Enhancing Consumer Rights in the Market: Overcoming Barriers and Implementing the Sindh Consumer Protection Act, 2014

ENHANCING CONSUMER RIGHTS IN ENHANCING CONSUMER RIGHTS IN THE MARKET: OVERCOMING BARRIERS AND IMPLEMENTING THE SINDH CONSUMER PROTECTION ACT, 2014 By Waseem Abbas Shaikh Judge Consumer Protection Court Shikarpur, Sindh Consumers play a vital role in the economic growth of any country and industry, which is why special laws are enacted globally to ensure their protection and prosperity. As key contributors to government revenue through taxes, consumers are recognized as a backbone of the economic structure of the Country. In essence, consumer's protection refers to safeguarding them from unfair trade and deceptive market practices. This was affirmed by the Court in the case of Raghubir Singh v. Thakurain Sukhraj Kuar, where it was held that the primary objective of consumer protection law is to protect consumers from exploitation by the business community and hold the latter accountable before the law.1 In line with this objective, the Sindh government enacted the "Sindh Consumer Protection Act, 2014" (referred to as "SCPA"), a special law passed by the Provincial Assembly of Sindh in 2015, which applies solely to the province of Sindh. The Act's Rules, known as the Sindh Consumer Protection Rules, 2017, were established two years after the Act's enactment. As per Section 27 of the SCPA, the government of Sindh has set up Consumer Protection Courts (referred to as "the Court") in all districts, with approximately 29 Courts currently functioning, presided over by Civil Judges/Judicial Magistrates. The SCPA applies to all products and services purchased or availed by consumers for consideration, including those provided by private individuals, non-profit organizations, or government entities. Its main objective is to preserve, protect, and promote consumer's rights and interests.2 The Act protects consumers from prevalent deceptive practices in the market and provides them with remedies for losses incurred due to low-quality of goods or substandard services, thereby enhancing their access to justice. Furthermore, the Act seeks to eliminate the monopolies of sellers and service providers, ensuring fair and equitable market practices. Many traders exploit consumers to make higher profits by selling low-quality goods at high prices. They often engage in unfair practices like adulteration, hoarding, and providing smaller quantities of products. However, this goal can only be achieved through the effective implementation of the SCPA. Unfortunately, despite the SCPA being in force for nearly a decade, many consumers in Sindh remain unaware of their rights and remedies they are entitled to under the law. It is important to note that the SCPA is solely focused on consumer protection and it does not provide coverage for sellers or any other parties. The Act also prohibits anti-competitive practices that encourage monopolies and limit consumers' choice. As defined in Clause (e) of Section 2, a "consumer" under the SCPA is as under; "Consumer" (i) buys or obtains on lease any product for a consideration and includes any user of such product but does not include a person who obtains any product for resale or for any commercial purpose; or (ii) hires any service for a consideration and includes any beneficiary of such services, The Clause (i) of the Sindh Consumer Protection Act (SCPA) not only defines the term "consumer" but also sets a limitation. It explicitly excludes the person who obtains a product for resale from the definition of a consumer. As a result, individuals who purchase goods for resale are not entitled to file a complaint under the SCPA, as the law is designed to protect end-users rather than intermediaries in the supply chain. CONSUMER'S RIGHTS: INTERNATIONAL PROTECTIONS AND SAFEGUARDS UNDER THE SCPA In 1962, President John F. Kennedy introduced the "Bill of Consumer Rights" to the U.S. Congress, establishing the following fundamental rights for consumers: (i) the Right to safety, (ii) the Right to information, (iii) the Right to choice, and (iv) the Right to be heard.3 Later, based on recommendations from Consumers International, four additional rights were recognized as fundamental consumer rights: (i) the Right to the satisfaction of basic needs, (ii) the Right to redress, (iii) the Right to consumer education, and (iv) the Right to a healthy environment.4 Additionally, under the SCPA, consumers have the right to receive accurate information regarding the quality, quantity, and ingredients of a product at the time of purchase. Furthermore, consumers are entitled to receive an invoice for the goods they buy from the seller. These rights have also been acknowledged by the United Nations in the "UN Guidelines on Consumer Protection (UNGCP)."5 MANUFACTURER/SELLER'S OR SERVICE PROVIDER'S OBILIGATION It is the obligation of every manufacturer to ensure that their products meet the standards set by the government before they are sold in the market. Additionally, they must list the ingredients on the product's packaging to prevent sellers from misleading consumers about the product's qualities. Sellers, in turn, are legally required to display price catalogs or price lists,6 as well as return and replacement policies in their shops, ensuring transparency and preventing consumer deception.7 This transparency allows consumers to exercise due diligence when purchasing goods or availing services, empowering them to read, understand, and make informed choices