a World Parliament, whose enactments would be universally applicable to all countries and peoples of the world. However, world leaders have already demonstrated their lack of statesmanship which was clearly evident at the UN's Millennium Summit, held from 6th to 8th September 2000 in New York, where ² even though the agenda included discussions on 'a new international economic and political order' ² the biggest gathering of Heads of State and Heads of Government failed to come to any conclusion. All of them were singularly preoccupied with the affairs of their own countries and the issues confronting their own regions and neighbours WORLD JUDICIARY ² HUMANITY'S LAST HOPE. On behalf of over 30,000 CMS students representing the world¶s two billion children, Mr. Gandhi wrote many letters to Dr Kofi Annan, Secretary - General of the UN requesting that children¶s right to a safe future be recognized and included in the UN¶s Declaration of the Rights of the Child. The Secretary-General chose to reply (vide letter dated 16th July 2001) to
only one letter of Mr. Gandhi (dated 29th June 2001) in which Mr. Gandhi had congratulated the Secretary-General on his reappointment. Even then, Dr Annan only thanked Mr. Gandhi for his compliments and made no mention of Mr. Gandhi¶s request on behalf of the world¶s children. Clearly, the United Nations is neither ready to grant nor deny this right to the children. Having failed to find justice elsewhere, CMS had the option of either keeping silent or of taking the children¶s case to the world judiciary. Having appointed itself as the custodian of the welfare of the world¶s children, born and yet-to-be-born, CMS could not keep silent and decided to approach the Chief Justices of the World and solicit their support in favour of the children¶s cause. The children¶s last hope now rests with the world judiciary, for Judges are the only ones who are trusted and respected by all ² the masses as well as the classes. As the conscience keepers of mankind and as the custodians of the welfare of humanity's silent masses, it is the moral duty of the world¶s judiciary to come out of their Courts and to deliver a public judgement on the urgent issues of global governance. A wonderful opportunity awaits them to demonstrate their support and to lend the weight of their office and their wisdom to the cause of world unity and world peace during the meeting of the International Judicial fraternity at the 5th International Conference of the Chief Justices of the World on Article 51(c) of the Constitution of India to be held in Lucknow, India, from 10th to 12th December, 2004. The voice of a united World Judiciary cannot be ignored and shall have to be heard and obeyed by all. Therefore, the judges of the world must unite for the sake of humanity's survival, for the sake of the world's two billion children and for the sake of justice for all. If the Judiciary fails to grasp this historic opportunity, then nothing can save the world from total annihilation in a third, the most brutal of all world wars. ARE INDIANS LOSING THEIR TRUST IN THE JUDICIARY Of the three pillars of the Indian democracy ± the executive, the legislature and the judiciary, the first two pillars have been shaken by institutionalized corruption for a long time. However, the judiciary ± the last recourse of law ± is also failing to play its role as the protector of constitutional rights is being proved time and again by its various controversial judgments. The Indian judiciary, or to be more particular, the lower judiciary have been ensnared in various controversies in recent years that had required the apex court to intervene in the work of the lower courts. The recent observations by the Supreme Court regarding the role of the investigative
agencies and the courts of Gujarat in dealing with the Gujarat riot cases point to the failure of the lower courts in delivering justice. The Supreme Court has ordered fresh inquiry into a dozen major cases of massacre in the 2002 Gujarat riot. If on investigation, it were confirmed that the perpetrators of the heinous crimes were supporters of the BJP and it was not possible to get a fair trial in the state, then the cases would be transferred to the courts in other states. Earlier, the Bilkis Banu and the Best Bakery cases were transferred to Maharashtra, as there was hardly any chance of getting a fair trial in Gujarat. Gujarat is not the only state where political elements prevent the courts from delivering free and fair justice. In Madhya Pradesh, the apex court had to intervene in the case of the death of Prof. H. S. Sabharwal, who was assaulted by the student¶s wing of the BJP, and transfer the case to a different state. In Tamil Nadu, in a murder case in Madurai where one of the main accused was M.K Azhagiri, the eldest son of the chief minister M. Karunanidhi the apex court had noted on receiving a complaint from one of the witnesses that a fair trial was not possible in the town where the DMK had a strong base. The poor show of the Indian courts is not concentrated only in the cases where the members of the political parties and their supporters are involved. Millions of Indians who visit these precincts of justice are victims of corruption. According to the Transparency International¶s Global Corruption Barometer 2006, 77 per cent of the Indian respondents described the Indian judicial system as corrupt. About 36 per cent of Indians had bribed the judiciary. Between May 2006 and April 2007, the average amount of money paid in bribes by a household in India was the greatest in judiciary as compared to other sectors.
