The Supreme Court ruled on Tuesday (May 14) that the services of a lawyer should be treated differently from any other business or trade. Justices Bela M Trivedi and Pankaj Mittal held that the success of “professionals” often depends on factors beyond their control and clients cannot take legal action against their lawyers for not rendering proper “service” under the Consumer Protection Act.
The judgment came from an appeal against a 2007 decision of the National Consumer Disputes Redressal Commission (NCDRC) that lawyers’ services fall within the definition provided under Section 2(o) of the Consumer Protection Act, 1986 (CPA). If there is any defect in the service, a complaint can be lodged under the Consumer Protection Act, NCTRC said.
What arguments were made? And what did the court say?
Advocacy groups argue against liability under the Consumer Protection Act
Lawyer M Mathias, who was the original petitioner, along with several groups such as the Bar Council of India, the Delhi High Court Bar Association and the Bar Association of Indian Lawyers, argued against the application of the Consumer Protection Act to the legal profession. Much of their argument was that the legal profession should be distinguished from other professions or trades and that, even among other professions, lawyers occupy a unique position.
The petitioners argued that as per the Bar Council of India Rules, 1961, advocates owe a duty to the court and to their opponent, unlike other professionals, advocates cannot act as their client’s “word of mouth” despite payment of fees. These duties may conflict with the duty to the customer. For example, as part of a lawyer’s duty to the court, they must “refuse to represent clients who insist on unreasonable means”.
They also argued that because of the complexities of legal issues involving complex statutes and case laws, lawyers have no control over the outcome of the case. This unpredictability is further fueled by the adversarial nature of legal proceedings. And, unlike the medical profession, where science helps establish a universal standard of care, such an ideological standard cannot be applied across the legal profession as each lawyer argues in his or her own style.
The petitioners contended that the Advocates Act, 1961 contains remedies for professional misconduct and that the Advocates Act confers disciplinary powers on Bar Councils (state and national) in such cases. Regarding the conduct of lawyers, the petitioners contended that the Advocates Act would be invoked against the Consumer Protection Act.
Although no one appeared to plead on behalf of the respondents, the bench appointed senior advocate V Kiri as amicus curiae (friend of the court) to assist the bench from a neutral position. He said there are two categories of lawyers. First, there are those who represent their clients before the courts and act as ‘agents’, i.e. someone who acts as an extension of the client outside the service provider-consumer relationship in consumer protection law. Second, lawyers who provide services outside of litigation and do legal opinions or drafting work. This second category of advocates may be covered by the Consumer Protection Act, Giri said.
Supreme Court says legal services not covered under Consumer Protection Act
Justice Bela M Trivedi wrote the main judgment and Justice Pankaj Mithal delivered the concurring opinion. Justice Trivedi said that “there is no question” of including services rendered by professionals like lawyers or doctors within the Consumer Protection Act, either when it was enacted in 1986 or when it was re-enacted in 2019 in view of the rise of international trade and e-commerce.
The judge highlighted the distinction between the terms ‘business’ and ‘trade’, and ‘profession’, which he said “includes some branch of learning or science”. Success in the field of science, he said, depends on “factors beyond the control of a human being” and cannot be treated at par with an entrepreneur or a service provider covered by the Consumer Protection Act. Noting this distinction, he said that in the case of Indian Medical Association v. VP Chanda (1995), the court held that the services of medical practitioners are covered by the Consumer Protection Act, which should be reconsidered by a larger Supreme Court bench.
On the unique position of the legal profession in society, Justice Trivedi said, “It is not commercial, but essentially a service-oriented, noble profession” which cannot be compared with other professions. The judge spoke of the expectation that lawyers should be “fearless and independent” while protecting citizens’ rights, judicial independence and the rule of law. Consequently, a lawyer’s actions affect not only the client but the entire justice system, which the bench said is “unique”.
Finally, the bench considered whether lawyers enter into a “personal service contract” with their clients and are exempt from being covered under the Consumer Protection Act. The term ‘service’ is defined very broadly under the Consumer Protection Act, but excludes free services and individual service contracts. The court held that clients must exercise a “substantial degree of direct control” over a lawyer’s services, instructions required before the lawyer makes any offer or undertaking before the court, or matters affecting the client’s legal rights. Thus, the lawyer and the client enter into a personal service contract, which cannot be challenged under the Consumer Protection Act.
For these reasons, the court set aside the decision of the NCTRC and held that a suit cannot be filed against the advocate services under the Consumer Protection Act.
