Abstract
A verdict dated 14 May 2024 by Justice Bela M Trivedi and Justice Pankaj Mithal has declared that services provided by advocates shall not be covered under the Consumer Protection Act (“CPA”), 2019. This judgment has, thus, questioned the very basis of the application of the CPA to medical services as laid down in the V.P. Shantha judgement. The bench opined that the legislature could never have intended the Act to cover professional services, which are already governed by respective professional councils. The ruling raised questions of procedural propriety about a partial referral to a larger bench and judgment on hypothetical premises. It is at this juncture that differentiation between the legal and the medical professions had to be brought out, concerning standards of care. The Court referred the issue for reconsideration to a larger bench, without clarifying if the referral pertains to the whole judgment of Shantha or only the question of including professionals under the CPA that is under scrutiny. The case epitomizes the dilemma of balancing consumer protection with the maintenance of professional standards. It calls for review to guarantee a regime both of professional accountability and of consumer rights in dynamic consumer protection amidst technological advancement and global networking.
Introduction
The Supreme Court, in a landmark judgement delivered by the bench comprising Justice Bela M Trivedi and Justice Pankaj Mithal on 14 May 2024, i.e., the Bar of Indian Lawyers case, ruled that the services rendered by an advocate do not fall within the four corners of the Consumer Protection Act 2019. The decision was based on the ratio that the legislature never intended to include professional occupations within the Act’s framework. The Court observed that, unlike other regular service providers, employees under the CPA possess the mentation element of the employment contract, coupled with wide-ranging training and moral obligation. Therefore, it would contradict any originalist reading of the Act, which was not intended to regulate the technical services offered by professionals in the first place but only to address consumer complaints in a market characterised by powerful commercial corporations.
Background And Precedent
The observation that services rendered by advocates are not covered under the CPA raised questions about precedent, specifically the judgment in Indian Medical Association vs V.P. Shantha & Others, where a three-judge Bench of this Court bought medical services under the umbrella of ‘service’ under S. 2(42) of the CPA through interpretation. At this juncture, differentiation between the legal and medical professions had to be bought out and landmark decision has been a subject of intense debate and discussion within the legal community since its inception in 1995. However, the current observation may be consequent to the prevalent environment where misrepresentations by professionals are increasing due to declining ethical standards. The Apex court, fearing the misconceptions- the judgement might bring, felt the need to clarify that such professionals, for instance, lawyers and doctors cannot shield themselves and escape accountability for any harm incurred to their clients in the capacity of their professional standing, and therefore will be held responsible. Indeed, for these professions, it will be the Bar Councils or the Medical Councils and not the CP Act which will stand as the right platform to make them accountable and not let the persons go scot-free from civil or criminal liability arising out of misconduct.
Distinction Drawn
The primary argument advanced to provide a contrast between medicine and the legal profession was that medicine bases its determination of care on scientific norms, however, the legal profession lacks an objective, universal standard of care by which to judge when responsibility has been neglected. Additionally, the practice of law differs greatly from the practice of medicine, particularly in the professional-client relationship, thus a distinction was inevitable to be drawn from the ruling in Indian Medical Association vs. V.P. Shantha & Others. The Bench further observed that “the re-consideration of the V.P Shantha decision is inevitable as historical, objective and structural realities pertinent to professional services and commercial services deny the profession the scope to be treated as business or trade under the CPA.” Thus under Order VI Rule 2 of the Supreme Court Rules[5], which empowers a smaller bench of the Court to make such a reference of necessity to the consideration of a larger bench presided over by the Chief Justice, the case was put up for reconsideration, which was followed by the examination of the question of whether the legal profession is sui generis, more so in comparison to the medical profession.
Procedural Lapses
The Supreme Court held in the National Insurance Co. Ltd. v. Pranay Sethi, that unless expressly overruled by a larger bench, a decision made by a coordinate bench on previous occasions is binding on future benches. Thus, the Bench in the Bar of Indian Lawyers case referred the question of whether professional services, such as those offered by advocates, fall within the ambit of the CPA for re consideration by the Chief Justice. This move raises several issues related to procedural propriety, which the bench left unaddressed. For instance, can the bench, while pronouncing judgment, resort to an in-arguendo approach? The Latin phrase ‘arguendo’ means for ‘the sake of argument.’ An in-arguendo approach is one where decisions are rooted in the assumption of law. The term arguendo often appears in court opinions when a judge wants to express that, even if a party’s argument is correct, they will not win the case. When preparing an opinion, a judge may utilise arguendo to examine how their ruling may change if some important facts were altered. This is a faulty approach since it results in decisions premised on hypothetical premises. To refer a question to a larger bench while at the same time holding that professionals are outside the scope of the CPA is opposed to the settled principles of law.
