Advocates can’t be held liable for deficiency under Consumer Protection Act: Supreme Court

Reading out her judgment, Justice Trivedi clarified, “We have categorically said that we do not propose to say that they cannot be sued in the ordinary course of law for negligence but they are not covered under the Consumer Protection Act.”

Justice Trivedi said the court “had distinguished the profession from business and trade”.

“We have said that a profession would require advanced education and training in some branch of learning or science. The nature of work is also skilled and specialised one, a substantial part of which will be mental rather than manual. Therefore having regard to the nature of work of the professional which requires a high level of education, training and proficiency, and which involves skill and specialised kind of mental work operating in specialised spheres that achieving success would depend on many other factors beyond one’s control,” she explained.

“A professional cannot be treated at par with businessmen or traders or service providers of products or goods as contemplated in the Consumer Protection Act,” Justice Trivedi said. “We are therefore of the considered opinion that the very purpose of the Act…was to provide protection to the consumer from the unfair trade practices and unethical business practises only. There is nothing to suggest that the legislature ever intended to include professions or professionals in the purview of the Act.”

The bench accordingly opined that the 1995 Supreme Court judgment in Indian Medical Association v. VP Shantna “deserves to be revisited” and added that it had requested the Chief Justice of India to refer it to a larger bench for the purpose. The court had in that case held that doctors and other medical professionals can be held liable under the Consumer Protection Act.

The bench held that the legal profession is sui generis (unique) and cannot be compared with any other profession.

On the question “whether it’s a service under a contract of service”, the bench said, “We have considered the provisions of Advocates Act, Bar Council Rules and in the light of Consumer Protection Act and said that the relationship between the Advocate and his client from the above point of view would indicate unique attributes. Advocates are generally perceived to be their clients’ agents and owe fiduciary duties to their clients. Advocates have to respect the clients’ autonomy to make decisions at a minimum as to the objectives of the representation. The 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 the advocates not to transgress the authority conferred on him by his client.”

“An advocate is bound to seek instructions from his client or his authorised agent before taking any action or making any statement or concession which may directly or remotely affect the legal rights of the client. An 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. And therefore the responsibility is onerous. He is expected to follow the instructions of his client rather than substituting his client…Thus, a considerable amount of control is exercised by the client over the manner in which the advocate renders services during the course of employment,” the bench further said.

“All these attributes strengthen our opinion that services hired or availed of an advocate would be that of contract of personal service and would therefore stand excluded from the definition of service contained in Section 2(42) of the Consumer Protection Act 2019,” the bench added.

The ruling said that “as a necessary corollary, a complaint alleging deficiency in service against advocates practising legal profession would not be maintainable under the Consumer Protection Act”.

In a concurring ruling, Justice Mithal said he had considered consumer protection laws in other countries. “In India also, the services or professionals, particularly that of lawyers, have to be excluded from the consumer protection law in accordance with the intentions expressed in enacting these Acts. The legislature in India and in some other countries have not intended to include the services rendered by professionals to their clients within the purview of the Consumer Protection Act,” he added.