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The Evolution of Consumer Product Safety Policy and Regulation in India

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Abstract

Consumer product safety in India is undergoing a series of structural reforms, encompassing general consumer protection and specific product safety regulation. This article critically examines the state of consumer product safety as it has developed since the adoption of the original Consumer Protection Act 1986 and Bureau of Indian Standards Act 1986 and on that basis puts forward a first reasoned analysis of the major reforms currently under discussion (the Consumer Protection Bill 2015) or recently passed but not yet implemented (the Bureau of Indian Standards Act 2016). The analysis is framed against the backdrop of a preliminary discussion of the constitutional architecture of India, which is in itself a source of complication in the development of coherent consumer policies. The picture emerging from this article shows that, while progress is being made, the field of consumer product safety in India is a difficult work in progress where policy and regulatory developments are hard to achieve incrementally, and structural reform come at the cost of fundamental choices the feasibility of which might prove difficult.

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Notes

  1. Developments can be followed on the PRS Legislative Research website at http://www.prsindia.org/billtrack/the-consumer-protection-bill-2015-3965/ (last accessed 4 January 2017).

  2. State of Karnataka v. Union of India, AIR 1978 SC 68: (1977) 4 SCC 608: (1978) 2 SCR 1.

  3. Article 245 and 246 are the key provisions, laying down respectively the extent and the subject matter of the laws made by both the Parliament and the legislatures of the States: the former lays down the general principle of federal organization; the latter specifies legislative competences and establishes the principle of supremacy of Union law. Since both the National Parliament and State legislatures are supreme in their respective exclusive competences, the laws must be interpreted in order to avoid any conflict, see Govt. of A.P. v. J.B. Educational Society, AIR 2005 SC 2014: (2005) 3 SCC 212: JT 2005 (2) SC 521.

  4. Repugnancy between two statutes should be verified according to three basic principles: (1) whether there is direct conflict between the two provisions, (2) whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing a law of the State legislature, and (3) whether the law made by Parliament and the law made by the State legislature occupied the same field; see Deep Chand v. State of U.P., AIR 1959 SC 648; M.P. Vidyut Karamchari Sangh v. M.P. Electricity, (2004) 9 SCC 755: 2004 (3) SCALE 383: JT 2004 (3) SC 423.

  5. Article 73: “(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend – (a) to the matters with respect to which Parliament has power to make laws […] Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.”

  6. Harakchand Ratanchand Banthia v. Union of India, AIR 1970 SC 1453: (1969) 2 SCC 166: (1970) 1 SCR 479.

  7. See, for example, the Food Safety and Standards Act 2006, which in paragraph 2 of the Preliminary section recites “It is hereby declared that it is expedient in the public interest that the Union should take under its control the food industry.” The presence of “scheduled industry” is of significant importance in the reformed BIS Act 2016 as regards the imposition of mandatory standards; see below.

  8. It is difficult to find exact data. An old source is a World Bank report of the early 1980s disclosed in 2010 (Wallich 1982); a more recent report for the IMF suggests a similar picture (Purfield 2004, p.6–9), while general information on the India taxation system can be found on the Legal Service India website at http://www.legalserviceindia.com/articles/fiscal.htm (last accessed 4 January 2017).

  9. Established under article 280. The President appoints it every 5 years, and it consists of a chairman and four other members. The Commission makes recommendations to the President in regard to the distribution of net proceeds and funds between the Union and the States. Recommendations made by the Commission to the President are technically non-binding, but no recommendations have ever been disregarded or departed from, and the Commission is widely regarded as an effective and impartial tool for resolving competing claims.

  10. The Planning Commission describes its functions as follows: “From a highly centralized planning system, the Indian economy is gradually moving towards indicative planning where Planning Commission concerns itself with the building of a long term strategic vision of the future and decide on priorities of nation. It works out sectoral targets and provides promotional stimulus to the economy to grow in the desired direction. Planning Commission plays an integrative role in the development of a holistic approach to the policy formulation in critical areas of human and economic development.” Available at http://planningcommission.nic.in/aboutus/history/function.php?about=funcbody.htm (last accessed 4 January 2017).

  11. An overview of NITI Aayog is available at http://niti.gov.in/content/overview (last accessed 7 March 2017). The organization has two main goals: to enhance the State governments; engagement with the central government giving them a stronger platform to pursue national goals; and to develop think-tank capabilities to provide research and innovation as well as strategic policy vision for the government.

  12. Instead of the regular rules of civil procedure, they must comply with the general principles of natural justice, an important principle of Indian constitutional law entailing that decisions shall be properly motivated and taken objectively, impartially, without prejudice to the parties, and after a fair hearing of the person likely to be affected. This general principle is distilled from the provisions of Articles 14 (Equality before the law), 19 (Protection of certain rights regarding freedom of speech), 21 (Protection of life and personal liberty), 22 (Protection against arrest and detention), 300A (Persons not to be deprived of property save by authority of law), and 311 (Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or the State) of the Constitution.

  13. Cf. Consumer Protection Act 1986, Preamble: “An Act to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers’ disputes and for matters connected therewith.”

