REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.868 OF 2003
C. Venkatachalam …Appellant
Versus
Ajitkumar C. Shah and others …Respondents
With
CIVIL APPEAL NOS.869-870 OF 2003
Bar Council of India …Appellant
Versus
Sanjay R Kothari and Ors. …Respondents
J U D G M E N T
Dalveer Bhandari, J.
1. These appeals emanate from the judgment dated
4.9.2002 delivered by the Division Bench of the Bombay High
Court in Writ Petition Nos. 1147 and 1425 of 2002. We
propose to dispose of these appeals by a common judgment
because same questions of law are involved in these appeals.
BRIEF FACTS:
2. A complaint bearing no.428 of 2000 of alleged deficiency
in service was filed before the South Mumbai District
Consumer Disputes Redressal Forum, Mumbai (for short,
Consumer Forum) against the two tour operators. During the
pendency of the complaint, applications were filed by the
opposite parties contending that the authorized agent should
not be granted permission to appear on behalf of the
complainants as he was not enrolled as an Advocate. The
Consumer Forum considered the applications and held that
the authorized agent had no right to act and plead before the
Consumer Forum as he was not enrolled as an advocate.
3. In complaint bearing no.167 of 1997 filed before the
Consumer Forum, the majority expressed the view that the
authorized agents have a right to file, act, appear, argue the
complaint to its logical conclusion before the Consumer
Agencies. The issue was taken to the State Consumer
Disputes Redressal Commission (for short, State Commission)
which stayed the hearing of the matters in which authorized
agents were appearing and refused to grant stay where
authorized agents were injuncted from appearing before the
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Consumer Forum. As a result, the proceedings in a large
number of cases where the authorized agents were appearing
had come to standstill.
4. The interim order passed by the State Commission was
challenged in two writ petitions before the Bombay High
Court. The petitions were allowed by the Division Bench. The
High Court held that the Consumer Fora constituted under
the Consumer Protection Act, 1986 have “trappings of a civil
court” but “are not civil courts within the meaning of the
provisions of the Code of Civil Procedure.”
5. The High Court in the impugned judgment held that a
party before the District Consumer Forum/State Commission
cannot be compelled to engage services of an advocate.
6. The High Court further held that the Act of 1986 is a
special piece of legislation for the better protection of the
interests of consumers. The Act has been enacted to give
succour and relief to the affected or aggrieved consumers
quickly with nil or small expense. The Consumer Forum
created under the Act of 1986 is uninhibited by the
requirement of court fee or the formal procedures of court –
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civil or criminal…..any recognized consumers Association can
espouse his cause……Even the Central Government or State
Governments can act on his/their behalf…restrictive meaning
shall not be consistent with the objectives of the Act of 1986…
The right to appear, therefore, includes right to address the
Court, examining, cross-examining witnesses, oral
submissions etc..
7. The Division Bench also held that the right of audience
inheres in favour of authorized agents of the parties in the
proceedings before the District Consumer Forum and the State
Commission and such right is not inconsistent or in conflict
with the provisions of the Advocates Act, 1961.
8. The Division Bench also observed that the right of an
advocate to practise is not an absolute right but is subject to
other provisions of the Act. According to the Division Bench,
permitting the authorized agents to represent parties to the
proceedings before the District Forum/State Commission
cannot be said to practise law.
9. The Division Bench also held that there are various
statutes like Income Tax Act, Sales Tax Act and the
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Monopolies and Restrictive Trade Practices Act which permit
non-advocates to represent the parties before the authorities
under those Acts and those non-advocates appearing before
those Forums for the parties cannot be said to practise law.
The Rules of 2000 framed under Act of 1986 permit authorized
agents to appear for the parties and such appearance of
authorized agents cannot be said to be inconsistent with
section 33 of Advocates Act.
10. The Division Bench also dealt with the disciplinary
aspect of the matter and held that if authorized agent
appearing for the party to the proceedings misbehaves or
exhibits violent behaviour or does not maintain the decency
and decorum of the District Forum or State Commission or
interferes with the smooth progress of the case then it is
always open to such District Forum or State Commission to
pass an appropriate order refusing such authorized agent the
audience in a given case.
11. These appeals have been preferred before this court
against the impugned judgment.
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12. A two-judge Bench of this Court on 21.2.2007 referred
these matters to a larger Bench in view of the importance of
the matter. The order dated 21.2.2007 reads as under:
“The basic issue involved in these appeals is
whether a person under the purported cover of
being an “agent” can represent large number of
persons before the forums created under the
Consumer Protection Act, 1986 (In short the ‘Act’)
and the Rules made thereunder. According to the
appellant Rule relating to agents cannot be used to
by passing stipulations under the provisions of the
Advocates Act, 1961 (in short the ‘Advocates Act’),
more particularly under Sections 29, 31 and 32.
Rule 2(b) of the Consumer Protection Rules, 1987
(in short the ‘The Rules’) defines an ‘agent’ as under:
“agent means a person duly authorized
by a party to present any complaint,
appeal or reply on its behalf before the
National Commission.”
Similarly, Rule 14(1) and 14(3) also deal with the
acts which an agent can undertake.
Learned counsel for the respondents has submitted
that in Civil Appeal No. 2531 of 2006 (R.D. Nagpal
Vs. Vijay Dutt & Anr.) this Court has accepted the
stand that even a Doctor is authorised by a party
can cross examine the complainant.
So far as individual cases are concerned, it may not
present difficulty. But the question is whether
somebody who is not a legal practitioner, can
represent large number of parties before their
forums thereby frustrating objects embodied in the
Advocates Act.
It is submitted by the learned counsel for the
appellants that a large number of persons who are
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otherwise not entitled to appear before the forums
are doing so under the garb of being agents.
As the matter is of great importance, we refer the
same to a larger Bench.
Papers may be placed before Hon’ble the Chief
Justice of India so that necessary orders can be
passed for placing these matters before the
appropriate Bench.”
13. Hon’ble the Chief Justice of India has referred these
appeals before a three judge Bench.
14. It is imperative to properly comprehend the objects and
reasons of the Consumer Protection Act, 1986 in order to deal
with the controversy involved in the case.
“Statement of Objects and Reasons – The
Consumer Protection Bill, 1986 seeks to provide for
better protection of the interests of consumers and
for the purpose, to make provisions for the
establishment of Consumer Councils and other
authorities for the settlement of consumer disputes
and for matters connected therewith.
2. It seeks, inter alia, to promote and protect the
rights of consumers such as-
(a) the right to be protected against
marketing of goods which are hazardous
to life and property;
(b) the right to be informed about the quality,
quantity, potency, purity, standard and
price of goods to protect the consumer
against unfair trade practices;
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(c) the right to be assured, wherever
possible, access to an array of goods at
competitive prices;
(d) the right to be heard and to be assured
that consumer interests will receive due
consideration at appropriate forums;
(e) the right to seek redressal against unfair
trade practices or unscrupulous
exploitation of consumers; and
(f) right to consumer education.
3. These objects are sought to be promoted and
protected by the Consumer Protection Council to be
established at the Central and State level.
4. To provide speedy and simple redressal to
consumer disputes, a quasi-judicial machinery is
sought to be set-up at the district, State and
Central levels. These quasi-judicial bodies will
observe the principles of natural justice and have
been empowered to give relief of a specific nature
and to award, wherever appropriate, compensation
to consumers. Penalties for non-compliance of the
orders given by the quasi-judicial bodies have also
been provided.”
15. Mr. Santosh Paul, learned counsel appearing for the
appellants argued these appeals and also submitted the
written submissions. He submitted that ordinarily right to
practise has been given only to advocates who are enrolled
with the Bar Council of a State. Section 29 of the Advocates
8
Act, 1961 recognised advocates as class of persons entitled to
practise the profession of law. Section 29 reads as under:
“29. Advocates to be the only recognized class of
persons entitled to practice law – Subject to the
provisions of this Act and any rules made
thereunder, there shall, as from the appointed day,
be only one class of persons entitled to practise the
profession of law, namely, advocates.”
