Employment Laws for Digital Age

Today, everything is designed for the digital age. Everyone experienced huge problems in their occupations and jobs during the Corona time, and after that, people started to use the internet more frequently.

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Transgender Athletes and Indian Laws

The term “transgender” refers to people whose gender does not correspond to that which was assigned to them at birth, such as those who identify as female but are male at birth or those who identify as male but are female at birth.

The biggest problem is how it is understood; while some people can identify as transgender from an early age, others struggle with this and only come to terms with it later in life. Whether they are athletes or not, these people frequently experience hostility from the culture in which they reside; even the IOC (International Olympic Committee) shows little concern for them.

Values like fraternity, teamwork, equality, discipline, justice, and respect are embodied in sports. It brings people from all walks of life together so they can interact, compete, and forge bonds of brotherhood. It has been observed, nonetheless, that some of its unfavourable laws and restrictions serve as a foundation for exclusion as well.

Without their knowledge or awareness, transgender athletes are subjected to harsh screening procedures by the sporting community and are treated indifferently.

SEX VARIFICATON

Sex verification or gender determination tests are conducted on athletes to determine their hormone and testosterone levels. These tests have been around for a while, and their main purpose is to stop men from dressing as women to compete unfairly against other athletes. However, there are some problems with the same, such as the fact that when female athletes are forced to undergo such tests, they feel alone and a lack of identity develops, which can cause depression and even suicide, as in the case of Santhi Soundarajan, who attempted suicide after failing the sex verification test. The main concern is the worry that men who pose as women may get an unfair competitive advantage in sports and eventually take over and rule women’s sports, particularly athletics. However, it is important to note that the topic of transgender and intersex athletes, as well as the other issues they confront, should not be confused with the quite unrelated issue of gender fraud. However, it is undeniable that there is a thin line between someone who wants to alter their gender for sincere reasons and someone who does it to obtain an unfair competitive advantage. It could be challenging to determine the difference; therefore, it must be inferred from circumstantial evidence. It should also be emphasised that this duty is far from simple because other aspects become crucial and it is impossible to evaluate the case in isolation. Without regard to the nation or the sport, the media seizes every chance to cover a dispute in the world of sports.

Sports involving transgender athletes are a contentious subject, especially when it comes to trans women who allegedly exhibit higher amounts of testosterone than cisgender women and are therefore superior to them.

Supporters claim that the testing is necessary to ensure fair competition and equality among the athletes. Some female Olympians also agreed that the testing was necessary to identify men who were dressing as women, rather than to protect women who might be vulnerable to such tests due to certain congenital conditions. Additionally, these tests only approximate the gender, not the precise genetic characteristics that make a girl to be a female. Additionally, some medical professionals have discredited such testing, claiming that it is unethical and unreliable for determining a person’s gender.

VIOLATION OF EQUALITY

In order to assure fairness, these tests are only performed on female athletes. This is because male impersonators may dominate the sport of athletics, whereas female impersonators would not have an advantage over other competitors. This is essentially predicated on the notion of male physical dominance, which is based on sex superiority rather than someone having a better personal potential. The “gender parade” was one of the practices the IOC Medical Commission utilized until 2000, at international games or Olympics, in which women athletes had to parade naked in front of IOC Medical Commission members, assuring all females possessed the sexual characteristics of a woman. 

CASE

Santhi Soundarajan, a woman from Tamil Nadu, was stripped of her silver medal from the 2006 Asian Games held in Doha, Qatar, after failing a sex verification test, and she was deemed ineligible in the women’s competition as she didn’t possess the sexual characteristics of a woman. Her case highlights the plight of transgender people in India. The Olympics Council of Asia was unable to provide all the necessary laboratory tests to support their case against Santhi, and the Indian Olympic Association (IOC) instructed her to stop competing without informing her of the type of test she had failed. This demonstrates their lack of accountability for taking an athlete’s medal away without providing adequate justification. As a result, her rights were violated, and the government, which has a duty to defend the rights of athletes who are representing their nation, did not follow suit.

CONCLUSION

The main complaint is that, unlike doping, which is used on both male and female athletes, the sex determination test is mostly used on female athletes, leading to discrimination, inequality, and invasion of privacy. Sex testing has been used to limit the participation of women in sports, but medical professionals view this practise as unethical, unscientific, and without any real benefit.

