Supreme Court of India
Bar Of Indian Lawyers Through Its … vs D.K.Gandhi Ps National Institute Of … on 14 May, 2024
Author: Bela M. Trivedi
Bench: Pankaj Mithal, Bela M. Trivedi
2024 INSC 410 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2646 OF 2009
BAR OF INDIAN LAWYERS THROUGH
ITS PRESIDENT JASBIR SINGH MALIK …APPELLANT(S)
VERSUS
D. K. GANDHI PS NATIONAL INSTITUTE
OF COMMUNICABLE DISEASES AND ANR. …RESPONDENT(S)
WITH
C.A. NO. 2647 OF 2009
DELHI HIGH COURT BAR ASSOCIATION
THROUGH ITS PRESIDENT …APPELLANT(S)
VERSUS
D. K. GANDHI PS NATIONAL INSTITUTE
OF COMMUNICABLE DISEASES AND ANR. …RESPONDENT(S)
WITH
C.A. NO. 2648 OF 2009
BAR COUNCIL OF INDIA THROUGH
BY ITS SECRETARY MR. S. RADHAKRISHNAN …APPELLANT(S)
VERSUS
Signature Not Verified
Digitally signed by
RAVI ARORAD. K. GANDHI PS NATIONAL INSTITUTE
Date: 2024.05.14
…RESPONDENT(S)
14:57:17 IST
Reason:
OF COMMUNICABLE DISEASES AND ANR.
1
WITH
C.A. NO. 2649 OF 2009
M. MATHIAS …APPELLANT(S)
VERSUS
D. K. GANDHI PS NATIONAL INSTITUTE
OF COMMUNICABLE DISEASES …RESPONDENT(S)
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,
2
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: –
(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
3
Rs.5,000/- on behalf of the respondent, the appellant did notdeliver 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.
4
(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 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
5
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
6
the interest of his client by all fair, legal and reasonable means,and by being respectful to the court.
(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
7
proceedings before multiple forums, reagitation of issues decidedby 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
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
8
statutes, case laws and regulatory frameworks, which often lackdefinitive 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.
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(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.
(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.
1 (1995) 6 SCC 651
10
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
11
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.
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
12
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 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 access2 (2003) 2 SCC 412
13
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.
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;
14
(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”. During the last few years preceding the
enactment there was in this country a marked awareness
among the consumers of goods that they were not getting their
money’s worth and were being exploited by both traders and
manufacturers of consumer goods. The need for consumer
redressal fora was, therefore, increasingly felt.
Understandably, therefore, legislation was introduced and
enacted with considerable enthusiasm and fanfare as a path-
breaking benevolent legislation intended to protect the
consumer from exploitation by unscrupulous manufacturers
and traders of consumer goods. A three-tier fora comprising
the District Forum, the State Commission and the National
Commission came to be envisaged under the Act for redressal
of grievances of consumers….”
10. In Lucknow Development Authority vs. M.K. Gupta4, it was observed
in paragraph 2 as under: –
“2. ……To begin with the preamble of the Act, which can
afford useful assistance to ascertain the legislative intention, it
was enacted, ‘to provide for the protection of the interest of
consumers. Use of the word ‘protection’ furnishes key to the
minds of makers of the Act. Various definitions and provisions
which elaborately attempt to achieve this objective have to be
construed in this light without departing from the settled view
that a preamble cannot control otherwise plain meaning of a3 (1997) 10 SCC 729
4 (1994) 1 SCC 243
15
provision. In fact the law meets long felt necessity of protecting
the common man from such wrongs for which the remedy
under ordinary law for various reasons has become illusory.
Various legislations and regulations permitting the State to
intervene and protect interest of the consumers have become
a haven for unscrupulous ones as the enforcement machinery
either does not move or it moves ineffectively, inefficiently and
for reasons which are not necessary to be stated. The
importance of the Act lies in promoting welfare of the society
by enabling the consumer to participate directly in the market
economy. It attempts to remove the helplessness of a
consumer which he faces against powerful business,
described as, ‘a network of rackets’ or a society in which,
‘producers have secured power’ to ‘rob the rest’ and the might
of public bodies which are degenerating into storehouses of
inaction where papers do not move from one desk to another
as a matter of duty and responsibility but for extraneous
consideration leaving the common man helpless, bewildered
and shocked.…..”
11. Yet in Laxmi Engineering Works vs. P.S.G. Industrial Institute5, it
was held in paragraph 10 as under: –
“10. A review of the provisions of the Act discloses that the
quasi-judicial bodies/authorities/agencies created by the Act
known as District Forums, State Commissions and the
National Commission are not courts though invested with
some of the powers of a civil court. They are quasi-judicial
tribunals brought into existence to render inexpensive and
speedy remedies to consumers. It is equally clear that these
forums/commissions were not supposed to supplant but
supplement the existing judicial system. The idea was to
provide an additional forum providing inexpensive and speedy
resolution of disputes arising between
consumers and suppliers of goods and services. The forum so
created is uninhibited by the requirement of court fee or the
formal procedures of a court. Any consumer can go and file a
complaint. Complaint need not necessarily be filed by the
complainant himself; any recognized consumers’ association
can espouse his cause. Where a large number of consumers
have a similar complaint, one or more can file a complaint on
behalf of all. Even the Central Government and State5 (1995) 3 SCC 583
16
Governments can act on his/their behalf. The idea was to help
the consumers get 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.
Indeed, the entire Act revolves round the consumer and is
designed to protect his interest. The Act provides for
“business-to-consumer” disputes and not for “business-to-
business” disputes. This scheme of the Act, in our opinion, is
relevant to and helps in interpreting the words that fall for
consideration in this appeal.”
