Share :
BACKGROUND
The Supreme Court of India, in Bar Of Indian Lawyers Through Its President Jasbir Singh Malik Vs. D.K.Gandhi Ps National Institute Of Communicable Diseases overruled a 2007 decision by the National Consumer Disputes Redressal Commission (“NCDRC”), which included the services provided by lawyers within the scope of the Consumer Protection Act, 2019 (the “CP Act”) thereby rendering a lawyer’s services deficient.
The case was brought before the court of Justice Bela Trivedi and Justice Pankaj Mithal. The court emphasized on the distinction between professionals and those engaged in business or trade. The Court highlighted that professions require advanced education, specialized skills and significant mental efforts and the success in these professions depend upon uncontrollable factors. As a result, professionals like lawyers cannot be treated the same as business persons under consumer protection laws.
The ruling was a result of an appeal against the NCDRC’s judgment, in which the contentions were that while lawyers might not guarantee favourable outcomes, they could still be held accountable for deficiencies in their promised services. The Supreme Court had stayed this judgment in 2009, leading to the current appeal.
KEY ISSUES
The issues raised before the Apex court revolved around the basic definition of “Services” under the CP Act. The issues included-
(i) Whether the legislature ever intended to include the professions or services rendered by the professionals within the purview of the CP Act?
(ii) Whether the legal profession is sui generis from other professions and trade practices covered under the ambit of “Services”?
(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 exclude it from the definition of “Service” contained in Section 2 (42) of the CP Act?
INTENT OF LEGISLATURE
“Service” as defined under the CP Act includes services which is made available to the consumers 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.
The exclusion of professional services from the ambit of Consumer Protection laws in multiple common law countries was one of the reasons for the court to believe that legislature intended to exclude professional services from the definition of “Service” as given under Section 2(42) of the CP Act.
Therefore, it can be considered that the very purpose and object of the CP Act was to exclude contract of personal service from the ambit of CP Act thereby excluding professional services like legal services from this ambit.
LEGAL PROFESSION IS SUI GENERIS
The legal profession is recognized as sui generis and stands out among other professions 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.
Under the Indian jurisprudence, according to jurist William Blackstone, the judges define the law i.e. it is the duty of a judge to ascertain the law in the situation before the bench and to apply that law to the case. This is one of the primary distinctions between legal profession and other professions. The statutes, case laws and regulatory framework are subject to interpretation and therefore at times, lack definitive answers.
Unlike some other professions where problems may have more straightforward solutions, there remains ambiguity, making control over outcomes elusive. In India, judges have been given wide discretion to ‘fill in the gaps’ in which they resort to various sources but ultimately basing their decision on subjective conceptions of fairness and justice. Sometimes there is no source (rule or precedent) to guide the judge which compels them to use discretion and legislate on the matter. These features of legal profession make it sui generis.
AMBIT OF CONTRACT OF PERSONAL SERVICE
The overruled judgement of 2007 of the NCDRC stated that the services rendered by lawyers are covered under Section 2(1)(o) of the CP Act. 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. The CP Act excludes contract of personal service from the ambit of “Services”.
A contract of personal service involves provider’s individual skills, expertise, and personal qualities. It might be driven by personal relationships, trust, or mutual arrangements and may not include monetary transactions. It includes an obligation of the servant to obey directions in the task to be accomplished as well as its mode and manner of completion. These guidelines were laid down by the Apex Court.
All of these attributes strengthen the opinion that 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. As a necessary corollary, a complaint alleging “deficiency in service” against advocates practicing legal profession would not be maintainable under the CP Act.
AMICUS CURIAE STANCE
The Amicus Curiae, learned senior advocate 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.
It was 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.
It was further submitted that it is open to a party to plead and appear in person in the court, however when the party executes a vakalatnama, an advocate is engaged as an 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.
HOW MEDICAL PROFESSION IS DIFFERENT
The medical profession has been included under the purview of CP Act through Indian Medical Association v VP Shantha’s (1995) 6 SCC, 651(“Shanta’s case”), by the same logic, the legal profession cannot be included as an ordinary practice of business and trade. It was held 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 It was also asserted that Shanta’s case should be reconsidered where it was stated that doctors were being subjected to a lot of harassment. For instance, a doctor, when treating his patient, can choose relevant factors like operating theatre. However, this is not the case with lawyers, where they render services in a particular environment that is not entirely under their control. Based on this, it can be asserted that it is not correct to assess the lawyers on the kind of service that they render under the circumstances they usually work.
SUPREME COURT RULING
The Supreme Court on May 14, 2024 stated that advocates cannot be held accountable for service deficiencies under the Consumer Protection Act 1986 (re-enacted in 2019) and professionals must be handled differently than those conducting commerce and trade. The complaints against lawyers about service deficiencies cannot be brought before the Consumer Forum.
OBSERVATION
It was observed that a lawyer may not be responsible for the outcome of a case as the outcome is not entirely dependent on only a lawyer’s work. 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, any matter of this kind can be brought before a civil court and shall not be dealt under CP Act.
For more information or queries, please email us at
[email protected]
