| Content Provider | Supreme Court of India |
|---|---|
| e-ISSN | 30484839 |
| Language | English |
| Access Restriction | NDLI |
| Subject Keyword | Definition of Service Role of Advocates Justice Delivery System Independence of Judiciary Service under contract Relationship between an Advocate and his Client Profession’ as ‘Business’ or ‘Trade’ Professions or services rendered by the Professionals Deficiency in service Unfair trade practices and unethical business practices Professional’ as ‘service provider’ Legal Profession Service hired of personal service Exclusionary part of the definition of “Service” Reference to larger Bench Timely and effective settlement of consumers’ disputes Decision to be revisited Duty of advocates/lawyers towards the court or availed of an Advocate International practices sui generis |
| Content Type | Text |
| Resource Type | Law Judgement |
| Jurisdiction | India |
| Act(s) Referred | Advocates Act, 1961 (25 of 1961) Consumer Protection Act, 2019 (35 of 2019) Bombay Pleaders Act (0 of 1920) Indian Bar Council Act, 1926 (38 of 1926) Legal Practitioners Act, 1879 (18 of 1879) Consumer Protection Act, 1986 (68 of 1986) |
| Case(s) Referred | Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 Referred Case 5 Referred Case 6 Referred Case 7 Referred Case 8 Referred Case 9 Referred Case 10 Referred Case 11 Referred Case 12 Referred Case 13 |
| Case Type | Appeal |
| Court | Supreme Court of India |
| Disposal Nature | Others |
| Headnote | Consumer Protection Act, 1986 – Consumer Protection Act, 2019 – Complaint alleging “deficiency in service” against Advocates practising Legal Profession – Maintainability – District Forum held that it had the jurisdiction to adjudicate upon the dispute between the parties and decided the complaint in favour of the complainant – However, the State Commission held that the services of lawyers/advocates did not fall within the ambit of “service” defined u/s. 2(1)(o) of the 1986 Act – In Revision, the National Commission held inter alia that if there was any deficiency in service rendered by the Advocates/Lawyers, a complaint under the 1986 Act would be maintainable – Correctness: Held: Services hired or availed of an Advocate would be that of a contract ‘of personal service’ and would thus, stand excluded from the definition of “service” contained in the s. 2(42) of the CP Act, 2019 – In view thereof, the complaint alleging “deficiency in service” against Advocates practising legal profession would not be maintainable under the CP Act, 2019 – Thus, the impugned judgment passed by the National Commission set aside [Paras 42, 43] – Held: Per Pankaj Mithal, J. (Concurring) In the era of globalization, a law has to be applied in context with the prevailing situation of the country, nonetheless, on the basis of the common resolution of the UNO, laws must have a uniform application in all nations – It is, thus, essential that the consumer protection laws in all countries may somewhat have universal application and be confined to ‘consumers’ only i.e. to the persons who buys any goods for consideration or hires or avails of any service for consideration, impliedly excluding the professional services especially that of a lawyer – In doing so, in India also the services of professionals more particularly that of lawyers have to be excluded from consumer protection law in accordance with the intention expressed in enacting the same – Legislature in India as in some other countries, had not intended to include the services rendered by the professionals especially the lawyers to their client within the purview of CP Act, 1986 and re-enacted in 2019 – Thus, the view taken by the National Commission that complaint would be maintainable in CP Act, 1986, in respect of deficiency in service rendered by the lawyers, is incorrect and is set aside. [Paras 24-28] Consumer Protection Act, 1986 – Consumer Protection Act, 2019 – Legislature, if intended to include the Professions or services rendered by the Professionals within the purview of the CP Act 1986/2019: Held: The very purpose and object of the CP Act 1986 as reenacted in 2019 was to provide protection to the consumers from unfair trade practices and unethical business practices – Legislature never intended to include either the Professions or the services rendered by the Professionals within the purview of the said Acts – Other object of the Act was to provide to the consumers timely and effective administration and settlement of their disputes arising out of the unfair trade and unethical business practices – If the services provided by all the Professionals are also brought within the purview of the Act, there would be flood-gate of litigations in the commissions/forums established under the Act, and the very object of Act would be frustrated – Legislative draftsmen are presumed to know the law and there is no reason to assume that the legislature intended to include the