# Bar of Indian Lawyers Through its President Jasbir Singh Malik v. D. K. Gandhi PS National Institute of Communicable Diseases and Anr

- **Citation:** 2024 INSC 410
- **Court:** Supreme Court of India
- **Decided:** 2024-05-14
- **Case number:** Civil Appeal No. 2646 of 2009
- **Bench:** Bela M. Trivedi, Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bar-of-indian-lawyers-through-its-president-jasbir-singh-malik-v-d-k-gandhi-ps-37747
- **Pages:** 46

## Headnote

Matter pertains to whether a complaint alleging "deficiency in
service" against advocates practising legal profession, would be
maintainable under the Consumer Protection Act, 1986 as reenacted in 2019; whether "Service" hired or availed of an advocate
would fall within the definition of "Service" contained in the C.P.
Act, 1986/2019; whether the legislature ever intended to include
the professions or services rendered by the professionals within
the purview of the CP Act 1986 as re-enacted in 2019; whether the
legal profession is sui generis; and whether service hired or availed
of an advocate could be said to be the service under "contract of
personal service" so as to exclude it from the definition of "Service"
contained in s. 2(42) of the CP Act 2019.
Headnotes†
Consumer Protection Act, 1986 - Consumer Protection Act,
2019 - Complaint alleging "deficiency in service" against
Advocates practising Legal Profession - Maintainability -
District Forum held that it had the jurisdiction to adjudicate
upon the dispute between the parties and decided the
complaint in favour of the complainant - However, the State
Commission held that the services of lawyers/advocates did
not fall within the ambit of "service" defined u/s. 2(1)(o) of
the 1986 Act - In Revision, the National Commission held
inter alia that if there was any deficiency in service rendered
by the Advocates/Lawyers, a complaint under the 1986 Act
would be maintainable - Correctness:
Held: Services hired or availed of an Advocate would be that of
a contract 'of personal service' and would thus, stand excluded
from the definition of "service" contained in the s. 2(42) of the CP
[2024] 6 S.C.R.
485
Bar of Indian Lawyers Through its President Jasbir Singh Malik v.
D. K. Gandhi PS National Institute of Communicable Diseases and Anr.
Act, 2019 - In view thereof, the complaint alleging "deficiency in
service" against Advocates practising legal profession would not
be maintainable under the CP Act, 2019 - Thus, the impugned
judgment passed by the National Commission set aside [Paras
42, 43] - Held: Per Pankaj Mithal, J. (Concurring) In the era of
globalization, a law has to be applied in context with the prevailing
situation of the country, nonetheless, on the basis of the common
resolution of the UNO, laws must have a uniform application in
all nations - It is, thus, essential that the consumer protection
laws in all countries may somewhat have universal application
and be confined to 'consumers' only i.e. to the persons who buys
any goods for consideration or hires or avails of any service
for consideration, impliedly excluding the professional services
especially that of a lawyer - In doing so, in India also the services of
professionals more particularly that of lawyers have to be excluded
from consumer protection law in accordance with the intention
expressed in enacting the same - Legislature in India as in some
other countries, had not intended to include the services rendered
by the professionals especially the lawyers to their client within
the purview of CP Act, 1986 and re-enacted in 2019 - Thus, the
view taken by the National Commission that complaint would be
maintainable in CP Act, 1986, in respect of deficiency in service
rendered by the lawyers, is incorrect and is set aside. [Paras 24-28]
Consumer Protection Act, 1986 - Consumer Protection Act,
2019 - Legislature, if intended to include the Professions or
services rendered by the Professionals within the purview
of the CP Act 1986/2019:
Held: The very purpose and object of the CP Act 1986 as reenacted in 2019 was to provide protection to the consumers from
unfair trade practices and unethical business practices - Legislature
never intended to include either the Professions or the services
rendered by the Professionals within the purview of the said Acts
- Other object of the Act was to provide to the consumers timely
and effective administration and settlement of their disputes arising
out of the unfair trade a

## Text

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* Author
[2024] 6 S.C.R. 484 : 2024 INSC 410
Bar of Indian Lawyers Through its President
Jasbir Singh Malik
v.
D. K. Gandhi PS National Institute of
Communicable Diseases and Anr.
(Civil Appeal No. 2646 of 2009)
14 May 2024
[Bela M. Trivedi* and Pankaj Mithal,* JJ.]
Issue for Consideration
Matter pertains to whether a complaint alleging "deficiency in
service" against advocates practising legal profession, would be
maintainable under the Consumer Protection Act, 1986 as reenacted in 2019; whether "Service" hired or availed of an advocate
would fall within the definition of "Service" contained in the C.P.
Act, 1986/2019; whether the legislature ever intended to include
the professions or services rendered by the professionals within
the purview of the CP Act 1986 as re-enacted in 2019; whether the
legal profession is sui generis; and whether service hired or availed
of an advocate could be said to be the service under "contract of
personal service" so as to exclude it from the definition of "Service"
contained in s. 2(42) of the CP Act 2019.