12. Thus, considering the intention of the Legislature, the objects and
reasons of the Act of 1986 it was repeatedly held that 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.
13. After several years of passing of the CP Act 1986, still many
shortcomings in the said Act were noticed while administering various
provisions of the said Act. Hence, the CP Act 1986 was repealed and
the CP Act, 2019 came to be re-enacted. The statement of objects and
reasons for re-enacting the said Act of 2019 reads as under:-
“1. The Consumer Protection Act, 1986 (68 of 1986) was
enacted to provide for better protection of the interests of
consumers and for the purpose of making provision for
establishment of consumer protection councils and other
authorities for the settlement of consumer disputes, etc.
Although, the working of the consumer dispute redressal17
agencies has served the purpose to a considerable extent
under the said Act, the disposal of cases has not been fast due
to various constraints. Several shortcomings have been
noticed while administering the various provisions of the said
Act.
2. Consumer markets for goods and services have undergone
drastic transformation since the enactment of the Consumer
Protection Act in 1986. The modern market place contains a
plethora of products and services. The emergence of global
supply chains, rise in international trade and the rapid
development of e-commerce have led to new delivery systems
for goods and services and have provided new options and
opportunities for consumers. Equally, this has rendered the
consumer vulnerable to new forms of unfair trade and
unethical business practices. Misleading advertisements, tele-
marketing, multi-level marketing, direct selling and e-
commerce pose new challenges to consumer protection and
will require appropriate and swift executive interventions to
prevent consumer detriment. Therefore, it has become
inevitable to amend the Act to address the myriad and
constantly emerging vulnerabilities of the consumers. In view
of this, it is proposed to repeal and re-enact the Act.”
14. It is trite to say that a reference to statement of objects and reasons is
permissible for understanding the background, the antecedent state of
affairs, the surrounding circumstances in relation to the statute, and the
evil which the statute had sought to remedy.* As discernible from the
statement of objects and reasons for re-enacting the CP Act, 2019, there
were certain shortcomings found in the CP Act 1986 while administering
the said Act, and at the same time, due to the emergence of global
*
State of West Bengal vs. Subodh Gopal Bose & Others; AIR 1954 SC 92.
18
supply chains, rise in international trade and rapid development of e-
commerce leading to new systems for goods and services, new options
and opportunities had become available to the consumers. However,
new forms of unfair trade and unethical business practices also came to
be developed, which made the consumers more vulnerable. Misleading
advertisements, telemarketing, multi-level marketing, e-commerce
posed new challenges, which necessitated the Legislature to re-enact
the Act.
15. 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. It is very well accepted proposition of the fact that
Professionals could not be called Businessmen or Traders, nor Clients
or Patients be called Consumers. It is also required to be borne in mind
that the terms ‘business’ or ‘trade’ having a commercial aspect involved,
could not be used interchangeably with the term ‘Profession’ which
normally would involve some branch of learning or science. Profession
as such would require knowledge of an advanced type in a given field
of learning or science, or learning gained by a prolonged course of
specialized study. As per Black’s Law Dictionary, 11th Edition,
19
“Profession” means “a vocation requiring advanced education and
training; especially one of the three traditional Professions- Law,
Medicine and the Ministry.” “Professional” means “someone who
belongs to a learned profession or whose occupation requires a high
level of training and proficiency.”
16. According to Rupert M. Jackson and John L. Powell,* the Occupations
which are regarded as Professions have four characteristics, viz.,
(i) the nature of the work which is skilled and specialized and a
substantial part is mental rather than manual;
(ii) commitment to moral principles which go beyond the general duty of
honesty and a wider duty to community which may transcend the duty
to a particular client or patient;
(iii)professional association which regulates admission and seeks to
uphold the standards of the profession through professional codes on
matters of conduct and ethics; and
(iv) high status in the community.
17. As observed in Indian Medical Association (supra) :-
“22. In the matter of professional liability professions differ
from other occupations for the reason that professions operate*
“Jackson and Powell on Professional Liability” 2nd supplement to the 7th edition
20
in spheres where success cannot be achieved in every case
and very often success or failure depends upon factors
beyond the professional man’s control. In devising a rational
approach to professional liability which must provide proper
protection to the consumer while allowing for the factors
mentioned above, the approach of the courts is to require that
professional men should possess a certain minimum degree
of competence and that they should exercise reasonable care
in the discharge of their duties. In general, a professional man
owes to his client a duty in tort as well as in contract to exercise
reasonable care in giving advice or performing services.”
18. In view of the above, a “Profession” would require advanced education
and training in some branch of learning or science. The nature of work
is also skilled and specialised one, substantial part of which would be
mental rather than manual. Therefore, 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 CP Act. Similarly, the services rendered by a Businessman or a
Trader to the consumers with regard to his goods or products cannot be
equated with the Services provided by a Professional to his clients with
regard to his specialized branch of profession. The legislative draftsmen
are presumed to know the law and there is no good reason to assume
21
that the legislature intended to include the Professions or the
Professionals or the services provided by the professionals 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. We are therefore of the considered opinion that the very purpose
and object of the CP Act 1986 as re-enacted in 2019 was to provide
protection to the consumers from the unfair trade practices and
unethical business practices only. There is nothing on record to suggest
that the Legislature ever intended to include the Professions or the
Professionals within the purview of the Act.
19. One should also not lose sight of the fact that the other object of the Act
was to provide to the consumers timely and effective administration and
settlement of their disputes. 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, particularly because the remedy provided under the Act is
inexpensive and summary in nature. Consequently, the very object of
providing timely and effective settlement of consumers’ disputes arising
22
out of the unfair trade and unethical business practices would be
frustrated.
