Non-Judicial Members Deciding "Substantial Questions of Law"? Why the Delhi High Court's Latest Notice Could Upend the Consumer Protection Act

The Creeping Dilution of Judicial Power

For years, civil practitioners have watched the creeping "tribunalization" of the Indian justice system with a mix of frustration and resignation. We have seen complex civil disputes siphoned out of traditional courts and into tribunals where the procedural rigor of the Code of Civil Procedure (CPC) and the Evidence Act is replaced by the nebulous standard of "natural justice." But a recent Public Interest Litigation (PIL) in the Delhi High Court suggests we might finally be drawing a line in the sand.

On May 17, 2026, the Delhi High Court issued notice to the Union of India in a challenge to the constitutional validity of Sections 51(2), 51(3), and 51(4) of the Consumer Protection Act, 2019 (CPA), alongside Regulation 12 of the Consumer Commission Procedure Regulations, 2020. The core issue? Allowing the National Consumer Disputes Redressal Commission (NCDRC) to adjudicate "substantial questions of law"—even when the bench coram may consist entirely of technical or non-judicial members.

The CPC Parallel and the Absurdity of Section 51

To understand why this is a massive red flag for practicing lawyers, we must look at the traditional civil framework. Under Section 100 of the CPC, a Second Appeal lies to the High Court only if the case involves a "substantial question of law." It is a strictly judicial function, historically reserved for Constitutional Courts, demanding deep statutory interpretation, reliance on binding precedent, and an understanding of jurisprudential nuances.

"Adjudicating a 'substantial question of law' is the quintessential judicial function. Delegating this to technical members in a summary forum is not just bad policy; it borders on an unconstitutional delegation of judicial power."

Yet, Section 51 of the CPA 2019 grants this exact appellate power to the NCDRC. When you combine this with Regulation 12, which dictates bench compositions, you face a very real scenario where complex legal doctrines are being interpreted by former bureaucrats or subject-matter experts lacking formal judicial training. For lawyers arguing nuanced defenses involving limitation, privity of contract, or statutory overlap, arguing before a non-judicial bench is often a roll of the dice. The jurisprudence becomes erratic, and the predictability of the law suffers.

Why Consumer Fora Need Judicial Acumen Now More Than Ever

If you think consumer commissions are still just dealing with defective washing machines and delayed flights, look at the docket. The stakes in consumer litigation have skyrocketed, directly intersecting with heavy real estate and contract law.

Take the Supreme Court’s April 2026 affirmation of the NCDRC’s ruling in Sandeep Grover v. Sai Siddhi Developers. The dispute centered on whether a housing society, after benefiting from a redevelopment agreement, could deprive third-party flat purchasers of their rights due to a lack of direct privity of contract. The NCDRC ruled in favor of the buyers, piercing the traditional contractual veil to protect third-party rights. While the outcome was pro-consumer, navigating the doctrines of privity, joint development agreements (JDAs), and third-party beneficiary rights requires immense legal sophistication.

Similarly, jurisdictional boundaries are being tested daily. On the exact same day the Delhi HC issued its notice, the Karnataka State Consumer Commission dismissed a complaint regarding property demolition by the Bangalore Development Authority (BDA). The Commission rightly held that the demolition was a civil dispute, not a consumer grievance, and was therefore not maintainable under the CPA.

Drawing the line between a "deficiency of service" under Section 2(11) of the CPA and a pure tortious claim or statutory action requires a trained judicial mind. If non-judicial members are left to determine the maintainability of such complex claims or decide whether a landowner in a JDA qualifies as a "consumer" (a debate still raging in the corridors of the SCC), we risk turning consumer fora into kangaroo courts that overstep their statutory mandate.

The Broader Civil Law Ecosystem

This PIL does not exist in a vacuum. We are witnessing a broader push to rationalize property and civil dispute adjudication in India. The Supreme Court's February 2026 ruling on pendente lite property transfers—holding that a buyer's property can be attached if they had notice of the seller's arbitral dues—shows that courts are actively closing loopholes used to defeat decrees. Furthermore, the Apex Court is currently reviewing a PIL for a dedicated "revenue judicial service" to handle land disputes, signaling a clear recognition that specialized, legally trained minds are required to untangle India's property litigation mess.

The Bottom Line for Practitioners

The Delhi High Court has listed the CPA matter for September 23, 2026. As an officer of the court, my position is clear: the High Court must either strike down the impugned provisions or read them down to mandate that any bench deciding a "substantial question of law" under Section 51 must be headed by a Judicial Member.

For practitioners, this is a space to watch closely. If the Delhi High Court intervenes, we could see a massive restructuring of the NCDRC's appellate roster. In the interim, when drafting appeals or defending complex property and redevelopment disputes before the State or National Commissions, lawyers should aggressively take preliminary objections regarding the coram's competence to decide substantial questions of law. Protect your record, because this issue is undoubtedly headed to the Supreme Court.