5 July 2023 7:30 AM GMT
The Karnataka High Court has declared Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, which bars advocates from representing parties before the tribunals/forums constituted under the Act, as ultra vires of Section 30 of the Advocates’ Act, 1961. It has thus permitted Advocates to represent parties before the tribunal/forums. A single judge bench of Justice...
The Karnataka High Court has declared Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, which bars advocates from representing parties before the tribunals/forums constituted under the Act, as ultra vires of Section 30 of the Advocates’ Act, 1961. It has thus permitted Advocates to represent parties before the tribunal/forums.
A single judge bench of Justice M Nagaprasanna held,
“Parties to the lis cannot always be said to be conversant with terms, to be knowing the nuances of law of evidence, both oral or documentary, as to what is to be produced before the Tribunal. It is, therefore, a legal aid is necessary to such senior citizens. Legal aid, is trite, a facet of the constitutional right guaranteed under Article 21 of the Constitution of India and such legal aid or legal assistance cannot be stifled or crippled only to tendering advice.”
The court made the declaration while allowing a petition filed by one K. Srinivas Ganiga (82), challenging an order passed by the Deputy Commissioner, denying representation of the petitioner by an advocate in the appeal proceedings and to declare the Section as unconstitutional.
The petitioner contended that the Act was envisaged for protection of rights of senior citizens and towards the said right the petitioner ought to have been permitted the assistance of a legal practitioner before the Assistant Commissioner itself as the petitioner was 82 years old at the time he approached the Assistant Commissioner.
The state government and Union Government opposed the plea saying the statute clearly prohibits engagement of any legal practitioner before both the fora.
The bench on going through the order passed by the Assistant Commissioner which had partly allowed the application filed by the petitioner and directed his sons not to torture their parents said, “The petitioner is an octogenarian and is seeking protection under the Act. Looking at the age of the petitioner, he could not defend himself in contra-distinction to the vehement defense put up by the children. This has undoubtedly resulted in a fractured order passed by the Assistant Commissioner as there is only a direction that the petitioner and his wife should not be disturbed from the house but there is no order to maintain the petitioner.”
It expressed that in cases where the parties are more than 60, 70 or 80 years of age, they would not be in a position to defend their own case and sometimes would become tongue tied on the vehement opposition put up by the children. "Apart from the legality of the issue whether the Act would place an embargo or otherwise, the aforesaid facts of the case at hand are grave enough to permit assistance by a legal practitioner,” Court said.
It added that if the object of the Act was to render protection to the senior citizen, the protection should not be illusive or collusive.
Court held that Section 30 of Advocates Act permits Advocates to appear before any fora. It further observed,
“Section 17 of the Act though begins with a non-obstante clause “notwithstanding anything contained in any law” it can be only with regard to the law that was in existence on the date of promulgation of the Act i.e., on 01-01-2008. Section 30 of the Advocates Act comes into force, as observed hereinabove, in the year 2011 i.e., on 15.06.2011. Therefore, the right of an Advocate to practice before the Tribunal which is derived under Section 30 cannot be seen to be controlled by an enactment earlier to it, i.e., in terms of Section 17 of the Act.”
It also cited Delhi High Court's decision in Pawan Reley v. Union of India which took a similar view.
Court then noted Section 8(2) of the Act mandates that the Tribunal shall have all the powers of the Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and compelling the discovery and production of documents. Similarly, under Section 16 of the Act the Appellate Authority has vast powers to adjudicate and decide upon the appeal after both the parties are heard in person or through duly authorised representatives.
“In the teeth of the enactment, its purpose and the right of the Advocate under Section 30 of the Act, legal assistance by an advocate cannot but be given to the applicants before the Assistant Commissioner, as well as the Deputy Commissioner,” Court held.
It rejected the contention of the government that entry of an Advocate would delay the proceedings or jeopardise the object behind the Act. It said “The presence of an advocate would neither delay the proceedings nor jeopardise the object of the enactment. In the considered view of this Court, it would streamline the proceedings to be in accordance with law.”
Accordingly it allowed the petition and quashed the Endorsement issued by the Deputy Commissioner. It remitted the matter back to the Deputy Commissioner and permitted the petitioner to be represented by an advocate.
The bench lastly directed the Registry to forward a copy of the order to the Chief Secretary to Karnataka Government for taking appropriate steps to notify the Assistant Commissioners and the Deputy Commissioners under the Act to permit representation of Advocates to the applicants, petitioners and appellants in the proceedings before them.
Case Title: K Srinivas Ganiga And Union of India & Others
Case No: WRIT PETITION No.1912 OF 2023
Citation: 2023 LiveLaw (Kar) 253
Date of Order: 26-06-2023
Appearance: Advocates K. Raghavendra Gowda, Mohan Kumara D for appellant,
Deputy Solicitor General, Shanthi Bhushan H for R1.
HCGP K P Yashodha for R2.
Advocate Ajith Anand Shetty for R3, R4.
Click Here To Read/Download Order