20. We may clarify at this juncture that we do not propose to say that the
professionals could not be sued or held liable for their alleged
misconduct or tortious or criminal acts. In the process of overall
depletion and erosion of ethical values and degradation of the
professional ethics, the instances of professional misconduct are also
on the rise. Undoubtedly, no professional either legal, medical or any
other professional enjoys any immunity from being sued or from being
held liable for his professional or otherwise misconduct or other
misdeeds causing legal, monetary or other injuries to his clients or the
persons hiring or availing his services. The fact that professionals are
governed by their respective Councils like Bar Councils or Medical
Councils also would not absolve them from their civil or criminal liability
arising out of their professional misconduct or negligence. Nonetheless,
as discussed hereinabove, we are of the opinion that neither the
Professions nor the Professionals were ever intended to be brought
within the purview of the CP Act either of 1986 or 2019.
21. Of course, we are conscious of the decision in Indian Medical
Association vs. V.P. Shantha & Others (supra), in which a three-Judge
23
Bench of this Court has held inter alia that the wide amplitude of the
definition of ‘service’ in the main part of Section 2(1)(o) would cover the
services rendered by Medical Practitioners within the said Section
2(1)(o). However, in our humble opinion, the said decision deserves to
be revisited having regard to the history, object, purpose and the
scheme of the CP Act and in view of the opinion expressed by us
hereinabove to the effect 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 .
22. At this juncture, we may rely upon Order VI Rule 2 of the Supreme Court
Rules which reads as under: –
“ORDER VI, Rule 2.-
Where in the course of the hearing of any cause, appeal or
other proceeding, the Bench considers that the matter should
be dealt with by a larger Bench, it shall refer the matter to the
Chief Justice, who shall thereupon constitute such a Bench for
the hearing of it.”
23. The said Rule has been interpreted in Triveniben vs. State of Gujarat6,
in which it has been observed that: –
“35. This is undoubtedly a salutary rule, but it appears to have
only a limited operation. It apparently governs the procedure
of a smaller Bench when it disagrees with the decision of a6 (1989) 1 SCC 678
24
larger Bench. If the Bench in the course of hearing of any
matter considers that the matter should be dealt with by a
larger Bench, it shall refer the matter to the Chief Justice. The
Chief Justice shall then constitute a larger Bench for disposal
of the matter. This exercise seems to be unnecessary when a
larger Bench considers that a decision of a smaller Bench is
incorrect unless a constitutional question arises”.
24. In view of the above, we are of the opinion that the decision of the three-
judge bench, in case of Indian Medical Association vs. V.P Shantha
(supra) deserves to be revisited and considered by a larger bench. We,
therefore refer the matter to Hon’ble the Chief Justice of India for His
Lordship’s consideration.
25. This takes us to the next question. Even if, it is held that the CP Act
applies to the “Professions” and the “Professionals,” the next question
that falls for our consideration is whether the Legal Profession is sui
generis or is different from the other Profession, particularly from the
Medical Profession because the NCDRC in the impugned order has
relied upon the decision in case of Indian Medical Association vs. V.P
Shantha (supra) for bringing the Advocates within the purview of the CP
Act.
26. As observed in Byram Pestonji Gariwala vs. Union Bank of India
and Others7, the Indian legal system is the product of history. It is rooted
7 (1992) 1 SCC 31
25
in our soil; nurtured and nourished by our culture, languages and
traditions; fostered and sharpened by our genius and quest for social
justice; reinforced by history and heritage. After the attainment of
independence and the adoption of the Constitution of India, judicial
administration and the constitution of the law courts remained
fundamentally unchanged. The concept, structure and organisation of
courts, the substantive and procedural laws, the adversarial system of
trial and other proceedings and the function of judges and lawyers
remained basically unaltered and rooted in the common law traditions
in contradistinction to those prevailing in the civil law or other systems
of law. Resultantly, the role, status and capacity of an advocate to
represent his client has also remained by and large unaltered.
27. This Court in R. Muthukrishnan vs. Registrar General, High Court of
Judicature at Madras8, delineating the unique nature of the legal
profession and of the services rendered by the lawyers, observed thus:
“16. The legal profession cannot be equated with any other
traditional professions. It is not commercial in nature and is a
noble one considering the nature of duties to be performed
and its impact on the society. The independence of the Bar
and autonomy of the Bar Council has been ensured statutorily
in order to preserve the very democracy itself and to ensure
that judiciary remains strong. Where the Bar has not
performed the duty independently and has become a
sycophant that ultimately results in the denigrating of the8 (2019) 16 SCC 407
26
judicial system and judiciary itself. There cannot be existence
of a strong judicial system without an independent Bar.
17. It cannot be gainsaid that lawyers have contributed in the
struggle for independence of the nation. They have helped in
the framing of the Constitution of India and have helped the
courts in evolving jurisprudence by doing hard labour and
research work. The nobility of the legal system is to be
ensured at all costs so that the Constitution remains vibrant
and to expand its interpretation so as to meet new challenges.
18. It is basically the lawyers who bring the cause to the Court
are supposed to protect the rights of individuals of equality and
freedom as constitutionally envisaged and to ensure the
country is governed by the rule of law. Considering the
significance of the Bar in maintaining the rule of law, right to
be treated equally and enforcement of various other
fundamental rights, and to ensure that various institutions
work within their parameters, its independence becomes
imperative and cannot be compromised. The lawyers are
supposed to be fearless and independent in the protection of
rights of litigants. What lawyers are supposed to protect, is the
legal system and procedure of law of deciding the cases.