Headnotes†
Consumer Protection Act, 1986 - Consumer Protection Act,
2019 - Complaint alleging "deficiency in service" against
Advocates practising Legal Profession - Maintainability -
District Forum held that it had the jurisdiction to adjudicate
upon the dispute between the parties and decided the
complaint in favour of the complainant - However, the State
Commission held that the services of lawyers/advocates did
not fall within the ambit of "service" defined u/s. 2(1)(o) of
the 1986 Act - In Revision, the National Commission held
inter alia that if there was any deficiency in service rendered
by the Advocates/Lawyers, a complaint under the 1986 Act
would be maintainable - Correctness:
Held: Services hired or availed of an Advocate would be that of
a contract 'of personal service' and would thus, stand excluded
from the definition of "service" contained in the s. 2(42) of the CP
[2024] 6 S.C.R.
485
Bar of Indian Lawyers Through its President Jasbir Singh Malik v.
D. K. Gandhi PS National Institute of Communicable Diseases and Anr.
Act, 2019 - In view thereof, the complaint alleging "deficiency in
service" against Advocates practising legal profession would not
be maintainable under the CP Act, 2019 - Thus, the impugned
judgment passed by the National Commission set aside [Paras
42, 43] - Held: Per Pankaj Mithal, J. (Concurring) In the era of
globalization, a law has to be applied in context with the prevailing
situation of the country, nonetheless, on the basis of the common
resolution of the UNO, laws must have a uniform application in
all nations - It is, thus, essential that the consumer protection
laws in all countries may somewhat have universal application
and be confined to 'consumers' only i.e. to the persons who buys
any goods for consideration or hires or avails of any service
for consideration, impliedly excluding the professional services
especially that of a lawyer - In doing so, in India also the services of
professionals more particularly that of lawyers have to be excluded
from consumer protection law in accordance with the intention
expressed in enacting the same - Legislature in India as in some
other countries, had not intended to include the services rendered
by the professionals especially the lawyers to their client within
the purview of CP Act, 1986 and re-enacted in 2019 - Thus, the
view taken by the National Commission that complaint would be
maintainable in CP Act, 1986, in respect of deficiency in service
rendered by the lawyers, is incorrect and is set aside. [Paras 24-28]
Consumer Protection Act, 1986 - Consumer Protection Act,
2019 - Legislature, if intended to include the Professions or
services rendered by the Professionals within the purview
of the CP Act 1986/2019:
Held: The very purpose and object of the CP Act 1986 as reenacted in 2019 was to provide protection to the consumers from
unfair trade practices and unethical business practices - Legislature
never intended to include either the Professions or the services
rendered by the Professionals within the purview of the said Acts
- Other object of the Act was to provide to the consumers timely
and effective administration and settlement of their disputes arising
out of the unfair trade and unethical business practices - If the
services provided by all the Professionals are also brought within
the purview of the Act, there would be flood-gate of litigations
in the commissions/forums established under the Act, and the
very object of Act would be frustrated - Legislative draftsmen
are presumed to know the law and there is no reason to assume
that the legislature intended to include the Professions or the
486
[2024] 6 S.C.R.
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Professionals or the services provided by them within the ambit
of the CP Act - Any interpretation of the Preamble or the scheme
of the Act for construing 'Profession' as 'Business' or 'Trade'; or
'Professional' as 'service provider' would be extending the scope
of the Act which was not intended, rather would have a counter
productive effect. [Paras 42, 19, 20, 18]
Legal Profession - Legal Profession is sui generis or is
different from the other Profession:
Held: Having regard to the role, status and duties of the Advocates
as the professionals, the legal profession is sui generis i.e unique in
nature and cannot be compared with any other profession - Legal
profession is different from the other professions for the reason that
what the Advocates do, affects not only an individual but the entire
administration of justice, which is the foundation of the civilized
society - Legal profession is a solemn and serious profession,
and has always been held in very high esteem - Their services
in making the judicial system efficient, effective and credible, and
in creating a strong and impartial Judiciary, which could not be
compared with the services rendered by other professionals [Paras
42, 30] - Held: Per Pankaj Mithal, J. (Concurring) Profession of
law, as such, is regarded as sui generis i.e. which is unique - It is
distinct from all other professions and is one of its own kind. [Para 3]
Consumer Protection Act, 2019 - s. 2(42) - Service hired or
availed of an Advocate, if could be said to be the service
under a "contract of personal service" so as to exclude it
from the definition of "Service" contained in s. 2(42):
Held: Service hired or availed of an Advocate is a service under
"a contract of personal service," and thus, would fall within the
exclusionary part of the definition of "Service" contained in s.
2(42) - Greater the amount of direct control exercised over the
person rendering the services by the person contracting for them,
the stronger would be the grounds for holding it to be a "contract
of service" - Considerable amount of direct control is exercised
by the Client over the manner in which an Advocate renders his
services during the course of his employment. [Paras 42, 39, 41]
Reference to larger Bench - Three-Judge Bench decision in
*Indian Medical Association vs. V.P. Shantha & Others holding
inter alia that the wide amplitude of the definition of 'service' in
the main part of s. 2(1)(o) of the Consumer Protection Act, 1986
[2024] 6 S.C.R.