Additionally, negative psychological effects from gossip, media, and testing of players without their knowledge can result in those athletes feeling ashamed, withdrawing from sport despite it being their source of income, and ultimately attempting suicide. Women who failed these examinations faced discrimination, while those who declined to take them had to deal with rumours about their sexual orientation. The best thing that can be done to support these athletes is to educate the government about its responsibility to uphold the rights of its athletes who would bring honour and pride to the nation through their accomplishments. Additionally, the various organisations and committees organising competitions at the national or international levels should refrain from enforcing such unfair rules and regulations.

BY-PRANJAL

LLPS: Advantages & Challenges

Despite being a relatively new development in the realm of business, there has been a noteworthy growth in the number of entrepreneurs opting for Limited Liability Partnerships (LLPs) in recent years.

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Criminalization of Politics in India: Challenge to Democracy

Democracy entails adhering to the rule of law, supporting the Constitution’s tenets, and adhering to the canons of moral and legal appropriateness. However, in the years following independence, the processes of social, political, and economic transformation, as well as crime, have become inextricably linked, much like the umbilical cord connects mother and new-born.

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Abortion: its Evolution & Challenges

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A Study of Administrative Tribunal in India

The term ‘tribunal’ is used in Administrative Law with a specific meaning, referring only to adjudicatory bodies that are not part of the regular court system. Technically, the judicial powers in India are vested in the Courts, which are responsible for safeguarding individual rights and promoting justice.

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Product Liability under the Consumer Protection Act, 2019: An Overview

The Consumer Protection Act, 2019 (“2019 Act”) defined “product liability” for the first time. According to this Act, the term product liability means the responsibility of a product manufacturer or product seller, or product service provider, to compensate for any harm caused to a consumer by a defective product manufactured or sold or by deficiency in services in relation to the product.

This 2019 Act replaced the 1986, Consumer Protection Act (“Erstwhile Act”), after receiving presidential assent and being published in the Official Gazette of India on August 9th, 2019. Even though the law was enacted in 2019, the chapter on product liability along with most of its provisions came into effect on July 20th, 2020. Concerned with an aim to provide more enhanced and stricter protection to consumers, the 2019 Act made considerable amendments to the (“Erstwhile Act”), along with the addition of new provisions as well. The introduction of product liability under the 2019 Act marked an end of the buyer beware doctrine and the introduction of seller beware as the new doctrine governing the Consumer Protection Act. 

PRODUCT LIABILITY UNDER THE CONSUMER PROTETCTION ACT, 2019

The Act of 2019 instituted legal regime on product liability and committed an entire chapter (Ch. VI) to set out the situations where a claim for repayment under a product liability action would be available for ‘harm’ caused by a ‘defective’ product manufactured by a manufacturer or serviced by a service provider or sold by a seller.

‘Harm’, in relation to a product liability, among other things, includes — 

  1. emotional distress or mental agony, etc. 
  2. damage to a property leaving the product itself. 
  3. personal injury, death, or illness.

It may be pointed out that this does not include any harm to a product itself or damages to the property on the basis of breach of warranty conditions or any economic or commercial loss including any direct, consequential, or incidental loss relating thereto.  Further, the Act defines ‘defect’ as any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard, which is required to be maintained by or under any law or contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods or product.

As is evident from the above, to bring about a product liability action, it is important for a consumer to establish that ‘harm’ was caused due to a ‘defective’ product.

The Act of 2019 differentiates between the roles of a product seller, service provider, and product manufacturer and accordingly foresees individual criteria for attracting product liability actions against each of them. It has been discussed below:

I. Liability of a Product Manufacturer

The Act of 2019, present in Section 2(36), consists of a wide definition of ‘product manufacturer’, to include every party connected with the sale process within the scope of the definition. Under the 2019 Act, a ‘product manufacturer’ has been defined to mean a person who: 

(a) makes any product or parts thereof; or

(b) assembles parts thereof made by others; or

(c) puts or causes to be put his own mark on any product made by any other person; or 

(d) makes a product and sells, distributes, leases, installs, prepares, packages, labels, markets, repairs, maintains such product or is otherwise involved in placing such product for commercial purpose; or 

(e) designs, produces, fabricates, constructs or re-manufactures any product before its sale; or 

(f) being a product seller of a product, is also a manufacturer of such product.

