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Published : February 23, 2013 | Author : ASKARI
Category : Consumer laws | Total Views : 14922 | Rating :

National Law University and Judicial Academy, Assam

Advertising is a non-moral force, like electricity, which not only illuminates but electrocutes. It’s worth to civilization depends upon how it is used.

The growing interdependence of the world economy and international character of many business practices have contributed to the development of universal emphasis on consumer rights protection and promotion. Consumers, clients and customers all over the world, are demanding value for money in the form of quality goods and better services. Modern technological developments have no doubt made a great impact on the quality, availability and safety of goods and services. But the fact of life is that the consumers are still victims of unscrupulous and exploitative practices. Exploitation of consumers assume numerous forms such as misleading advertising, adulteration of food, spurious drugs, dubious hire purchase plans, high prices, poor quality, deficient services, deceptive advertisements, hazardous products, black marketing and many more. In addition with revolution in information technology newer kinds of challenges are thrown on the consumer like cyber crimes, plastic money, etc., which affect the consumer in even bigger way. ‘Consumer is sovereign’ and ‘consumer is the king’ are nothing more than myths in the present scenario particularly in the developing societies. However, it has been realized and rightly so that consumer protection is a socio-economic programme to be pursued by the government as well as the business as the satisfaction of the consumers is in the interest of both. In this context, the government, however, has a primary responsibility to protect the consumer’s interest and rights through appropriate policy measures, legal structure and administrative framework.

In the good olden days the principle of ‘caveat emptor’, which meant buyer beware governed the relationship between seller and buyer. In the era of open markets, buyer and seller came face to face, seller exhibited his goods, and buyer thoroughly examined then and then purchased them. It was assumed that he would use all care and skill while entering into transaction.

The maxim relieved the seller of the obligation to disclose the quality of the product. In addition, the personal relation between the buyer and the seller was one of the major factors in their relations. But with the growth of trade and its globalisation the rule no more holds true. It is now impossible for the buyer to examine the goods beforehand and most of the transactions are concluded by correspondence. Further on account of complex structure of the modern goods, it is only the producer/seller who can assure the quality of goods and services. As a result buyer is being misled, duped and deceived in and day out.

In this age of fierce competition wars are fought by the competing industrial giants through the means of advertisements. Advertisement has become such an important and potent weapon to promote particular products that companies think of innovative and attractive ways to woo the consumers. For this purpose services of specialized advertising agencies are hired by the companies.

The influence of advertisements on consumer choice is undeniable. And it is this fact that makes it imperative that advertisements be fair and truthful. Misleading and false advertisements are not just unethical; they distort competition and of course, consumer choice. False and misleading advertisements in fact violate several basic rights of consumers: the right to information, the right to choice, the right to be protected against unsafe goods and services as well as unfair trade practices. Since advertisements are basically meant to promote a product or a service one does not some exaggeration in the way they extol the virtues of the produce. But when it goes beyond that and deliberately utters falsehood or tries to misrepresent facts thereby misleading the consumer, then it becomes objectionable.

Advertising carries several responsibilities. Advertising informs the public so that they can be aware of products and make informed choices among different products or brands. Advertising also benefits businesses in assisting them to sell their products. But while dispensing its role as a dream merchant, advertising has also been the vortex of controversy of many ills that it brings to society. It is encouraged of encouraging materialism and consumption, of stereotyping, of causing us to purchase items for which we have no need, of taking advantage of children, of manipulating our behaviour, using sex to sell, and generally contributing to the downfall of our social system. Advertising does not function in a vacuum but in a market environment where several forces like consumer needs, business interests and government regulations are at work. It is a powerful force in terms of its persuasiveness and functions a critical social role. Moreover the high visibility and pervasiveness generates criticism and controversy. Much of this controversy springs from the fact that advertising is used more as a persuasive communication tool thereby creating serious impact on the tastes, values and lifestyles of society.

As advertising has the potential to persuade people into commercial transactions that they might otherwise avoid, many governments around the world use regulations to control false, deceptive or misleading advertising. “Truth” refers to essentially the same concept, that customers have the right to know what they are buying and all the necessary information should be on the label.