16. Section 32 of the Advocates Act, 1961 deals with the
power of court to permit appearances in particular cases
where court can permit any person not enrolled as an
advocate. Section 32 reads as under:
“Power of Court to permit appearances in
particular cases – Notwithstanding anything
contained in this Chapter, any court, authority, or
person may permit any person, not enrolled as an
advocate under this Act, to appear before it or him
in any particular case.”
17. Section 33 of the Advocates Act, 1961 says that no
person shall, on or after the appointed day, be entitled to
practise in any court or before any authority unless he is
enrolled as an advocate. Section 33 reads as under:
“Advocates alone entitled to practise – Except as
otherwise provided in this Act or in any other law
for the time being in force, no person shall, on or
after the appointed day, be entitled to practise in
any court or before any authority or person unless
he is enrolled as an advocate under this Act.”
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18. According to Mr. Paul, analysis of these provisions lead to
clear conclusion that only advocates can act, plead and argue
before the Consumer Forums.
19. He placed reliance on the following judgments of this
court :-
20. In O.N. Mohindroo v. The Bar Council of Delhi and
Others 1968 (2) SCR 709, the court held as under:-
“The object of the Act is thus to constitute one
common Bar for the whole country and to provide
machinery for its regulated functioning. Since the
Act sets up one Bar, autonomous in its character,
the Bar Councils set up thereunder have been
entrusted with the power to regulate the working of
the profession and to prescribe rules of professional
conduct and etiquette, and the power to punish
those who commit breach of such rules. The power
of punishment is entrusted to the disciplinary
committees ensuring a trial of an advocate by his
peers. Sections 35, 36 and 37 lay down the
procedure for trying complaints, punishment and
an appeal to the Bar Council of India from the
orders passed by the State Bar Councils. As an
additional remedy section 38 provides a further
appeal to the Supreme Court. Though the Act
relates to the legal practitioners, in its pith and
substance it is an enactment which concerns itself
with the qualifications, enrollment, right to practise
and discipline of the advocates. As provided by the
Act once a person is enrolled by any one of the State
Bar Councils, he becomes entitled to practise in all
courts including the Supreme Court. As aforesaid,
the Act creates one common Bar, all its members
being of one class, namely, advocates. Since all
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those who have been enrolled have a right to
practise in the Supreme Court and the High Courts,
the Act is a piece of legislation which deals with
persons entitled to practise before the Supreme
Court and the High Courts. Therefore the Act must
be held to fall within entries 77 and 78 of List I. As
the power of legislation relating to those entitled to
practise in the Supreme Court and the High Courts
is carved out from the general power to legislate in
relation to legal and other professions in entry 26 of
List III, it is an error to say, as the High Court did,
that the Act is a composite legislation partly falling
under entries 77 and 78 of List I and partly under
entry 26 of List III.”
21. In Harishankar Rastogi v. Girdhari Sharma and
Another (1978) 2 SCC 165, the court held as under:-
“Advocates are entitled as of right to practise in this
Court (Section 30(i) of the Advocates Act, 1961). But,
this privilege cannot be claimed as of right by any
one else. While it is true that Article 19 of the
Constitution guarantees the freedom to practise any
profession, it is open to the State to make a law
imposing, in the interest of the general public,
reasonable restrictions on the exercise of the right.
The Advocates Act, by Section 29, provides for such
a reasonable restriction, namely, that the only class
of persons entitled to practise the profession of law
shall be advocates. Even so, is it not open to a party
who is unable for some reason or other to present
his case adequately to seek the help of another
person in this behalf? To negative such a plea may
be to deny justice altogether in certain cases,
especially in a land of illiteracy and indigence and
judicial processes of a sophisticated nature. That is
precisely why legislative policy has taken care to
provide for such contingencies. Sections 302, 303
and 304 of the Criminal Procedure Code are
indicative of the policy of the legislature. I do not
11
think that in this Court we should totally shut out
representation by any person other than the party
himself in situations where an advocate is not
appearing for the party….”
22. Mr. Paul appearing for the appellants also gave reference
to international law and conventions to strengthen his
submissions that only advocates enrolled with the respective
Bar Councils alone can practise in the Consumer Forums and
the agents cannot appear. He submitted that practice under
the Consumer Protection Act, 1986 requires extensive legal
skills which only a trained legal practitioner possesses and he
alone can discharge those functions. He submitted that the
agents have no legal training to handle complicated legal
matters pertaining to consumers and hence the agents cannot
be permitted to practise law before the Consumer Forums.
Historical perspective of the consumer movement
23. The consumer movement had primarily started in the
West. We can trace history of the consumer movement from
the judgment of the leading case Carlill v. Carbolic Smoke
Ball Company 1893 (1) Q.B. 256. In this case first time
Manufacturers’ liability for minimum quality standard for
product was established.
12
24. For the first time in 1856 a select committee
recommended that a cheap and easy remedy, by a summary
charge before a magistrate, should be afforded to consumers
who received adulterated or falsely described food. This
suggestion was taken up in the Merchandise Marks Act, 1887.
Section 17 of the Act provides as follows :
“That a person applying a trade description to a
product was deemed to warrant that it was true, so
that a false trade description constituted breach of
both criminal and civil law.”
25. In a leading English case Donoghue v. Stevenson (1932)
A.C. 562, where the consumer claimed to have suffered injury
as well as result of drinking from a bottle of ginger-beer
containing a decomposed snail. Over a strong dissent the
majority held that the manufacturer would be liable. The case
did not herald strict liability but it facilitated more claims than
were provided under the nineteenth century approach. Lord
Atkin enunciated the manufacturer’s duty of care in the
following words:
“……….the preparation or putting up of the
products will result in an injury to the consumer’s
life or property, owes a duty to the consumer to take
that reasonable care.”
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26. This theory of strict liability already exists under the
Consumer Protection Act, 1961.
27. The organized English consumer movement started after
the Second World War. The Labour Party for the first time
gave slogan of “battle for the consumers” in Parliament. In the
decade of 1960, number of legislations were introduced in
Britain for the protection of the consumers. The Consumer
Safety Act, 1978 was enacted.
United States of America
28. The consumer movement in the United States of America
developed in the beginning of the 19th century when in Donald
C. MacPherson v. Buick Motor Company 217 N.Y. 382, 111
N.E. 1050 the New York Court of Appeal observed that a car
manufacturer had to compensate a consumer who had been
injured when one of the car wheels collapsed because of
defect. The court held that the manufacturer had been
negligent because the defect could have been discovered by
reasonable inspection. In 1972, the Consumer Product Safety
Act was enacted.
14
29. Paul S. Boyer, a distinguished author, in his article on
“Consumer Movement”, published by The Oxford Companion
to United States History, 2001, has mentioned about the
modern consumer movement. The relevant following extract is
instructive and is reproduced as under.
“The modern consumer movement arose in the
Progressive Era, as citizens concerned about unsafe
products and environmental hazards used lobbying,
voting, and journalistic exposés to press for
government protection. In the same vein, the
Consumers Union (1936), publisher of Consumer
Reports, tests products for safety, economy, and
reliability, to give consumers an objective basis for
choice.
…….Such socially engaged consumerism actually
had long historical antecedents, including
Revolutionary Era patriots who had boycotted
English tea and textiles and abolitionists who had
refused to purchase goods made of slave‐produced
cotton.
Consumer activism revived in the late 1960s,
flourished in the 1970s, and, despite a conservative
backlash against government regulation, survived in
diminished form in the 1990s. A by‐product of
1960s social activism, consumer advocates insisted
on citizens' rights to safe and reasonably priced
goods and services and to the full disclosure of
product information. The lawyer Ralph Nader gained
fame for Unsafe at Any Speed (1965), which detailed
safety hazards plaguing General Motors' (GM)
Corvair automobile. Using $425,000 won in an
invasion‐of‐privacy suit against GM in 1970, Nader
founded numerous consumer groups, nicknamed
“Nader's Raiders,” that pursued legal challenges to
unsafe products and demanded greater government
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protection for consumers. The formation of the
Consumer Federation of America (1968), the
Occupational Safety and Health Administration
(1970), and the Consumer Product Safety
Commission (1972) attested to the movement's
success but also to its regulatory and legalistic
bent. Focused on consumers' rights, the modern
movement downplayed the power of consumers to
effect social change.”