19. Role of the Bar in the legal system is significant. The Bar
is supposed to be the spokesperson for the judiciary as
Judges do not speak. People listen to the great lawyers and
people are inspired by their thoughts. They are remembered
and quoted with reverence. It is the duty of the Bar to protect
honest Judges and not to ruin their reputation and at the same
time to ensure that corrupt Judges are not spared. However,
lawyers cannot go to the streets or go on strike except when
democracy itself is in danger and the entire judicial system is
at stake. In order to improve the system, they have to take
recourse to the legally available methods by lodging complaint
against corrupt Judges to the appropriate administrative
authorities and not to level such allegation in the public.
Corruption is intolerable in the judiciary.
20. The Bar is an integral part of the judicial administration. In
order to ensure that judiciary remains an effective tool, it is
absolutely necessary that the Bar and the Bench maintain
dignity and decorum of each other. The mutual reverence is
absolutely necessary. The Judges are to be respected by the
Bar, they have in turn equally to respect the Bar, observance
of mutual dignity, decorum of both is necessary and above all
they have to maintain self-respect too.
27
21. It is the joint responsibility of the Bar and the Bench to
ensure that equal justice is imparted to all and that nobody is
deprived of justice due to economic reasons or social
backwardness. The judgment rendered by a Judge is based
upon the dint of hard work and quality of the arguments that
are advanced before him by the lawyers. There is no room for
arrogance either for a lawyer or for a Judge.
22. There is a fine balance between the Bar and the Bench
that has to be maintained as the independence of the Judges
and judiciary is supreme. The independence of the Bar is on
equal footing, it cannot be ignored and compromised and if
lawyers have the fear of the judiciary or from elsewhere, that
is not conducive to the effectiveness of the judiciary itself, that
would be self-destructive.”
28. In State of U.P and Others vs. U.P. State Law Officers Association
and Others9, it was observed thus: –
“14. Legal profession is essentially a service-oriented
profession. The ancestor of today’s lawyer was no more than
a spokesman who rendered his services to the needy
members of the society by articulating their case before the
authorities that be. The services were rendered without regard
to the remuneration received or to be received. With the
growth of litigation, lawyering became a full-time occupation
and most of the lawyers came to depend upon it as the sole
source of livelihood. The nature of the service rendered by the
lawyers was private till the Government and the public bodies
started engaging them to conduct cases on their behalf.”
29. It is thus well recognized in catena of decisions that the legal profession
cannot be equated with any other traditional professions. It is not
commercial in nature but is essentially a service oriented, noble
profession. It cannot be gainsaid that the role of Advocates is
9 (1994) 2 SCC 204
28
indispensable in the Justice Delivery System. An evolution of
jurisprudence to keep our Constitution vibrant is possible only with the
positive contribution of the Advocates. The 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. The Advocates are perceived
to be the intellectuals amongst the elites and social activists amongst
the downtrodden. That is the reason they are expected to act according
to the principles of uberrima fides i.e., the 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.
30. The legal profession is different from the other professions also 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. It must be remembered that the legal profession is a solemn
29
and serious profession. It has always been held in very high esteem
because of the stellar role played by the stalwarts in the profession to
strengthen the judicial system in the country. Their services in making
the judicial system efficient, effective and credible, and in creating a
strong and impartial Judiciary, which is one of the three pillars of the
Democracy, could not be compared with the services rendered by other
professionals. Therefore, having regard to the role, status and duties of
the Advocates as the professionals, we are of the opinion that the legal
profession is sui generis i.e unique in nature and cannot be compared
with any other profession.
31. The next question that falls for our consideration is whether a service
hired or availed of an Advocate could be said to be the service under a
“contract of personal service?”
32. At the outset, it may be stated that in the Indian Courts, various
sobriquets or epithets like pleaders, advocates, lawyers, vakils,
counsels, attorneys etc. are being used interchangeably to describe the
Legal Practitioners, may be because various Acts like Legal
Practitioners Act, 1879, Bombay Pleaders Act, 1920, Indian Bar
Councils Act, 1926 were in force during pre-independence era.
However, on the Advocates Act, 1961 having come into force, the
30
provisions of the said Acts stood repealed as per Section 50 of the
Advocates Act. The Advocates Act 1961 was enacted to amend and
consolidate the law relating to legal practitioners and to provide for the
constitution of Bar Councils and an All-India Bar.
33. The Advocates Act defines “Advocate” separately from “Legal
Practitioner” –
“2(1)(a) – “advocate” means an advocate entered in any roll
under the provision of this Act;”
Section 2(1)(i) defines “legal practitioner’ as under: –
“2(1)(i) – “Legal Practitioner” means an advocate or vakil of any
High Court, a pleader, mukhtar or revenue agent;”
34. 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. If we glean over the provisions of the Advocates Act,
1961, it appears that the said Act was enacted to amend and consolidate
the law relating to legal practitioners and to provide for the constitution
of Bar Councils and an All-India Bar. As per Section 16 thereof, there
are only two classes of Advocates, namely Senior Advocates and other
Advocates. As per Section 29, there is only one class of persons entitled
to practice the profession of law, namely Advocates, and as per Section
31
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. The disciplinary powers for taking action against the Advocates
and impose punishment for their misconduct have been conferred upon
the State Bar Councils and Bar Council of India as the case may be
under the Chapter V of the Advocates Act. The Bar Council of India
Rules framed under the Advocates Act lay down the restrictions on the
Senior Advocates, and also lay down the standards of professional
conduct and etiquette, which include the duties of the advocate to the
Court, to the client, to the opponent and to the colleagues. Thus,
comprehensive provisions are contained in the Advocates Act, 1961 and
the Bar Council of India Rules framed thereunder, 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 as the case may be.