A BALANCE IS REQUIRED IN EN ACTING JUDICIAL ACTIVISM The separation of powers, also known as trias politica, is a model for the governance of democratic states. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the uncodified Constitution of the Roman Republic. Under this model, the state is divided into branches or estates each with separate and independent powers and areas of responsibility. The normal division of estates is into an executive a legislature and a judiciary.
The opposite of separation of powers is the fusion of powers Often a feature of parliamentary democracies. In this form, the executive, which often consists of a prime minister and cabinet ("government"), is drawn from the legislature (parliament). This is the principle of responsible government. Although the legislative and executive branches are connected in the parliamentary systems, there is often independent judiciary. Also, government's role in the parliament doesannot give them unlimited legislative influence.
Constitutional Court Of South Africa and its Powers Abstract: Through close analysis of the way that the Constitutional Court of South Africa and selected lower courts have dealt with the possibility for enforcement of socioeconomic rights, this article intends to begin to identify and describe the outlines of a possible model for effective judicial enforcement of socioeconomic rights. The South African Constitutional Court¶s early socioeconomic rights decisions have garnered mixed reviews. Many commentators have hailed the Court¶s approach as representing an appropriately limited, but effective, approach to enforcing these rights. These commentators describe the Court¶s approach as a relatively weak form of review that strikes a balance between judicial enforcement and the need for government discretion. By contrast, some commentators in South Africa have criticized the Court¶s interpretive approach as overly-deferential to the government and argue that it risks rendering these rights merely hortatory. This article takes the position that the Court¶s approach falls somewhere in between these two extremes. Drawing on the Court¶s most recent cases and on recent lower-court cases, I argue that the Court has developed a mixed form of review that permits selective deployment of strong-form review and direct remedies where the government has failed to adequately
respond to an initial application of a weak remedy or where the government has demonstrated bad faith. This mixed form of review answers the objection that the Court¶s initially deferential approach to enforcement threatens to render these rights hortatory. At the same time, by adopting a weak form of review as the apparent approach bytolimiting strong-form to cases in which thedefault government has and failed respond to an initialremedies weak-form remedy, this mixed approach preserves many of the benefits of weak-form review. In democratic systems of governance a continuum exists between "Presidential government´ and "Parliamentary government "Separation of powers" is a feature more inherent to presidential systems, whereas "fusion of powers´ is characteristic of parliamentary ones. "Mixed systems" fall somewhere in between, usually near the midpoint; the most notable example of a mixed system is France's (current) Fifth Republic. In fusion of powers, one government (invariably the elected legislature) is supreme, and the other estates are subservient to it. In separation of powers, each estate is largely (although not necessarily entirely) independent of the others. Independent in this context means either that selection of each estate happens independently of the other estates or at least that each estate is not beholden to any of the others for its continued existence. Maintaining balance The theoretical independence of the executive and legislative branches is partly maintained by the fact that they are separately elected and are held directly accountable to the public. There are also judicial prohibitions against certain types of interference in each others' affairs. (See "separation of powers" cases in the List of United States Supreme Court cases). In recent years, there have been accusations that the power to interpret the law is being misused (judicial activism) by some judges in the US. In the checks and balances system, the judicial branch has the right to say that something is unconstitutional, like a law or a bill (Credited to an opinion written by Chief Justice John Marshall in the case of Marbury v. Madison (1803)).