30. Ralph Nader played an extremely important role in
consumer movement in the United States of America. A note
appears in “America in Ferment : The Tumultuous 1960s –
Ralph Nader and the Consumer Movement.’ An extract is
reproduced. It reads :-
“Ralph Nader has been called the nation's nag. He
denounced soft drinks for containing excessive
amounts of sugar (more than nine teaspoons a can).
He warned Americans about the health hazards of
red dyes used as food colorings and of nitrates used
as preservatives in hot dogs. He even denounced
high heels: "It is part of the whole tyranny of
fashion, where women will inflict pain on
themselves ... for what, to please men." Since the
mid-1960s, Ralph Nader has been the nation's
leading consumer advocate.”
31. Ralph Nader is an extraordinary example of total devotion
to the cause. It is men like him who leave an imprint and
make history. Consumer movements all over the world have
taken great inspiration from Ralph Nader.
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32. Every year 15th March is observed as the World
Consumer Rights Day. On that day in 1962 President John F.
Kennedy of the United States called upon the United States
Congress to accord its approval to the Consumer Bill of Rights.
They are (i) right to choice; (ii) right to information; (iii) right to
safety; and (iv) right to be heard. President Gerald R. Ford
added one more right i.e. right to consumer education.
Further other rights such as right to healthy environment and
right to basic needs (food, clothing and shelter) were added.
Unfortunately, in most of the countries these rights are still
not available to the consumers. In India 24th December every
year celebrated as National Consumer Rights Day.
33. The General Assembly of the United Nations adopted a
set of general guidelines for consumer protection and the
Secretary General of the United Nations was authorized to
persuade member countries to adopt these guidelines through
policy changes or law. These guidelines constitute a
comprehensive policy framework outlining what governments
need to do to promote consumer protection in following seven
areas:
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(i) Physical safety;
(ii) Protection and Promotion of the consumer
economic interest;
(iii) Standards for the safety and quality of
consumer goods and services;
(iv) Distribution facilities for consumer goods and
services;
(v) Measures enabling consumers to obtain
redress;
(vi) Measures relating to specific areas (food, water
and pharmaceuticals); and
(vii) Consumer education and information
programme.
34. Though not legally binding, the guidelines provide an
internationally recognized set of basic objectives particularly
for governments of developing and newly independent
countries for structuring and strengthening their consumer
protection policies and legislations. These guidelines were
adopted recognizing that consumers often face imbalances in
economic terms, educational levels and bargaining power and
bearing in mind that consumers should have the right of
access to non hazardous products as well as the importance of
18
promoting just, equitable and sustainable economic and social
development.
Indian perspective
35. It was in this background that the Indian Parliament had
enacted the Consumer Protection Act, 1986. The declared
objective of the statute was “to provide for better protection of
the interests of consumers.” It seeks to provide a speedy and
inexpensive remedy to the consumer.
36. The Consumer Protection Act, 1986 is one of the
benevolent social legislations intended to protect the large
body of consumers from exploitation. The Act has come as a
panacea for consumers all over the country and is considered
as one of the most important legislations enacted for the
benefit of the consumers. The Consumer Protection Act, 1986
provides inexpensive and prompt remedy.
37. The Consumer Protection Act, 1986 is dedicated, as its
preamble shows, to provide for effective protection of the rights
of the consumers. According to the Statement of Objects and
Reasons, it seeks to provide speedy and simple redressal to
consumer disputes. The object of the Act is to render simple,
19
inexpensive and speedy remedy to the consumers with
complaints against defective goods and deficient services and
for that a quasi-judicial machinery has been sought to be set
up at the District, State and Central levels. The Consumer
Protection Act has come to meet the long-felt necessity of
protecting common man from wrongs for which the remedy
under the ordinary law for various reasons has become
illusory.
38. The Consumer Protection Act, 1986 was amended in the
years 1991, 1993 and in 2002 to make it more effective and
purposeful.
39. To effectuate this objective, a provision has been made in
Chapter II of the Act for the constitution of ‘the Central
Consumer Protection Council’ and ‘the State Consumer
Protection Councils.” The purpose as indicted in section 6 is
to “promote and protect the rights of consumers” against the
“marketing of goods and services which are hazardous to life
and property; the right to be informed about the quality,
quantity, potency, purity, standard and price of goods or
services, as the case may be, so as to protect the consumer
20
against unfair trade practices; the right to be assured,
wherever possible, access to a variety of goods and services at
competitive prices; the right to be heard and to be assured
that consumer’s interests will receive due consideration at
appropriate Forums; the right to seek redressal against unfair
trade practices or restrictive trade practices or unscrupulous
exploitation of consumers and the right to consumer
education.”
40. A perusal of Chapter II clearly shows that the statute
seeks to protect the ‘consumer’ of goods and services in every
possible way. It aims at providing a speedy and inexpensive
remedy. Any interpretation of the provisions of the 1986 Act
and the rules framed thereunder must promote this objective
of the enactment.
41. In furtherance of the declared objective of protecting the
consumer against exploitation as well as providing an
inexpensive and speedy remedy, the competent authority has
framed Rules which enable the party to appear either
personally or through an ‘agent’.
21
42. The issue is – Do the Rules permit a party to have an
‘Agent’ for merely presenting the papers on its behalf or can
the Agent even act and argue?
Maharashtra Consumer Protection Rules, 1987
· Rule 2(b) defines an Agent to mean “a person
duly authorized by a party to present any
complaint, appeal or reply on its behalf before
the State Commission or the District Forum.”
· Under Rule 4(7), the parties are obliged to
either appear personally or through
“authorized agent.” If “the complainant or his
authorized agent fails to appear before the
District Forum” it may “in its discretion either
dismiss the complaint for default or decide it
on merit.” Similarly, “where the opposite party
(defendant) or its authorized agent fails to
appear on the day of hearing, the District
Forum may decide the complaint ex parte.”
· A perusal of the provisions show that while the
advocates have not been debarred from
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pleading and appearing, the parties have been
given an option to either appear personally or
be represented by “duly authorized” agents.
Every advocate appointed by a party is an
agent. However, the agent as contemplated
under the rules need not necessarily be an
advocate.
· The provision in the Rules promotes the object
of the statute. It is meant to help the consumer
to vindicate his right without being burdened
with intricate procedures and heavy
professional fees.
· In the very nature of things, the disputes
under the 1986 Act can involve claims for
small amounts of money by way of
compensation. Engagement of advocates in all
such matters may not be economically viable.
It is equally possible that the claim may
involve professional expertise. To illustrate: A
person may sue a hospital for medical
23
negligence. Or an Architect for a faulty design.
Or a building contractor for defective work. In
such cases, a professional like a doctor,
architect or an engineer may be more suitable
than an advocate. Thus, both the parties have
been given an option to choose from an
advocate or any other person who may even be
a professional expert in the particular field.
43. Such an interpretation is not only literally correct but
also promotes the declared objective of the statute. It helps
the claimant and the defendant equally. It does not violate
any provision of the Advocates Act.
44. The Consumer Protection Act, 1986 was amended in the
year 2002, in pursuance to the United Nations resolution
passed in April, 1985 indicating certain guidelines under
which the Government could make law for better protection of
the interest of the consumers. Such laws were necessary,
particularly in the developing countries to protect the
consumers from hazards to their health and safety and to
24
provide them available speedier and cheaper redressal of their
grievances.