Basic Concepts
§ 2(1)(d) of the Consumer Protection Act, 1986 defines a ‘consumer’ as any person who buys goods or avails of services for a consideration, paid or payable later on, and it also includes the permissible user of goods or services. The negative part is that even if all the ingredients mentioned above are there, a person shall not qualify as a consumer if he obtains any goods or services for commercial purpose. However, if a person buys the goods or services for self employment and earning a livelihood, the protection of the consumer jurisdiction shall still be available depending on the facts and circumstance of each individual case.

Advertisement means any form of representation which is made in connection with a trade, business, craft or profession in order to promote the supply or transfer of goods or services, immovable property, rights or obligations.

Advertisement is a public notice or announcement, esp. one advertising goods or services in newspapers, or posters or broadcasts.
Advertisement is one of the major tools companies use to direct persuasive communication to target buyers. Advertising is recognised by the courts as a form of “commercial speech” which “does no more than propose a commercial transaction.”

Deceptive Advertisement
An advertisement is deceptive if in any way, including its presentation, it deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and if, by reason of its illusory nature, it is likely to affect their economic behaviour or, for those reasons, injures or is likely to injure a competitor of person whose interests the advertisement seeks to promote.
Deceptive advertising is the use of false or misleading statements and portrayals in advertising. An advertisement is generally termed deceptive when it misleads people, alters the reality and affects the purchasing behaviour of the consumer.

False advertising, in the most blatant of contexts, is illegal in most countries. However, advertisers still find ways to deceive consumers in ways that are legal, or technically illegal but unenforceable.
When does an advertisement become “misleading” or “deceptive”?

When an edible oil advertisement gives one the impression that one is free of heart problems so long as he is using that particular oil, then it is misrepresenting facts. When an advertisement of a water purifier that filters only bacteria (and not viruses) claims that it gives 100% safe water then it is a false statement. When a mobile operator promises STD calls for 40 paisa per minute, but omits to say that this rate is applicable only when calls are made to another mobile of the same company, then it constitutes misrepresentation.

Similarly, when an advertiser or manufacturer makes a claim about a product, he should be able to prove it else it becomes a false statement. If he says that his refrigerator is the best or that it keeps the food inside germ-free, that claim should be backed by adequate scientific data that substantiates the claim. Similarly, if an advertisement for a detergent says that it can remove grease in just one wash – it should be able to do just that and the manufacturer should be able to prove this.

Essentials for an advertisement to be deceptive
An advertisement may be considered deceptive if:
(1) It contains a misrepresentation, omission or practice that is likely to mislead the consumer;
(2) The consumer is “acting reasonably under the circumstances”; and
(3) The misrepresentation, omission or practice is “material,” that is “likely to affect the consumer’s conduct or decision with regard to a product or service.”

Two categories of false and misleading advertisements
Broadly, one can categorise false and misleading advertisements into two groups: In the first group would be those that basically violate the consumers’ right to information and choice and thereby have the potential to cause the consumer, financial loss and even mental agony. The second category would include those that peddle health cures and drugs of questionable efficacy and health gadgets of unknown values This class of advertisements is the most dangerous, as they can also have a serious repercussion on the health of the consumers.

Unfortunately, despite several laws meant to protect consumers against such unfair trade practices, false and misleading advertisements continue to exploit the vulnerability of consumers,
(a) because of their poor enforcement and
(b) because of the lacunae in some of the laws.

In fact, such advertisements now have a wider canvas: while earlier, one saw them only in the print media, today you can see them on television, influencing a larger number of people and impacting even the illiterate. Proliferation of advertisements through television marketing networks promoting health cures, slimming and beauty gadgets of unproven value is a cause of great concern, because today the reach of television channels is phenomenal. And undoubtedly, the impact of the visuals on the television screen is far greater than the newspapers.

Deceptive Advertisements, Consumers’ Choice And The Consumer Protection Act, 1986
§ 2(r) of the Consumer Protection Act gives a comprehensive definition of unfair trade practice and § 14 deals with the directions that the court can give to deal with such practices. The consumer courts have given some excellent orders in this area, but they cannot deal with misleading advertisements like the MRTPC.

Relief's To Consumer Under The Consumer Protection Act On Account Of Deceptive Advertising
In case, a consumer has been a victim of any deceptive advertising and has made a wrong choice in buying any good or availing any service, which he could have avoided by opting for similar goods and services provided by another player in case such deceptive advertising had not been done, then such consumer can take recourse to law.
The consumer has the right to be informed about the quality, quantity, potency, purity, standard and price of goods. The consumer cannot be provided with either wrong or deceptive information which may lead him to make a wrong choice.

