INTRODUCTION
The Consumer Protection Act of 1986 and later 2019 were both enacted with the objective of enhanced protection of consumer interests against exploitative and unfair trading and manufacturing practices. It was in line with this objective, that the Supreme Court in Indian Medical Association vs. V.P. Shantha & Others, ruled that the Medical profession came within the ambit of “service” under the Consumer Protection Act of 1986, thereby holding medical practitioners liable under the Act.[1] The 3-judge bench judgement had arisen in pursuance to a myriad of contradictory approaches taken by different High Courts on the matter. Thus, this judgement provided a settled position.
However, On May 14, 2024, a two-judge bench of the Supreme Court, in Bar of Indian Lawyers & Ors v. DK Gandhi PS National Institute of Communicable Diseases and Ors, [2]brought this above position into question, taking a contradictory approach. The judgement reached particular conclusions while still seeking to reference it to the Chief Justice to constitute a larger bench. The two-judge bench detailed that the services rendered by an advocate were not within the ambit of the Consumer Protection Act, 2019 (hereinafter CP Act), while also drawing into question the applicability of “services” to “professions” at large.
These conclusions have widespread repercussions that extend not only to the legal fraternity but also to other professions. This judgement may open the floodgates to other cases about the liability of medical practitioners under the CP Act. The case also engenders important procedural questions about referencing matters to larger benches that need to be addressed to avoid a problematic procedural landscape in the future.
THE TWO-BENCH JUDGEMENT
The judgement of May 14th expressly laid down that there was never a legislative intent in the framing of either of the Consumer Protection Acts to include professions or services extended by professionals within the ambit of “Services” under the said Act. It also established that services hired by an Advocate were a “contract of personal service” thereby excluding it from the definition of “Service” in Section 2 (42) of the CP Act 2019.[3] The Court opined the considerable degree of control exercised by a client over their advocate as the rationale behind this conclusion. [4]
The judges also succinctly validated the argument that law was a sui generis profession, thus distinguishing it from other professions. Ultimately, it altered the liability of legal professionals under the CP Act 2019 by making complaints alleging “deficiency of service” against such individuals, not maintainable. [5]
The revision in the liability of legal professionals under the CP Act 2019 appears fair and much needed, particularly considering the pre-existence of the Advocate’s Act as a special law in dealing with negligent misconduct and the floodgates of consumer litigation that would spring up, impeding the system. However, the judgement holds certain limitations that need to be brought under the radar.
THE PROCEDURAL LAPSE
While drawing into question the inclusivity of “professions” under the ambit of the CP Act, the judges acknowledged the presence of a contradiction to a larger bench’s decision in the same matter – Indian Medical Association vs. V.P. Shantha & Others. Relying on Order VI Rule 2 of the Supreme Court Rules and SC judgements in this regard, such as Triveniben vs. State of Gujarat, the Judges detailed the need to refer the matter to the Chief Justice for the constitution of a larger bench. [6]
However, beyond this acknowledgement, the presence of a binding precedent is no longer addressed. The judgement takes the course of “in arguendo” proceeding to establish the uniqueness of the legal profession, if in case the CP Act was made applicable to professions. Herein the Court leaves the task of a decision in this regard to a larger bench. However, in the end, contradicting itself, the judgement conclusively establishes the absence of legislative intent to include professions under the purview of the CP Acts, thereby deciding on an aspect that it had earlier agreed as required to be considered by a larger bench.
This is where the procedural lapse occurs. The path taken poses several challenges. Firstly, it diminishes the veneered legal proposition of abiding by a binding precedent. Secondly, it raises questions about the validity of a judgement when it decides on aspects that hold an explicit need for consideration by a larger bench. In the present case, the challenge arose despite the judges recognising such a need. Thirdly, it casts doubt on the use of “in arguendo” in judgements, a method which, if adopted, may lead to judgements based on mere assumptions. Lastly, the judgement derails on one other aspect, in so far as, giving countenance to the partial reference of matters to a larger bench, when Order VI Rule 2 of the Supreme Court Rules allows for no such provision. This may serve as a precedent in subsequent cases, furthering erroneous procedural outcomes.
Taking the lapse into account, the present judgement stands violative of not merely one precedent but several others as well. For instance, several judgements of the Supreme Court, such as U.P. v. Ram Chandra Trivedi[7] and CIT v. Trilok Nath Mehrotra[8], establish that in the case of conflicting observations, the one by a larger bench prevails. Similarly, in Central Board of Dawoodi Bohra Community v. State of Maharashtra[9], the apex Court ruled that a bench of a lesser quorum could not disagree or dissent from the view of the law taken by a larger quorum.
CONCLUSION
The judgment of May 14th harboured much-needed change, removing legal professionals from being held liable under the CP Act 2019. Given the peculiar nature of the profession and the difficulty involved in determining a deficiency of service, this is a welcome move. However, the method utilised to arrive at this judgement stands as nothing short of a procedural nightmare. Conclusively arriving at answers contradictory to established propositions without referencing to larger benches may serve as a fallacious precedent complicating the procedural landscape. The absence of certainty regarding the use of “in-arguendo” in judgements and the partial referencing of matters further fuels this nightmare. Allowing this judgement to pass without demur, unscrutinized, may open a pandora’s box that needs to be contained before the damage ensues is beyond reparable. A larger bench, when constituted, must consider this lapse and seek to address it to avoid future procedural oversights.
Author(s) Name: Varada Jayaprakash (The National University of Advanced Legal Studies)
References:
[1] (1995) 6 SCC 651
[2] (2024) SCC OnLine SC 928
[3] Consumer Protection Act 2019, s.2(45).
[4] ibid 41.
[5] ibid 41.
[6] ibid
[7] (1976) 4 SCC 52.
[8] (1998) 2 SCC 289.
[9] (2005) 2 SCC 673.
