In Peter Coss (Ed.), Thomas Wright’s Political Songs of England (1996), the following verse occurs:
“Attorneys in country, they get silver for naught;
They make men begin what they never had thought;
And when they come to the ring, they hop if they can.
All they can get that way, they think all is won for them with skill.
No man should trust them, so false are they in the bile.”[1]
Humans cannot live without a proper social order and law. The legal profession naturally arises as the legal system evolves and becomes more complex. The Indian legal system as we know it today is a product of years of struggle and history. The Indian lawyers were at the forefront of India’s independence struggle, immensely respected in the society as professionals.
However, a new image of lawyers has now been imprinted on the minds of the general public. They are viewed with skepticism, hatred, and suspicion. The public today perceives law as a profit-driven business instead of a prestigious profession. This has cast doubt on lawyers’ intentions, integrity, and value in general.[2] This doubt is not entirely misplaced either, as lawyers, along with other professions, have become increasingly profit-minded. Naturally, a barrage of litigation is now focused on lawyers. Lawyers can also be sued for deficiency in service, like other professions. Such liability may arise under contract law, tort law, the Advocates Act 1961, and up until recently under the Consumer Protection Act 2019 (CP Act).[3] However, a new landmark judgment by the Supreme Court has changed the tables, clearing up a question of law that had been shrouded in confusion for far too long.
THE MOST RECENT DEVELOPMENT FOR THE LEGAL PROFESSION OF INDIA – EXCLUSION OF LAWYERS FROM THE PURVIEW OF CONSUMER PROTECTION ACT 2019
Before 2024, the issue of the inclusion of the services provided by lawyers under the definition of ‘services’ of the Consumer Protection Act (CP Act) was unsettled, with conflicting case laws.
In the 1996 judgment of Srimathi and Ors. v. The Union of India and Ors.[4], the Madras High Court decided that that the services provided by the legal practitioners do fall within the ambit of the CP Act, on the reasoning that the Advocates Act does not explicitly bar the jurisdiction of other courts and authorities or tribunals in relation to matters connected with the advocates or disputes arising between the clients and their advocates. However this was in direct contravention of the 1990 decision by the National Consumer Disputes Redressal Commission (NCDRC), K. Rangaswamy v. Jaya Vittal[5], in which the court categorically declared that the services provided by advocates come under the exception of “contract for personal service”.
A more important contention against the lawyer’s arguments was from the Supreme Court landmark judgment from 1995 of Indian Medical Association v. V.P. Shanth[6] ,which made Doctors liable under the CP Act. The Court reasoned that the rights of both parties, i.e. the medical professionals and their patients need to be balanced. Professional men are expected to have a certain level of competence and take reasonable care when doing their tasks. If medical practitioners are negligent, impacted individuals can seek restitution under the Consumer Protection Act. Logically, the same concept should be applied to services provided by a lawyer as well.[7] In a 1999 article written after the Madras High Court decision, the author stated that while the matter remains in contention until heard in the apex court, the Madras High Court’s decision has reiterated that widely accepted proposition that advocates must be covered under the Consumer Protection Act. The article went on to say that the advocates’ arguments are hardly worth repeating as there is no real substance in them.[8]
However, now in May 2024 in the judgment titled, ‘Bar Of Indian Lawyers Through Its President Jasbir Sigh Malik Vs. D.K.Gandhi PS National Institute Of Communicable Diseases’[9] the Supreme Court’s two judge bench settled the matter, exempting the legal services of the lawyer availed of by the client from being covered under the Consumer Protection Act, 1986 (now Consumer Protection Act, 2019).[10]
The case was first decided in 1998 by the District Consumer Disputes Redressal Forum, Delhi in favor of the complainant, rejecting the Appellant’s preliminary objection that the District forum does not have jurisdiction to adjudicate the dispute raised in the complaint as the Advocates were not covered under the provisions contained in the CP Act. The decision was then overturned by the State Commission in 2006, however in the revision petition; NCDRC preferred the District forum’s decision.
Aggrieved by NCDRC’s decision, the appeal in the Supreme Court was filed by the Bar of Indian Lawyers, Delhi High Court Bar Association, Bar Council of India, along with the original Appellant M. Mathias. The current judgment was passed by the Hon’ble Supreme Court judges- Justice Bela M. Trivedi and Justice Pankaj Mithal on 14th May 2024, reversing the 2007 finding by the NCDRC, which defined legal services to come under the statute.