In case the consumer has been a victim of deceptive advertising he has the right to seek redressal against such unfair trade practice (deceptive advertising). If after the proceedings conducted, it has been established that the advertisement was deceptive and that on account of such advertisement the consumer was a victim, then he shall have the following reliefs under the Act:
· Refund of the price paid;
· Award of compensation for loss or injury suffered ;
· The opposite party may be ordered to discontinue and not to repeat unfair trade practice (i.e., deceptive advertising);
· The opposite party may be ordered not to offer hazardous goods for sale;
· The opposite party may be ordered to withdraw hazardous goods already on sale;
· The opposite party may be ordered to cease manufacture of hazardous goods and desist from offering services which are hazardous in nature;
· If the loss or injury has been suffered by large number of consumer who are not identifiable conveniently, the opposite party may be ordered to pay such sum (not less than 5% of the value of such defective goods or services provided) which shall be determined by forum;
· The opposite party may be ordered to issue corrective advertisement to neutralize the effect of misleading advertisement;
· The court can also award punitive damages and costs of litigation to the consumer.

The most important among all is that court can direct the advertiser to issue corrective advertisement. § 14 (h) (c) of the Act, describing the powers of the court, says that the court can order “corrective advertisement to neutralize the effect of misleading advertisement at the cost of opposite party responsible for issuing such misleading advertisement”.

In so far as possible as misleading advertisements are caused, this is the most important provision and can really have a deterrent effect, if used effectively. Unfortunately, this provision has hardly been used.
Which advertiser will dare to publish false or misleading advertisement, with the threat of spending money on corrective advertisement that completely damages him, hanging over his head?

Example: An advertisement for a shampoo claims that it stops hair fall. The court looks at evidence before it and holds that the advertisement was false. It then directs the manufacturer to issue corrective advertisement stating that the claim made in early advertisement was false and the shampoo does not prevent falling of hair, for three months on all television channel on which false advertisement appeared earlier! In such possibility, the manufacturer will surely abstain from deceptive advertisements.

Orders of The Apex Consumer Court Pertaining To Misleading Advertisements
In its order in the case of M. R. Ramesh vs. M/S Prakash Moped House and Others, the apex consumer court warned against advertisement that use fine print to hide crucial information pertaining to product and services, thereby misleading the consumer in their choice. And by awarding substantial compensation to the consumer, who was misled by such an advertisement, the National Commission made it clear that it would not take such violation of consumers’ right to information lightly. Its advice to manufacturers and services providers: “advertisements should not mislead and should give a clear picture of quality of goods sold”.

This case pertains to a motorbike – Hero Honda CD-100 – that one M. R. Ramesh bought in Bangalore in February 1993. His contention was that at time of purchase, he was assured that bike would run 80 kms on a litre of petrol. However, the bike ran 22 kms less than promised. He filed before the National Consumer Dispute Redressal Commission, New Delhi that an advertisement published in October 1993, wherein the manufacturer had made such a claim about the mileage of the motorcycle. The manufacturer, on the other hand, brought on record advertisement during the period which carried an asterisk on the numerical figure of 80 and at the foot of advertisement in small print, said “at 40 kmph/130 kg”, thereby qualifying the claim.

The National Commission made two prominent observations here:
(1) that there was no explanation from the manufacturer as to how the advertisement shown by the consumer did not carry any such qualifying statement.

(2) even advertisements that specified at bottom in fine print, “40 kmph/130 kg” or the “under standard condition” were not intelligible to the consumer and were therefore deceptive.

Said the Commission: “Such an advertisement as put out by the respondents is misleading. It amounts to unfair trade practice. When the respondents claimed that motor cycle can give mileage of 80 km per litre, they cannot just be absolved of their responsibility not to clearly indicate that this would be so when the motor cycle is driven at the speed of 40 kmph and the load would be 130 kg. Simply by putting an asterisk and indicating such condition in small print at the bottom of advertisement is certainly deceptive. Moreover, when it is stated that this mileage can be obtained at the particular speed and the load under “standard conditions”, then those standard condition must be indicated so that the consumer is duly informed of the bargain he is in it. Rather in our view any such advertisement should take into account the conditions of the roads in the cities”.

It directed the manufacturer not to make such a claim in future without stating clearly, intelligibly and “in the same type of letters”, the basis for the claim. The consumer wanted the price of motor cycle to be refunded to him. However, keeping in mind the fact that the case was almost ten year old, the National Commission instead awarded the consumer a compensation of Rs.25,000.