Professions or the Professionals or the services provided by them within the ambit of the CP Act – Any interpretation of the Preamble or the scheme of the Act for construing ‘Profession’ as ‘Business’ or ‘Trade’; or ‘Professional’ as ‘service provider’ would be extending the scope of the Act which was not intended, rather would have a counter productive effect. [Paras 42, 19, 20, 18] Legal Profession – Legal Profession is sui generis or is different from the other Profession: Held: Having regard to the role, status and duties of the Advocates as the professionals, the legal profession is sui generis i.e unique in nature and cannot be compared with any other profession – Legal profession is different from the other professions for the reason that what the Advocates do, affects not only an individual but the entire administration of justice, which is the foundation of the civilized society – Legal profession is a solemn and serious profession, and has always been held in very high esteem – Their services in making the judicial system efficient, effective and credible, and in creating a strong and impartial Judiciary, which could not be compared with the services rendered by other professionals [Paras 42, 30] – Held: Per Pankaj Mithal, J. (Concurring) Profession of law, as such, is regarded as sui generis i.e. which is unique – It is distinct from all other professions and is one of its own kind. [Para 3] Consumer Protection Act, 2019 – s. 2(42) – Service hired or availed of an Advocate, if 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 s. 2(42): Held: Service hired or availed of an Advocate is a service under “a contract of personal service,” and thus, would fall within the exclusionary part of the definition of “Service” contained in s. 2(42) – Greater the amount of direct control exercised over the person rendering the services by the person contracting for them, the stronger would be the grounds for holding it to be a “contract of service” – 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. [Paras 42, 39, 41]Reference to larger Bench – Three-Judge Bench decision in *Indian Medical Association vs. V.P. Shantha & Others holding inter alia that the wide amplitude of the definition of ‘service’ in the main part of s. 2(1)(o) of the Consumer Protection Act, 1986 would cover the services rendered by Medical Practitioners within the said s. 2(1)(o) of the Act – Correctness: Held: Having regard to the history, object, purpose and the scheme of the CP Act and that neither the “Profession” could be treated as “business” or “trade” nor the services provided by the “Professionals” could be treated at par with the services provided by the Businessmen or the Traders, so as to bring them within the purview of the CP Act, the decision in *Indian Medical Association vs. V.P Shantha’s case to be revisited and considered by a larger bench – Thus, matter referred to Hon’ble the Chief Justice of India for consideration – Supreme Court Rules – Order VI r 2. [Paras 21, 24]Consumer Protection Act, 1986 – Consumer Protection Act, 2019 – Scope and object of – Intention of the legislature: Held: The said Act was enacted to provide for the better protection of the interests of the consumers against their exploitation by the traders and manufacturers of the consumer goods, and to help consumers in getting justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies – Reasons for re-enacting the CP Act, 2019 by the Legislature, were certain shortcomings found in the CP Act 1986 while administering the said Act, and due to the emergence of global supply chains, rise in international trade and rapid development of e-commerce leading to new systems for goods and services, new options and opportunities had become available to the consumers – New forms of unfair trade and unethical business practices also came to be developed, which made the consumers more vulnerable – Furthermore, there was not a whisper in the statement of objects and reasons either of the CP Act, 1986 or 2019 to include the Professions or the Services provided by the Professionals like Advocates, Doctors etc. within the purview of the Act – Professionals could not be called Businessmen or Traders, nor Clients or Patients be called Consumers. [Paras 12, 14, 15]Words and phrases – Definition of term “Profession” – Meaning and explanation of: Held: “Profession” would require advanced education and training in some branch of learning or science – Nature of work is also skilled and specialised one, substantial part of which would be mental rather than manual – Thus, having regard to the nature of work of a professional, which requires high level of education, training and proficiency and which involves skilled and specialized kind of mental work, operating in the specialized spheres, where achieving success would depend upon many other factors beyond a man’s control, a Professional cannot be treated equally or at par with a Businessman