Coram non-judice? Functioning of single-member benches at the National Consumer Disputes Redressal Commission

The National Consumer Disputes Redressal Commission (NCDRC) is a specialized forum vested with the power to adjudicate disputes pertaining to consumers and has been tasked with protecting consumers against unfair trade practices and deficient services.

At present, the NCDRC is functioning with a total strength of 10 members, including 5 judicial members (being retired High Court and Supreme Court Judges) and 5 technical members (appointed from the administrative services).

In an ideal situation, one would hope that there would 5 benches, comprising one technical and one judicial member in each bench (at the least). Surprisingly, NCDRC functions with a total of 8 Court Halls. For 10 members to sit in 8 benches, it is inevitable that some (if not a majority) of the benches will be sitting singly to decide disputes. More so, these single-member benches would be presided over (and disputes would be decided entirely) by a technical member.

In essence, such a technical member would be discharging judicial functions (sans any prior experience in adjudication). This goes to the core issue of composition of a tribunal in terms of various regulations, the Tribunal Reforms Act, 2021 and series of judgments of the Supreme Court of India starting with Union of India v. R. Gandhi, President, Madras Bar Association.

NCDRC is a “tribunal”

There is no official notification to suggest that NCDRC is indeed a tribunal within the meaning of Article 323B of the Constitution of India. In fact, even the name suggests that it is a “Commission” and the same was established under Section 9(c) of Consumer Protection Act, 1986.

However, the Supreme Court in the case of Ibrat Faizan v. Omaxe Build home Private Limited categorically held that NCDRC can be said to be a tribunal (placing reliance upon Associated Cement Companies Limited v. PN Sharma) which is vested by a statute with powers to determine conclusively the rights of two or more contending parties.

It is further solidified by the fact that the qualifications and other conditions of service of the President and other members of the National Commission appointed are governed by  Tribunal Reforms Act, 2021. Further, the judgment of a Constitution Bench in R Gandhi also noted in passing that a consumer forum is a tribunal which has judicial and technical Members.

As a corollary, the next question that arises is: what sanctity does an order passed by a member or President of the NCDRC sitting singly have? This question adopts an added dimension when we introduce the concept of a technical member sitting and adjudicating alone. When it comes to specialized tribunals, which are not “courts” per se (as held in the case of Durga Shankar Mehta v. Thakur Raghuraj Singh), the concept of a “member” of a tribunal sitting singly has been discouraged by the Supreme Court on various occasions.

On numerous occasions, the apex court has frowned upon the practice of technical members sitting alone to adjudicate a dispute (See: Joint Secretary to the Home Department, Madras v. R. Ramalingam; Union of India v. PV Hariharan; State of MP v. BR Thakare).

However, in another case of Indermani L Kirtipal v. Union of India, a decision rendered by a member sitting singly was not interfered with by the apex court since it was rendered on merits and the forum/tribunal was not without jurisdiction as such.

Judicial pronouncements on mandatory division bench in consumer forums

Similar questions have come up regarding the consumer fora as well. The issue of a sole member of NCDRC conclusively deciding the disputes between the parties is sub-judice before the Delhi High Court. In an order dated July 12, 2023 in NBCC India Limited v. Randhir Singh Rendhu and Ors, the High Court noted that the issue was whether a member sitting singly in NCDRC can pass a judgment when the rules specifically provide that the composition of the bench must be two members minimum.

Though this is the first time the jurisdiction of NCDRC is being tried by a judicial forum with respect to a member sitting singly, there are many pronouncements in relation to whether a state and district forum must constitute a bench of minimum two members, especially that of the President and one member, as the Act mandates the same. However, in the case of Gulzari Lal Agarwal v. Accounts Officer, the Court affirmed that the statute mandates that a bench must consist the President and one more member. However, the same would not vitiate the orders passed by the State Commission when the post of President was vacant.

In Divisional Manager NIC Ltd v. Rajasthan State Consumer Disputes Redressal Commission and Ors, the Rajasthan High Court held that benches of the State Commission must be constituted by at least two members of the Commission, one of whom may be the President. The orders passed by the single member of the State Commission which are assailed in these writ petitions are without jurisdiction and hence, the same cannot be sustained, the Court held.

In Kamal Travels Kokks International v. The State of Rajasathan, the Rajasthan High Court set aside an order passed by a single member of the State Commission on the ground of lack of jurisdiction. This decision was upheld by a division bench (DB Spl. Appl. Writ No. 1779/2018) and by the Supreme Court (SLP (C) 4969 of 2020).

Since the provisions governing the constitution and composition of District, State and National Commissions are analogous, there is no reason to believe that the NCDRC may exercise liberty to constitute a single member bench.

Rationale behind requirement of division bench comprising one judicial member

The Supreme Court in the case of Harinagar Sugar Mills Ltd v. Shyam Sundar Jhunjhunwala held that all tribunals are not courts; however all courts are tribunals. It held that a tribunal is meant to exercise the juridical power of the state to maintain and uphold rights and to punish "wrongs". Whenever there is an infringement of a right or an injury, the courts are there to restore the vinculum juris (bond of the law) which is disturbed.