In another case of Bhupesh Khurana vs Vishwa Budddha Parishad,a class action suit was filed by twelve students, who had joined the BDS course offered by Buddhist Mission Dental College run by Vishwa Buddha Parishad. The students’ complaint was that the college, in its advertisement calling for the application to the course, had given the impression that it was affiliated to Magadha University, Bodh Gaya and recognised by the Dental Council of India and was fully equipped to give Bachelor of Dental Science degree to the students. However, after joining the college and attending the classes, the students found to their dismay that the annual examination were not been held because the college was neither affiliated to Magadh University nor the course was recognized by the Dental Council. As a result, they not only lost two valuable academic years, but also the money spent on fees, hostel charges, etc.

Holding the services rendered by the college to be deficient, the National Commission directed it to refund the academic expenses of all the twelve students along with 12% interest calculated from date of receipt of amount till the date of payment. In addition, it also directed the institution to pay Rs 20,000 to each of them by way of compensation for the expenses defrayed on the purchase of books, hostel etc., and for the loss of two academic year. It also awarded Rs. 10,000 as a cost of petition.

Other Enabling Laws
Cable Television Network Regulation Act, 1995
The Cable Television Network Regulation Act, 1995 mandates that all advertisements transmitted through the cable television network must adhere to the Advertising Code formulated under it. Briefly, the code stipulates that all advertisement should conform to the laws of the country, the product advertised should not suffer from any defect of deficiency as mentioned in the Consumer Protection Act, 1986 and should not contain references which are likely to lead the public to infer that the product advertised has some miraculous property or quality which is difficult of being proved. Any ‘authorized officer’, either the district magistrate or sub divisional magistrate or the commissioner of police or any other officer notified by central or the state government can take action against any violation of the Advertising Code.
The main problem with this code is the enforcing agency. Such an advertising code should be enforced by an independent regulator, like say a broadcasting regulator and certainly not the police. In Australia, for example Broadcasting Regulator looks at violation of advertising codes on television.

Drugs And Magic Remedies (Objectional Advertisements) Act, 1945
The Drugs And Magic Remedies (Objectionable Advertisement) Act, 1954, basically prohibits deceptive advertisement pertaining to the drugs and magical cures.

§ 4 of the act prohibits advertisement relating to a drug if the advertisement:
· contains any matter which directly or indirectly gives a false impression regarding the true character of the drug or,
· makes a false claim for the drug or,
· is otherwise false or misleading.

§ 5 of the Act prohibits advertisement of magic remedies for the treatment of certain diseases and disorders which deceive most consumers who are desperately in want of cure.
Violation of the law attracts imprisonment for six months or fine or both, for first conviction and for subsequent conviction, imprisonment for a year or fine or both.

Earlier, AIDS/HIV was not in the Schedule of the Act. But subsequently, the union ministry of health decided to include the disease in the schedule to the Rules, so that it would prohibit misleading advertisement for the cure of AIDS and help regulatory authorities take action against such advertisements. What prompted this move was the Kerala High Court’s order in 2002, against the manufacture, sale and promotion of the ayurvedic drug ‘Immuno QR’ as a cure for AIDS. In response to public interest litigation, the Bombay High Court had also restrained Mr Majid from making “tall and unfounded claims” about the drug.

The law is quiet outdated and inadequate to deal with the present day situation – while it prohibits misleading health claims in the print media, it has no provision to tackle the same advertisement that may appear on the television or the internet. It also cannot tackle advertisements pertaining to health gadgets of unproven efficacy. Besides, the law would be more effective if it prescribed as penalty, corrective advertisements, instead of imprisonment or fine.

But even as it exists today, its enforcement by the state authorities is poor because one sees any number of advertisements in the print media itself, promoting indigenous cures or medicines for a variety of ailments listed in the Schedule of the Act. The state drug control authorities are supposed to enforce the law. But hardly any information is available about enforcement by various states.