35. In the light of the above provisions of the Advocates Act, let us consider
some of the provisions of the Consumer Protection Act 1986/2019. The
32
definition of “Service” contained in Section 2(1)(o) of the CP Act 1986
and in Section 2(42) of the CP Act 2019 is the same which reads as
under: –
“Service means service of any description which is made
available to potential users and includes, but not limited to, the
provision of facilities in connection with banking, financing,
insurance, transport, processing, supply of electrical or other
energy, telecom, boarding or lodging or both, housing
construction, entertainment, amusement or the purveying of
news or other information, but does not include the rendering
of any service free of charge or under a contract of personal
service.”
36. There is slight difference in the definition of ‘Deficiency’ in Section
2(1)(g) of 1986 Act and Section 2(11) of 2019 Act. The same is
reproduced as under: –
Section 2(1)(g) of CP Act, 1986:-
“Section 2(1) (g) -“Deficiency” means any fault imperfection,
shortcoming or inadequacy in the quality, nature and manner
of performance which is required to be maintained by or under
any law for the time being in force or has been undertaken to
be performed by a person in pursuance of a contract or
otherwise in relation to any service.”Section 2(11) of CP Act, 2019:-
Section 2(11) – “Deficiency ” means any fault, imperfection,
shortcoming or inadequacy in the quality, nature and manner
of performance which is required to be maintained by or under
any law for the time being in force or has been undertaken to
be performed by a person in pursuance of a contract or
otherwise in relation to any service and includes-
(i) any act of negligence or omission or commission by such
person which causes loss or injury to the consumer; and33
(ii) deliberate withholding of relevant information by such
person to the consumer”
37. As can be seen, the definition of ‘service’ is divided into three parts – the
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. Therefore, let us consider
whether the service rendered by the Advocates practising Legal
Profession could be said to be the Service under “a contract of personal
service,” so as to exclude it from the definition of “Service” contemplated
under the Act.
38. The question as to whether a given relationship should be classified as
a contract ‘for services’ as opposed to a contract ‘of service’ [i.e. contract
‘of personal service’] is a vexed question of law and is incapable of being
answered with exactitude without reference to the underlying facts in
any given case. This Court in Dharangadhra Chemical Works Ltd. vs.
State of Saurashtra and Others10, recognized this position of law and
10 AIR 1957 SC 264
34
held that “the correct method of approach, therefore, would be to
consider whether having regard to the nature of the work there was due
control and supervision by the employer”. In the words of Fletcher
Moulton, L.J. at P.549 in Simmons v. Heath Laundry Company [(1924)
1 KB 762] which were cited with approval in Dharangadhra Chemcial
Works Ltd. (supra):
“In my opinion it is impossible to lay down any rule of law
distinguishing the one from the other. It is a question of fact to
be decided by all the circumstances of the case. The greater
the amount of direct control exercised over the person
rendering the services by the person contracting for them the
stronger the grounds for holding it to be a contract of service,
and similarly the greater the degree of independence of such
control the greater the probability that the services rendered
are of the nature of professional services and that the contract
is not one of service.”
39. What is sought to be opined in the above cases is that the 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.” Hence, let us see
whether in case of Advocate-Client relationship, the client exercises
direct control over the Advocate who is rendering his legal professional
services to him. At this stage, it would be beneficial to refer to some of
the important provisions of Code of Civil Procedure, which pertain to the
representation of party-litigant through Advocates. Order III of CPC
35
pertains to the Recognized Agents and Pleaders. As per the definitionof “Pleader” contained in Section 2 (15) CPC, ‘Pleader means any
person entitled to appear and plead for another in Court and includes
an Advocate, a Vakil and an Attorney of a High Court. Rule1 of Order III
states that any appearance, application or act in or in any Court may be
made or done by the party in person, or by his recognized agent or by a
pleader appearing, applying or acting, as the case may be on his behalf.
Rule 4 of the said Order III states that no pleader shall act for any person
in any Court, unless he has been appointed for the purpose by such
person by document in writing signed by such person or by his
recognized agent or by some other person duly authorized by or under
a power of attorney to make such appointment. It further provides that
every such appointment shall be filed in Court and shall for the purposes
of sub-rule (1) be deemed to be in force until determined with the leave
of the Court by writing signed by the client or the pleader as the case
may be and filed in the Court, or until the client or the pleader dies, or
until all proceedings in the suit are ended so far as regards the client.
Such document regarding appointment of a pleader is known in
common parlance as “Vakalatnama”, the proforma of which has been
36
appended in Form No.19 of the ‘Appendix H’ to CPC. The said form is
reproduced here under: –
“No.19
VAKALATNAMA
In the Court ……..Suit/Miscellaneous case/ Civil Appeal/
Execution Case No……….. of 19…./20…,fixed for Plaintiff/
Appellant/ Applicant/ D.H……….. Defendant/ Respondent/
Opposite Party/ J.D. Vakalatnama of Plaintiff/ Appellant
Applicant/ D.H./ Defendant/ Respondent/ Opposite Party/ J.D.
In the case noted above Sri…………, each of Sarvasri………..
Advocate, is hereby appointed as counsel, to appeals, plead
and act on behalf of the undersigned, in any manner, he thinks
it proper, either himself or through any other Advocate, and in
particular to do the following, namely, –
To receive any process of Court (including any notice from any
appellate or revisional Court), to file any applications, petitions
or pleadings, to file, produce or receive back any documents,
to withdraw or compromise the proceedings, to refer to any
matter to arbitration, to deposit or withdraw any moneys, to
execute any decree or order, to certify payment, and receive
any money due under such decree or order.