45. The amended Act 62 of 2002 reads as under:
“Amendment Act 62 of 2002. – The enactment of
the Consumer Protection Act, 1986 was an
important milestone in the history of the consumer
movement in the country. The Act was made to
provide for the better protection and promotion of
consumer rights through the establishment
Consumer Councils and quasi-judicial machinery.
Under the Act, consumer disputes redressal
agencies have been set up throughout the country
with the District Forum at the district level, State
Commission at the State level and National
Commission at the National level to provide simple,
inexpensive and speedy justice to the consumers
with complaints against defective goods, deficient
services and unfair and restrictive trade practices.
The Act was also amended in the years 1991 and
1993 to make it more effective and purposeful.”
46. In the developed countries the consumer movement has
been going on for several decades in which the trader and the
consumer find each other as adversaries.
47. The Consumer Protection Act, 1986 was enacted with the
object and intention of speedy disposal of consumer disputes
at a reasonable cost, which is otherwise not possible in
ordinary judicial/court system.
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48. In the book on Administrative law, its distinguished
author M.P. Jain has brought about the distinction between
the Court and the Tribunal. According to him Courts are
bound by prescribed rules of procedures and evidence and
their proceedings are conducted in public. The lawyers are
entitled to appear before them and the judge in the open Court
hears the case and decides it by giving reasons for a judgment.
The courts are totally independent of the executive will,
whereas, the Tribunals are not ordinarily governed by the
provisions of Code of Civil Procedure and the Evidence Act,
except to the extent it is indicative in the Act itself. There is
also a significant difference between the Court and the
Tribunal with regard to the appointment of Members. The
object of the constitution of a Tribunal is to provide speedy
justice in a simple manner and the Tribunal be should easily
accessible to all.
49. According to the celebrated book on ‘Administrative Law’
by Wade, the other object of constituting a Tribunal is to
create specialist Forum which would include specialists in the
field to adjudicate efficiently and speedily the matters
requiring adjudication in that field and that commands the
26
confidence of all concerned in the quality and reliability of the
result of such adjudication.
50. The Consumer Protection Rules, 1987 also defines the
expression ‘agent’ in the same manner.
51. The appellants submitted before the High Court that the
complainant may appear through its authorized agent, but,
that doesn’t mean that authorized agent is empowered to act,
appear or plead on behalf of the party before the State
Commission or the District Forum as a lawyer. According to
the appellants (Bar Council of India and advocate), the agent
appointed by the complainant is empowered only to present
any complaint, appeal or rely on behalf of the party to the
complaint before the Consumer Forum by physically
remaining present on the date/dates of hearing. This
contention was rejected by the Division Bench of the High
Court.
52. According to the judgment of this Court in Harishankar
Rastogi (supra), a non-advocate can appear with the
permission of the Court. The Court may, in an appropriate
case, even after grant of permission withdraw it if the
27
representative proves himself reprehensible. It is only a
privilege granted by the Court and it depends entirely on the
discretion of the court.
53. The learned counsel for the respondent has drawn our
attention to Rule 9 of the Maharashtra Consumer Protection
Rules, 2000 which provides for procedure for hearing appeals.
He also referred to sub-rules 1 and 6 of Rule 9 which reads as
under:
“9. Procedure for hearing appeal –
(1) Memorandum shall be presented by the
appellant or his authorized agent to the State
Commission in person or sent by registered post
addressed to the Commission.
(6) On the date of hearing or any other day to
which hearing may be adjourned, it shall be
obligatory for the parties or their authorized agents
to appear before the State Commission. If appellant
or his authorized agent fails to appear on such date,
the State Commission may, in its discretion, either
dismiss the appeal or decide it on the merit of the
case. If respondent or his authorized agents fails to
appear on such date, the State Commission shall
proceed ex-parte and shall decide the appeal exparte
on merits of the case.”
54. The clear interpretation of the Rules is that the
authorised agent appointed by the (consumer) complainant
may appear before the Consumer Fora. The Consumer Fora
28
may, in its discretion, either dismiss the appeal or decide it on
the merit of the case. In this view of the matter, it is
abundantly clear that the authorized agent of the complainant
can act and plead before the State Tribunal otherwise the
complaint is liable to the dismissed.
55. The learned counsel for the respondents submitted that
non-advocates are permitted to appear in various Forums
including Income Tax Tribunal, Sales Tax Tribunal and
Monopolies and Restrictive Trade Practises Tribunal, therefore,
wherever the legislature has accorded the permission to the
persons other than advocates, who appear before these
Tribunals can act and appear according to the object of the
Act and legislative intention.
Legislative intention
56. We deem it appropriate to briefly deal with the
importance of gathering legislative intention while interpreting
provisions of law.
57. In Blackstone’s Commentaries on the Laws of England,
Volume I, published in the year 2001 (Edited by Wayne
Morrison), it has been observed as under:-
29
“The fairest and most rational method to interpret
the will of the legislator is by exploring his
intentions at the time when the law was made, by
signs the most natural and probable. And these
signs are either the words, the context, the subject
matter, the effects and consequence, of the spirit
and reason of the law.”
58. A Constitution Bench of this Court in R.M.D.
Chamarbaugwalla and Another v. Union of India and
Another AIR 1957 SC 628 has laid down that in interpreting
the statute the legislative intent is paramount and the duty of
the Court is to act upon the true intention of the legislature.
59. In Anandji Haridas & Company Private Limited v.
Engineering Mazdoor Sangh and Another (1975) 3 SCC
862, this Court laid down that as a general principle of
interpretation where the words of a statute are plain, precise
and unambiguous, the intention of the Legislature is to be
gathered from the language of the statute itself and no
external evidence such as parliamentary debates, reports of
the Committees of the Legislature or even the statement made
by the minister on the introduction of a measure or by the
framers of the Act is admissible to construe those words.
30
60. In another Constitution Bench judgment in Kartar
Singh v. State of Punjab (1994) 3 SCC 569, this Court has
observed that though normally the plain ordinary grammatical
meaning of an enactment affords the best guide and the object
of interpreting a statute is to ascertain the intention of the
legislature enacting it, other methods of extracting extracting
the meaning can be resorted to if the language is
contradictory, ambiguous or leads really to absurd results so
as to keep at the real sense and meaning.
61. In District Mining Officer and Others v. Tata Iron
and Steel Company and Another (2001) 7 SCC 358, a three
Judge Bench of this Court has observed:
“A statute is an edict of the legislature and in
construing a statute, it is necessary to seek the
intention of its maker. A statute has to be
construed according to the intent of them that
make it and the duty of the court is to act upon
the true intention of the legislature. If a statutory
provision is open to more than one interpretation,
the court has to choose that interpretation which
represents the true intention of the legislature.”
62. In Bhatia International v. Bulk Trading S.A. and
Another (2002) 4 SCC 105, a three Judge Bench of this Court
has held as under:-
31
“The conventional way of interpreting a statute is
to seek the intention of its makers. If a statutory
provision is open to more than one interpretation
then the Court has to choose that interpretation
which represents the true intention of the
legislature.”
63. It is the bounden duty of the courts to discern legislative
intention and interpret the statutes accordingly. The instant
case Act and Rules have made specific provisions by which the
agents have been permitted to plead and appear on behalf of
the parties before the Consumer Forums. Therefore, to
interpret it differently would be contrary to legislative
intention.
64. We have heard the learned counsel for the parties and
the learned amicus curiae.
65. In the written submissions, Shri Jawahar Lal Gupta,
learned amicus curiae, submitted that the advocates in these
appeals can have no cause for any apprehension. In case, a
party chooses an incompetent person as its agent before the
Consumer Forum or the State Commission, he can pose no
competition or threat to any profession. Such a person will get
automatically eliminated with the passage of time. However,
32
in case the parties choose competent persons to act an agents
and they perform well, it will not only promote the object of the
1986 Act and the Rules framed thereunder but also provide
healthy competition to the advocates. It violates no provision
of the Advocates Act, 1961 or any other law. It can provide no
cause for complaint.
66. He further submitted that there is another aspect of the
matter. Every person has the right to lead a life of dignity.
