Exclusion Of Advocates From Consumer Protection Act
Author: LawSphereX
Category: Consumer Law
Published:
Updated:
EXCLUSION OF ADVOCATES FROM CONSUMER
PROTECTION ACT
Manvika Koshal, RGNUL
ABSTRACT
Apex Court recently mandated that advocates can’t be booked for deficiency of services under Consumer Protection Act; however, they can still be sued for negligence. Equating advocacy with a trade can have serious implications hampering the sanctity of the institution. Advocacy is a noble profession and to maintain its credibility the Apex Court recently mandated that they should be differentiated from persons carrying out trade. This article aims to understand the peculiar nature of services rendered by advocates. This article further explores the reasons of excluding advocates from the purview of this act. Keywords: Consumer Protection Act, Services, Deficiency of Service. Introduction: The goal of protecting consumers rights and interests is a primary as well as basic facet of modern economies.
Passing of The Consumer Protection Act (CPA) of 19861, was an important and key legislative milestone in this field. It was enacted to empower consumers and provide them with options for redressal in the event of discontent or grievances caused by defective goods or services. It was enacted as a safeguard against the whimsical activities of the traders and business owners. Its implementation represented a watershed moment in promoting fair and transparent transactions between consumers and businesses, and further to shield the consumers from the deceptive practices. The Consumer Protection Act's principal goal is to protect consumers against unfair trade practices, product flaws, deceptive ads, and poor service. Furthermore, the legislation mandates consumer tribunals to be set up at various levels to assist the timely resolution of consumer disputes.
However, the services provided by advocates remained a contentious point. Supreme Court’s
1 The Consumer Protection Act, 1986 (Act 68 of 1986).
ruling in May 2024 held that advocates may not be sued under the Consumer Protection Act for claimed service inadequacies. The court emphasized the unique nature of legal services and the necessity to protect advocate’s independence. 2 Historical Evolution of CPA: With the rapid expansion of the marketplace giving adequate protection to consumers has assumed an indispensable role. Consumer protection in India has evolved dramatically over time, reflecting the country's transition to a more egalitarian marketplace. Consumer protection dates back to The Indian Contract Act of 18723, which established standards to protect customers from fraudulent transactions. However, as industrialization and globalization progressed, the need for comprehensive legislation became clear. Indian Contract Act proved insufficient to cater the emerging challenges of the field.
Prior to independence, consumer protection was mostly governed by conventional contractual and tort law concepts. There were few legislative measures in place to combat specific situations, such as food adulteration. Post independence, The Monopolies and Restrictive Trade Practices Act of 19694 was one of the first legal actions taken to defend consumer interests against monopolistic and restrictive trade practices. The Consumer Protection Act of 1986 represented a watershed moment. This statute signaled a paradigm shift by recognizing consumer rights and established consumer forums for grievance resolution. Several changes have been made to the Act from time to time which led to final culmination in The Consumer Protection Act of 2019 5. It included regulations for ecommerce transactions, strict fines for misleading ads, and Central Consumer Protection Authority.
These modifications reflect India's ongoing efforts to modernize legislation and ensure their relevance in the face of changing consumer wants and market circumstances. Conceptual framework of CPA: Service under CPA 2019, Section 2(42) refers to any offering made available to potential users, including banking, insurance, transportation, energy supply, telecom, home building, 2 Apoorva, “Consumer Protection| Advocates not liable for deficiency of Service”, SCC Online May 14, 2024, available at (last visited on July 10, 2024).
3 The Indian Contract Act, 1872 (Act 9 of 1872).
4 The Monopolies and Restrictive Trade Practices Act, 1969 (Act 54 of 1969).
5 The Consumer Protection Act, 2019 (Act 35 of 2019).
entertainment, and information distribution. It does not, however, include free services or those given under a personal service contract. Deficiency of service under CPA 2019, Section 2(11) refers to any flaw, weakness, or insufficiency in the quality, type, or way of providing services that should meet legal or contractual criteria. It involves negligence, omission, commission, or intentional withholding of relevant information that causes customer loss or injury. Rationale for keeping advocates outside purview of CPA: Advocates, as legal experts, have been the subject of controversy over their liability under consumer protection legislation. While consumers expect accountability in legal services, the legal profession's particular character makes it difficult to apply typical consumer protection rules.
1 Peculiar Nature of Legal Services
Legal services need complicated judgements, legal interpretations, and expert discretion. Advocates offer specialized expertise customized to specific instances, making their services distinct from mass-produced items or standardized services.
2 Preserving Advocate’s Independence
Subjecting counsel to CPA may jeopardize their independence and obligation to the court. Advocates' primary allegiance is to the administration of justice, not to their clients' interests alone. Inclusion in CPA may have an undue influence on advocacy and undermine the integrity of the adversarial legal system.
3 Legal Professional Regulation
Legal services are already subject to strict professional norms and disciplinary procedures. Bar councils and professional bodies monitor advocates' behaviour to ensure they follow ethical standards and professional norms. Redundant regulation under such legislation may cause confusion and duplicity.