In the case of R Gandhi, the Court observed that tribunals can have a judge as the sole member, or can have a combination of a judicial member and a technical member who is supposed to be an 'expert' in the field to which tribunal relates. Some highly specialized fact-finding tribunals may have only technical members, but they are rare and are exceptions.

Clearly, the NCDRC, which decides judicial issues ranging from execution of decrees like a civil court to summoning of witness/documents to questions of limitation, is not a standalone, highly specialized, fact-finding tribunal. It is a tribunal which is meant to undo the wrongdoings to the consumers and hence a bench constituted of merely a Technical Member or that of two technical members, would fail the judicial scrutiny both in terms of Judicial Precedents and the framework of the Act.

The Supreme Court in Rojer Mathew v. South Indian Bank Ltd observed that judicial functions cannot be performed by technical members devoid of any adjudicatory experience. Further, the case of Gulzari Lal Agarwal, which specifically dealt with the jurisdiction of consumer fora, held that complaints under the Consumer Protection Act involved fairly large stakes which require a judicial approach.

Two-member bench is prescribed by the Constitution Documents of NCDRC

Both the Old Act and the New Act define the term “member” under Section 2(j) and 2(27) respectively as: "member" includes the President and a member of the National Commission. This could be a classical drafting mistake, as the drafters while defining the term "member" did not realise that the term would not be merely confined to define a member of the NCDRC, but would also be used in various places in the Acts to determine the functioning of the tribunal.

The Old Act provided for constitution of the NCDRC under Section 20 and the corresponding provision in the New Act is Section 58.

Now both the provisions, which are analogous to each other, in sub-section 1A(ii) and 2 respectively, state that a bench may be constituted by the President with “one or more member”. This is where the confusion regarding the definition arises. Member is defined as “President and a member of National Commission.” Vide a joint reading of both Acts, it suggests that every bench shall be constituted of one or more members (with one or more combination of “President and other member”). It invariably suggests that there should be President plus one member (member = President + one member) and more members. Logically, this cannot be a correct way to interpret the same, though the Act says so.

Assuming that the definition clause did not intend to mean member = President + one member, and member literally means just one person, and vide Sub-section 1A(ii) and 2 President does have the power to constitute a bench of one member (one person), still sub-section 1A(iii) and (3) of Old and New Act respectively would suggest otherwise.

The said sub-sections contemplate the situation wherein “members” of the Commission differ in their opinion. Ideally, the drafter should have clarified that this sub-section is not applicable to a bench with a single member, if they really wanted to constitute a single bench under the Act. However, lack of clarity in the definition goes on to suggest that the legislature never intended to constitute a bench of single member.

What do the Rules say?

The Consumer Protection Rules, 1987 and the Consumer Protection (Consumer Disputes Redressal Commission) Rules, 2020 only add to the confusion regarding the composition of benches of NCDRC.

On a plain reading of the 1987 Rules, the intention of the legislature seems crystal clear in sub-regulation 1, that the proceeding must be conducted by the President any other member sitting in a combination of at least two members. However, the same sub-regulation further states that this rule will not apply when President constitutes a bench with “one or more member”. This clarification is rendered otiose by sub-regulation 2 and the proviso to it. It states that every order must be signed by at least two members. Further, the proviso contemplates a situation of difference of opinion. If the legislature truly intended for single member bench, sub-regulation 2 and the proviso would have carved out a special situation for a single member bench.

The 2020 Rules try to resolve the confusion created in the old ones, but again fail to do so. Though sub-regulation 1 has brought in consonance with Section 58 of New Act, sub-regulation 2, which contemplates a situation of difference of opinion between members, fails to carve out a situation for a single member bench.

Current scenario

Now coming back to the present composition of the NCDRC, wherein the 10 members (5 judicial and 5 technical) are largely sitting in single member benches (6 out of 8 as per cause list of 15.01.2024), and a division bench was constituted in which 2 technical members were sitting together to discharge a judicial function. This anomaly in constitution of benches not only creates a fear of rendering each and every order a nullity, but also questions the whole concept of justice a consumer is entitled to. Even as we wait for the Delhi High Court to settle this issue, since it has pan-India ramifications, the legislature would be in the best position to clarify the position and adopt the experience of decades past recorded by the apex court.

The judgment of the Supreme Court in L Chandra Kumar is looked at by several as going against the object of introducing tribunals in the first place, inasmuch as it grants a rubber stamp of approval to the High Courts exercising revision powers against orders passed by Tribunals. Perhaps the judges deciding L Chandra Kumar had realized something we are yet to fully realize - perhaps tribunalisation has blurred the lines between the executive and the judiciary, to the extent of preventing a truly “judicial” adjudication process. Even though the judiciary had foreseen this and passed several judgments in this regard, perhaps we require reminding every once in a while.

Shiva Krishnamurti and Rohan Dewan are advocates practicing before courts in Delhi, primarily in the Supreme Court.