Every person has a right to work and make an honest living.
Every individual has the right and freedom to do anything so
long as he does not violate any law. Thus, a retired or even an
unemployed doctor, engineer, scientist, teacher or any other
person has the right to offer his/her services as an ‘agent’. In
other words, an individual has the right to choose ‘acting as
agent’ as his profession. Article 19(1)(g) guarantees that
freedom. The mandate of Article 21 is fulfilled. In doing so, he
does not practise the profession of law or violate the provisions
of the Advocates Act, 1961. He only invokes the freedom
guaranteed under the Constitution and exercises the right
conferred by the Rules. He merely helps the party before the
Consumer Forum or the Commission. It also enables him to
33
earn some money and lead a dignified existence. He has the
freedom and the right to do so. The action is in conformity
with the Constitution. It even promotes the objective as
contained in Article 39A.
67. Shri Gupta further submitted that the provision
permitting the parties to be represented by agents as made in
the Rules has not been challenged. In fact, the provision is in
strict conformity with the constitution. It violates no law.
Actually, there are various statutes which permit the parties to
be represented by persons who may not be advocates. By way
of instance, reference may be made to the provisions of the
Industrial Disputes Act; the Income Tax Act and the Sales Tax
Act or the Monopolies and Restrictive Trade Practices Act.
Such instances can be multiplied.
68. Shri Gupta also dealt with the disciplinary aspect of the
matter. He submitted that in the appeal filed by the Bar
Council, considerable emphasis on discipline and ethics was
expressed by the learned counsel for the Council. During the
course of hearing, a reference was made to the Regulations as
framed by the National Consumer Disputes Redressal
34
Commission (For short, ‘National Commission’) under the Act
with the approval of the Central Government in 2005. The
Regulations actually appear at page 52 of the Bar Act
(Professional’s – 2010 Edition).
69. A perusal thereof shows that the Regulations appear to
have been framed by the National Commission in exercise of
the power conferred by section 30A with the previous approval
of the Central Government. The footnote indicates that these
were published in the Gazette of India dated May 31, 2005.
70. Specifically, Regulation 16 inter alia makes provision to
ensure that the agents do not indulge in any malpractice or
commit misconduct. The relevant part provides as under:-
“(6) A Consumer Forum has to guard itself from
touts and busybodies in the garb of power of
attorney holders or authorised agents in the
proceedings before it.
(7) While a Consumer Forum may permit an
authorised agent to appear before it, but authorised
agent shall not be one who has used this as a
profession: Provided that this sub-regulation shall
not apply in case of advocates.
(8) An authorised agent may be debarred from
appearing before a Consumer Forum if he is found
guilty of misconduct or any other malpractice at any
time.”
35
71. Mr. Bharat Sangal, learned counsel appearing for the
respondents submitted that Maharashtra Consumer
Protection Rules, 2000 defines ‘agents’. The authorized agents
can appear on behalf of complainant in consumer fora.
72. Mr. Sangal also submitted that when the legislature
permits the authorized agents to appear, then they cannot be
restrained from appearing before the consumer fora.
73. Mr. Sangal also submitted that the authorized agents
can’t be said to practise law. He further submitted that there
are many Forums and Tribunals where non-advocates are
permitted to appear, therefore, there is no merit in restraining
the agents from appearing before the Consumer Fora.
74. Reliance was placed on the judgment in the case of
Lucknow Development Authority v. M.K. Gupta (1994) 1
SCC 243. This court observed that the provisions of the Act
have to be construed in favour of the consumer to achieve the
purpose of enactment as it is a social benefit oriented
legislation. The primary duty of the court while construing the
provisions of such an Act is to adopt a constructive approach
36
subject to that it should not do any violence to the language of
the provisions and is not contrary to the attempted objective of
the enactment. In other words, according to the purpose of
enactment the interest of the consumer is paramount.
75. In Laxmi Engineering Works v. P.S.G. Industrial
Institute (1995) 3 SCC 583 this Court observed thus:
“10. A review of the provisions of the Act discloses
that the quasi-judicial bodies/authorities/agencies
created by the Act known as District Forums, State
Commissions and the National Commission are not
courts though invested with some of the powers of a
civil court. They are quasi-judicial tribunals brought
into existence to render inexpensive and speedy
remedies to consumers. It is equally clear that these
forums/commissions were not supposed to
supplant but supplement the existing judicial
system. The idea was to provide an additional forum
providing inexpensive and speedy resolution of
disputes arising between consumers and suppliers
of goods and services. The forum so created is
uninhibited by the requirement of court fee or the
formal procedures of a court. Any consumer can go
and file a complaint. Complaint need not
necessarily be filed by the complainant himself; any
recognized consumers' association can espouse his
cause. Where a large number of consumers have a
similar complaint, one or more can file a complaint
on behalf of all. Even the Central Government and
State Governments can act on his/their behalf. The
idea was to help the consumers get justice and fair
treatment in the matter of goods and services
purchased and availed by them in a market
dominated by large trading and manufacturing
bodies. Indeed, the entire Act revolves round the
consumer and is designed to protect his interest.
37
The Act provides for “business-to-consumer”
disputes and not for “business-to-business”
disputes. This scheme of the Act, in our opinion, is
relevant to and helps in interpreting the words that
fall for consideration in this appeal.”
76. In Indian Photographic Company Limited v. H.D.
Shourie (1999) 6 SCC 428 the court has held that a rational
approach and not a technical approach is the mandate of law.
77. In Dr. J.J. Merchant and Others v. Shrinath
Chaturvedi (2002) 6 SCC 635 it is observed as under:-
“7. …One of the main objects of the Act is to
provide speedy and simple redressal to consumer
disputes and for that a quasi-judicial machinery is
sought to be set up at the district, State and Central
level. These quasi-judicial bodies are required to
observe the principles of natural justice and have
been empowered to give relief of a specific nature
and to award, wherever appropriate, compensation
to consumers. Penalties for non-compliance with
the orders given by the quasi-judicial bodies have
also been provided. The object and purpose of
enacting the Act is to render simple, inexpensive
and speedy remedy to the consumers with
complaints against defective goods and deficient
services and the benevolent piece of legislation
intended to protect a large body of consumers from
exploitation would be defeated. Prior to the Act,
consumers were required to approach the civil court
for securing justice for the wrong done to them and
it is a known fact that decision in a suit takes years.
12. …It should be kept in mind that legislature
has provided alternative efficacious, simple,
inexpensive and speedy remedy to the consumers
38
and that should not be curtailed on the ground that
complicated questions of facts cannot be decided in
summary proceedings. It would also be totally
wrong assumption that because summary trial is
provided, justice cannot be done when some
questions of facts required to be dealt with or
decided. The Act provides sufficient safeguards.”
78. In Common Cause, A Registered Society v. Union of
India and others (1997) 10 SCC 729, the Supreme Court
held thus:
“The object of the legislation, as the Preamble of
the Act proclaims, is “for better protection of the
interests of consumers”. During the last few years
preceding the enactment there was in this country a
marked awareness among the consumers of goods
that they were not getting their money's worth and
were being exploited by both traders and
manufacturers of consumer goods. The need for
consumer redressal fora was, therefore, increasingly
felt. Understandably, therefore, legislation was
introduced and enacted with considerable
enthusiasm and fanfare as a path-breaking
benevolent legislation intended to protect the
consumer from exploitation by unscrupulous
manufacturers and traders of consumer goods. A
three-tier fora comprising the District Forum, the
State Commission and the National Commission
came to be envisaged under the Act for redressal of
grievances of consumers…”
79. The agent has been defined both in the Consumer
Protection Rules, 1987 and under the Maharashtra Consumer
Protection Rules, 2000. The agents have been permitted to
39
appear before the Consumer Forums. The appearance of
authorized agents is not inconsistent with section 33 of the
Advocates Act, 1961.