487
Bar of Indian Lawyers Through its President Jasbir Singh Malik v.
D. K. Gandhi PS National Institute of Communicable Diseases and Anr.
would cover the services rendered by Medical Practitioners
within the said s. 2(1)(o) of the Act - Correctness:
Held: Having regard to the history, object, purpose and the
scheme of the CP Act and that neither the "Profession" could
be treated as "business" or "trade" nor the services provided
by the "Professionals" could be treated at par with the services
provided by the Businessmen or the Traders, so as to bring them
within the purview of the CP Act, the decision in *Indian Medical
Association vs. V.P Shantha's case to be revisited and considered
by a larger bench - Thus, matter referred to Hon'ble the Chief
Justice of India for consideration - Supreme Court Rules - Order
VI r 2. [Paras 21, 24]
Consumer Protection Act, 1986 - Consumer Protection Act,
2019 - Scope and object of - Intention of the legislature:
Held: The said Act was enacted to provide for the better protection
of the interests of the consumers against their exploitation by the
traders and manufacturers of the consumer goods, and to help
consumers in getting justice and fair treatment in the matter of
goods and services purchased and availed by them in a market
dominated by large trading and manufacturing bodies - Reasons
for re-enacting the CP Act, 2019 by the Legislature, were certain
shortcomings found in the CP Act 1986 while administering the
said Act, and due to the emergence of global supply chains, rise in
international trade and rapid development of ecommerce leading to
new systems for goods and services, new options and opportunities
had become available to the consumers - New forms of unfair
trade and unethical business practices also came to be developed,
which made the consumers more vulnerable - Furthermore, there
was not a whisper in the statement of objects and reasons either
of the CP Act, 1986 or 2019 to include the Professions or the
Services provided by the Professionals like Advocates, Doctors
etc. within the purview of the Act - Professionals could not be
called Businessmen or Traders, nor Clients or Patients be called
Consumers. [Paras 12, 14, 15]
Words and phrases - Definition of term "Profession" -
Meaning and explanation of:
Held: "Profession" would require advanced education and training
in some branch of learning or science - Nature of work is also
skilled and specialised one, substantial part of which would be
488
[2024] 6 S.C.R.
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mental rather than manual - Thus, having regard to the nature
of work of a professional, which requires high level of education,
training and proficiency and which involves skilled and specialized
kind of mental work, operating in the specialized spheres, where
achieving success would depend upon many other factors beyond
a man's control, a Professional cannot be treated equally or at
par with a Businessman or a Trader or a Service provider of
products or goods as contemplated in the Consumer Protection
Act - Similarly, services rendered by Businessman or Trader
to consumers with regard to his goods or products cannot be
equated with the Services provided by Professional to his clients
with regard to his specialized branch of profession. [Paras 15, 18]
Legal profession - Justice Delivery System and the evolving
jurisprudence - Role of Advocates:
Held: Legal profession cannot be equated with any other traditional
professions - It is not commercial in nature but is essentially
a service oriented, noble profession - Role of Advocates is
indispensable in the Justice Delivery System - Evolution of
jurisprudence to keep the Constitution vibrant is possible only
with the positive contribution of the Advocates - Advocates are
expected to be fearless and independent for protecting the rights
of citizens, for upholding the Rule of law and also for protecting
the Independence of Judiciary - People repose immense faith in
the Judiciary, and the Bar being an integral part of the Judicial
System has been assigned a very crucial role for preserving the
independence of the Judiciary, and in turn the very democratic set
up of the Nation - Advocates are perceived to be the intellectuals
amongst the elites and social activists amongst the downtrodden,
thus are expected to act with utmost good faith, integrity, fairness
and loyalty while handling the legal proceedings of his client -
Being a responsible officer of the court and an important adjunct
of the administration of justice, an Advocate owes his duty not only
to his client but also to the court as well as to the opposite side
[Para 29] - Held: Per Pankaj Mithal, J. (Concurring) Profession
of law is a noble profession having an element of duty towards
the court - Lawyers perform multi-faceted duties - They not
only have a duty towards the client or their opponents but they
have a paramount duty to assist the court as well - In a way,
they are officers as well as ambassadors of the court - Thus, in
rendering such kind of a duty to enable the courts to come to a
[2024] 6 S.C.R.
489
Bar of Indian Lawyers Through its President Jasbir Singh Malik v.