The legal mechanisms constraining the powers of the three branches depend a great deal on the sentiment of the people. A common perception is that popular support establishes legitimacy and makes possible the actual implementation of legal authority. National crises (such as the Civil War, the Great Depression, pre-Pearl Harbor World War II, the Vietnam War) havemost beenendangered, the times ateither which the principle of separation or of through powers has been through official "misbehavior" the willingness of the public to sacrifice such principles if more pressing problems are solved. The system of checks and balances is also selfreinforcing. Potential abuse of power may be deterred, and the legitimacy and sustainability of any power grab is hindered by the ability of the other two branches to take corrective action; though they still must actually do so, therefore accountability is not automatic. This is intended to reduce opportunities for tyranny.
Market Failure and Government Failure Clifford Winston of the Brookings Institution talks about the ideas in his book, Market Failure vs. Government Failure, with EconTalk host Russ Roberts. Winston summarizes a large literature on antitrust, safety regulation and environmental regulation. He finds that government regulation often fails to meet its objectives. While markets are imperfect, so is government. Winston argues that idealized theories of government intervention based on textbook theories of market failure are not the way regulation turns out in practice. He argues that special interest politics explains much of the disappointing outcomes of government regulation.
TOPIC-2
CONSUMER DEFEATS THE DOCTRINE ³CAVEAT EMPTOR´ Caveat
emptor is Latin for "Let the buyer beware". Generally, caveat emptor is the property law doctrine that controls the sale of real
property after the date of closing. Under the doctrine of caveat emptor, the buyer could not recover from the seller for defects on the property that rendered the property unfit for ordinary purposes. The only exception was if the seller actively concealed latent defects or otherwise made material misrepresentations amounting to fraud. In other words it is not the part of the seller¶s duty in a contract of sale to give to the buyer, an article suitable for a particular purpose unless such purpose is made known to the seller. Thus, on a sale of a knife, there is no implied condition that the knife would cut. It is the duty of the buyer to satisfy himself before purchasing the articles, that the article which he buys, is the one which he wants. The rule of caveat emptor is laid down in the opening lines of section 16, which states that µsubject to the provision of this act or of any other law for the time being in force, there is no implied condition or warranty as to the quality or fitness for any particular purpose of goods supplied under a µcontract of sale¶. The rule of caveat emptor owes its srcin to the fact that in early times all sales of goods took place in open market. The buyer, therefore, had every opportunity to satisfy himself as to the quality of thepresumed goods or their particular purpose andthe at common law it was that fitness where for the abuyer could examine goods even though he did not, he relied upon his own skill and judgement. This rule applies to the purchase of specific goods, for example, a horse or a picture, where the buyer can exercise his own judgement. It applies also whenever the buyer voluntarily chooses what he buys. But he has no application in any case, in which the seller has undertaken and the buyer has left it to the seller, to supply goods to be used for a purpose known to both parties at the time of the sale. This can be elaborated by the following case:
Jones vs. Padgelt There was sale by sample by a woolen manufacturer of cloth to a merchant who was also a tailor. The buyer required the cloth for making special uniforms but this fact was not known to seller. Owing to latent defect in the cloth which was also there in the sample, it was unfit for the purpose. But there was nothing to show that it was unfit for other purpose. It was held that the buyer was without remedy.
Exception to the rule of caveat emptor The modern tendency is to narrow the scope of the scope of the rule of caveat emptor. These days, trade has become international in nature making it difficult for buyer to examine goods before hand especially in the case of µmail order¶ purchases. Section 16 lays down the following exception to the rule of caveat emptor. 1. Where the buyer relies on the skill and judgement of the seller The doctrine of caveat emptor will not apply and the seller will be held liable for breach of implied condition as to quality or fitness of the goods, if the buyer has known to the seller the particular purpose for which he requires the goods and the buyer has relied on the skill and judgement of the seller, who deals in such goods. There is, however, no such implied condition where a specific article is sold under its patent or trade name. Example: B purchased timber from C and the fact was made known to the seller that timber was to be used for railways sleepers. It was held that B could reject the timber as it was not fit for the purpose. [Bombay Burmah Trading Corportation vs. Agha Mohammad] 2. Merchantable Quality of goods Where the goods are bought by description from a seller who deals in goods of that description, there is an implied condition that the goods shall
be of merchantable quality. However this exception to caveat emptor will not apply if the buyer has examined the goods as regards the defects which could have been revealed by such examination of the goods at the hands of the buyer. 3.
