Suruchi Kotoky and Prashant Daga
In an ever growing consumer market, consumers have diverse choices when it comes to buying a product; but the same isn’t true when it comes to fixing them.
More often than not, defective products have to be discarded, instead of opting for repair services. There are many reasons for this, including the high cost of repair, but stringent guarantee/warranty conditions recognizing repairs via authorized channels only, is a major concern. There are peripheral issues such as non-availability of spare parts, frequent technological updates, etc. In fact, per current trends, punters prefer to replace a device instead of repairing it! In-turn, the discarded devices contribute to the mountain of e-waste and thus, adds to environmental concerns posed due to the growing e-waste.
This state of affairs have led to the emergence of the Right to Repair ("RoR") movement, aiming to liberalize the repair market and prolong lifespan of products. There have been a number of regulatory changes and recently, India has taken the first tentative steps towards enshrining RoR under law.
What is ‘RoR’?
Simply put, RoR is an entitlement to consumers to determine their own means and preferred outlet to repair their product. They are not left to the mercy of manufacturer or ‘authorized’ service outlets. As such, this affords the consumer, the autonomy to repair a product instead of being forced to purchase a new one, or pay exorbitant repair charges to authorized service centres.
Presently, there is a (de facto) embargo on consumers repairing devices from ‘un-authorized’ outlets; warranty terms of devices typically state that availing repairs from non-recognised service centres would invalidate the warranty, owing to 'potential' damages that may have been caused by such third-party and associated liability risks. A statutory RoR intends to break this manufacturer imposed artificial barrier and allow consumers to repair a product from third parties as per their own choice, without the risk of foregoing their right to claim warranty.
Globally, RoR laws have been adopted by various countries including, U.S.A, U.K., European Union and Australia. Last year, the State of New York passed the Digital Fair Repair Act (applicable on devices purchased after July 1, 2023), that requires original equipment manufacturers (OEMs) of certain electronic devices to make parts, tools, and/or documentations, available to independent repair providers on fair and reasonable terms. The U.K. and Australia had also introduced similar legislation in 2021 and 2022 respectively.
First Steps in India
Historically, a repair and reuse culture had existed in India. However, the lurking issues concerning repair services as indicated in the foregoing paragraphs, are prevalent in India too. This has caused a dent in the popularity of the repair market and encouraged device substitution mentality.
In a bid to promote sustainable consumption and mindful utilization of products, the (Indian) Central Government launched a (voluntary) movement termed as “Lifestyle for Environment” (“LiFE)” in 2022. The theme of the upcoming G-20 2023 also spotlights LiFE, under India's presidency. As part of this, the Department of Consumer Affairs (“DOCA”) has set up a committee (“Committee”) to develop a framework on the RoR. The Committee is tasked with reducing e-waste by harmonizing trade between OEM and relevant stakeholders as well as to examine the issue of repair and sustainability of products. The four focus sectors identified by the Committee, based on high demand for repair, include farming equipment, mobile and electronics, consumer durables and automobiles.
As a first step, the DOCA has set up an online portal, to provide information on maintenance and repairs of products sold by select brands. Brands have been invited (on a voluntary basis, currently) to ‘onboard’ themselves onto the platform and provide certain information pertaining to their products (such as customer care helpline, generic warranty policy, authorised service centers, warranty of spare parts, pricing, and origin of country of the brand, etc.).
To be clear, this is not a change in law as yet. Indian consumers law, sales laws and other laws related to liability do not recognize a RoR that saves the warranty right of the consumer. The above initiative is at a nascent stage and its reception is being actively gauged, by consumers and industry stakeholders. Basis such feedback, some foresee a framework on RoR in the pipeline.
What will need to change?
The first step would be to codify RoR laws with industry wide compulsory participation. It cannot be restricted to voluntary or selected participation as then the entire gamut of RoR will fail. Without codified laws in place, it will give rise to anarchy.
Secondly, legislations will need to address the lacuna in law on whether RoR will preserve or make the warranty void as that would determine the remedies and protections available to customer. Say for instance, if I allow a third party to bust open my device for repair, will it render the warranty on my device void or would it continue to subsist? If the warranty no longer subsists, then customer may be wary to opt for third party repairs. In the U.K., for instance, the regulations mandate that manufacturer must give access to the appliance repair and maintenance information to professional repairers, no later than two years post market launch of the product, which means that exclusive warranty is implied and assumed to be retained with the manufacturer for the first two years at the very least.
Finally, the broader questions relating to competition, intellectual property, quality concerns, product stewardship, minimum technical qualifications and quality are to be assessed and answered.
The thrust towards sustainability as an agenda for G-20, growing e-waste and steps taken by jurisdictions may catalyze the formalization of RoR in India. Although no concrete timelines have been carved out, RoR is definitely gaining traction in India through Indian government's Make in India ideology coupled with the launch of the online portal with big FMCG registering on the portal.
The need of the hour is framing of binding laws regulating RoR, in the absence of which its legal basis is in question. While doing so, policy makers must keep in mind to balance the interest of the relevant stakeholders i.e. consumers and manufacturers, so that there is a level playing field with vibrant repair service. While it may not be provided as an absolute right, given that it may undermine manufacturer's discretion on the product specifications and independence to conduct their operation, however it may result in broadening the network of recognised repairers, access to customer friendly repair services, customization of existing warranty terms to cover third-party repairs, generate local employment, promote competition, reduce e-waste and encourage innovation.