or a Trader or a Service provider of products or goods as contemplated in the Consumer Protection Act – Similarly, services rendered by Businessman or Trader to consumers with regard to his goods or products cannot be equated with the Services provided by Professional to his clients with regard to his specialized branch of profession. [Paras 15, 18]Legal profession – Justice Delivery System and the evolving jurisprudence – Role of Advocates: Held: Legal profession cannot be equated with any other traditional professions – It is not commercial in nature but is essentially a service oriented, noble profession – Role of Advocates is indispensable in the Justice Delivery System – Evolution of jurisprudence to keep the Constitution vibrant is possible only with the positive contribution of the Advocates – Advocates are expected to be fearless and independent for protecting the rights of citizens, for upholding the Rule of law and also for protecting the Independence of Judiciary – People repose immense faith in the Judiciary, and the Bar being an integral part of the Judicial System has been assigned a very crucial role for preserving the independence of the Judiciary, and in turn the very democratic set up of the Nation – Advocates are perceived to be the intellectuals amongst the elites and social activists amongst the downtrodden, thus are expected to act with utmost good faith, integrity, fairness and loyalty while handling the legal proceedings of his client – Being a responsible officer of the court and an important adjunct of the administration of justice, an Advocate owes his duty not only to his client but also to the court as well as to the opposite side [Para 29] – Held: Per Pankaj Mithal, J. (Concurring) Profession of law is a noble profession having an element of duty towards the court – Lawyers perform multi-faceted duties – They not only have a duty towards the client or their opponents but they have a paramount duty to assist the court as well – In a way, they are officers as well as ambassadors of the court – Thus, in rendering such kind of a duty to enable the courts to come to a just conclusion, it may be possible that at times, the lawyers may earn displeasure of the client while assisting the court. [Para 2]Advocates Act, 1961 – Advocate – Legal Practitioner – Definition of, and explanation: Held: Advocate is included in the definition of “Legal Practitioner” but legal practitioner is not included in the definition of Advocate – Advocate is one who has been entered in any roll under the provisions of the Advocates Act – Law relating to legal practitioners and to provide for the constitution of Bar Councils and an All-India Bar is covered under the Advocates Act, 1961 – As per s. 29, there is only one class of persons entitled to practice the profession of law, namely Advocates, and as per s. 30, every advocate whose name is entered in the State roll is entitled as of right to practice in all Courts including the Supreme Court and before any Tribunal or any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice – Comprehensive provisions are contained in the Advocates Act, 1961 and the Bar Council of India Rules to take care of the professional misconduct of the Advocates, and prescribing the punishments if they are found guilty of professional or other misconduct by the Disciplinary Committees of the State Bar Council or the Bar Council of India. [Para 34]Consumer Protection Act, 1986 – s. 2(1)(o) – Consumer Protection Act, 2019 – s. 2(42) – Definition of “Service” contained in s. 2(1)(o) of the CP Act 1986 and in s. 2(42) of the CP Act 2019 – Elucidation: Held: Definition of “Service” contained in s. 2(1)(o) of the CP Act 1986 and in s. 2(42) of the CP Act 2019 is the same – Definition of ‘service’ is divided into three parts-first part is explanatory in nature and defines service to mean service of any description which is made available to the potential users; the second part is inclusionary part, which expressly includes the provision of facilities in connection with the specific services; and the third part is exclusionary part which excludes rendering of any service free of charge or under a contract of personal service. [Paras 35, 37]Consumer Protection Act, 1986 – s. 2(1)(g) – Consumer Protection Act, 2019 – s. 2(11) – Definition of ‘Deficiency’ in s. 2(1)(g) of 1986 Act and s. 2(11) of 2019 Act: Held: There is slight difference in the definition of ‘Deficiency’ in s. 2(1)(g) of 1986 Act and s. 2(11) of 2019 Act. [Para 36]Advocates – Relationship between an Advocate and his Client – Nature of control – Unique attributes: Held : Advocates are generally perceived to be their client’s agents and owe fiduciary duties to their clients – Advocates are fastened with all the traditional duties that agents owe to their principals – Advocates have to respect the client’s autonomy to make decisions at a minimum, as to the objectives of the representation – Advocates