Consent by fraud
This doctrine shall not apply to al those purchases which have been made by a buyer under a contract where his consent was obtained by the seller by fraud i.e., where the buyer relies on false representation of the seller and suffers damages. A seller, who is guilty of fraud, shall have no protection of the doctrine of caveat emptor. 4. Usage of trade An implied condition as to quality or fitness for a particular purpose may be annexed by the usage of trade.
Consumer protection act The consumer protection Act, 1986, provides for the better protection of consumers. Unlike existing laws which are punitive or preventive in nature, the provisions of this Act are compensatory in nature. The act is intended to provide simple, speedy and inexpensive redressal to the consumers' grievances, award relief and compensation wherever appropriate to the consumer. The act has been amended in 1993 both to extend its coverage and scope and to enhance the powers of the redressal machinery. Consumer protection act enactment The act was passed in Lok Sabha on 9th December,1986 and Rajya Sabha on 10th December, 1986 and assented by the President of India on 24th December, 1986 and was published in the Gazette of India on 26th December, 1986. This act was enacted in the 37th year of the Republic of India and was amended from time to time in the following years i.e. 1991, 1993 and 2002.
THE CONSUMER PROTECTION ACT ENSHRINES THE FOLLOWING RIGHTS OF CONSUMER: Right to be protected from hazardous goods and services Right to be informed about the quality and performance of goods and services Rights to free choice of goods and services Right to be heard in decision making process concerning consumer interests Right to redressal if consumer rights are infringed Right to consumer education y
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Gradual departure of doctrine with development and recognition of consumer rights Today¶s business world is consumer oriented world. Consumers are given much importance than every other aspect. Consumers are well aware about their rights. They know that what are the remedies they can avail or the options that they can exercise in case of any misrepresentation or fraud. The seller is required to provide the full information about the product or service he is offering. All the specifications must be made available to the consumer about the price, ingredients, for what purpose it will be used etc. if the consumer is not provided such kind of information he can directly approach to consumer forums or the consumer courts are there to solve the matter. The right to be protected against the hazardous services and goods and the right the right to be informed about the quality and performance of goods and services supports these facts. The doctrine of Caveat Emptor put no obligation on the part of the seller. This doctrine holds true in the initial era in which trading was done in open market i.e. the seller is not at all responsible if the consumer has purchased anything which is not as per his requirement. But now in practical life, open market trading is very less. Most of the sale purchase is done through indirect operations. Online trading is very popular now-a-days. In such cases it is not possible for consumers to check or verify the goods. So consumer rights give the authority to a consumer to be provided with appropriate goods and services. As more and more consumers are being educated about
their rights, importance of doctrine of Caveat Emptor is gradually decreasing. This doctrine is not given much importance with the recognition of consumer rights. Sellers are bound to provide every information to the consumer regarding the product or service. He can not assume the implied situation of the buyer¶s needs and requirements. Buyer is not bound to specify the product or his requisition to the seller. Consumers have choice with increased Globalization Nowadays, not only the word globalization has become common-place but this very observation has turned trivial in the academy and the media. These facts do not exempt us from the duty of defining the concept when we speak about globalization, regulation and consumer law. For the purposes of this paper one might define globalization in a provisory and preliminary manner as a process of an economic and political nature characterized by the following features :a) the expansion of international commerce and development of a global market based on a post-fordist (or post-industrial) production structure; b) the increasing homogeneity of cultural standards and standards of consumption; c) the weakening of the idea of Nation State for the benefit of economic agents of the new global market; d) development of commercial blocs. Global Regulatory body for governing the consumer rights Consumers International (CI) is the world federation of consumer groups that serves as the only independent and authoritative global voice for consumers. Founded in 1960, currently with over 220 member organizations in 115 countries around the world, the organization continues to build a powerful international movement to empower and protect consumers everywhere. In campaigning for the rights of consumers across the world, CI seeks to hold corporations to account and acts as a global watchdog against any behaviour that threatens, ignores or abuses the principles of consumer protection.CI is a not-for-profit company limited by guarantee company