D. K. Gandhi PS National Institute of Communicable Diseases and Anr.
just conclusion, it may be possible that at times, the lawyers may
earn displeasure of the client while assisting the court. [Para 2]
Advocates Act, 1961 - Advocate - Legal Practitioner -
Definition of, and explanation:
Held: Advocate is included in the definition of "Legal Practitioner"
but legal practitioner is not included in the definition of Advocate
- Advocate is one who has been entered in any roll under the
provisions of the Advocates Act - Law relating to legal practitioners
and to provide for the constitution of Bar Councils and an All-India
Bar is covered under the Advocates Act, 1961 - As per s. 29, there
is only one class of persons entitled to practice the profession of law,
namely Advocates, and as per s. 30, every advocate whose name is
entered in the State roll is entitled as of right to practice in all Courts
including the Supreme Court and before any Tribunal or any other
authority or person before whom such advocate is by or under any
law for the time being in force entitled to practice - Comprehensive
provisions are contained in the Advocates Act, 1961 and the Bar
Council of India Rules to take care of the professional misconduct of
the Advocates, and prescribing the punishments if they are found guilty
of professional or other misconduct by the Disciplinary Committees
of the State Bar Council or the Bar Council of India. [Para 34]
Consumer Protection Act, 1986 - s. 2(1)(o) - Consumer
Protection Act, 2019 - s. 2(42) - Definition of "Service"
contained in s. 2(1)(o) of the CP Act 1986 and in s. 2(42) of
the CP Act 2019 - Elucidation:
Held: Definition of "Service" contained in s. 2(1)(o) of the CP Act
1986 and in s. 2(42) of the CP Act 2019 is the same - Definition
of 'service' is divided into three parts-first part is explanatory in
nature and defines service to mean service of any description
which is made available to the potential users; the second part
is inclusionary part, which expressly includes the provision of
facilities in connection with the specific services; and the third part
is exclusionary part which excludes rendering of any service free
of charge or under a contract of personal service. [Paras 35, 37]
Consumer Protection Act, 1986 - s. 2(1)(g) - Consumer
Protection Act, 2019 - s. 2(11) - Definition of 'Deficiency' in
s. 2(1)(g) of 1986 Act and s. 2(11) of 2019 Act:
Held: There is slight difference in the definition of 'Deficiency' in
s. 2(1)(g) of 1986 Act and s. 2(11) of 2019 Act. [Para 36]
490
[2024] 6 S.C.R.
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Advocates - Relationship between an Advocate and his
Client - Nature of control - Unique attributes:
Held : Advocates are generally perceived to be their client's agents
and owe fiduciary duties to their clients - Advocates are fastened
with all the traditional duties that agents owe to their principals -
Advocates have to respect the client's autonomy to make decisions
at a minimum, as to the objectives of the representation - Advocates
are not entitled to make concessions or give any undertaking to the
Court without express instructions from the Client - It is the solemn
duty of an Advocate not to transgress the authority conferred on him
by his Client - Advocate is bound to seek appropriate instructions
from the Client or his authorized agent before taking any action
or making any statement or concession which may, directly or
remotely, affect the legal rights of the Client - Advocate represents
the client before the Court and conducts proceedings on behalf of
the client - He is the only link between the court and the client -
Thus, his responsibility is onerous - He is expected to follow the
instructions of his client rather than substitute his judgment - Thus,
a considerable amount of direct control is exercised by the Client
over the manner in which an Advocate renders his services during
the course of his employment. [Para 41]
Consumer Protection Laws - Exclusion of lawyers from
Consumer Protection Laws - International practice/norms -
Discussed. [Paras 6-9, 13-15, 17, 24] Per Pankaj Mithal, J.
(Concurring)
Case Law Cited
In the judgment of Bela M. Trivedi, J.
Indian Medical Association v. V.P. Shantha & Others
[1995] Supp. 5 SCR 110 : (1995) 6 SCC 651 - To be
revisited.
State of Karnataka v. Vishwabharathi House Building
Coop. Society and Others [2003] 1 SCR 397 : (2003)
2 SCC 412; Common Cause, A Registered Society v.
Union of India and Others [1993] 1 SCR 10 : (1997) 10
SCC 729; Lucknow Development Authority v. M.K. Gupta
[1993] Supp. 3 SCR 615 : (1994) 1 SCC 243; Laxmi
Engineering Works v. P.S.G. Industrial Institute [1995]
3 SCR 174 : (1995) 3 SCC 583; State of West Bengal
[2024] 6 S.C.R.
491
Bar of Indian Lawyers Through its President Jasbir Singh Malik v.
D. K. Gandhi PS National Institute of Communicable Diseases and Anr.
v. Subodh Gopal Bose & Others [1954] 1 SCR 587 :
AIR 1954 SC 92; Triveniben v. State of Gujarat [1989] 1
SCR 509 : (1989) 1 SCC 678; Byram Pestonji Gariwala
v. Union Bank of India and Others [1991] Supp. 1 SCR
187 : (1992) 1 SCC 31; R. Muthukrishnan v. Registrar
General, High Court of Judicature at Madras [2019] 1
SCR 589 : (2019) 16 SCC 407; State of U.P and Others
v. U.P. State Law Officers Association and Others [1994]
1 SCR 348 : (1994) 2 SCC 204; Dharangadhra Chemical
Works Ltd. v. State of Saurashtra and Others [1957] 1
SCR 152 : AIR 1957 SC 264; Himalayan Cooperative
Group Housing Society v. Balwan Singh and Others
[2015] 4 SCR 616 : (2015) 7 SCC 373 - referred to.