are not entitled to make concessions or give any undertaking to the Court without express instructions from the Client – It is the solemn duty of an Advocate not to transgress the authority conferred on him by his Client – Advocate is bound to seek appropriate instructions from the Client or his authorized agent before taking any action or making any statement or concession which may, directly or remotely, affect the legal rights of the Client – Advocate represents the client before the Court and conducts proceedings on behalf of the client – He is the only link between the court and the client – Thus, his responsibility is onerous – He is expected to follow the instructions of his client rather than substitute his judgment – Thus, 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. [Para 41]Consumer Protection Laws – Exclusion of lawyers from Consumer Protection Laws – International practice/norms – Discussed. [Paras 6-9, 13-15, 17, 24] Per Pankaj Mithal, J. (Concurring) |
| Judge | Hon'ble Ms. Justice Bela M. Trivedi |
| Neutral Citation | 2024 INSC 410 |
| Petitioner | Bar Of Indian Lawyers Through Its President Jasbir Singh Malik |
| Respondent | D. K. Gandhi Ps National Institute Of Communicable Diseases And Anr. |
| SCR | [2024] 6 S.C.R. 484 |
| Judgement Date | 2024-05-14 |
| Case Number | 2646 |
National Digital Library of India (NDLI) is a virtual repository of learning resources which is not just a repository with search/browse facilities but provides a host of services for the learner community. It is sponsored and mentored by Ministry of Education, Government of India, through its National Mission on Education through Information and Communication Technology (NMEICT). Filtered and federated searching is employed to facilitate focused searching so that learners can find the right resource with least effort and in minimum time. NDLI provides user group-specific services such as Examination Preparatory for School and College students and job aspirants. Services for Researchers and general learners are also provided. NDLI is designed to hold content of any language and provides interface support for 10 most widely used Indian languages. It is built to provide support for all academic levels including researchers and life-long learners, all disciplines, all popular forms of access devices and differently-abled learners. It is designed to enable people to learn and prepare from best practices from all over the world and to facilitate researchers to perform inter-linked exploration from multiple sources. It is developed, operated and maintained from Indian Institute of Technology Kharagpur.
Learn more about this project from here.
NDLI is a conglomeration of freely available or institutionally contributed or donated or publisher managed contents. Almost all these contents are hosted and accessed from respective sources. The responsibility for authenticity, relevance, completeness, accuracy, reliability and suitability of these contents rests with the respective organization and NDLI has no responsibility or liability for these. Every effort is made to keep the NDLI portal up and running smoothly unless there are some unavoidable technical issues.
Ministry of Education, through its National Mission on Education through Information and Communication Technology (NMEICT), has sponsored and funded the National Digital Library of India (NDLI) project.
| Sl. | Authority | Responsibilities | Communication Details |
|---|---|---|---|
| 1 | Ministry of Education (GoI), Department of Higher Education |
Sanctioning Authority | https://www.education.gov.in/ict-initiatives |
| 2 | Indian Institute of Technology Kharagpur | Host Institute of the Project: The host institute of the project is responsible for providing infrastructure support and hosting the project | https://www.iitkgp.ac.in |
| 3 | National Digital Library of India Office, Indian Institute of Technology Kharagpur | The administrative and infrastructural headquarters of the project | Dr. B. Sutradhar bsutra@ndl.gov.in |
| 4 | Project PI / Joint PI | Principal Investigator and Joint Principal Investigators of the project |
Dr. B. Sutradhar bsutra@ndl.gov.in Prof. Saswat Chakrabarti will be added soon |
| 5 | Website/Portal (Helpdesk) | Queries regarding NDLI and its services | support@ndl.gov.in |
| 6 | Contents and Copyright Issues | Queries related to content curation and copyright issues | content@ndl.gov.in |
| 7 | National Digital Library of India Club (NDLI Club) | Queries related to NDLI Club formation, support, user awareness program, seminar/symposium, collaboration, social media, promotion, and outreach | clubsupport@ndl.gov.in |
| 8 | Digital Preservation Centre (DPC) | Assistance with digitizing and archiving copyright-free printed books | dpc@ndl.gov.in |
| 9 | IDR Setup or Support | Queries related to establishment and support of Institutional Digital Repository (IDR) and IDR workshops | idr@ndl.gov.in |