based on the product information. Furthermore, when a consumer purchases a product, the shopkeeper must provide an invoice as proof of the transaction.8 Further, the service providers also have a responsibility to deliver the accurate services for which they are paid. They must avoid false advertising and ensure that the information they provide about their services is truthful and transparent, enabling consumers to make informed decisions.9 WHO CAN FILE A COMPLAINT IN CONSUMER PROTECTION COURT? The Clause (d) of Section 2 of the SCPA specifies that the following parties are eligible to file a complaint before the Court: (i) a consumer, (ii) a voluntary consumer association, (iii) the government, and (iv) District Consumer Protection Council.10 This means that it is not only private individuals who can initiate complaints against manufacturers, sellers, or service providers for malpractice but the government itself can also file complaints against violators. It is the government's responsibility to ensure fair and equitable market competition for consumers. However, in practice, the government machinery has been ineffective in fulfilling this duty. Additionally, the District Consumer Protection Council (referred to as "Council"), chaired by the Deputy Commissioner and comprising three government officials and six non-official members, was established to raise public awareness of consumer rights under the SCPA and to recommend necessary amendments to the government.11 The Council is also empowered to file complaints on behalf of consumers. Unfortunately, this Council remains largely non-functional, leaving a gap in consumer protection efforts. JURISDICTION OF CONSUMER PROTECTION COURT A consumer who has been deceived by adulterated food, or he has been supplied with perished goods, or he has warranty claim against any product, or he has been deceived through false and misleading advertisement, or he is victim of similar nature wrong caused to him he can file a complaint in the Court of district where; (a) Defendant or any of defendant resides, or (b) Defendant or any of defendant carry on his business, or where; (c) Cause of action wholly or partly accrued.12 PRE-REQUISITES FOR FILING A COMPLAINT AND CONCEPT OF PRE-TRIAL SETTLEMENT An aggrieved consumer cannot directly approach the Court for redressal of grievances under the SCPA. The SCPA mandates that a claim shall be filed in the Court within 30 days from accrual of cause of action (the moment consumer obtains knowledge of defect in product or service). The aggrieved consumer before filing a complaint, must serve a written notice to the respondent, providing them with 15 days to address the issue.13 Sections 28(1), (2), and (3) of the SCPA are designed to provide both consumers and manufacturers or service providers the chance to resolve product or service defects before litigation begins. The law requires consumers to first send a written notice to the manufacturer or service provider, allowing them an opportunity to fix the problem and meet their obligations, potentially avoiding the need for the consumer to file a claim in the Consumer Court. This process encourages resolution without the legal proceedings. At the same time, it gives manufacturers or service providers a specific time frame to respond, enabling them to address valid concerns, protect their reputation, and minimize potential costs under the Act.14 If the respondent either fails to respond or does not resolve the issue within this period, the consumer is then entitled to approach the Court within the next 15 days. The consumer must annex proof of service or an acknowledgment receipt of the notice when filing the complaint. Once the complaint is filed, the Court becomes involved by summoning the respondent to file a written statement, if any. The Court will then fix the case for the Pre-trial settlement, giving both parties an opportunity to negotiate and reach on amicable resolution.15 Since the wrong committed by the respondent is considered a civil wrong, the SCPA emphasizes the importance of negotiation and settlement before formal proceedings. If the parties fail to reach an agreement during the pre-trial settlement phase, the Court will proceed with a formal trial, where evidence will be recorded, and the case will be decided accordingly. RRR: REMOVE, REFUND AND REPLACE THE FINAL ORDER BY COURT If the complainant successfully proves his case against the respondent, the Court has the authority to issue various orders. The Court may direct the respondent to either Remove the defect in the product, Replace the product with a new one, or Refund the price paid to the complainant. Additionally, the Court can order the respondent to pay reasonable compensation to the complainant, award damages, or cover the cost of litigation, if deemed appropriate. Furthermore, the Court has the power to penalize manufacturers who violate the provisions of the SCPA. This penalty can include imprisonment for up to two years, a fine of up to one lac rupees, or both, in addition to any compensation or damages awarded. Similarly, if either the defendant or the claimant fails to comply with the Court's orders, they may face imprisonment of up to three years, but not less than one month, or a fine of up to two lac rupees, with a minimum of fifty thousand rupees, or both. NEED OF ESSENTIAL REFORMS IN SCPA FOR ITS EFFECTIVE IMPLEMENTATION The law evolves over time, by changing needs and experiences learnt from its implementation. As a man-made law, the SCPA is not without