number 4337865 and registered charity number 1122155. Impacts of globalization on consumer culture. Consumer culture is a culture in which the attainment of ownership and possession of goods and services is presented as the primary aim of individual endeavours and the key state of social status and prestige. With increased globalization consumers are becoming more and more aware about their rights. As the consumer rights are given due importance in almost all the developing and developed countries, consumers have more choices that they can practice in case of any malpractice or fraud. Consumers are now participants in a global market, and possibly in a cyber market. Law can only protect them (or us-we are all consumers) through rules which are essentially national, and which can only be enforced within national frameworks. Most of those rules have been enacted through a democratic political process. If the rules are useless in practice, people may question the usefulness of democracy and nation states. Consumer protection laws enable the correction of market failures and the redress of inequalities of information and power. Recent cases indicate that consumer protection laws, for a number of reasons, will be of little practical use to protect consumers in the global economy and in cyberspace. That raises the question of whether democratic politics can ever be used to bring countervailing force against those who abuse their position in the global market or the cyber market. If so, what other national laws will be rendered useless: labor laws, environmental laws, other laws that result from an often vigorous political process? What functions remain for democratic politics? The process of development coupled with increasing liberalization and globalization across the country has enabled consumers to appreciate their increasingly important role in society and governance. Though it is said it to be µself reliant¶ but in present scenario it seems unfeasible to tag along the same. in this day and age the world has transformed into µglobal village¶ not only due to the advancement of trade and commerce but more due to technological advancement. Therefore liberalization is inevitable for a nation-state disposed to develop itself. It is very difficult for any nation to produce everything to satisfy its customer citizens, so the process of globalization and free trade is serving a noble
cause for all the probable consumers by satisfying their otherwise unaddressed desires.[7] Globalization is almost inevitable but mostly desired at the same time from the consumer¶s point of view. In fact it enforces consumer¶s µright to choice¶, as envisaged by UNO in its guidelines for consumer welfare, in more sensible manner by exposing him to varieties of availabilities.
Consumer protection laws in the global world Consumers have sought protection through legislation because the general laws and market forces have failed to provide it. Many consumer protection laws either relate to the terms and conditions of contracts that consumers make with suppliers for the supply of goods and services, or to conduct intended to encourage the making of such contracts (marketing, packaging, advertising and provision of information). Previous laws, especially the law of contracts, assumed that the parties to contracts are legally equal in terms of power and information. In substance, in real markets, almost invariably consumers have markedly less power and information than suppliers. The law deems the action of a consumer in buying a commodity to be the making of a contract - in theory a free, consensual act. In practice, the legal consequences are attributed to the action by the law without any consideration of what the consumer actually knows or wants. The common law of contracts simply cannot afford consumers the protection they probably would seek if they were rational, fully informed, and equal in economic power to the supplier. Because contract law offers an inadequate basis for an equitable legal transaction, it must be modified by legislation[14]in order to afford greater protection to consumers than they can negotiate individually for themselves
COMPETITION ACT, 2002 An Act to provide, keeping in view of the economic development of the country, for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets, in India, and for matters connected therewith
or incidental thereto. This act reflects a bifocal vision of competition policy that addresses the long term and short term policy issues with a focus on consumer welfare. A calibrated intervention of state is envisioned through a regulatory body which is empowered to ensure sustainable economy by regulating the competition forces. Indian legislation provides a direction to other developing countries which are in the process of integrating the domestic economy into a global economy. Need of competition law: a) Globalization of trade has unleashed greater competition among the business enterprises due to the free access to the global markets. It facilitates with the formulation of norms and rules to regulate unethical competition. b) The law has been framed to regulate the large businesses to take advantages of exercising the dominant market power. c) It is to include the economic reforms undertaken by various countries and the policy that are suitable to the nature and extent of the economic liberalization of that country. law is felt inevitable to curtail d) The enactment of powerful competition the monopoly of big business enterprises that are created due to the free and liberalized access to the markets in the international business.