80. The legislature in its wisdom has granted permission to
the authorized agents because most of the cases before the
Consumer Forums are small cases of relatively poor people
where legal intricacies are not involved and great legal skills
are not required, which may be handled by the authorized
agents.
81. The other reason is that a large number of litigants may
not be able to afford heavy professional fees of trained
advocates, therefore, authorized agents have been permitted.
82. It is the bounden duty and obligation of the Court to
carefully discern the legislative intention and articulate the
same. In the instant case we are not really called upon to
discern legislative intention because there is specific rule
defining the agents and the provisions of permitting them to
appear before the Consumer Forums. The agents have been
permitted to appear to accomplish the main object of the act of
40
disposal of consumers’ complaints expeditiously with no costs
or small costs.
83. In our considered view the High Court was fully justified
in observing that the authorised agents do not practise law
when they are permitted to appear before the District Forums
and the State Commissions.
84. In the impugned judgment the High Court aptly observed
that many statutes, such as, Sales Tax, Income Tax and
Competition Act also permit non-advocates to represent the
parties before the authorities and those non-advocates cannot
be said to practise law. On the same analogy those nonadvocates
who appear before Consumer fora also cannot be
said to practise law. We approve the view taken by the High
Court in the impugned judgment.
85. The legislature has given an option to the parties before
the Consumer Forums to either personally appear or be
represented by an ‘authorized agent’ or by an advocate, then
the court would not be justified in taking away that option or
interpreting the statute differently.
41
86. The functioning, conduct and behaviour of authorized
agents can always be regulated by the Consumer Forums.
Advocates are entitled as of right to practise before Consumer
Fora but this privilege cannot be claimed as a matter of right
by anyone else.
87. When the legislature has permitted authorized agents to
appear on behalf of the complainant, then the courts can’t
compel the consumer to engage the services of an advocate.
88. However, at this stage we hasten to add that the National
Commission being aware of a possibility of misuse of the right
by an agent had framed Regulation 30-A of the Consumer
Protection Act, 1986, wherein certain restrictions on the right
of audience and also certain precautions to rule out any
misuse of liberty granted has been taken by way of framing
Regulation 16. Reference is made to Clauses 6 and 7 thereof.
We may extract the aforesaid provisions for ready reference:
42
“16. Appearance of Voluntary Consumer
Organization:
(6) A Consumer Forum has to guard itself
from touts and busybodies in the garb of
power of attorney holders or authorized
agents in the proceedings before it.
(7) While a Consumer Forum may permit an
authorized agent to appear before it, but
authorised agent shall not be one who
has used this as a profession:
Provided that this sub-regulation shall
not apply in case of advocates.”
89. These provisions are enacted for providing proper
guidelines and safeguards for regulating appearance and
audience of the agents. The aforesaid regulation in our
considered opinion is a reasonable restriction on the right to
appear by an agent. Such reasonable restrictions as provided
for are to be strictly adhered to and complied with by the
Consumer Forum hearing cases under the Consumer
Protection Act so as to rule out any misuse of the privilege
granted. In terms of the said regulation and other regulations
as provided and framed by the National Commission and as
approved by the Parliament of India, the Consumer Forum has
the right to prevent an authorized agent to appear in case it is
found and believed that he is using the said right as a
43
profession. The Consumer Forums being empowered with
such Regulations would be in a position to judge whether the
agent appearing before it is in any manner exercising such
privileges granted for any ulterior purpose.
90. In the foregoing paragraph, it has been indicated that
many statutes and Acts in India permit non-advocates to
represent the parties before the authorities and forums.
91. In other jurisdictions also, non-advocates are permitted
to appear before quasi-judicial fora or subordinate courts. In
most of these jurisdictions, specific rules have been framed for
the regulation of qualifications, conduct and ethical behaviour
of the non-advocates appearing in these fora.
92. In most jurisdictions, the statutes or court rules impose
some form of restrictions on appearances of non-advocate
representatives in quasi-judicial fora or subordinate courts.
Restrictions on non-advocates agents vary significantly in
terms of their specificity, but most forums have rules granting
44
them some discretion in admitting or refusing the appearance
of a non-advocate representative.
Brief summary of Rules pertaining to Non-Advocates in
different jurisdictions
United States of America
· Congressional legislation neither grants nor denies the
right to have a non-attorney representative in quasijudicial
proceedings.
· The individual fora (administrative law courts) are
allowed to create their own rules for non-attorney
representatives.
· Several administrative law courts/fora allow nonattorney
representatives to appear if they meet certain
qualifications.
Social Security Administration
93. In addition to administering Social Security Retirement
and Disability payments, the Social Security Administration
(SSA) handles disputes arising from Social Security Payments
or the lack thereof. If a current or former recipient of social
security believes that he has been wrongfully denied some or
all of his benefit amount, he may first apply for
reconsideration.
45
94. According to SSA Rules, any attorney in good standing is
allowed to represent a claimant before the ALJ and Appeals
Council. A non-attorney is allowed to represent a claimant if
the non-attorney :
1) Is generally known to have a good character and
reputation;
2) Is capable of giving valuable help to you in connection
with your claim;
3) Is not disqualified or suspended from acting as a
representative in dealings with us; and
4) Is not prohibited by any law from acting as a
representative.
95. SSA rules also restrict the amount that any
representative of claimant (attorney or non-attorney) may
receive for the services rendered by him.
Tax Court
96. The US Tax Court adjudicates disputes over federal
income tax. Taxpayers are permitted to litigate in many legal
forums (such as a district federal court), but many choose the
46
Tax Court because they may litigate their case without first
paying the disputes tax amount in full.
Non-Attorney Representation
97. Tax Court Rules state that all representatives must be
admitted to practice before the Tax Court in order to appear in
proceedings on behalf of a taxpayer. To be admitted, a nonattorney
must pass a special written examination and obtain
sponsorship from two persons who are already admitted to
practice before the Court.
98. Representatives before the Court are instructed to act “in
accordance with the letter and spirit of the Model Rules of
Professional Conduct of the American Bar Association.”
Representatives may be disciplined for inappropriate conduct
and may be suspended or banned from appearing in the
Court.
Court of Appeals for Veterans’ Claims
99. The Court of Appeals for Veteran’s Claims reviews
decision of the Board of Veterans’ Appeals, which adjudicates
disputes pertaining to Veteran’s benefits.
47
Non-Attorney representation
100. A non-attorney may represent claimants if (1) he is under
direct supervision of an attorney or (2) he is employed by an
organization that the Secretary of Veteran’s Affairs has deemed
is competent to handle veterans’ claims. However, if the
Court deems it appropriate it may admit non-attorney
representatives to represent the claimants.
South Africa
The Equality Court
101. The Equality Court hears complaints pertaining to unfair
discrimination, harassment and hate speech. The court rules
allow parties in this court to be represented by lawyers and
non-lawyers. However, the rules also require the judge of the
court inform a party accordingly if he is of the opinion that a
particular non-attorney representative “is not a suitable
person to represent the party.”
England and Wales
102. There are two kinds of courts in England that are similar
in structure and function to the consumer courts in India:
Magistrate Courts and Tribunals.
48
Magistrates’ Courts
103. Magistrates’ Courts are lowest level of court in England
and Wales and deals with minor civil and criminal offences.
There are also specialist courts within the Magistrates’ Courts
system, such as the Family Proceedings Court and the Youth
Court. Under statute, a party may only be represented in a
Magistrates’ Court by a “legal representative”. A “legal
representative” is a person who has been authorized by a
government-approved regulator to perform “reserved legal
activities.”
Tribunals
104. England and Wales also have a fairly complex system of
tribunals that hear special complaints. These tribunals are
similar to US administrative courts in that they are allowed to
create their own procedural rules that regulate representation.
For instance, the Asylum and Immigration Tribunal permits
non-attorney representatives to appear if they meet certain
requirements elaborated in Section 84 of the Immigration and
Asylum Act, 199. Other tribunals may follow different
procedures.