The Court came to the conclusion that the service availed of an advocate can be classified as under the exception of “contract of personal service” in the definition of service as contained in Section 2(42) of CP Act 2019.[11] Therefore, the “deficiency of service” complaint will not be maintainable under the CP Act.
The bench based their decision on the following TWO key observations:
- The sui generis nature of the legal profession, i.e. doctors cannot be equated to lawyers
- The nature and purpose of the Consumer Protection Act 2019 did not meant for the inclusion of professions in its purview.
THE UNIQUENESS OF THE LEGAL PROFESSION- THE KEY REASON OF THE SUPREME COURT’S JUDGMENT
As stated earlier, the VP Santha judgment puts forward a very important question, i.e- If medical professionals are already included in under the ambit of ‘services’ as defined in the CP Act, why should the legal professionals be deemed any different?
However, the legal profession has some many core differences from not only medical profession, but from any other traditional professions which led the hon’ble judges to the conclusion of declaring the legal profession to be ‘sui generis’. The differences include-
1. IT’S INHERENTLY NOBLE ROLE IN SOCIETY:
The Legal Profession is a noble profession, having a direct and strong impact on our society. Lawyers are the torch bearers of justice, apart from the judiciary, which is responsible for giving the judgment. From the independence struggle to even today, lawyers have had a crucial role to play in bringing light to the wrongs of society and attaining social justice. They helped in the very formation of our constitution and today work to uphold its values. They are responsible of protecting our legal system, enabling courts to make merit-based decisions.[12] Their contributions to improving the efficiency, effectiveness, and credibility of the legal system, which is one of the three pillars of democracy, cannot in any way be compared to other professions. The lawyers need to be fearless and independent enough to properly function and execute their duties.
2. THE DUAL DUTY OF ADVOCATES
As according to the Hon’ble Supreme Court in the case, Deepak Aggarwal v. Keshav Kaushik[13], an Advocate is a legal practitioner and means a person who has right to act and/or plead in court on behalf of his client. They have a twofold duty: (1) to protect the interest of his client and pursue the case briefed to him with the best of his ability and (2) to act as an officer of the court.
As officers of the court, they enjoy a special status in society. However, they also have certain ethical and legal obligations and duties to ensure smooth court functioning. They owe a duty to their clients, the court and their opposite counsel as well. For example, it is the duty of every advocate who has accepted a brief to attend trial, even though it may go on day to day and for a prolonged period. It is also settled law that a lawyer who has accepted a brief cannot refuse to attend court because a boycott call is given by the Bar Association.[14]
3. ITS COMPLEX AND ADVERSARIAL NATURE
The legal profession is characterized by its intricacy, navigating complex legislation, case laws, and regulatory systems. Lawyers often face conflicts with competing interests, ambiguity, and uncertainty in their employment. Adversarial dynamics, such as the opposing counsel’s strategy and judge choices, add to the unpredictability. Advocates have limited control over their surroundings, unlike other professions where the presiding judge controls their work environment.
CONSUMER PROTECTION ACT, 2019 AND THE LEGAL PROFESSION
The Consumer Protection Act 1986, based on a 1985 UN resolution, aimed to protect consumers by establishing councils and authorities for dispute resolution, as stated in its Statement of Objects and Reasons.[15] The 2019 Act expanded protection to include advertising claims, endorsements, and product liability, influencing consumer behavior and retail trends. [16]
Section 1(4) of the Act declares that its provisions will be applicable to all “goods and services”. The definition of “Services” as provided in Section 2(42) of the Act can be broken down into three sections: descriptive, inclusive, and exclusionary section. The descriptive component states that service encompasses ‘any’ type of service obtained by a potential consumer. The inclusive section lists the services included in the Act including banking, financing, insurance, transport, etc. Lastly, the excluding component exempts free-of-charge services and “contracts of personal service”.
The notable feature of the definition is that no profession has been mentioned in the definition, while also not explicitly excluded. Moreover, the entire Act finds no mention of Professions or of the services provided by the professionals like Advocates or doctors.