Objectives of the competition law The regulatory objectives of the competition law are intended to serve the: y y y y y
Safety and stability of domestic markets. Transparency of business practices. Prevention of abusive practices. Sustained benefits to consumers. Institutionalization of supervision over barriers to fair competition.
Framework of Competition Act, 2002 The institutional framework is the key to successful implementation of any law and competition law is not an exception to the general rule. Recognizing the need for an appropriate legislative cum administrative set
up to implement the law, the terms of reference of the High Level Committee on Competition Policy & Law (also known as Raghavan Committee) inter-alia were required to suggest both the legislative framework as well as the administrative set up for the modernized competition regime in India. While in many countries, the enforcement of competition law is entrusted to the judiciary, the Raghavan Committee in its Report viewed that in an era of specialization, competition law administration would be better administered and consumer welfare would be better served, if it be placed in a specialized agency and such body be christened as µCompetition Commission of India (CCI)¶.
It was further suggested that the CCI should be y
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a multi members body, independent and insulated from political and budgetary controls, should have separate investigative, prosecutorial and adjudicative functions, should have transparent, non discriminatory and rule bound proceedings, and should undertake positive advocacy in shaping policies affecting competition. To ensure all these, the Committee also recommended that the law should provide o
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a system of checks and balances by ensuring due process of law, have extra territorial reach and have punitive provisions for punishing the offenders besides other remedial methods.
Composition of Commission The Commission shall consist of a Chairperson and not less than two and not more than ten other Members to be appointed by the Central Government: Provided that the Central Government shall appoint the Chairperson and a Member during the first year
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of the establishment of the Commission. (2) The Chairperson and every other Member shall be a person of ability, integrity and standing and who, has been, or is qualified to be, a judge of a High Court; or, has special knowledge of, and professional experience of not less than fifteen years in international trade, economics, business, commerce, law, finance, accountancy, management, industry, public affairs, administration or in any other matter which, in the opinion of the Central Government, may be useful to the Commission. (3) The Chairperson and other Members shall be whole-time Members.
The act provides a regulatory framework covering the critical areas of competition namely: anti competitive agreements among enterprises. Abuse of dominant position in the market. Combinations/mergers between enterprises. y y y
Anti competitive agreements (1) No enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India. (2) Any agreement entered into in contravention of the provisions contained in subsection (1) shall be void. (3) Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which² (a) directly or indirectly determines purchase or sale prices;
(b) limits or controls production, supply, markets, technical development, investment or provision of services; (c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way; (d) directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competition: Provided that nothing contained in this sub-section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services. Explanation.²For the purposes of this sub-section, "bid rigging" means any agreement, between enterprises or persons referred to in sub-section (3) engaged in identical or similar production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding (4) Anyofagreement amongst personsinatrespect different or levels the production chainenterprises in differentor markets, of stages production, supply, distribution, storage, sale or price of,or trade in goods or provision of services, including² (a) tie-in arrangement; (b) exclusive supply agreement; (c) exclusive distribution agreement; (d) refusal to deal; (e) resale price maintenance shall be an agreement in contravention of sub-section (1) if such agreement causes or is likely to cause an appreciable adverse effect on competition in India. Explanation.²For the purposes this sub-section,² (a) "tie-in arrangement" includes of any agreement requiring a purchaser of goods, as a condition of such purchase, to purchase some other goods; (b) "exclusive supply agreement" includes any agreement restricting in any manner the purchaser in the course of his trade from acquiring or otherwise dealing in any goods other than those of the seller or any other person; (c) "exclusive distribution agreement" includes any agreement to limit, restrict or withhold
the output or supply of any goods or allocate any area or market for the disposal or sale of the goods; (d) "refusal to deal" includes any agreement which restricts, or is likely to restrict, by any method whom the persons or classes of persons to whom goods are sold or from goods are bought; (e) "resale price maintenance" includes any agreement to sell goods on condition that the prices to be charged on the resale by the purchaser shall be the prices stipulated by the seller unless it is clearly stated that prices lower than those prices may be charged. Abuse of dominant position 4. (1) No enterprise shall abuse its dominant position. (2) There shall be an abuse of dominant position under sub-section (1), if an enterprise.²(a) directly or indirectly, imposes unfair or discriminatory² (i) condition in purchase or sale of goods or service; or (ii) price in purchase or sale (including predatory price) of goods or service, Explanation.² For the purposes of this clause, the unfair or discriminatory condition in purchase or sale of goods or service referred to in sub-clause (i) and unfair or discriminatory price in purchase or sale of goods (including predatory price) or service referred to in sub-clause (ii) shall not include such discriminatory condition or price which may be adopted to meet the competition; or (b) limits or restricts² (i) production of goods or provision of services or market therefore; or (ii) technical or scientific development relating to goods or services to the prejudice of consumers; or (c) indulges in practice or practices resulting in denial of market access; or (d) makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts; or (e) uses its dominant position in one relevant market to enter into, or protect, other relevant market.
