Justice Dipak Misra in 2017 said that nobility, sanctity and ethicality of the ‘Profession’ has to be kept uppermost in the mind of an Advocate. The Supreme Court in the matter of Bar of Indian Lawyers has delivered a path breaking judgment on May 14, 2024. The bench comprising justices Bela M. Trivedi and Pankaj Mithal has held that Lawyers cannot be sued in consumer courts. This ruling will have far reaching implications for the Legal Profession. The fundamental issue before the court was : should the members of the Legal Profession be covered under the Consumer Protection Laws? This further raises the issue, whether the Parliament intended to include the Legal Profession or the other Professions within the purview of Consumer Protection Act, 1986 as re-enacted in 2019?
It needs to be pointed out that there is nothing in the statement of objects and reasons to include the Professionals. Also the services provided by the Professionals like advocates and doctors within the purview of the Act. The apex court has made it clear that Professionals cannot be called Businessmen or Traders nor Clients or Patients be called Consumers. The terms ‘business’ or ‘trade’ have ‘commercial’ connotation. On the other hand, the term ‘Profession’ involves learning or science. The Profession requires knowledge of advanced type. The same is gained by a prolonged course of specialized study. This holds good for the legal, medical and other professions. The nature of work of a Professional is also skilled and specialized one. Most of the work of the Professional is mental. Therefore, the success would depend upon many other factors beyond a man’s control. Roscoe Pound has explained as to what is a Profession? Historically, there are three ideas involved in a profession. Organization. Learning. And the spirit of public service. These are essential. The remaining idea, that of gaining a livelihood is incidental. This, in fact, distinguishes the Profession from any trade or business. When the lawyers do well professionally, they make a good living. Consequently, the top court has held that the Professionals cannot be treated equally or at par with the Businessman or a Trader or a Service provider of products or goods as contemplated in the CP Act.
The next question is, whether the legal profession is different from other Professions? It is recognized in a catena of decisions that the Legal Profession cannot be equated with any other traditional Profession. It Is not commercial in nature. It is essentially service oriented. In fact, it is a noble profession. The members of the Legal Profession are responsible officers of the court. They are an important adjunct of the administration of justice. An advocate owes his duty not only to his client. He also owes duty to the court as well as the opposite side. It needs to be understood that what the advocates do, affects not only an individual but the entire administration of justice. This in turn is the foundation of the civilized society. It is in this back drop, the apex court has held that The Legal Profession is sui generis. Unique in nature and cannot be compared with any other Profession. The advocate is not a mere mouth piece of his client. He has to assist the court in finding out the truth. This role is a responsible role. It may in some situations go beyond his duty towards his client. Therefore, the legal profession cannot be compared with any other Profession.
There is need to take into consideration certain other aspects which clearly distinguish the Legal Profession from other Professions. The lawyers frequently navigate through complex legal landscapes shaped by diverse factors. The lawyers often face ambiguity and uncertainty in their work. The lawyers on both side employ strategies to bring results in favour of their clients. The results are dependent upon the decisions of judges. Thus, the lawyer is controlled by ‘uncertainty’ throughout. The lawyers have no control over their environment. The environment is control by the presiding judge. Moreover, whenever a conflict arises, the lawyers duty towards the court is considered paramount. The duty to the clinets gets relegated to number 2. These are every day hard realities. There are no definite solutions to the same.
It has been further held that legal representation of an advocate for a fee does not constitute a service under CP Laws. As an advocate, he is entitled as of right to practice in all courts. However, he can act for any person only when he is appointed by such person by executing, ‘Vakalatnama’. He can do only what he has been authorized through the ‘Vakalatnama’. It is solemn duty of an advocate, not to transgress authority conferred on him by his client. Advocates are not entitled to make concessions or give any undertaking to the court without express instructions from the client. The advocate is the only link between the court and the client. He is to follow the instructions of his client. He cannot substitute his own judgment. Thus, it is evident that the client exercises direct control over the manner in which an advocate renders his services. The services rendered by an advocate constitute a contract of ‘personal service’. Resultantly, such services stand excluded from the definition of ‘service’. Hence, a complaint alleging deficiency in service shall not be maintainable under the CP Act.
This leads us to another fundamental question. Does it mean that advocates are not liable for their professional misconduct? They are liable. Not under the CP Act. But under the Advocates Act, 1961. The Act provides comprehensive provisions. Further, the Bar Council of India has framed the Rules. They take care of the Professional Misconduct of the advocates. If the advocate is found guilty of professional or other misconduct by the Disciplinary Committee of the State Bar Council or the Bar Council of India, the advocate is to be punished in accordance with the statutory provisions and the rules.
It is often alleged that the State Bar Councils and the Bar Council of India are not playing their role with utmost responsibility. The members of the Disciplinary Committees belong to the same legal fraternity. Resultantly, much remains to be desired.
It is clear that the members of the Legal Profession are not covered within the domain of CP Act. The only other option is to make the Advocates Act effective. May I say, more effective. This needs a serious consideration. May be, the Parliament and the Indian Bar Council need to review the legislation. The object and purpose of the Act is not to provide the escape routes to the legal fraternity. But to ensure that the members of the legal profession discharge their different duties free from misconduct. It cannot be denied that the legal fraternity cannot be left alone. The administration of justice will suffer seriously if Bar Councils fail to perform their role. The object is not to target the legal fraternity. The purpose is to bring the legal fraternity within the discipline of the Act and the rules. Let us not forget that unless the lawyers understand their different roles, the system will fail.
This being the legal position, the supreme court has proposed the review of its 1995 ruling in the Indian Medical Association matter. In this case, the apex court has held that healthcare services are covered under CP Act. The doctors could be sued for deficiency in service and negligence. The bench has referred this ruling (1995) to a larger bench for reconsideration and re-evaluation of the application of CP Laws to other professional services including the doctors. The wholesome view needs to be taken. The caveat is added. A person practicing has an obligation. To maintain probity and high standard of professional ethics and morality. There is no exception to this.
Dr. Balram K Gupta
Professor Emeritus
Sr. Advocate
Honorary Chief Advisor, CJA