The undersigned should be bound by all whatsoever may be
done in the aforesaid case (including any appeal or revision
therefrom) for and on behalf of the undersigned by any of the
said counsel.
Signature……… Attesting Witness:
Name in full ………. Name in
full………….
Date …………. Address……………
Date………….
Accepted/ Accepted on the strength of the signature of the
attesting witnesses.”37
40. A conjoint reading of the provisions contained in Order III CPC and
Chapter IV of Advocates Act pertaining to right to practise, there remains
no shadow of doubt that an advocate whose name has been entered in
the State roll is entitled as of right to practise in all Courts, however he
can act for any person in any Court only when he is appointed by such
person by executing the document called “Vakalatnama.” Such
Advocate has certain authorities by virtue of such “Vakalatnama” but at
the same time has certain duties too, i.e. the duties to the courts, to the
client, to the opponent and to the colleagues as enumerated in the Bar
Council of India Rules. In this regard, this Court in Himalayan
Cooperative Group Housing Society vs. Balwan Singh and Others11
has made very apt observations, which are reproduced hereunder-
22. Apart from the above, in our view lawyers are perceived to
be their client’s agents. The law of agency may not strictly
apply to the client-lawyer’s relationship as lawyers or agents,
lawyers have certain authority and certain duties. Because
lawyers are also fiduciaries, their duties will sometimes be
more demanding than those imposed on other agents. The
authority-agency status affords the lawyers to act for the client
on the subject-matter of the retainer. One of the most basic
principles of the lawyer-client relationship is that lawyers owe
fiduciary duties to their clients. As part of those duties, lawyers
assume all the traditional duties that agents owe to their
principals and, thus, have to respect the client’s autonomy to
make decisions at a minimum, as to the objectives of the
representation. Thus, according to generally accepted notions
of professional responsibility, lawyers should follow the client’s
instructions rather than substitute their judgment for that of the11 (2015) 7 SCC 373
38
client. The law is now well settled that a lawyer must be
specifically authorised to settle and compromise a claim, that
merely on the basis of his employment he has no implied or
ostensible authority to bind his client to a
compromise/settlement. To put it alternatively that a lawyer by
virtue of retention, has the authority to choose the means for
achieving the client’s legal goal, while the client has the right
to decide on what the goal will be. If the decision in question
falls within those that clearly belong to the client, the lawyer’s
conduct in failing to consult the client or in making the decision
for the client, is more likely to constitute ineffective assistance
of counsel.
23. The Bar Council of India Rules, 1975 (for short “the BCI
Rules”), in Part VI Chapter II provide for the “Standards of
Professional Conduct and Etiquette” to be observed by all the
advocates under the Advocates Act, 1961 (for short “the 1961
Act”). In the Preamble to Chapter II, the BCI Rules provide as
follows:
“An advocate shall, at all times, comport
himself in a manner befitting his status as an
officer of the Court, a privileged member of the
community, and a gentleman, bearing in mind
that what may be lawful and moral for a
person who is not a member of the Bar, or for
a member of the Bar in his non-professional
capacity may still be improper for an
advocate. Without prejudice to the generality
of the foregoing obligation, an advocate shall
fearlessly uphold the interests of his client and
in his conduct conform to the rules hereinafter
mentioned both in letter and in spirit. The rules
hereinafter mentioned contain canons of
conduct and etiquette adopted as general
guides; yet the specific mention thereof shall
not be construed as a denial of the existence
of others equally imperative though not
specifically mentioned.”
24. The Preamble makes it imperative that an advocate has to
conduct himself and his duties in an extremely responsible
manner. They must bear in mind that what may be appropriate
and lawful for a person who is not a member of the Bar, or for
a member of the Bar in his non-professional capacity, may be
improper for an advocate in his professional capacity.
39
25. Section II of the said Chapter II provides for duties of an
advocate towards his client. Rules 15 and 19 of the BCI Rules,
have relevance to the subject-matter and therefore, they are
extracted below:
“15. It shall be the duty of an advocate
fearlessly to uphold the interests of his client
by all fair and honourable means without
regard to any unpleasant consequences to
himself or any other. He shall defend a person
accused of a crime regardless of his personal
opinion as to the guilt of the accused, bearing
in mind that his loyalty is to the law which
requires that no man should be convicted
without adequate evidence.
*****
19. An advocate shall not act on the
instructions of any person other than his client
or his authorised agent.”
26. While Rule 15 mandates that the advocate must uphold
the interest of his clients by fair and honourable means without
regard to any unpleasant consequences to himself or any
other. Rule 19 prescribes that an advocate shall only act on
the instructions of his client or his authorised agent”
41. When we examine the relationship between an Advocate and his Client
from this point of view, the following unique attributes become clear:
1) Advocates are generally perceived to be their client’s
agents and owe fiduciary duties to their clients.
2) Advocates are fastened with all the traditional duties
that agents owe to their principals. For example,
Advocates have to respect the client’s autonomy to make
40
decisions at a minimum, as to the objectives of therepresentation.
3) Advocates are not entitled to make concessions or give
any undertaking to the Court without express instructions
from the Client.
4) It is the solemn duty of an Advocate not to transgress
the authority conferred on him by his Client.
5) An 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.
6) The 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. Therefore,
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. All of these attributes strengthen our opinion
41
that the services hired or availed of an Advocate would be that of a
contract ‘of personal service’ and would therefore stand excluded from
the definition of “service” contained in the section 2(42) of the CP Act,
2019. As a necessary corollary, a complaint alleging “deficiency in
service” against Advocates practising Legal Profession would not be
maintainable under the CP Act, 2019.