Explanation.²For the purposes of this section, the expression² (a) "dominant position" means a position of strength, enjoyed by an enterprise, in the relevant market, in India, which enables it to² (i) operate independently of competitive forces prevailing in the relevant market; or (ii) affect its competitors or consumers or the relevant market in its favor. (b) "predatory price" means the sale of goods or provision of services, at a price which is below the cost, as may be determined by regulations, of production of the goods or provision of services, with a view to reduce competition or eliminate the competitors. Combinations/ Mergers 5. The acquisition of one or more enterprises by one or more persons or merger or amalgamation of enterprises shall be a combination of such enterprises and persons or enterprises, if² (a) any acquisition where² (i) the parties to the acquisition, being the acquirer and the enterprise, whose shares,control, voting rights or assets have been acquired or are being acquired jointly have,² (A) either, in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or (B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars; or (ii) the group, to which the enterprise whose control, shares, assets or votingacquired rights have been or are being acquired, would belong after the acquisition, jointly have or would jointly have,² (A) either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores; or (B) in India or outside India, in aggregate, the assets of the value of more than two billion US dollars or turnover more than six billion US dollars; or (b) acquiring of control by a person over an enterprise when such person has already direct or indirect control over another enterprise engaged in
production, distribution or trading of a similar or identical or substitutable goods or provision of a similar or identical or substitutable service, if² (i) the enterprise over which control has been acquired along with the enterprise over which the acquirer already has direct or indirect control jointly have,² (A) either in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or (B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars;or (ii) the group, to which enterprise whose control has been acquired, or is being acquired, would belong after the acquisition, jointly have or would jointly have,² (A) either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores; or (B) India or outside India, in aggregate, of the of more thanintwo billion US dollars or turnover more the thanassets six billion USvalue dollars; or (C) any merger or amalgamation in which² (i) the enterprise remaining after merger or the enterprise created as a result of the amalgamation, as the case may be, have,² (A) either in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees, three thousand crores; or (B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars; or (ii) the group, to which the enterprise remaining after the merger or the enterprise created as a result of the amalgamation, would belong after the merger or the amalgamation, as the case may be, have or would have,² (A) either in India, the assets of the value of more than rupees fourthousand crores or turnover more than rupees twelve thousand crores; or (B) in India or outside India, the assets of the value of more than two billion US dollars or turnover more than six billion US dollars. Explanation.² For the purposes of this section,² (a) "control" includes controlling the affairs or management by²
(i) one or more enterprises, either jointly or singly, over another enterprise or group; (ii) one or more groups, either jointly or singly, over another group or enterprise; (b) "group" means two or more enterprises which, directly or indirectly, are in a position to ² (i) exercise twenty-six per cent. or more of the voting rights in the other enterprise; or (ii) appoint more than fifty percent, of the members of the board of directors in the other enterprise; or (iii) control the management or affairs of the other enterprise; (c) the value of assets shall be determined by taking the book value of the assets as shown, in the audited books of account of the enterprise, in the financial year immediately preceding the financial year in which the date of proposed merger falls, as reduced by any depreciation, and the value of assets shall include the brand value, value of goodwill, or value of copyright, use, collective registered proprietor, registered patent, trade permitted mark, registered user, mark, homonymous geographical indication, geographical indications, design or layout-design or similar other commercial rights, if any, referred to in sub-section (5) of section 3.