Q. I recently read that the Supreme Court has ruled that the legal heirs of a deceased doctor may be liable to pay compensation for medical negligence committed by the doctor. Against this background, I find it strange and unfair that lawyers, even during their lifetime, are exempted by the Supreme Court from claims of compensation for negligent handling of legal cases. How can such legal distortion be corrected?
—Professor Alok Hardikar, Vile Parle (East)
A. Your concern is both valid and timely. The Supreme Court judgment in Bar of Indian Lawyers v. DK Gandhi PS National Institute of Communicable Diseases has created a serious paradox in consumer jurisprudence. While the court held that legal heirs of a deceased doctor may be liable for compensation in cases of medical negligence, it exempted lawyers and advocates from the ambit of the Consumer Protection Act (CPA), 1986 and 2019. In my respectful view, this exemption is contrary to legislative intent and harmful to consumer interest.
The Bench of Justice Bela Trivedi and Justice Pankaj Mithal ruled that advocates are not covered under CPA because their services fall within a “contract of personal service,” excluded from the definition of “service” under Section 2(42) of CPA 2019. The Court also reasoned that the legal profession is sui generis – unique in its duties to the court, client and society – and therefore cannot be equated with trade or business. It further expressed apprehension that bringing lawyers under CPA could open floodgates of complaints and undermine judicial independence.
However, this reasoning is neither new nor convincing. Similar objections had already been considered and rejected by the Supreme Court in Indian Medical Association v. VP Shantha, which categorically held that medical professionals fall within the ambit of CPA. The same principle was reaffirmed in later decisions such as Lucknow Development Authority v. MK Gupta, Spring Meadows Hospital v Harjol Ahluwalia and Dr. JJ Merchant v. Shrinath Chaturvedi.
More importantly, it is legally improper for a twojudge bench to effectively override the ratio of a larger three-judge bench without referring the matter to a larger bench. There is nothing in CPA 1986 or CPA 2019 to suggest that Parliament intended to exempt advocates or other professionals from consumer accountability. The Bench’s presumption of legislative intent is therefore unfounded.
The fear of “floodgates” of litigation is also misplaced. Consumers approach lawyers with trust, often during vulnerable moments. Denying them a speedy and affordable remedy under CPA forces them into costly civil suits or Bar Council disciplinary proceedings, which are neither efficient nor consumer-friendly.
The implications of this judgment are serious. It risks making the legal profession less accountable and weakens consumer rights by creating an unjustified distinction between professions. It also disregards settled case law and may erode public confidence in both the legal profession and consumer justice system.
Mumbai Grahak Panchayat has urged the government to file a Review Petition under Article 137 of the Constitution and introduce a clarificatory amendment in CPA 2019 to explicitly include all professional services, including those rendered by lawyers.
Accountability of lawyers to clients is not merely a matter of fairness but also of public policy. Just as doctors are answerable for negligence under CPA, lawyers too should be liable for deficiency in service. Exempting them undermines the very principle of equal consumer protection..
(Advocate Shirish V Deshpande is chairman, Mumbai Grahak Panchayat. Queries can be sent to him on email: shirish50@yahoo.com)
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