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77. Any doubt in this regard now stands dispelled by the communication dated 11th November, 2019 issued by the DoCA in the Ministry of Consumer Affairs under the subject ―Rules to be notified under the Consumer Protection Act, 2019 - Comments from the stakeholders on draft rules - Reg‖. This has come as a result of the CPA, 2019, which was published in the official gazette on 9th August, 2019. The CPA, 2019, itself is yet to become operational, as it is awaiting the formulation of Rules thereunder.

78. This communication dated 11th November, 2019 notes that Rules under various topics are required to be notified under the new Act. Eight such topics have been notified and in Sl. No. 6 are the ―Consumer Protection (Direct Selling) Rules, 2019‖. Stakeholders were invited to offer their views and suggestions on the draft Rules till 2nd December, 2019. A comparison of the text of draft Consumer Protection (Direct Selling) Rules, 2019 with the DSGs shows that the former almost entirely replicates the latter. Rule 8 (6) of the draft Rules, for instance, is a verbatim reproduction of Clause 7 (6) of the DSGs. Interestingly, even the definition of the ―Act‖ under Rule 2 (1) (a) is identical to Clause 1 (1) of the Model Direct Selling Guidelines, 2016 and is defined to mean ―CPA‖, with only the year being different; in the DSGs it is CPA, 1986, whereas in the draft Rules it is CPA, 2019.

79. Clearly, therefore, what was being invoked was the mechanism of formulating Rules under an existing statute that governs the subject, viz., the CPA. There was no occasion, therefore, to treat these draft DSGs, traceable as they were to the CPA, as ―executive instructions‖. The learned Single Judge appears to have missed this significant aspect of the matter. A large portion of the impugned judgment has been devoted to discussing the case law around ―executive instructions‖ which filled up the lacuna of the statutory law on the topic, when there was no occasion to adopt that route to find the DSGs to be binding.

84. In the present case, it is not the government, but private entities like Amway, Oriflame and Modicare, which are trying to seek enforcement of the DSGs. In fact, they are seeking to enforce guidelines against third parties and not against those who might be bound by the DSGs, as and when it becomes law. Merely because the DSGs are notified in the Gazette, they do not attain the status of ―law‖ within the meaning of Article 13 of the Constitution. The source of the power to frame such guidelines is traceable only to the CPA. With the CPA, 2019 itself not having been notified, these draft guidelines could not have attained the character of ―binding Rules‖ under the CPA, 2019, or for that matter, even under the CPA, 1986. When clearly even the draft guidelines mentioned the Act to be the CPA, there was no occasion for the learned Single Judge to accept the plea that they could be sourced to Articles 73 or 77 of the Constitution of India. Therefore, there was no occasion to apply the decision in Ram Jawaya Kapoor (supra).