flaws, and there are gaps that need to be addressed through amendments to enhance its effectiveness and practicality. Despite the establishment of Consumer Protection Courts in all districts of Sindh, the law's effective implementation still faces significant challenges. One of the primary reasons is the non-functional status of the District Consumer Protection Council, which is tasked with raising consumer awareness and assisting in the resolution of their issues. In this digital age of social media and Artificial Intelligence (AI), the Council has failed to utilize these modern resources to educate the general public. Consequently, a significant number of consumers, specially in rural areas remain, unaware of their rights and continue to live with sub-standard products and services, making them more vulnerable to exploitation. However, even when consumers are aware of their rights, they are often hesitant and frightened to pursue legal action against wealthy and influential manufacturers and businessmen, which can lead to hardships for ordinary consumers. Although the SCPA empowers the Council to take action against violators or file complaints in Court, they often fail to do so. As a result, consumers suffer financially, mentally, and medically. Moreover, there are notable procedural gaps in the SCPA. For instance, if a party has no confidence over the Presiding Officer of a Consumer Protection Court, the SCPA lacks provisions for filing a transfer application to have the complaint heard by another Court. Similarly, there is no provision allowing a presiding officer to recuse himself from a case due to a potential conflict of interest (if any). Further, the SCPA does not provide for adding or removing parties, nor does it address the possibility of amending the complaint if necessary. For example, if a party is wrongly implicated in the complaint, or if there is a need to include another essential party, the SCPA provide no guidance on the actions the interested party or the Court should take in such circumstances. Similarly, if a complaint is filed regarding the sale of hazardous food items in the market, the SCPA lacks provisions for issuing a restraining order or granting an interim injunction to immediately stay the sale of such items. Additionally, consumers who are supplied with unhygienic meat, vegetables, or fruits, or who are overcharged, especially during major occasions like Eid and Ramadan, are unable to file complaints in Court against the sellers. This is because the Court's jurisdiction does not cover these everyday essentials, which are regularly consumed but are not included in the definition of "products" under the SCPA16, thus depriving consumers the opportunity to seek remedies through consumer Courts. Another issue arises if the presiding officer of a Consumer Protection Court, who is also a consumer with the same rights as any other citizen, becomes a victim of malpractice by a manufacturer, seller, or service provider. The SCPA does not specify where the presiding officer can file a complaint to seek redress for their own grievance, leaving a significant procedural gap in the law. CONCLUSION The effective implementation of the SCPA depends on consumers being aware of their rights. To achieve this, the government must activate Council to perform their duties which are provided in Rule 23 of SCPA Rules of 2017. The Council should focus on raising public awareness and holding meetings with stakeholders to address public issues. Moreover, the Council should come forward and file complaint (whenever arises) on behalf of consumers against the violators of SCPA. Legislators should consider amending the SCPA to empower Courts to issue injunctions promptly, when necessary, by this much damage can be prevented. Furthermore, the definition of "product" may be amended to include everyday food items like fruits, vegetables, and meat, so that the SCPA can fully achieve its goal of protecting consumers. Additionally, the SCPA should include procedures for transferring complaints in cases where complainants lack confidence in the Court or when conflicts of interest arise. This will strengthen consumer's trust in the Court, while also upholding the natural law principle Nemo debet esse judex in causa propria sua (No one shall judge case in which he has interest). Moreover, a provision should be added that allows the presiding officer of the Court to seek redress for his own complaints against deceptive market practices. By implementing these changes, the SCPA would more effectively accomplish its goals, providing consumers with enhanced protection against fraudulent business practices. 1 AIR 1939 Oudh 96 at 99. 2 Preamble of SCPA, 2014 3 The principle of "Let the Seller Beware" emphasized the need for sellers to provide full disclosure, as seen in the case of Ashington Piggeries Ltd. v. Christopher Hill Ltd. [1972] A.C. 441. 4 Consumers International, a global federation of consumer groups, represents over 220 member organizations across 115 countries, advocating for independent and authoritative consumer rights globally. 5 Consumers International , Guidelines on Consumer Protection, available at http://www.consumersinternational.org/who-we-are/un-guidelines-on-consumer-protection. 6 Section 18 7 Section 20 8 Section 19 9 Section 21 10 Clause-(d) of Section.02 SCPA 11 Rule.23 of SCPA Rules, 2017 12 Section.28 13 Subsection (2) of Section 29 14 PLD 2023 SC 482, Messrs Pak Suzuki Motors Ltd. v. Faisal Jameel Butt and another 15 Section 30 16 Clause (n), Section 2