Another lapse was in the scope of what was referred to- was it the entirety of the Shantha judgment or only the issue of professionals falling under the CPA? Since Shantha was a decision by a three-judge bench, the proper course before the two-judge bench was to follow Shantha or leave the entire matter to a larger bench with specific questions for reconsideration. Procedural propriety issues arose because the bench: first, proceeded to address the next issue on the assumption that the CPA applies to professions; and then answered that question in a way that the legislature did not intend professionals to be covered by the CPA, which goes directly against the Shantha ruling. Several interlinked questions arise: Can a single issue be referred to a larger bench? Can, in the same judgement, the bench refer an issue to a larger bench and also pronounce the final judgement? Furthermore, the Court on various occasions has observed that “in a precedent-bound judicial system binding authorities have got to be respected and the procedure for developing the law has to be one of evolution.”Consequently, given that Order VI, Rule 2 of the Supreme Court Rules prohibits the partial referral of a matter to the larger bench, holding that the law in Shantha requires reconsideration while hypothecating its correctness to pronounce a final judgement overturning a precedent is incoherent with the settled principles of law.
The Jurisdiction Argument
Medical practitioners, though belonging to the medical profession, are not immune from a claim for damages on the grounds of negligence. The fact that they are governed by the Indian Medical Council Act and are subject to the disciplinary control of Medical Council of India or State Medical Councils is no solace to the person who has suffered due to their negligence, and the right of such person to seek redress is not affected. Similarly, the contention that advocates are governed by the Advocates Act, 1961 and thus not answerable to the claims under the CP Act can be countered by the argument that there is no such provision in the Advocates Act, 1961 to bar the jurisdiction of other Courts and authorities or Tribunals about matters connected with the advocates or disputes arising between the clients and their advocates. Section 6 of the Advocates Act, 1961 sets out the functions of the State Bar Council. There is no provision in the Advocates Act to enable the Bar Council to deal with the dispute between the client and the advocate if the client seeks a remedy of damages or refund of money paid to the advocate or sums on monetary claim. The Advocates Act’s Section 6(1) permits the Bar Council to evaluate alleged misbehaviour against advocates and to handle disciplinary issues only. Hence, there is no substance in the contention that the Advocates Act will prevail over the CP Act and the Consumer Redressal Forum will have no jurisdiction to deal with claims against advocates. The same was held by the Madras High Court in the case of Srimathi and Ors vs the Union of India and Ors. This decision reiterates that while advocates are regulated by the Bar Council under the Advocates Act, this does not provide an exclusive jurisdiction to the Bar Council, excluding other remedies available to the clients under different statutes. It has thus emerged as a landmark, asserting that professional regulation does not exclude consumer rights under the CP Act.
Conclusion
Thus, it is reasonable to conclude that the Supreme Court’s decision undoubtedly attempted to establish a boundary between what might be deemed a professional service and what could be considered a legitimate commercial service. However, the procedural and substantive defects require a reappraisal of the issues by a larger bench. The procedural defect lies in referring the question to a larger bench while holding that the professionals are outside the scope of the CPA, which smacks of a dual approach, and is also contrary to established legal principles, leading to ambiguities. While professional bodies like the Bar Council regulate advocates, there are no specific provisions which empower these councils to make advocates accountable and provide relief to consumers; this issue could be resolved by bringing at least some of the professional services within the ambit of the CPA without eroding the authority of the professional councils. The review by a larger bench will ensure a properly balanced regime that protects both the professional standards and the rights of consumers. The legal system will have to help itself with perpetual changes in technology and global networking. The CPA was one such step, but much more in the realm of fine-tuning is needed to meet the challenges posed by the rising complexities of contemporary professional-client relationships.
This article is a part of the DNLU-SLJ (Online) series, for submissions click here.
Student, Rajiv Gandhi National University of Law, Patiala