Simmons v. Heath Laundry Company (1924) 1 KB
762 - referred to.
In the judgment of Pankaj Mithal, J.
Om Prakash v. Assistant Engineer, Haryana Agro
Industries Corporation Ltd. and Anr. [1994] 3 SCR
463: (1994) 3 SCC 504; Laureate Buildwell (P) Ltd. v.
Charanjeet Singh [2021] 6 SCR 673 : (2021) 20 SCC
401 - referred to.
D'Orta-Ekenaike v. Victoria Legal Aid (2005) 223 CLR 1.
Books and Periodicals Cited
In the judgment of Bela M Trivedi, J.
Black's Law Dictionary, 11th Edition; "Jackson and
Powell on Professional Liability" 2nd supplement to the
7th edition - referred to.
List of Acts
Consumer Protection Act, 1986; Consumer Protection Act, 2019;
Legal Practitioners Act, 1879; Bombay Pleaders Act, 1920; Indian
Bar Councils Act, 1926; Advocates Act, 1961; Supreme Court Rules.
List of Keywords
Deficiency in service; Service hired or availed of an Advocate;
Definition of Service; Professions or services rendered by the
Professionals; Legal Profession, sui generis; Service under contract
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of personal service; Unfair trade practices and unethical business
practices; Timely and effective settlement of consumers' disputes;
'Profession' as 'Business' or 'Trade'; 'Professional' as 'service
provider'; Exclusionary part of the definition of "Service"; Reference
to larger Bench; Decision to be revisited; Justice Delivery System;
Role of Advocates; Independence of Judiciary; Relationship
between an Advocate and his Client; International practices; Duty
of advocates/lawyers towards the court.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2646 of 2009
From the Judgment and Order dated 06.08.2007 of the National
Consumers Disputes Redressal Commission, New Delhi in RP
No.1392 of 2006
With
Civil Appeal Nos. 2647, 2648 and 2649 of 2009, Civil Appeal No. 6959
of 2011 and Civil Appeal No. 8214 of 2017
Appearances for Parties
Guru Krishna Kumar, Narender Hooda, Manoj Swarup, Rakesh
Tikku, V. Giri, Jaideep Gupta, Shekhar Naphade, Dr. Adish C.
Aggarwala, Sukumar Pattjoshi, Arijit Prasad, Jayant Bhushan,
Dinesh Kumar Goswami, S. Wasim Ahmed Quadri, Vikas Singh,
Ramkrishna Viraragvan, Vivek Subba Reddy, V.K. Singh, Sr. Advs.,
Ashok Kumar Singh, Shantwanu Singh, Ms. Pragya Singh, Akshay
Singh, Rahul Dubey, Daya Krishan Sharma, D K Sharma, Rohit
Vats, Yashdeep, Akshay Amritanshu, Samyak Jain, Ayush Raj, Ankit
Swarup, Neelmani Pant, Ms. Apoorva Singh, Rishi Bhargava, Ms.
Yashvi Aswani, Jasbir Singh Malik, Ms. Chandni Sharma, Shaurya
Lamba, Varun Punia, K. Maruthi Rao, Mrs. Anjani Aiyagari, Gaurav
Yadava, Mohinder Jit Singh, Hardik Rupal, Satyam Aneja, Ms.
Suveni Bhagat, Ms. Vishwaja Rao, Rahul Narang, Harshed Sundar,
Nihar Dharmahikari, Shubham Rana, Piyush Goel, Mrs. Sunita
Sharma, Ms. N. Annapoorani, Devvrat, Manoj K. Mishra, Snehashish
Mukherjee, Ms. Rashmi Malhotra, Puneet Singh Bindra, Sachin
Sharma, Ms. Harshita Sharma, Ms. Sachita Chawla, Ms. Swati
Setia, Devesh Kumar Agnihotri, Rohit Pandey, Meenesh Kumar
Dubey, Ms. Yugandhara Pawar Jha, Amrendra Kumar Singh, Vibhu
Shanker Mishra, Kumar Gaurav, Shashank Shekhar, Vikas Gupta,
[2024] 6 S.C.R.
493
Bar of Indian Lawyers Through its President Jasbir Singh Malik v.
D. K. Gandhi PS National Institute of Communicable Diseases and Anr.
Pratap Venugopal, Chanchal Kumar Ganguli, Manish Goswami,
Upendra Mishra, Ratnesh Kumar, Meghraj Singh, Pradeep Kumar
Yadav, Pankaj Kumar, Pankaj Singh, Munawwar Naseem, Siddharth,
Mukes Kumar, Subhendu Adikari, Siddharth Batra, Rhythm Katyal,
Ms. Archna Yadav, Chinmay Dubey, Ms. Shivani Chawla, Pratyush
Arora, Ashutosh Chugh, Rajesh Srivastava, Gaurav Verma, M/S.