  14. Consumer Protection Act 1986, Section 2(1) (d) (i).

  15. Amendments to the CPA 1986 have been passed by Parliament in 1991, 1993 and 2002.

  16. Consumer Protection Act 1986, Section 2(1) (c).

  17. Consumer Protection Act 1986, Section 12(c).

  18. The Prevention of Food Adulteration Act and Rules 1954.

  19. The Food Safety and Standards Act, 2006, India, repealing the previous FSSA, subsequently amended in 2014.

  20. FSSA, Preliminary, Section 2.

  21. Ibidem see also the general description of the FSSAI at http://www.fssai.gov.in/AboutFSSAI/introduction.aspx (last accessed 22 December 2016).

  22. The Bureau of Indian Standards Act 1986.

  23. Ibidem, long title.

  24. BIS is described as a non-profit statutory organization under the BIS Act, with headquarters in New Delhi, 5 regional offices, 19 branch offices, 5 inspection offices, and 8 laboratories, ibidem, Chapter II.

  25. As per Chapter IV of the BIS Act on the Powers and Functions of the Bureau.

  26. As reported by the Consumer Education & Research Center (CERC) in “A Study of the Regulations and Enforcement Practices Regarding Safety of Consumer Products in India,” November 2013.

  27. ISI certifies that the product in question is observant of the relevant Indian Standard (identified as IS [number]).

  28. Report of the Working Group on Consumer Protection, Planning Commission of India, Twelfth Plan (2012–2017) Vol. I, available at http://planningcommission.gov.in/aboutus/committee/wrkgrp12/pp/wg_cp1.pdf (last accessed 22 December 2016).

  29. Ibidem, Section 1.3, p. 91.

  30. All essential documents on RAPEX can be consulted at http://ec.europa.eu/consumers/consumers_safety/safety_products/rapex/alerts/repository/content/pages/rapex/index_en.htm (last accessed 22 December 2013).

  31. Reference is made here to the recent “Maggi Noodles” scandal that led to the withdrawal from the market of tonnes of the popular Nestlé product between the summer of 2015 and the spring of 2016.

  32. See the Ninth Report of the Standing Committee on Food, Consumer Affairs and Public Distribution (2015–16), presented to Lok Sabha on 26 April 2016, available at http://www.prsindia.org/uploads/media/Consumer/SCR-%20Consumer%20Protection.pdf (last accessed 4 January 2017).

  33. “New consumer bill to be introduced in winter session,” Times of India, 5 October 2016. Developments can be tracked at http://www.prsindia.org/billtrack/the-consumer-protection-bill-2015-3965/ (last accessed 4 January 2017).

  34. Consumer Protection Bill 2015, Section 2(8) (i).

  35. Ninth Report, supra note 32, p. 8, Section 1.4.

  36. Ibidem, p. 9, Section 1.8(a).

  37. Ibidem, p. 9, Section 1.8(b).

  38. Ibidem.

  39. Ibidem, p. 35, Section 3.9.

  40. For a discussion of each separate item, see again the Ninth Report, supra note 32.

  41. Consumer Protection Bill 2015, Chapter V.

  42. Ninth Report, supra note 32.

  43. Ibidem; curiously, no explanation is offered as to why recall should be limited to ISI-marked products.

  44. Bureau of Indian Standards (BIS) Act, 2016, Section 2(1).

  45. Ibidem, Section 2(29).

  46. Ibidem, Section 2(14).

  47. Ibidem, Section 2(36).

  48. Ibidem, Section 2(41). Note that there is no further explanation of what exactly is to be understood as a system. The term is always used throughout the Act as one element of the series “goods, article, process, system or service” to which the various provisions apply.

  49. Ninth Report, supra, note 32.

  50. Ibidem, in particular pp. 89–97.

  51. BIS Act 2016, Section 16(1) (a).

  52. Ibidem, Section 16(1) Explanation (ii).

  53. Ibidem, Chapter II.

  54. Ibidem, Section 9(1) (h).

  55. Ibidem, Section 9(1) (i).

  56. Ibidem, Section 9(2) (f).

  57. Directive 2001/95/EEC of 3 December 2001 on general product safety OJ L11/4.

  58. Consumer Protection (Consumer Goods Safety Requirements) Regulation 2011 (CGSR).

  59. Report of the Planning Commission Working Group, supra note 28, and Ninth Report, supra note 32.

  60. Ninth Report, supra note 32, pp. 63–65.

  61. Ibidem, p. 65.

  62. Such as, for example, the provisions in the Sales of Goods Act, 1930; the Drugs and Cosmetics Act, 1940; the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954; or the Legal Metrology Act, 2009.

  63. Directive 85/354/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products OJ L 210/29.

  64. The need to change the wording is strongly advocated by both VOICE and CERC at pp. 50–51 of the Ninth Report, supra note 32.

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  1. Department of Law, University of Seychelles, Anse Royale, Seychelles

    Marco Rizzi

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Rizzi, M. The Evolution of Consumer Product Safety Policy and Regulation in India. J Consum Policy 40, 389–412 (2017). https://doi.org/10.1007/s10603-017-9346-z

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