The Infant Milk Substitute, Feeding Bottles And Infant Foods (Regulation Of Production, Supply And Distribution) Act, 1992
This law is also against deceptive and misleading advertisements. It prohibits advertisements and promotion of infant milk substitutes, feeding bottles, and infant foods because their promotion creates a misconception which deceives consumers and thereby misleads them into believing that infant foods or milk substitutes sold in the market are as good as or better than mother’s milk.
§ 3 of the act say that:
“No person shall:
a) advertise or take part in the publication of any advertisement, for the distribution, sale or supply of infant milk substitutes or feeding bottles or infant foods.
b) give an impression or creates a belief in any manner that feeding of infant milk substitutes and infant foods is equivalent to or better than mother’s milk.”

The Monopolies And Restrictive Trade Practices Act, 1969
Consumer-movements have forced the government to pass laws to regulate advertising and protect consumer interest. Legal restrictions and regulation are enforced by government to check deceptive and misleading advertisement. On 1st august 1984, the MRTP Act was amended and Unfair Trade Practices were covered within purview of the MRTP Act. The main object of incorporating such provision in the MRTP Act was to check deceptive and misleading advertisements in the public interests. In 1986, the government enacted the Consumer Protection Act in order to protect the interests of the consumers.
For preventing deceptive and misleading advertisement, the MRTP Act had declared deceptive advertising as an unfair trade practice. In case the advertiser was found indulging in issuing deceptive advertisements which had the potential to influence any reasonable man, he was directed to immediately withdraw such an advertisement, not to issue such advertisements in future, issue corrective advertisements, make necessary clarification and give damages to cheated consumers.

For instance, the New Udaya Pharmacy and Ayurvedic Laboratory prompted an ayurvedic proprietary medicine, “Kamilari” claiming to be a sure cure for juindice, viral hepatitis and gall bladder stone. The advertisement said the medicine had absolutely no side effects. The advertisement concluded:
Kamiliri pills and syrup are effective even in critical stages of jaundice. If you have a bottle of kamilari in your house, then jaundice is common cold to you.

Following a complaint from a consumer saying that it had not helped him with his gall bladder stone, the Commission sent a notice of enquiry and asked the laboratory to prove the efficacy of the drug. On its failing to do so, the commission issued a “cease and desist” order, putting stop to the advertisement”.

In the year 2002, government abolished the MRTP Act. Now all the powers regarding unfair trade practices have been given to consumer courts, setup under the Consumer Protection Act.

Advertising Standards Council Of India
Advertising Standards Council of India (ASCI) is a self-regulatory voluntary organization of the advertising industry which was founded in 1985. It is a self regulatory organisation (SRO) for advertising content. The three main constituents of advertising industry, viz. advertisers, advertising agencies and media came together to form this independent NGO. The aim of ASCI is to maintain and enhance the public’s confidence in advertising. Their mandate is that all advertising material must be truthful, legal and honest, decent and not objectify women, safe for consumers – especially children and last but not the least, fair to their competitors.

Composition Of ASCI
ASCI’s team consists of the Board of Governors, the Consumer Complaint Council (CCC) and its Secretariat. ASCI has 12 members in its Board of Governors, four each representing the key sectors such as Advertisers, advertising agencies, media and allied professions such as market research, consulting, business, education, etc. The CCC currently has about 21 members: 9 are from within the industry and 12 are from the civil society like well known doctors, lawyers, journalists, academicians, consumer activists, etc. The CCC’s decision on complaint against any advertisement is final. ASCI also has its own independent Secretariat of 5 members which is headed by the Secretary General.

Objectives Of ASCI
The objectives of ASCI are enlisted briefly as follows:
· To enhance image and trustworthiness of advertising.
· To safeguard against misleading advertisements.
· To develop generally accepted standards of public decency.
· To avoid such practises as are unacceptable to society at large.

ASCI And Protection Of Consumers’ Choice From Deceptive Advertisements
There is no other non governmental body in India which regulates the advertising content that is released in India.
If an advertisement that is released in India seems deceptive or objectionable, a person can write to ASCI with his complaint.
The following procedure is adopted in processing a consumer complaint:
1. Complaint received by ASCI.
2. Advertiser/Ad-Agency asked to comment on this complaint and to submit documentary proofs like proof for claims given in advertisement.
3. Further Investigation by Consumer Complaint Council of ASCI.
4. If complaint is found to be correct, then ASCI will seek assurance from advertiser to withdraw such advertisement.
5. If required assurance from the advertiser is not received, then media will be asked not to carry such advertisement.
6. The decision of the council on complaint conveyed to complainant.

ASCI does not have statutory powers. It acts only as a moral pressure group. It publishes cases of non-compliance by advertisers and agencies in mass media and hands over the matter to statutory authority if its decisions are not followed by the advertiser.