“Profession” refers to an occupation that a person undertakes because of his or her personal and specialized qualifications, training, or skills.[17] The professional is someone who claims to have special skills. A professional implicitly ensures the person dealing with him that (i) he possesses the expertise that he claims to have, and (ii) that that skill will be utilized with appropriate care and prudence.[18] As pointed out by the court in the current case, it quite evident that professionals cannot be referred to as businessmen or traders, as clients or patients cannot be referred to as consumers. The terms ‘business’ or ‘trade’ with a commercial aspect cannot be used interchangeably with the term ‘Profession’.
CONTRACT BETWEEN ADVOCATE AND CLIENT DEEMED AS ‘CONTRACT OF PERSONAL SERVICE” BY COURT- WHY?
To determine whether the case is of “contract of personal service”, the court in Dharangadhra Chemical Works Ltd. v. State of Saurashtra and Ors.[19] declared that the correct approach would be to examine the nature of work and if it was under the control and supervision of the employer.
To answer this question the Court in the current case shed light on the nature of the contract between the Lawyer and the client. As aptly observed in the Himalayan Cooperative Group Housing Society v. Balwan Singh and Ors[20], the relationship between the lawyer and client is not purely of agent and principle as it shows strong features of a fiduciary relationship. This is because, similar to the Doctor-patient relationship, in the lawyer-client dynamic as well there is a huge knowledge gap between the two, and therefore, the client has to depend on the lawyer and can be easily led astray.
However, on the other hand, lawyers are, as discussed earlier, are tied up in many ethical and legal obligations as well. They cannot act unilaterally, they have to respect the client’s autonomy and make sure to follow the instructions of the client. They are bound by the Bar Council of India Rules, 1975 and the Advocates Act 1961. To put it simply, the advocate decides the path, while the goal is decided by the client.
Therefore, the court deemed the layer-client service contracts to be under this exception of ‘services’ under the CP Act.
SECURING THE FUTURE- WHY WAS THE JUDGMENT NECESSARY?
As discussed above, the entire purpose of the Consumer Protection Act was to provide speedy and cheap remedies to the consumers of different goods and services. It is a piece of legislation made to protect consumer rights, as stated in the Preamble of the Act. Therefore, suing under the Act is very easy and accessible. And while holding lawyers accountable for misconduct is most definitely necessary, making them liable under an Act like the Consumer Protection Act can lead to multiple problems. This ruling will can have the following implications for the Indian legal system-
1. PROTECTING LAWYERS FRIVOLOUS AND VEXATIOUS CLAIMS
To err is to be human. An Advocate’s job is riddled with complexities, and often, there are no definitive answers to questions in law. Allowing claims under the CP Act can give rise to a high number of vexatious claims, seeking, in an essentially unbalanced manner, to re-open, without reason, a matter that a party lost and, by brooding over it, can no longer perceive it in an objective light. [21] Moreover, the threat of lawsuits hanging over the lawyer’s head would significantly dampen the quality of their work. As opined by Mason CJ in Gianarelli v Wraith[22], the existence of such a threat would influence the lawyer’s independent judgment; in order to avoid being sued, they will tempted to pursue every issue in examination, regardless of the outcome, and may result in the subordination of autonomous judgment to the interests of the court and the administration of justice.
2. BRINGING THE FOCUS TO THE ADVOCATES ACT, 1961
The Court put special emphasis on the Advocates Act 1961 along with the Bar Council of India Rules, which are laws specifically made according to the legal profession’s needs. It is an objectively better platform for claims against lawyers, and the clients can seek redress for professional misconduct through State Bar Councils, ensuring accountability within the profession.[23]
3. QUESTIONING THE INCLUSION OF MEDICAL SERVICES UNDER THE CP ACT
Many of the concerns of the court against the inclusion Advocates in the CP Act are also applicable to medical professionals, as the court opined that nothing in the Act expresses the legislator’s intention of including professions under the act. The Court also said that the 3 judge bench verdict in the IMA v. VP Santha case should be revisited by a larger bench, putting a question mark on the previously settled matter.