42. In that view of the matter, we summarize our conclusions as under-
(i) The very purpose and object of the CP Act 1986 as
re-enacted in 2019 was to provide protection to the
consumers from unfair trade practices and unethical
business practices, and the Legislature never intended
to include either the Professions or the services rendered
by the Professionals within the purview of the said Act of
1986/2019.
(ii) The Legal Profession is sui generis i.e. unique in
nature and cannot be compared with any other
Profession.
(iii) A service hired or availed of an Advocate is a
service under “a contract of personal service,” and
therefore would fall within the exclusionary part of the
42
definition of “Service” contained in Section 2 (42) of the
CP Act 2019.
(iv) A complaint alleging “deficiency in service” against
Advocates practising Legal Profession would not be
maintainable under the CP Act, 2019.
43. The impugned judgment passed by the NCDRC is set aside. The
Appeals stand allowed accordingly.
44. Before parting, we appreciate and place on record the valuable
assistance and services rendered by the learned Senior Advocate Mr.
V. Giri appointed as an Amicus Curiae in these matters.
……………………………J.
[BELA M. TRIVEDI]
NEW DELHI;
MAY 14th, 2024.
43
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
C.A. NO. 6959 OF 2011
PANDIT DNYANDEV UBALE …APPELLANT(S)
VERSUS
DNYANESHWAR RAMHARI PHOPLE …RESPONDENT(S)
WITH
C.A. NO. 8214 OF 2017
A. RAGHAVENDRA …APPELLANT(S)
VERSUS
M. RAJAMANNAR …RESPONDENT(S)
ORDER
BELA M. TRIVEDI, J.
1. In view of the judgment passed in Bar of Indian Lawyers through its
President Jasbir Singh Malik Vs. D. K. Gandhi PS National Institute
of Communicable Diseases and Another, dated 14th May, 2024 (C.A.
No. 2646/2009 and others), the present two appeals stand disposed of.
……………………………J.
(BELA M. TRIVEDI)
………………………….. J.
(PANKAJ MITHAL)
NEW DELHI;
MAY 14th, 2024.
44
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2646 OF 2009
BAR OF INDIAN LAWYERS THROUGH
ITS PRESIDENT JASBIR SINGH MALIK …APPELLANT(S)
VERSUS
D.K. GANDHI PS NATIONAL INSTITUTE
OF COMMUNICABLE DISEASES
AND ANR. …RESPONDENT(S)
WITH
CIVIL APPEAL NO. 2647 OF 2009,
CIVIL APPEAL NO. 2648 OF 2009,
CIVIL APPEAL NO. 2649 OF 2009,
CIVIL APPEAL NO. 6959 OF 2011 and
CIVIL APPEAL NO. 8214 OF 2017
JUDGMENT
PANKAJ MITHAL, J.
1. The moot question which emanates from the proceedings at
hand, if put in a different way, is whether the legal services of the
lawyer availed of by the client would be covered under the Consumer
Protection Act, 1986 (now Consumer Protection Act, 2019).
1
2. It is well recognized that the 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 just conclusion, it may be possible that at times, the lawyers
may earn displeasure of the client while assisting the court.
3. The 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.
4. It is in the above context that we have to examine if the legislature
in enacting the Consumer Protection Act intended to include the
services rendered by professionals, particularly by lawyers to their
clients, within the ambit of the Consumer Protection Act.
5. The laws intended to protect consumers, as opposed to traders
are comparatively of recent origin.
6. The General Assembly of United Nations upon extensive
discussions with Governments of various nations submitted draft
guidelines for consumer protection to the United Nations Economic
2
and Social Council (UNESCO) in the year 1983 inter alia providing for
the following:
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 the 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. A bare reading of the above guidelines reveals that the same have
been formulated taking into account the interests and needs of
3
consumers in various countries, particularly developing countries, in
order to level out economic imbalances between consumers and
service providers.
8. The General Assembly of the United Nations Organization by
Resolution No. 39/248 dated 9.4.1985 provided a framework known
as Consumer Protection Resolution to which our country is also a
signatory.
9. It is on the basis of the above Consumer Protection Resolution of
the UNO that the Consumer Protection Act, 1986 in India was enacted
with the objective to save the consumers from unfair conduct and
practices of traders.
10. In Om Prakash vs. Assistant Engineer, Haryana Agro
Industries Corporation Ltd. and Anr.1 a three Judge Bench vide
paragraph 7 described the Objects and Reasons for the enactment of
the Consumer Protection Act as under:
“7. From the Statement of Objects and Reasons of the
Act, it appears that the purpose of the Act is to protect
the interest of the consumer and to provide ‘the right,
to seek redressal against unfair trade practices or
unscrupulous exploitation of consumers’…”1
(1994) 3 SCC 5044
11. Recently, in Laureate Buildwell (P) Ltd. vs. Charanjeet Singh,2
a three Judge Bench of this Court, highlighting the objectives of the
Consumer Protection Act held as follows:
“26. If one also considers the broad objective of the
Consumer Protection Act, which is to provide for
better protection of the interests of consumers and for
that purpose, provide for the establishment of
Consumer Councils and other authorities for the
settlement of consumer disputes and for matters
connected therewith, as evident from the Statement
of Objects and Reasons of the Act. The Statement
further seeks inter alia to promote and protect the
rights of consumers such as—
“2. … (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
practices or unscrupulous exploitation of consumers;
and
(f) right to consumer education.”