ASCI does not protect consumers’ choice from deceptive advertising. Instead, it acts only as an agent or moral pressure group in the protection of the consumers’ choice from deceptive advertising. The role of ASCI is worthy of praise. ASCI is an alternative body which protects the rights of consumers by laying down the criteria for advertisement, directing the advertisers the corrective measures in case the advertisements are not in line with its code, lobbying for the removal/correction of advertisements violating the code of ASCI and by taking up the matter with statutory authorities for the restriction of advertisement in case the advertiser does not render assurance of corrective measures.

Government’s Stand On The Protection Of Consumers Choice From Deceptive Advertisements
Deceptive advertisements are ever on the increase in India. The enormous demand in the domestic market, as a result of the ever growing and fast growing population, has led to the proliferation of numerous products and hence their advertisements, many of which are deceptive in nature. Besides, the lack of knowledge and education among consumers, in a vast country like India, has led to the deceptive advertisements go unchecked. The enormous population lacking knowledge coupled with enormous numbers of advertisements has made it almost impracticable to monitor and check deceptive advertisements.

However, the Government, understanding the acute problem of deceptive advertisements which influence consumers’ choice wrongly, is taking steps to curb such advertisements.
In 2007, the Government of India amended the Cable TV Network Rules’ Advertising Code by which advertisements which violates ASCI code cannot be permitted on TV.

Centre Moots Regulation Authority To Check Misleading Advertisements
In order to tighten the noose around misleading advertisements flooding the Indian Media, the Union Ministry of Consumer Affairs is planning to set up an ‘Advertising Regulation Authority’.
With rising number of complaints from the consumers about misleading advertisements, the ministry has decided to take this step as the efforts of the Advertising Self-Regulation Council under the Press Council of India (PCI) have failed to curb the negative advertising trends in media. Though the Cable Television Network Amendment Act, 2006 is in place to keep on the advertising content, its provisions are insufficient to check the deceptive advertisements.

The provisions enshrined in the Press Council of India Act, 1978 also prohibit advertisements having any content which can hurt morality or induce communalism. There are regulations for advertisements of beauty products and medicines as well, but they have failed to check the disingenuous practice.

Apart from setting up of a regulatory body, the ministry – which has a mandate to protect consumers from unfair trade business practices – is holding discussions with experts to know if misleading advertisements can be interpreted as ‘unethical trade practise’ under the Consumer Protection Act.

The gullible routinely get seduced by product advertisements claiming to give a flawless complexion or immediate relief from pain or reduce weight in a few weeks. After using the product for a while in most cases people realize they have been cheated! They feel miserably helpless – mostly because of lack of proper knowledge and education.
Advertisements related especially to food supplements, cosmetics and herbal products that promise health benefits are actually endangering the consumers. Such frauds are being committed by reputed companies. Their advertisements are being telecast recklessly which is deceiving people of all age group. However, women, children and elderly are the soft targets of such deceptive advertisements.
The complaints regarding ill-effects of advertisements are maximum in the field of health as the market is buzzing with fairness creams, products promising to reduce weight, increase height and the like. The ever increasing role of deceptive advertisement has assumed menacing proportions, especially in view of growing purchasing capacity of Indian consumers and the blitzkrieg of media activities which is being unleashed upon them.

To stop such advertisements there is self-regulation in print and electronic media but it is not effective. There are several other laws as well, but least enforced. The content of advertisements aired on television, radio and print media, is being regulated by private bodies like the Advertising Standards Council of India but such bodies are not successfully preventing deceptive advertisement and holding companies accountable for such advertisements.

Deceptive and false advertisements are not just unethical; they distort competition and also, consumer choice.

False and misleading advertisements violate several basic rights of consumers: the right to choose, the right to be protected against unsafe goods and services, as well as, unfair trade practices.

Under Art.19, the Constitution of India guarantees freedom of speech, but at the same time due diligence and restraint is required to be exercised. The freedoms guaranteed by Art.19 (1) are not absolute as no right can be. The freedom of speech and expression is liable to be controlled, curtailed and regulated to some extent by laws made by parliament and state legislatures. Accordingly, clauses (2) to (6) of Art. 19 lay down the grounds and purposes for which a legislature can impose “reasonable restrictions’ on the rights guaranteed by Art. 19. Emanating from Art. 19 (1), every individual body has a right to advertise. But this advertising should be such that it does not carry any potential to deceive people into buying the advertised products or availing the advertised services. Advertisements which influence consumers’ choice and are deceptive are violative of Art.19 of the Constitution.

