The Supreme Court, in a judgment on May 14, declared that advocates cannot be sued by their clients under the Consumer Protection Act for deficiency of service.
A Bench of Justices Bela M. Trivedi and Pankaj Mithal, in separate but concurring opinions, differentiated between a commercial enterprise or business with a ‘profession’. The former has a trader-consumer relationship. The latter was a fiduciary relationship between a professional, be it legal or medical, with a client or a patient.
“Professionals could not be called businessmen or traders, nor clients or patients be called ‘consumers’. The terms ‘business’ or ‘trade’ have a commercial aspect and cannot be used interchangeably with the term ‘profession’ which normally would involve some branch of learning or science. Profession as such would require knowledge of an advanced type in a field of learning or science, or learning gained by a prolonged course of specialised study,” Justice Trivedi explained.
The court said the legal profession was ‘sui generis’ or unique in nature. Advocates could impact not only their individual clients, but also the entire society and administration of justice through the courts. They represent clients, whose disputes and troubles raise the ailments, shortcomings and what need to be repaired in society. Advocates are the medium through which important questions of law reach the court. They ensure that rule of law and administration of justice remain the foundation of the civilised society, the court noted.
“The advocates are perceived to be the intellectuals amongst the elites and social activists amongst the downtrodden. That is the reason they are expected to act according to the principles of uberrima fides i.e., the utmost good faith, integrity, fairness and loyalty while handling the legal proceedings of his client,” Justice Trivedi observed.
But the court also acknowledged the unmistakable problem of professional misconduct, but said suing advocates under the Consumer Protection Act was not the answer.
A service hired or availed of an advocate was one under “a contract of personal service”, and would be outside the definition of ‘service’ in Section 2 (42) of the Consumer Protection Act, 2019.