Section 84 of the Act itemizes the situations where a product manufacturer shall be responsible in a claim for compensation under a product liability action for a harm caused by a defective product manufactured by the product manufacturer. The situations are as under:

(a) The product contains a manufacturing defect; or

(b) The product is defective in design; or

(c) The product does not conform to the manufacturing specifications; or

(d) the product does not conform to the express warranty; or

(e) the product fails to contain adequate instructions of correct usage to prevent any harm or any warning regarding improper or incorrect usage.

II. Liability of a Product Service Provider

A product service provider under the Act of 2019 is defined as a person who provides a service in respect of any product. This definition’s been added to the Act f 2019 so as to cover services like repairs and maintenance where the product and the service are inherently related, and the service has a direct influence on the performance of the product.

Section 85 of the Act of 2019 itemizes the situations under which a product service provider shall be responsible in a product liability action for a harm caused by a defective product serviced by the product service provider. The situations are as under:

(a) the service provided by him was faulty or imperfect or deficient or inadequate in quality, nature or manner of performance which is required to be provided by or under any law for the time being in force, or pursuant to any contract or otherwise; or 

(b) there was an act of omission or commission or negligence or conscious withholding any information which caused harm; or

(c) the service provider did not issue adequate instructions or warnings to prevent any harm; or

(d) the service did not conform to express warranty or the terms and conditions of the contract.

III. Liability of a Product Seller

A product seller under the Act of 2019 is defined as any person who, in the course of business, imports, sells, distributes, leases, installs, prepares, packages, labels, markets, repairs, maintains, or otherwise is involved in placing such product for commercial purpose and includes:

  1.  a manufacturer who is also a product seller; or
  2. a service provider. 

The section mainly excludes some people from the definition of a product seller such as:

  1. a seller of immovable property unless such person is engaged in the sale of constructed house or in the construction of homes or flats.
  2. a provider of professional services in any transaction in which, the sale or use of a product is only incidental thereto, but furnishing of opinion, skill or services being the essence of such transaction.
  3. a person who—
    1. acts only in a financial capacity with respect to the sale of the product.
    2. is not a manufacturer, wholesaler, distributor, retailer, direct seller or an electronic service provider.
    3. leases a product, without having a reasonable opportunity to inspect and discover defects in the product, under a lease arrangement in which the selection, possession, maintenance, and operation of the product are controlled by a person other than the lessor.

IV. Penalties that may be imposed

If the consumer forum finds that the product is defective or the allegations of the complainant with respect to service, unfair trade practice or claim for product liability is proved, the consumer forum may direct one or more of the following: the elimination of defect, substitution of the product, refund to the consumer along with interest, compensation to consumer, including small damages for negligence, discontinuation of unfair trade practices, withdrawal of unsafe or hazardous goods, direction to cease to offer for sale hazardous services or cease to manufacture hazardous goods or, reimbursement for product liability action, cease and desist from issuing misleading advertisement or direction to issue corrective advertisement. Since The Act of 2019 directs to provide enhanced protection to consumers, it accordingly provides for stricter punishments compared to the Erstwhile Act.

The Act of 2019 has also defined ‘unfair contracts’, contract between a manufacturer or trader or service provider on one hand, and a consumer on the other, having such terms which cause significant change in the rights of such consumer, including the following, namely:— 

  1. requiring manifestly excessive security deposits to be given by a consumer for the performance of contractual obligations; or
  2. imposing any penalty on the consumer, for the breach of contract thereof which is wholly disproportionate to the loss occurred due to such breach to the other party to the contract; or
  3. refusing to accept early repayment of debts on payment of applicable penalty; or
  4. entitling a party to the contract to terminate such contract unilaterally, without reasonable cause; or
  5. permitting or has the effect of permitting one party to assign the contract to the detriment of the other party who is a consumer, without his consent; or
  6. imposing on the consumer any unreasonable charge, obligation or condition which puts such consumer to disadvantage;

The Act of 2019 has established a Central Consumer Protection Authority (“CCPA”). It is a regulatory authority under the Act with powers of inquiry, investigation, and injunctive actions. Its primary objective is to regulate matters concerning violation of rights of consumers, unfair trade practices and false or misleading advertisements that are prejudicial to the interests of public and consumers.

It has the power to direct recall of goods or withdrawal of services that are dangerous. It can also direct compensation of the prices of goods or services so recalled to the purchasers. Additionally, it has also been empowered to lead discontinuation of practices that are prejudicial and unfair to consumers’ interest. 