Hence, an efficient law is need of the hour to tackle the menace of deceptive and misleading advertisements which harm innocent consumers and violate their rights. And, for the good, the Government of India has mooted a Regulation Authority for keeping a tab on deceptive and misleading. Loopholes in the existing self-regulation mechanism and scarcity of appropriate laws are one of the reasons why government is planning for effective law in this regard. But merely laws shall not suffice. An effective mechanism for the implementation of law is also needed.

The researchers, in the instant study, do not deny that there are laws. Laws do exist, but they are difficult to enforce. It is because of lack of a concrete definition of “deceptive advertising” besides its immense subjectivity. Also, lack of knowledge of consumer rights among people is another very important reason for the non – redressal of consumer grievances.

An effective, efficient and fair implementation of consumer protection act is one of the conditions precedent for conditions precedent for promoting the culture of good governance and thereby ensuring the better promotion and protection of rights of the consumers. If the rights in relation to the quality of goods are assured and taken care of then there will be no cause for the complaints. This situation would certainly create an atmosphere wherein the clients, customers and consumers would feel satisfied with the things needed most to them. But to attain this state, the government has to educate and enlighten the huge population of the country. The government also has to create an effective mechanism which would check deceptive advertisement independent of the consumers and the complaints.
# http://fcamin.nic.in/EventDetails.asp?EventId=1803&Section=Consumer Information&ParentID=0&child_continue=1&child_check=0, Retrieved on 03.05.2012.
# Id.
# The Concise Oxford Dictionary, 1990.
# http://fcamin.nic.in/Events/EventDetails.asp?EventId=1803&Section=Consumer Information&ParentID=0&child_continue=1&child_check=0, Retrieved on 03.05.2012.
# RP No. 831 of 2001.
# OP No. 168 of 1994.
# Press Information Bureau press release, titled “Kerela High Court bans magic drug; court order to be severe deterrent for quacks”, dated February 22, 2002.
# Now repealed by the Competition Act, 2002.
# Order of August 12, 1994, reported in (1994) 2 CTJ 381 (MRTPC).
# Mukesh Trehan, et. al. Advertising and Sales Management, V. K. Publishers, 2007, p. 200.
# http://www.ascionline.org/goals/whyselfregulation.htm, Retrieved on 03.05.2012.
# http://www.ascionline.org/support/boardofgovernors.htm, Retrieved on 03.05.2012.
# http://www.ascionline.org/support/cccmembers.htm, Retrieved on 03.05.2012.
# Mukesh Trehan, et. al. Advertising and Sales Management, V. K. Publishers, 2007, p. 199.
# http://post.jagran.com/Centre-moots-Regulation-Authority-to-check-misleading-advertisements-in-media-1312363792, Retrieved on 03.05.2012.
# Id.
# http://post.jagran.com/Government-mulls-regulatory-body-to-curb-misleading-ads-1318147879, Retrieved on 03.05.2012.
# M. P. Jain, Indian Constitutional Law, LexisNexis Butterworths Wadhwa Nagpur, Noida, Sixth Edition, 2011, p. 1071.

Authors contact info - articles The  author can be reached at: askari@legalserviceindia.com

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Statutory transaction and contract of sale
Special & Differential Treatment in WTO
Instances of Disingenuous Advertisements & Consumers
Consumer the King
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Medical Negligence
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Legal Protection of Consumers
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Article Comments

Posted by avnish yadav on July 10, 2013
Hi , i have bought one bike (bajaj avenger ) by paying ~88000 rs cash.
From the day i bought to till date there is a soung coming from engine .
I have informed the same but issue is still same . I asked for an
engineer to check the issue as service center is unable to solve the
problem . It has been more than 3 months , but they have not provided an
engineer but the complaint id's . Please tell what are the option left
for me.

Posted by Niranjan Singh on June 12, 2013
I have filed a case in Dist Consumer Forum. Where I had demanded Rs. 20

Lakh as compensation for grievances and interest on amount deposited by me. Is there any procedure under which I can amend my prayers and demand 10 LAkh as compensation for the grievances so that the total amount would not reach the limit of district foru, i.e. Rs. 20 Lakh.

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