CONCLUSION
In conclusion, the Supreme Court’s recent judgment excluding advocates from the purview of the Consumer Protection Act underscores the unique nature of the legal profession. This decision resolves a long-standing legal matter and guarantees that advocates may continue to assist their clients and the court system without the danger of unjustified consumer lawsuits, thereby maintaining the delicate balance between professional accountability and effective legal representation. As Justice Robert H. Jackson once said, “The strength of the legal profession lies in its dedication to the pursuit of justice, even in the face of adversity.” This sentiment is echoed the court’s decision, highlighting the profession’s commitment to maintaining its integrity and ethical standards.
However, it also raises questions about the inclusion of other professions under the CP Act. Future research should examine how this ruling may affect legal practice and client relations in the long run and any changes that could be made to better strike a balance between consumer rights and professional accountability. It’s essential to keep talking about the best ways to safeguard the profession’s integrity as well as the interests of people it serves as the legal landscape changes. In the end, this ruling marks a turning point for the legal community, reiterating the profession’s admirable social role and vital part in the legal system.
[1] Rudransh Sharma et al, History Of Legal Profession In India, ACADEMIKE ( Nov. 13, 2014), History Of Legal Profession In India – Academike (lawctopus.com).
[2] Joseph D. Jamail, Advocacy and Lawyers and Their Role, 47 BAYLOR L. REV. 1157 (1995).
[3] B.S Venugopal, Civil Liability of Lawyers for deficiency in services: A Critical Analysis, 53 JILI 275, 275-276 (2011).
[4] Srimathi and Ors. v. The Union of India and Ors, AIR 1996 Mad 427.
[5] K. Rangaswamy v. Jaya Vittal , I (1991) CPJ 685 (NC).
[6] Indian Medical Association v. V.P. Shanth, (1995) 6 SCC 651.
[7] Jeet Singh Mann, Liability of the Legal Practitioners for Professional Negligence: A Critical Analysis, 51 JILI 385, 390-392 (2009).
[8] Gurjeet Singh, Consumer Protection Act 1986 and Legal Profession in India: Some New Developments, 41 JILI 56, 64-65 (1999).
[9] Bar Of Indian Lawyers Through Its President Jasbir Sigh Malik Vs. D.K.Gandhi PS National Institute Of Communicable Diseases, 2024 INSC 410.
[10] Sangeeta Taak & Rudraditya Panwar, Advocates Beyond Consumer Law: Supreme Court Reshapes Legal Accountability in India, THE ECONOMIC TIMES ( Jun. 7, 2024, 12:33 AM), Advocates Beyond Consumer Law: Supreme Court Reshapes Legal Accountability in India, ET LegalWorld (indiatimes.com).
[11] Consumer Protection Act, 2019, § 2, No. 35, Acts of Parliament, 2019 (India)
[12] Neeraj Sharma, Ethical Lawyering: A Way to Uphold the Nobility of the Legal Profession, 4 INT’l J.L. MGMT. & HUMAN. 488 (2021).
[13] Deepak Aggarwal v. Keshav Kaushik, (2013) 5 SCC 277.
[14] Common Cause v. Union of India, (2006) 9 SCC 295.
[15] RK BANGIA, THE LAW OF TORTS 685 (26th ed. 2023)
[16] Kalyan Jhabakh et al, Consumer Protection Act 2019 – A Comprehensive Analysis ( Sept. 14, 2020, 5:47 PM),Consumer Protection Act 2019 – A Comprehensive Analysis (livelaw.in)
[17] Sodan Singh v. New Delhi Municipal Committee, (1989) 4 SCC 155.
[18] Martin F. D’Souza v. Mohd. Ishfaq, (2009) 3 SCC 1.
[19] Dharangadhra Chemical Works Ltd. v. State of Saurashtra and Ors., MANU/SC/0071/1956.
[20] Himalayan Cooperative Group Housing Society v. Balwan Singh and Ors., MANU/SC/0609/2015.
[21] MANN, supra note 8.
[22] Gianarelli v Wraith, [1988] HCA 52.
[23] Rupin Chopra & Shantam Sharma, Supreme Court’s Landmark Judgment: Applicability of the Consumer Protection Act, 2019 on Advocates, S.S. RANA&CO. (June 6, 2024), Supreme Court’s Landmark Judgment: Applicability of the Consumer Protection Act, 2019 on Advocates – S.S. Rana & Co. (ssrana.in)
Author: Nandika Agarwal
Juris Centre 