2
(2021) 20 SCC 4015
12. The idea behind the Consumer Protection Act from 1986 till today
has been to help the consumers get justice and fair treatment in
matters of goods and services purchased and availed of by them in a
market dominated by large trading and manufacturing bodies. The
entire Act revolves around the consumer and is designed to protect
their interests.
13. Leaving aside India for the time being, if we consider the
international practice with regard to the inclusion of lawyer-client
relationships within the ambit of consumer protection laws, we would
notice that the practice of common law countries evidences the
exclusion of lawyers from the umbrella of consumer protection laws.
It must be kept in mind that the consumer protection laws of almost
all countries are based upon the same resolution of the UNO which
forms the foundation for framing the Consumer Protection Act in
India.
14. To illustrate, Consumer Protection Act, 1999 enacted by the
Parliament of Malaysia vide Section 2 (2)(e) specifically provides that
the said act shall not apply, inter alia, to services provided by
professionals who are regulated by any law. It may be worth noting
that the services of the professionals such as lawyers in Malaysia are
6
governed by Legal Profession Act, 1976. Therefore, by virtue of the
above Section 2 (2) (e), the services provided by the professionals such
as lawyers stand excluded from the application of the Consumer
Protection Act of Malaysia.
15. This legislative intent of excluding regulated professions from the
ambit of Consumer Protection Law has been continuing for over a
considerable period of time now. Aspects of such exclusion find
mention in the DIRECTIVE 2011/83/EU OF THE EUROPEAN
PARLIAMENT AND OF THE COUNCIL OF 25 OCTOBER 2011 on
consumer rights where it has been said that provisions of the said
directive should not apply to regulated professions.
16. At the heart of this legislative intent to exempt such ‘regulated
professions’ from the scope of consumer laws lies the fact that such
professions are sui generis and paramount as services of general
interest.
17. The recent DIRECTIVE (EU) 2018/958 OF THE EUROPEAN
PARLIAMENT AND OF THE COUNCIL of 28 June 2018 bears a
befitting testimony to this continuing intent of lawmakers and the
desire to safeguard regulated professions from any outside
interreference.
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18. Similarly, Section 188 of the Consumer Protection Act (Québec)
provides that:
“For the purpose of this division, every person offering
or providing any of the services referred to in section
189 [covering contracts of service] is considered to be
a merchant, except: … (i) persons who are members
of a professional order governed by the
Professional Code (chapter C-26).”
(emphasis supplied)
19. In a similar vein, States in the USA also exempt legal
professionals from consumer laws.
20. Illustratively, the Code of Maryland, Title 13, dealing with
minimum standards of consumer protection in Maryland, in Subtitle
1 § 13-104 explicitly states that:
“this title does not apply to: (1) The professional
services of a certified public accountant, architect,
clergyman, professional engineer, lawyer….”
(emphasis supplied)
21. The Code of the District of Columbia, while highlighting the
powers of the consumer protection agency in Title 28 Chapter 39 § 28–
3903 states in clause (c) that:
“(c) The Department may not: … (2) apply the
provisions of section §28-3905 [Consumer
Protection Complaints] to: … (C) professional
services of clergymen, lawyers, and Christian8
Science practitioners engaging in their respective
professional endeavors”; (emphasis supplied)
22. The Australian High Court, the highest court of the land in
Australia, in D’Orta-Ekenaike vs. Victoria Legal Aid3 has
emphatically echoed the need for such exemption and its direct
bearing on the justice delivery system. The reasoning of its majority is
instructive and deserves to be quoted in full:
“84. To remove the advocate’s immunity would
make a significant inroad upon what we have earlier
described as a fundamental and pervading tenet of
the judicial system. That inroad should not be
created. There may be those who will seek to
characterize the result at which the Court arrives in
this matter as a case of lawyers looking after their own,
whether because of personal inclination and sympathy,
or for other base motives. But the legal principle which
underpins the Court’s conclusion is fundamental. Of
course, there is always a risk that the determination of
a legal controversy is imperfect. And it may be
imperfect because of what a party’s advocate does or
does not do. The law aims at providing the best and
safest system of determination that is compatible with
human fallibility. But underpinning the system is the
need for certainty and finality of decision. The
immunity of advocates is a necessary consequence of
that need”. (emphasis supplied)
23. It would be trite to mention here that the legal profession is a
regulated profession in India. The Advocates Act, 1961 regulates the
3
(2005) 223 CLR 19
conduct of lawyers in India and is a complete code in itself. Given theregulation, India also needs to bring the working of its regulated
professions in alignment with international practices.
24. In the era of globalization, though I am conscious that a law has
to be applied in context with the prevailing situation of the country,
nonetheless, to have a uniform application of any law particularly the
one which has been framed on the basis of the common resolution of
the UNO, laws must have a uniform application in all nations. It is,
therefore, 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
whose profession is sui generis.
25. 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.
26. With the above additional reasoning supplementing the various
other grounds for excluding the services of the professionals from the
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Consumer Protection Act, I am in agreement with the opinionexpressed by my esteemed sister and I am of the view that the
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 Consumer Protection Act,
1986 and re-enacted in 2019.
27. Accordingly, the view taken by the NCDRC to the effect that in
respect of deficiency in service rendered by the lawyers, a complaint in
Consumer Protection Act, 1986 would be maintainable, is incorrect
and stands overruled.
28. The impugned order of the National Consumer Disputes
Redressal Commission dated 06.08.2007 is hereby set aside.
29. The appeals stand disposed of accordingly.
……………………………….. J.
(PANKAJ MITHAL)
NEW DELHI;
MAY 14, 2024.
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