49
Small Claims Court
105. There is no bar for small claims court. A non-attorney
may appear as a representative without prior authorization
from the court. He may, however, be dismissed at the judge’s
discretion.
1) Non-attorney advocates do not appear to be bound
by any code of conduct. But they may be dismissed
by a judge if they judge disapproves of their
conduct.
2) The judge may disqualify a non-attorney from
appearing in court if the judge “has reason to
believe” the non-attorney “has intentionally misled
the court, or otherwise demonstrated that he is
unsuitable to exercise [the right to be a
representative]. The statute specifically mentions
that the judge may disqualify a representative for
conduct done in previous judicial appearances.
3) The court rules and relevant legislation do not
appear to prescribe a limit to the number of
appearances a non-lawyer can make before the
small claims court. However, the statute allows a
50
judge to discipline a non-attorney representative for
conduct in previous judicial proceedings. This
suggests that if a judge believes a non-attorney is
making frequent appearances before a small claims
court and charging in appropriate fees, the judge
may disqualify the non-attorney from appearing in a
particular case.
Australia
106. State Governments in Australia have their own court
systems and also specialized courts to deal with certain
subject matter. In the State of Victoria, statutory law states
that only lawyers may appear in court as representatives with
a few exceptions. A non-attorney may represent a party in a
cause of action for a debt or liquidated demand if the nonattorney
is in the exclusive employment of the aggrieved party.
Also, the statute mentions that a non-attorney representative
may appear if empowered by some other piece of legislation.
New Zealand
107. New Zealand has a large number of tribunals that are
similar to India’s consumer courts and seek to provide quick
and easy dispute resolution. There appears to be a strong
51
preference in tribunals for the parties to represent themselves;
professional lawyers are rarely allowed to appear as
representatives. Two tribunals are discussed below, but New
Zealand’s other tribunals should function similarly.
Disputes Tribunal
108. The Disputes Tribunal hears civil complaints that
concern amounts less than $15,000. Parties subject to
proceedings are generally required to represent themselves.
However, the Tribunal may permit a representative to appear
on a party’s behalf under certain special circumstances.
Representatives may only appear with specific authorization
from the Tribunal and cannot be lawyers.
Directions
109. In order to ensure smooth, consistent, uniform and
unvarying functioning of the National Commission, the State
Commissions and the District Forums, we deem it appropriate
to direct the National Commission to frame comprehensive
rules regarding appearances of the agents, representatives,
registered organizations and/or non-advocates appearing
before the National Commission, the State Commissions and
the District Forums governing their qualifications, conduct
52
and ethical behaviour of agents/nonadvocates/
representatives, registered organizations and/or
agents appearing before the consumer forums.
The National Commission may consider following suggestions
while framing rules
110. The Commission may consider non-advocates appearing
without accreditation - A party may appoint a non-advocate as
its representative provided that the representative –
1) is appearing on an individual case basis
2) has a pre-existing relationship with the complainant
(e.g., as a relative, neighbour, business associate or
personal friend)
3) is not receiving any form of direct or indirect
remuneration for appearing before the Forum and files
a written declaration to that effect
4) demonstrates to the presiding officer of the Forum that
he or she is competent to represent the party.
Accreditation Process
a) The National Commission may consider creating a
process through which non-advocates may be accredited
to practice as representatives before a Forum.
53
b) Non-advocates who are accredited through this process
shall be allowed to appear before a Forum on a regular
basis
c) The accreditation process may consist of –
1) an written examination that tests an applicant’s
knowledge of relevant law and ability to make legal
presentations and arguments
2) an inspection of the applicant’s educational and
professional background
3) an inspection of the applicant’s criminal record
d) the National Commission may prescribe additional
requirements for accreditation at its discretion provided
that the additional requirements are not arbitrary and do
not violate existing law or the Constitution.
Fees
a) A representative who wishes to receive a fee must file a
written request before the Forum
b) The presiding officer will decide the amount of the fee, if
any, a representative may charge or receive
c) When evaluating a representative’s request for a fee, the
presiding officer may consider the following factors :
54
1) the extent and type of services the representative
performed
2) the complexity of the case
3) the level of skill and competence required of the
representative in giving the services
4) the amount of time the representative spent on the
case; and
5) the ability of the party to pay the fee
d) If a party is seeking monetary damages, its representative
may not seek more a fee of more than 20% of the
damages
Code of Conduct for representatives
- The National Commission to create a code of conduct which
would apply to non-advocates, registered organizations and
agents appearing before a Forum.
Disciplinary Powers of a Forum
(a) The presiding officer of a Forum may be given specific
power to discipline non-advocates, agents, authorized
organizations and representatives for violating the code of
conduct or other behaviour that is unfitting in a Forum
55
(b) In exercising its disciplinary authority, the presiding
officer may –
1) revoke a representative’s privilege to appear before
the instant case
2) suspend a representative’s privilege to appear
before the Forum
3) ban a representative from appearing before the
forum
4) impose a monetary fine on the representative
111. We direct the National Commission to frame
comprehensive Rules as expeditiously as possible, in any
event, within three months from the date of communication of
this order. The copy of this judgment be sent to the National
Commission.
112. On consideration of totality of the facts and
circumstances, the view taken by the Division Bench of the
Bombay High Court in the impugned judgment cannot be said
to be erroneous and unsustainable in law. Consequently,
these appeals being devoid of any merit are accordingly
dismissed.
56
113. In the facts and circumstances of the case, we direct the
parties to bear their own costs.
114. Before we part, we would like to observe that we had
requested Shri Jawahar Lal Gupta, a distinguished Senior
Advocate to assist the court as amicus curiae. He graciously
agreed and provided excellent assistance to this court. Shri
Gupta also submitted written submissions. We record our
deep appreciation for his valuable assistance provided by him
to this court.
……….………………………..J.
(Dalveer Bhandari)
……….………………………..J.
(Dr. Mukundakam
Sharma)
……..……….…………………J.
(Anil R. Dave)
New Delhi;
August 29, 2011
57
58
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.868 OF 2003
C. Venkatachalam …Appellant
Versus
Ajitkumar C. Shah and others …Respondents
With
CIVIL APPEAL NOS.869-870 OF 2003
Bar Council of India …Appellant
Versus
Sanjay R Kothari and Ors. …Respondents
J U D G M E N T
Dalveer Bhandari, J.
1. These appeals emanate from the judgment dated
4.9.2002 delivered by the Division Bench of the Bombay High
Court in Writ Petition Nos. 1147 and 1425 of 2002. We
propose to dispose of these appeals by a common judgment
because same questions of law are involved in these appeals.
BRIEF FACTS:
2. A complaint bearing no.428 of 2000 of alleged deficiency
in service was filed before the South Mumbai District
Consumer Disputes Redressal Forum, Mumbai (for short,
Consumer Forum) against the two tour operators. During the
pendency of the complaint, applications were filed by the
opposite parties contending that the authorized agent should
not be granted permission to appear on behalf of the
complainants as he was not enrolled as an Advocate. The
Consumer Forum considered the applications and held that
the authorized agent had no right to act and plead before the
Consumer Forum as he was not enrolled as an advocate.
3. In complaint bearing no.167 of 1997 filed before the
Consumer Forum, the majority expressed the view that the
authorized agents have a right to file, act, appear, argue the
complaint to its logical conclusion before the Consumer
Agencies. The issue was taken to the State Consumer
Disputes Redressal Commission (for short, State Commission)
which stayed the hearing of the matters in which authorized
agents were appearing and refused to grant stay where
authorized agents were injuncted from appearing before the
2
Consumer Forum. As a result, the proceedings in a large
number of cases where the authorized agents were appearing
had come to standstill.
4. The interim order passed by the State Commission was
challenged in two writ petitions before the Bombay High
Court. The petitions were allowed by the Division Bench. The
High Court held that the Consumer Fora constituted under
the Consumer Protection Act, 1986 have “trappings of a civil
court” but “are not civil courts within the meaning of the
provisions of the Code of Civil Procedure.”