Krishna & Nishani Law Chambers, Anil C Nishani, H. M. Harish,
Krishna M Singh, Nikhil Jain, Rajiv Kumar, K Krishna Kumar, Vishwesh
R Murnal, P. Prasanna Kumar, Ajit Achappa, Kiran Kumar, Hitesh
Kumar Sharma, S.K. Rajora, Akhileshwar Jha, Amit Kumar Chawla,
Sandeep Singh Dhingra, Ms. Niharika Dewivedi, Ms. Priya Singh,
Sanjay Singh, Ms. Kavita Singh, Advs. for the appearing parties.
Petitioner-in-person
Respondent-in-person
Judgment / Order of the Supreme Court
Judgment
Bela M. Trivedi, J.
1.
An important question of law pertaining to the Legal Profession as a
whole that has fallen for consideration before this Court is - whether a
complaint alleging "deficiency in service" against Advocates practising
Legal Profession, would be maintainable under the Consumer
Protection Act, 1986 as re-enacted in 2019? In other words, whether
a "Service" hired or availed of an Advocate would fall within the
definition of "Service" contained in the C.P. Act, 1986/2019, so as
to bring him within the purview of the said Act?
2.
The present set of Appeals emanate from the impugned order dated
06.08.2007 passed by the National Consumer Disputes Redressal
Commission (NCDRC), New Delhi in Revision Petition No.1392/2006,
in which the NCDRC has held inter alia that if there was any deficiency
in service rendered by the Advocates/Lawyers, a complaint under
the Consumer Protection Act, 1986 (for short "CP Act, 1986") would
be maintainable.
FACTUAL MATRIX
3.
The short facts in C.A. No.2649/2009, arising out of the impugned
order passed by the NCDRC are that: -
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(i)
The appellant is an Advocate by profession. The respondent
Mr. D.K. Gandhi had hired the services of the appellant as an
advocate for filing a Complaint in the Court of Metropolitan
Magistrate, Tis Hazari Court, Delhi, against one Kamal Sharma
under Section 138 of the Negotiable Instruments Act, as the
cheque for Rs.20,000/- issued by the said Kamal Sharma in
favour of the respondent D.K. Gandhi was dishonoured.
(ii) During the course of the said complaint case, the accused
Mr. Sharma agreed to pay the sum of Rs.20,000/- for the
dishonoured cheque besides Rs.5,000/- as the expenses
incurred by the complainant. It was alleged by the respondent
(complainant) that though the appellant had received from the
accused Mr. Sharma the DD/pay order for Rs.20,000/- and
the crossed cheque of Rs.5,000/- on behalf of the respondent,
the appellant did not deliver the same to the respondent and
instead demanded Rs.5,000/- in cash from the respondent.
The appellant also filed a suit for recovery of Rs.5,000/- in the
court of Small Causes, Delhi raising a plea that the sum was
due to him as his fees. Subsequently, the appellant gave the
DD/pay order for Rs.20,000/- and cheque for Rs.5,000/- to the
respondent, however, the payment of cheque for Rs.5,000/-
was stopped by the accused Mr. Sharma at the instance of the
appellant. The respondent therefore filed a complaint before the
District Consumer Disputes Redressal Forum, Delhi seeking
compensation of Rs. 15,000/- in addition to the amount of
cheque of Rs.5,000/-, as also Rs.10,000/- for the mental agony
and harassment along with the cost. The appellant resisted
the said complaint by filing a reply on 03.03.1998 raising a
preliminary objection to the effect that the District Consumer
Forum had no jurisdiction to adjudicate the dispute raised in
the complaint as the Advocates were not covered under the
provisions contained in the CP Act.
(iii) The District Forum, however, rejected the said preliminary
objection, holding that it had the jurisdiction to adjudicate
upon the dispute between the parties and further decided the
complaint in favour of the respondent. The appellant being
aggrieved by the said order had filed an appeal before the State
Commission, which by the order dated 10.03.2006 allowed the
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same holding that the services of lawyers/advocates did not
fall within the ambit of "service" defined under section 2(1)(o)
of the CP Act, 1986. The NCDRC, however in the Revision
Application preferred by the respondent passed the impugned
order as stated hereinabove.
(iv) Being aggrieved by the said impugned order passed by the
NCDRC, the present set of appeals has been filed by the Bar of
Indian Lawyers, Delhi High Court Bar Association, Bar Council
of India, and by the appellant M. Mathias.
SUBMISSIONS
4.
Since the issues involved in this batch of Appeals pertain to the
Advocates practising in the various courts/tribunals and other legal
forums of the country, a wide range of arguments were advanced
before us. Having regard to the significance and sensitivity of the
issues involved, we had appointed the learned Senior Advocate, Mr.
V. Giri as an Amicus Curiae to assist the Court.
5.
The broad submissions made by the learned Senior Counsels Mr.
Narender Hooda, Mr. Guru Krishna Kumar, Mr. Manoj Swarup, Mr.
Manan Mishra, Mr. Jaideep Gupta, Mr. Shekhar Naphade, Mr. Vikas
Singh and learned counsel, Mr. D.K. Sharma may be summarized
as under: -
(i)
The Advocates Act, 1961 is a law dealing exclusively with the
legal profession which provides a robust mechanism laying
down professional standards for compliance and for determining
professional misconduct.
