Lawyer Assisting A Sovereign Function, Can't Be Brought Under Consumer Protection Act : Argument Before Supreme Court

Today, the Supreme Court resumed its hearing on the crucial point of whether services rendered by the lawyer would come within the ambit of the Consumer Protection Act of 1986. The issue, which is relevant for members of the Bar, emerged from a judgment delivered by the National Consumer Disputes Redressal Commission in 2007. The Commission had ruled that the services rendered by lawyers are covered under Section 2 (o) of the Consumer Protection Act. Needless to say, the said provision defines Service. It was held that a Lawyer may not be responsible for the favorable outcome of a case as the result/outcome does not depend upon only the lawyer's work. However, if there was a deficiency in rendering services promised, for which he receives consideration in the form of a fee, then the lawyers can be proceeded against under the Consumer Protection Act. Moreover, it was also opined that the contract between the client and a lawyer is bilateral. On receipt of fees, the commission said the lawyer would appear and represent the matter on behalf of his client. Yesterday (on February 14), the Bench of Justices Bela Trivedi and Pankaj Mithal partly heard the matter. The details of the written submission can be read here. Senior Advocate Narender Hooda, appearing on behalf of the appellant, made his submissions during today's hearing. At the outset, the Counsel explained that the Consumer Protection Act was conceived from a different perspective, with commercial activity on one side and poor individual litigants on the other. “Because my, lords, when the Consumer protection act came there was a huge discussion that whether even the lawyers should be permitted to appear before Consumer Forum. Because it is between the consumer and commercial entity.,” Hooda added. Distinguishing legal profession from the doctors (who are not entitled to this kind of immunity), Hooda said that in the latter, the relationship is direct between the doctors and patient. Further, doctors and their clinics can advertise without any bar, unlike Advocates (who are prohibited from soliciting their work). He submitted that there are alternative remedies available. In this regard, he apprised the Bench that under the Advocates Act, 1961, complaints against an Advocate are entertained by the State Bar Council and the Bar Council of India. The Counsel also added that the Courts perform a sovereign function, and a lawyer's duty is to assist the Court in performing this function. Reading from his written submission, he submitted: “Needless to say that the Courts perform a sovereign function while deciding a lis between two private individuals, or between a private individual and the government, or between government instrumentalities. The function of a Lawyer is primarily to assist the Court in performing this sovereign function, which is unlike all other professions be it a Doctor, Engineer, Chartered Accountant, etc. Still further, as has been briefly mentioned hereinabove, the Law casts a duty on the Lawyer to act as an Officer of the Court rather than merely as representing the interests of her Client.” “In the course of proceedings before a Court of Law a Lawyer has to comport herself to a standard that upholds the Rule of Law even at the risk of antagonizing her Client, who may advice her Lawyer to act against the Law for her selfish private Interests. Thus, unless an Officer of the Court i.e. a Lawyer is insulated and afforded a certain amount of immunity and independence, she cannot be expected to carry out her functions as a Lawyer in accordance with the mandate of the Law.,” the Counsel elaborated. He further placed his reliance on D.P. Chadha v. Triyugi Narain Mishra & Ors. (2001) 2 SCC 221, to submit that the independence of a Lawyer is as important as that of a Judge while moving the wheels of the Chariot of Justice. However, Justice Trivedi asked if anyone could be prevented from filing false suits or complaints before the Court of Law. “Ultimately, they fail. But you cannot prevent them from filing.” In the end, Hooda averred that the Consumer Protection Act is conceived in a manner that the lawyers' service does not fit into the scheme of the Act. It may be noted that there must be a service contract for any service provided under the Consumer Protection Act. Further, no contract is maintainable unless there is a consideration. On this issue, he averred that consideration is not a sine qua non for the engagement of a Lawyer. To support this, the Counsel gave an example of pro bono litigation. “I am as good a lawyer for him as I am a lawyer to another person who has paid me five laks rs.,” he asserted. The matter is posted next Wednesday for further hearing.Case Title: BAR OF INDIAN LAWYERS THROUGH ITS PRESIDENT JASBIR SIGH MALIK vs. D.K.GANDHI PS NATIONAL INSTITUTE OF COMMUNICABLE DISEASES., Diary No.- 27751 - 2007 ...

Lawyer Assisting A Sovereign Function, Can't Be Brought Under Consumer Protection Act : Argument Before Supreme Court

Gyanvi Khanna

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