One of the dilemmas baffling consumers in shopping malls these days is the “tyranny of choice”: which brand of soap or potato chips to buy from the overflowing racks? The problem is indeed acute. A US psychologist has even written a book on it and suggested a way to ease this post-modern angst: reduce the choices.
In our over-legislated country, consumers of justice face this paradox in a smaller way, but no less in the degree of anxiety. If you suffer a wrong, where do you go? To a civil court, the high court, the consumer forum, the sectoral regulator or the commission for women?
Going to the nearest high court is a tempting proposition since it is comparatively fast in delivering its decision. But the Supreme Court has been frowning on this practice since 1964, when in the judgment, Thansingh vs Supt. of Taxes, it stated that “where it is open to the aggrieved person to move another tribunal for obtaining redress in the manner provided by a statute, the high court normally will not permit the machinery set up by the statute to be bypassed by entertaining a writ petition.”
However, corporate entities with financial muscles, aided by canny lawyers, still attempt to rush to high courts when other forums are available. Though special tribunals have been set up, this variety of litigants choose the road less travelled to short-circuit statutory remedies. The Supreme Court once again nixed this tendency last month in the case, Nivedita Sharma vs Cellular Operators Association of India (COAI).
This was a case in which a woman complained to the Delhi State Consumer Commission against unsolicited telemarketing calls she was receiving from corporate giants like ICICI Bank and American Express. The commission, in its order three years ago, imposed heavy penalties on some of the errant corporations, and asked them to deposit the amounts in the State Consumer Welfare Fund (Legal Aid). Singed by the order, COAI and the companies dashed to the Delhi High Court, bypassing the National Consumer Commission. The high court benignly stayed the order of the state commission. The woman moved the Supreme Court. It set aside the high court order and allowed COAI and family to move the national commission.
While doing so, the Supreme Court trawled earlier judgments and conceded that the high court’s jurisdiction to hear grievances is vast. But, it added that “it is an altogether different thing to say that each and every writ petition filed must be entertained by the high court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.” It also urged the high courts to follow the “rule of self-imposed restraint” in such instances.
The high courts also deal with these litigants in a hurry to pluck the fruits of justice, bypassing other statutory remedies available under the law. Last week, the Uttarakhand High Court asked the state power corporation to move the appellate forum under the electricity regulatory law, instead of approaching it straightaway in a tariff dispute. (Uttarakhand Power Corporation vs Ombudsman).
The Rajasthan High Court also asked a company to exhaust other legal remedies before approaching it (Hindustan Zinc Ltd vs State of Rajasthan). That was a case under the Central sales tax. The high court stated that the law provided an alternative appellate forum to re-agitate the issues, in this case about the legality of e-filing of returns. “There was no exceptional ground to sidestep it,” the judgment said, and dismissed the company’s petition “on the ground of availability of alternative remedy.”
In the realm of contracts tendered by state authorities the problem is more common. Public enterprises and agencies are “state” according to constitutional interpretations and they are amenable to writ jurisdiction. When contracts are involved, disputes should normally go to a civil court. Here is a tricky issue with a lot of grey areas that provide rich harvests for lawyers.
In the case, ABL International vs Export Credit Guarantee Corporation, the Supreme Court dealt with this aspect and stated that there is no “absolute rule” that in all disputes over facts, the aggrieved person should go to the civil court. If the action of the state’s commercial arms is arbitrary, discriminatory, mala fide or against public interest, a writ petition can be moved in the high court.
Another nettlesome case is when there are appellate tribunals with jurisdiction over a group of states, as in income tax, customs and excise matters. There are high courts also in those states that have appellate jurisdiction. In such multiple options, a perplexed litigant who wants to gamble for a favourable verdict should get help from shrewd lawyers. They can examine the earlier judgments of the respective tribunals and high courts (and the body language of judges) before forum-shopping.