(ii) The legal profession is a noble profession and not a business
or trade. It is an extension of system of justice, and the success
of judicial process depends on the independence of the Bar.
Hence, its autonomy is needed to preserve the democracy and
to keep judiciary strong.
(iii) A unique feature which distinguishes an Advocate from other
professional is that an Advocate has a duty to the court and
his peers, in addition to his duty to the client. He is not mere
a mouthpiece but he has to exercise his own judgment for
upholding the interest of his client by all fair, legal and reasonable
means, and by being respectful to the court.
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(iv) The Bar Council of India and State Bar Councils are invested
with the disciplinary powers. An error of judgment or mere
negligence may not be a professional misconduct. In any
case, the professional misconduct which subsumes cases of
negligence, which is covered by the special law i.e., Advocates
Act, 1961.
(v) The Advocates Act being special law would prevail over the CP
Act so far as the conduct of Advocates are concerned.
(vi) The law of negligence recognizes that a professional would
be held liable in a civil action for negligence and includes
professionals of varied fields who possess special skill in that
profession generally.
(vii) The legal professionals in United Kingdom can be sued for
negligence by a way of regular civil action, however they would
not be liable under the law dealing with consumer rights for
trade/commercial activities.
(viii) Allowing consumer protection law to apply to the Advocates
would open floodgates of unnecessary litigations and it would
not be in the larger public interest to do so. It would also lead
to multiple proceedings before multiple forums, reagitation of
issues decided by a judicial body including the Supreme Court
with potentially conflicting decisions.
(ix) The summary nature of proceeding under the consumer
protection law with its accent on inexpensive and speedy
remedy (though enacted with laudable objects for protection
of consumers against trade and commercial activities), can
become an easy tool for disgruntled litigants to knock at the
doors of the consumer forums against the advocates. It would
lead to speculative/vexatious claims, rather than seeking
relief in respect of bona fide grievances against professional
misconduct.
(x) The legal profession is recognized as sui generis and stands
out among other profession due to its distinctive nature, where
the lawyers often find themselves operating in an environment
where control is elusive. Unlike many other professions where
practitioners may have a higher degree of control over their
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surroundings, the lawyers frequently navigate through complex
legal landscapes shaped by diverse factors.
(xi) One of the primary distinctions of legal profession is the inherent complexity of legal issues. Lawyers must grapple with
intricate statutes, case laws and regulatory frameworks, which
often lack definitive answers. Legal disputes frequently involve
multiple parties with conflicting interests, further complicating
the matters. Unlike some other professions where problems
may have more straightforward solutions, the lawyers often
face ambiguity and uncertainty in their work, making control
over outcomes elusive.
(xii) The adversarial dynamics have an element of unpredictability, as
outcomes depend not only on the lawyer's skill and knowledge
but also on the strategies employed by opposing counsel and
the decisions of judges.
(xiii) Lawyers are bound by ethical and professional obligations that
constrain their autonomy and control over their work. Adherence
to the codes of conduct, client confidentiality, and obligations
to the court limit the freedom of lawyers to act solely in their
own interest or according to their preferences.
(xiv) Unlike any other profession, where professionals are in
control of their surrounding fully, legal profession is the sole
profession, where advocates have no control over their environment. The environment they work in is controlled by the
presiding Judge.
(xv) The Bar Council of India Rules prescribe at least four sets of
duty that a lawyer has to oblige, viz., Duty to the Court, Duty
to the Client, Duty to Opponent and Duty to Colleagues, in
no particular order. These duties are sometimes conflicting in
nature, however whenever a conflict arises, the duty to court
is considered to be paramount.
(xvi) Unlike the medical profession, where scientific standards exist
to decide the standard of care, there is no universal standard
of care or objective test that exists or can be prescribed as the
threshold in the case of legal profession to adjudicate upon the
question of abdication of duty to care.
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(xvii) Distinguishing the decision of this Court in Indian Medical
Association vs. V.P. Shantha & Others1, it was sought to
be submitted that there is a fundamental difference between
the practice of law and the practice of medicine, as also the
difference in the nature of professional-client relationship.
The complexity of legal issues, and the diversity of legal
contexts also would take the legal services rendered by
the Advocates outside the purview of the services defined
under the CP Act.
6.
