Liberalisation and Law on Comparative advertising in India

With the liberalisation and globalisation of the Indian economy, as could be expected, firms have been aggressively and vigorously promoting their products and services. These practices raise questions about truthfulness and fairness of representation of products and services. Not only the consumers but even the firms need adequate law against unfair trade practices to have some ‘rules of the game’ for competing among themselves. In a competitive environment, every representation of a product or service, is about what ‘others are not’. This paper reviews the law in India on representations (advertisements) which have an element of comparison. The provisions on this aspect formed a part of the Unfair Trade Practices under the Monopolies and Restrictive Trade Practices Act. In the changing context of proliferation of advertisements, the law needed to be further strengthened in its application. To the contrary, even the existing law has been liquidated with the repeal of the Monopolies and Restrictive Trade Practices Act. It has been suggested that the same protection against unfair trade practices have been available under the Consumer Protection Act. Thus, the repeal of the Monopolies and Restrictive Trade Practices Act would not be of any significance. However, within the structure of the Consumer Protection Act, competing firms cannot be ‘consumers’ to approach a consumer forum. The paper illustrates that the opening up of the economy, on its own, is not going to create and sustain competition. Appropriate law, adequate enforcement, infrastructure and quick dispute settlement mechanism would be needed to sustain competition.

Damages in a Consumer Sale Contract: Reviewing the Consumer Protection Bill, 2015

Consumer protection law rests on the foundations of contract law and the law of sale of goods. A consumer law has to conceptually express this foundation and the modifications it is bringing about in these laws. Without this, the law would become unclear, conflicting and confusing. In this respect, the Consumer Protection Bill, 2015 is not secured in its foundation and needs revision. The paper reviews the rights of the consumer (buyer) to receive damages for breach by the seller. The bill recognises only repair and replacement as damages for the consumer. For claiming other damages, the consumer must establish negligence by the seller. The principle of contract law, to the contrary, is that for every breach, irrespective of the intention or diligence, the seller has to pay damages to the buyer. The bill has mixed up contractual damages with damages under the law of torts. In sale contracts, consequential damages arising from defective goods are readily recognised. The bill should recognise this. The paper, reviewing the law, develops draft provisions on the theme, which are mentioned in the last chapter of this paper