4 Contract of Personal Service
Whether an advocate’s services fall within a "contract of personal service" is based on legal definitions and control dynamics. In India, the Advocates Act of 1961 defines "advocate" and "legal practitioner" separately. This statute not only defines criteria but also categorizes advocates, giving disciplinary authority to Bar Councils. The CP Act of 1986 as well as of 2019 defines services broadly, however services under a "contract of personal service" are expressly prohibited. This exclusion begs a question about whether legal services performed by advocates come under this category. It is imperative to understand difference between service and personal service contract. Contract of Service is an agreement between an employer and an employee in which the employer has substantial control over the employee's tasks, schedule, and working conditions.
Employees are entitled to various benefits, including pay, paid time off, and social security contributions. Whereas Personal Service contract is between a client and an independent contractor, and it gives the contractor more liberty in carrying out responsibilities. Contractors, unlike employees, do not receive employee benefits rather they receive payment in lump sums upon completion of certain projects. Control in advocate-client interactions has a significant impact on the contractual structure. Clients have direct control over advocates' services, as proven by signing a Vakalatnama, indicating a "contract of personal service. " Advocates, as agents, owe fiduciary duties to clients and must follow their directions.
This strong customer influence over service delivery suggests a contractual arrangement coming under the "contract of personal service" category, which may exclude legal services from the ambit of "service". As a result, complaints alleging "deficiency in service" against advocates may not be enforceable. Case Law and Precedents: State of Uttar Pradesh v Uttar Pradesh State Law Officers (1993)6: A lawyer must be fair to ensure that justice is served. The legal profession is primarily service-oriented, dating back to its inception when lawyers served as advocates for the marginalized in society, volunteering their services altruistically. As litigation grew in popularity, it became a primary source of income for many people. Initially, legal services were given privately, but governments and public institutions began hiring lawyers to advocate their interests.
This transition highlights the critical role of attorneys in advocating for individuals and entities in a variety of societal contexts. In 1995 VP Shanta v. Sukumar Sen7 case the Supreme Court first ruled that lawyers are service providers under the CPA. However, the final finding in VP Shanta left the topic unsettled,
6 State of Uttar Pradesh v Uttar Pradesh State Law Officers, 1994 SCR (1) 348.
7 VP Shanta vs. Sukumar Sen, AIR 1995 SC.
prompting a subsequent re-examination of the subject. Bar of Indian Lawyers v. D. K. Gandhi PS National Institute of Communicable Diseases and Anr. 8: In the instant case the Supreme Court of India considered whether lawyers are subject to the CPA, 1986. The main question was whether legal services are considered "services" under the CPA regulations. The Supreme Court found that legal services do not meet the definition of "services" under the CPA. The court emphasized that lawyers function as court officers and have a fiduciary relationship with their clients, which differs from the conventional consumerservice provider dynamic. Apex Court’s mandate of 2024: The Supreme Court upheld the exemption of legal services from the CPA. This means that consumer courts in India cannot hear claims over the quality of legal services given by lawyers.
This responsible approach recognizes the complexities of the lawyer's job and the necessity for a more thorough investigation. the case marks a watershed moment in defining the connection between attorneys and consumer protection laws in India, with far-reaching consequences for legal practice and client rights. 9 Conclusion: The exclusion of advocates from the CPA is consistent with the distinctive nature of legal services under the Advocates Act of 196110. The fiduciary relationship between advocates and clients, combined with their larger responsibilities to the court and the public good, distinguishes them from ordinary consumer services. While legal practitioners must be held accountable, incorporating them into consumer protection regulations risks undermining the legal profession's legitimacy.
As a result, keeping the status quo, with advocates supervised by a distinct regulatory framework, appears prudent. However, maintaining strong processes within the Advocates Act for dealing with carelessness or misconduct is critical to effectively upholding professional standards and protecting consumer interests. Apex Court’s decision of
2024 has relevance for both lawyers and clients and it relieves lawyers of the danger of CPA
lawsuits.
8 Bar of Indian Lawyers v. D.K. Gandhi PS National Institute of Communicable Diseases, AIR 2024 SC.
9 Apoorva, “Consumer Protection| Advocates not liable for deficiency of Service”, SCC Online May 14, 2024, available at (last visited on July 10, 2024).
10 The Advocates Act, 1961 (Act 25 of 1961).
BIBLIOGRAPHY:
Apoorva, “Consumer Protection| Advocates not liable for deficiency of Service”, SCC Online May 14, 2024, available at (last visited on July 10, 2024). • Bar of Indian Lawyers v. D.K. Gandhi PS National Institute of Communicable Diseases,
AIR 2024 SC.
State of Uttar Pradesh v Uttar Pradesh State Law Officers, 1994 SCR (1) 348. • The Advocates Act 1961 (Act 25 of 1961). • The Consumer Protection Act, 1986 (Act 68 of 1986). • The Consumer Protection Act, 2019 (Act 35 of 2019). • The Indian Contract Act, 1872 (Act 9 of 1872). • The Monopolies and Restrictive Trade Practices Act, 1969 (Act 54 of 1969). • VP Shanta vs. Sukumar Sen, AIR 1995 SC.