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Advocates Entitled To Appear In Maintenance Tribunals; Bar On Legal Representation Unconstitutional : Kerala High Court

Lydia Suzanne Thomas
8 April 2021 2:41 PM GMT
Advocates Entitled To Appear In Maintenance Tribunals; Bar On Legal Representation Unconstitutional : Kerala High Court
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"Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961"

In a groundbreaking judgment, the Kerala High Court has declared as unconstitutional the bar on lawyers representing parties in matters before the Maintenance Tribunals constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Maintenance Act).

A Bench of Chief Justice S Manikumar and Justice Shaji P Chaly pronounced judgment in the case last week, allowing a writ petition filed in 2011.

Drawing from Section 30 of the Advocates Act, the Bench ruled,

"By virtue of Section 30 of the Advocates Act, 1961, coming into force from 15.06.2011, the restriction imposed is taken away and in such circumstances, Article 19 of the Constitution of India, which guarantees the freedom to practice any profession, enables the Advocates to appear before all the Courts and the Tribunals, subject to Section 34 of the Advocates Act, 1961."

The provision(Section 30 of Advocates Act), which was notified in 2011, entitles an Advocate as of right to practise before all Courts, tribunals and persons authorised to take evidence and before any other authority or person.

The petitioner, one Advocate KG Suresh of Pathanamthitta, instituted Public Interest Litigation in the year 2011 seeking a declaration that Section 17 was unconstitutional in light of the then-newly introduced section 30 of the Advocates Act.

Upon consideration of submissions, the Court held that Section 30, being introduced and notified in 2011, had an overriding effect on Section 17 of the Maintenance Act.

"Therefore, the latter enactment has an overriding effect on Section 17 of the 2007 Act", the Bench ruled.

Accepting the submissions advanced by the petitioner's counsel Advocates V Sethunath, VR Manoranjan, Prakash Kesavan and V Vinay, as well as the Bar Council, the Court pointed out that parties to a lis before the Maintenance Tribunal would not be expected to know the nuances of the evidence that was to be produced before the Tribunal.

In this light, allowing legal advice alone would not suffice, the Court effectively held.

Connecting the same the right to legal aid, the Court underscored that legal assistance in maintenance matters "cannot be confined only to legal advice, which, in our view, would not be sufficient, in the interest of the parties."

It was stated in this respect,

"Legal aid is a constitutional right guaranteed under Article 21 of the Constitution of India and legal assistance cannot be confined only to legal advice, which, in our view, would not be sufficient, in the interest of the parties."

Rejecting the contention that the engagement of lawyers would jeopardise the objective of the legislation to provide a speedy and cost effective mechanism to parents and senior citizens, the Court stated,

"..mere engagement of a lawyer would not delay the process of adjudication of a dispute before the Maintenance Tribunal."

On the question of whether engaging a lawyer would hamper the cost effectiveness envisaged by the legislation, the Court underscored that this could not be countenanced either because the Legal Services Authority, constituted under the Legal Services Authorities Act, 1987, would come to the aid of such litigant, by engaging a lawyer to assist him.

The Bench addressed the Union of India on this submission in this way

"…Union of India, cannot undermine the role of the Legal Services Authority, and the lawyers engaged by them, to assist the litigants, in comparison to the lawyers to be engaged by the children/ grandchildren/ relatives, solely on the ground that they are financially in a better position to avail the services of the best advocates."

Further submissions that the Maintenance Act sought that disputes and differences be resolved amicably and that the Tribunal would nominate Conciliation officers for this purpose was also rejected.

"He (the Conciliation Officer) will not be a substitute for a lawyer", the Court opined.

The argument that the "engagement of legal practitioners to represent cases will prolong the matter and will be more of a harassment for the parents in their last phase of life as judgment will be delayed, is wholly unacceptable", the bench additionally remarks in its judgment.

In view of the above, the Court pronounced Section 17 of the Maintenance Act, concluding

"As Section 30 of the Advocates Act, 1961 has been brought into force from 15.06.2011, Advocates enrolled under the said Act have been conferred with an absolute right thereof, to practice before all the Courts and Tribunals…In the light of the above discussion and decisions, Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961 and thus, the petitioner is entitled for a declaration that he has a right to represent the parties before the Tribunal/Appellate Tribunal/Court, constituted under Act 56 of 2007."

With a declaration that the petitioner be allowed to practise in maintenance tribunals/other for a under the Maintenance Act, 2007, the petition was allowed.

Click here to download the judgment




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