The learned Senior Advocate Mr. V. Giri - Amicus Curiae, submitted
that the Advocates can be broadly classified into two categories
based on the terms of their engagement and the nature of work
being done by them for their clients - (1) Advocates engaged by
clients to conduct their cases and then represent them before any
court, tribunal or other forum, on the strength of a vakalatnama
and (2) Advocates engaged by clients to provide their professional
expertise for providing legal opinions, issuing legal notices, drafting
agreements, etc. He submitted that the first category of advocates
would not come within the purview of a service provider under the
CP Act, as in that case the advocate acts as a representative or
agent of the client. He further submitted that it is open to a party to
plead and appear in person in the court, however when he executes
a vakalatnama, he chooses to engage an Advocate as his agent,
and the acts and statements of the advocate, in the course of his
duties in the matter, are like the acts and statements of the principal
i.e., the client himself. Such relationship cannot be equated to that
of a "service provider" and a "consumer" as contemplated in the
CP Act. However, the Amicus Curiae Mr. Giri fairly submitted that
in the second category of Advocates i.e., the Advocates who are
engaged by the clients outside the precincts of the court and outside
the litigation process i.e., who are not engaged on the strength of a
vakalatnama but engaged to provide legal services outside the court
process, would come within the purview of a service provider, and
any deficiency or shortcoming in the professional services rendered
by such Advocates, completely outside the confines of the litigation
process, would be covered under the CP Act.
1
[1995] Supp. 5 SCR 110 : (1995) 6 SCC 651
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Bar of Indian Lawyers Through its President Jasbir Singh Malik v.
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ANALYSIS
7.
Though the question posed before us is, whether a complaint
alleging "deficiency in service" against Advocates practising Legal
Profession, would be maintainable under the Consumer Protection
Act, having regard to the entire spectrum and scheme of the said
Act, following further questions stem from the said question, which
deserve consideration.
(i)
Whether the Legislature ever intended to include the Professions
or services rendered by the Professionals within the purview
of the CP Act 1986 as re-enacted in 2019?
(ii)
Whether the Legal Profession is sui generis?
(iii) Whether a Service hired or availed of an Advocate could be
said to be the service under "a contract of personal service"
so as to exclude it from the definition of "Service" contained in
Section 2 (42) of the CP Act 2019?
8.
For adverting to the first question, whether the Legislature ever
intended to include the Professions or the services rendered by the
Professionals within the purview of the CP Act 1986 as re-enacted
in 2019, it would be germane to ascertain the legislative intention
and to look back to the history, object and purpose of enacting the
CP Act 1986. A three-Judge Bench in case of State of Karnataka
vs. Vishwabharathi House Building Coop. Society and Others2,
while dealing with the issue raised about the constitutional validity
of the CP Act 1986, had elaborately considered the history, objects
and purpose of enacting the said Act.
"5. Before adverting to the question as regard the
competence of Parliament to enact the said Act, we may
notice the history of legislation leading to enactment of
the said Act.
6. The Secretary General, United Nations submitted draft
guidelines for consumer protection to the Economic and
Social Council (UNESCO) in 1983. The General Assembly
of the United Nations upon extensive discussions and
2
[2003] 1 SCR 397 : (2003) 2 SCC 412
500
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negotiations among governments on this scope and content
thereof adopted the guidelines which inter alia provide for
the following:
"Taking into account the interests and needs of consumers
in all countries, particularly those in developing countries,
recognizing that consumers often face imbalances in
economic terms, educational level, and bargaining power,
and bearing in mind that consumer should have the right
of access to non-hazardous products, as well as the
importance of promoting just, equitable and sustainable
economic and social development, these guidelines for
consumer protection have the following objectives:
(a) To assist countries in achieving or maintaining
adequate protection for their population as consumers.
(b) To facilitate production and distribution patterns
responsive to the needs and desires of consumers.
(c)
To encourage high levels of ethical conduct for those
engaged in the production and distribution of goods
and services to consumers.
(d) To assist countries in curbing abusive business
practices by all enterprises at the national
and international levels which adversely affect
consumers.
(e) To facilitate the development of independent
consumer groups.
(f)
To further international cooperation in the field of
consumer protection.
(g) To encourage the development of market conditions
which provide consumers with greater choice at
lower prices."
7. The framework for the Consumer Act was provided by a
resolution dated 9-4-1985 of the General Assembly of the
United Nations Organisation. This is known as "Consumer
Protection Resolution No. 39/248". India is a signatory to
the said Resolution.
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8. The said Act was enacted having regard to the
aforementioned Resolution.
9. It seeks to provide for better protection of the interests
of consumers and for the said purpose, to make provision
for the establishment of Consumer Councils and other
authorities for the settlement of consumer disputes and
for matters connected therewith, as would appear from the
Statement of Objects and Reasons of the Act.
10. It further seeks inter alia to promote and protect the
rights of consumers such as-
"(a) The right to be protected against marketing of goods
which are hazardous to life and property;
(b) the right to be informed about the quality, quantity,
potency, purity, standard and price of goods to protect
the consumer against unfair trade practices;
(c)
the right to be assured, wherever possible, access
to variety of goods at competitive prices;
(d) the right to be heard and to be assured that
consumers' interests will receive due consideration
at appropriate forums;
(e) the right to seek redressal against unfair trade practice
or unscrupulous exploitation of consumers; and
(f)
right to consumer education.""
9.
The scope and object of the said legislation had also come up for
consideration before this Court in Common Cause, A Registered
Society vs. Union of India and Others3 in which it was observed: -
"2. The object of the legislation, as the Preamble of the
Act proclaims, is "for better protection of the interests
of consumers".