Further, the Act of 2019 heavily addresses the issue of misleading advertisements. Both the CCPA and the Consumer fora have the authority to issue penalties and directions against misleading advertisements. Any service provider or manufacturer who causes a misleading advertisement to be made, which is prejudicial to the consumers’ interests is punishable with imprisonment extending up to two years and with a fine extending up to ten lakh rupees and in case of subsequent offence with imprisonment extending up to five years and with fine extending up to fifty lakh rupees.

It has also been authorised to direct the concerned party — be it a manufacturer, trader, endorser, publisher, or advertiser— to discontinue a misleading advertisement or modify it. Moreover, it has been authorised to impose a penalty on the manufacturer, or the endorser to the tune of ten lakh rupees, which may extend to fifty lakh rupees in cases of subsequent contravention. Similarly, a person or a publisher party to such publication may also be penalised for an amount up to rupees ten lakhs. In addition to the above penalties, the Act of 2019 authorises the CCPA to prohibit the endorser of a misleading or false advertisement from making endorsement of any service or product for a period which may extend to one year and in case of subsequent contravention to three years. Moreover, this Act also provides safe harbour for publishers and endorsers in some cases. An endorser is exempted from penalty under Section 21 of the Act of 2019 if he/ she exercised due diligence to verify the veracity of the claims made in the advertisement regarding the product or service being endorsed. Similarly, a person will not be liable if he/ she published or arranged for the publication of the false or misleading advertisement in the ordinary course of business. However, this defence would not be available if the person had previous knowledge of an order passed by CCPA, regarding withdrawal or modification of the advertisement. 

In order to ensure compliance with the order of the CCPA, Section 88 of the 2019 Act criminalises failure to comply with the directions of CCPA and makes it punishable with imprisonment for a period up to 6 months or with fine which may extend to twenty lakh rupees or with both.

Furthermore, the 2019 Act also provides for punishment, including imprisonment or fine or both, for manufacturing for sale or storing, selling or distributing or importing products containing adulterant or spurious goods. 

V. Possible Defences to a Product Liability Action

A thorough reading of the definition of ‘product liability’ shows that to establish a claim of product liability, the complainant must establish ‘harm’ caused by a ‘defective’ product. Therefore, the product not being ‘defective’ and the absence of any ‘harm’ caused to the consumer by the use of the product is certainly valid defences against a product liability action. In addition to the above, Section 87 of the Act envisages the below-mentioned defences to a product liability action:

(a) A product liability action cannot be brought against the product seller if, at the time of harm, the product was misused, altered, or modified. 

(b) In any product liability action based on the failure to provide adequate warnings or instructions, the product manufacturer shall not be liable, if— 

(i) the product was purchased by an employer for use at the workplace and the product manufacturer had provided warnings or instructions to such employer; 

(ii) the product was sold as a component or material to be used in another product and necessary warnings or instructions were given by the product manufacturer to the purchaser of such component or material, but the harm was caused to the complainant by use of the end product in which such component or material was used;

 (iii) the product was one which was legally meant to be used or dispensed only by or under the supervision of an expert or a class of experts and the product manufacturer had employed reasonable means to give the warnings or instructions for the usage of such product to such expert or class of experts; or 

(iv) the complainant, while using such product, was under the influence of alcohol or any prescription drug which had not been prescribed by a medical practitioner.

(c) A product manufacturer shall not be liable for failure to instruct or warn about a danger which is obvious or commonly known to the user or consumer of such product or which, such user or consumer, ought to have known, taking into account the characteristics of such product. 

CONCLUSION

The Act of 2019 talks about the issue of ‘Product Liability’ completely and has definitely intensifies the nature of compliance, not just for the product manufacturers, sellers and service providers, but also on the parties connected with the sale process, including endorsers, importers, marketers and repairers.

With the continued establishment of product liability regime under various statutes, it makes product manufacturers, service providers, etc., to be extra cautious about the regulatory compliances under Consumer Protection Act, 2019, provides for required disclosures and warnings and swiftly takes precautionary and preventive steps as and when needed. There is also a need for product manufacturers, traders, and service providers to revisit the contracts in order to ensure that they are not covered under the definition of ‘unfair contracts’.

By Anoushka Amar