5. The High Court in the impugned judgment held that a
party before the District Consumer Forum/State Commission
cannot be compelled to engage services of an advocate.
6. The High Court further held that the Act of 1986 is a
special piece of legislation for the better protection of the
interests of consumers. The Act has been enacted to give
succour and relief to the affected or aggrieved consumers
quickly with nil or small expense. The Consumer Forum
created under the Act of 1986 is uninhibited by the
requirement of court fee or the formal procedures of court –
3
civil or criminal…..any recognized consumers Association can
espouse his cause……Even the Central Government or State
Governments can act on his/their behalf…restrictive meaning
shall not be consistent with the objectives of the Act of 1986…
The right to appear, therefore, includes right to address the
Court, examining, cross-examining witnesses, oral
submissions etc..
7. The Division Bench also held that the right of audience
inheres in favour of authorized agents of the parties in the
proceedings before the District Consumer Forum and the State
Commission and such right is not inconsistent or in conflict
with the provisions of the Advocates Act, 1961.
8. The Division Bench also observed that the right of an
advocate to practise is not an absolute right but is subject to
other provisions of the Act. According to the Division Bench,
permitting the authorized agents to represent parties to the
proceedings before the District Forum/State Commission
cannot be said to practise law.
9. The Division Bench also held that there are various
statutes like Income Tax Act, Sales Tax Act and the
4
Monopolies and Restrictive Trade Practices Act which permit
non-advocates to represent the parties before the authorities
under those Acts and those non-advocates appearing before
those Forums for the parties cannot be said to practise law.
The Rules of 2000 framed under Act of 1986 permit authorized
agents to appear for the parties and such appearance of
authorized agents cannot be said to be inconsistent with
section 33 of Advocates Act.
10. The Division Bench also dealt with the disciplinary
aspect of the matter and held that if authorized agent
appearing for the party to the proceedings misbehaves or
exhibits violent behaviour or does not maintain the decency
and decorum of the District Forum or State Commission or
interferes with the smooth progress of the case then it is
always open to such District Forum or State Commission to
pass an appropriate order refusing such authorized agent the
audience in a given case.
11. These appeals have been preferred before this court
against the impugned judgment.
5
12. A two-judge Bench of this Court on 21.2.2007 referred
these matters to a larger Bench in view of the importance of
the matter. The order dated 21.2.2007 reads as under:
“The basic issue involved in these appeals is
whether a person under the purported cover of
being an “agent” can represent large number of
persons before the forums created under the
Consumer Protection Act, 1986 (In short the ‘Act’)
and the Rules made thereunder. According to the
appellant Rule relating to agents cannot be used to
by passing stipulations under the provisions of the
Advocates Act, 1961 (in short the ‘Advocates Act’),
more particularly under Sections 29, 31 and 32.
Rule 2(b) of the Consumer Protection Rules, 1987
(in short the ‘The Rules’) defines an ‘agent’ as under:
“agent means a person duly authorized
by a party to present any complaint,
appeal or reply on its behalf before the
National Commission.”
Similarly, Rule 14(1) and 14(3) also deal with the
acts which an agent can undertake.
Learned counsel for the respondents has submitted
that in Civil Appeal No. 2531 of 2006 (R.D. Nagpal
Vs. Vijay Dutt & Anr.) this Court has accepted the
stand that even a Doctor is authorised by a party
can cross examine the complainant.
So far as individual cases are concerned, it may not
present difficulty. But the question is whether
somebody who is not a legal practitioner, can
represent large number of parties before their
forums thereby frustrating objects embodied in the
Advocates Act.
It is submitted by the learned counsel for the
appellants that a large number of persons who are
6
otherwise not entitled to appear before the forums
are doing so under the garb of being agents.
As the matter is of great importance, we refer the
same to a larger Bench.
Papers may be placed before Hon’ble the Chief
Justice of India so that necessary orders can be
passed for placing these matters before the
appropriate Bench.”
13. Hon’ble the Chief Justice of India has referred these
appeals before a three judge Bench.
14. It is imperative to properly comprehend the objects and
reasons of the Consumer Protection Act, 1986 in order to deal
with the controversy involved in the case.
“Statement of Objects and Reasons – The
Consumer Protection Bill, 1986 seeks to provide for
better protection of the interests of consumers and
for the purpose, to make provisions for the
establishment of Consumer Councils and other
authorities for the settlement of consumer disputes
and for matters connected therewith.
2. It seeks, inter alia, to promote and protect the
rights of consumers such as-
(a) the right to be protected against
marketing of goods which are hazardous
to life and property;
(b) the right to be informed about the quality,
quantity, potency, purity, standard and
price of goods to protect the consumer
against unfair trade practices;
7
(c) the right to be assured, wherever
possible, access to an array of goods at
competitive prices;
(d) the right to be heard and to be assured
that consumer interests will receive due
consideration at appropriate forums;
(e) the right to seek redressal against unfair
trade practices or unscrupulous
exploitation of consumers; and
(f) right to consumer education.
3. These objects are sought to be promoted and
protected by the Consumer Protection Council to be
established at the Central and State level.
4. To provide speedy and simple redressal to
consumer disputes, a quasi-judicial machinery is
sought to be set-up at the district, State and
Central levels. These quasi-judicial bodies will
observe the principles of natural justice and have
been empowered to give relief of a specific nature
and to award, wherever appropriate, compensation
to consumers. Penalties for non-compliance of the
orders given by the quasi-judicial bodies have also
been provided.”
15. Mr. Santosh Paul, learned counsel appearing for the
appellants argued these appeals and also submitted the
written submissions. He submitted that ordinarily right to
practise has been given only to advocates who are enrolled
with the Bar Council of a State. Section 29 of the Advocates
8
Act, 1961 recognised advocates as class of persons entitled to
practise the profession of law. Section 29 reads as under:
“29. Advocates to be the only recognized class of
persons entitled to practice law – Subject to the
provisions of this Act and any rules made
thereunder, there shall, as from the appointed day,
be only one class of persons entitled to practise the
profession of law, namely, advocates.”
16. Section 32 of the Advocates Act, 1961 deals with the
power of court to permit appearances in particular cases
where court can permit any person not enrolled as an
advocate. Section 32 reads as under:
“Power of Court to permit appearances in
particular cases – Notwithstanding anything
contained in this Chapter, any court, authority, or
person may permit any person, not enrolled as an
advocate under this Act, to appear before it or him
in any particular case.”
17. Section 33 of the Advocates Act, 1961 says that no
person shall, on or after the appointed day, be entitled to
practise in any court or before any authority unless he is
enrolled as an advocate. Section 33 reads as under:
“Advocates alone entitled to practise – Except as
otherwise provided in this Act or in any other law
for the time being in force, no person shall, on or
after the appointed day, be entitled to practise in
any court or before any authority or person unless
he is enrolled as an advocate under this Act.”
9
18. According to Mr. Paul, analysis of these provisions lead to
clear conclusion that only advocates can act, plead and argue
before the Consumer Forums.
19. He placed reliance on the following judgments of this
court :-
20. In O.N. Mohindroo v. The Bar Council of Delhi and
Others 1968 (2) SCR 709, the court held as under:-
“The object of the Act is thus to constitute one
common Bar for the whole country and to provide
machinery for its regulated functioning. Since the
Act sets up one Bar, autonomous in its character,
the Bar Councils set up thereunder have been
entrusted with the power to regulate the working of
the profession and to prescribe rules of professional
conduct and etiquette, and the power to punish
those who commit breach of such rules. The power
of punishment is entrusted to the disciplinary
committees ensuring a trial of an advocate by his
peers. Sections 35, 36 and 37 lay down the
procedure for trying complaints, punishment and
an appeal to the Bar Council of India from the
orders passed by the State Bar Councils. As an
additional remedy section 38 provides a further
appeal to the Supreme Court. Though the Act
relates to the legal practitioners, in its pith and
substance it is an enactment which concerns itself
with the qualifications, enrollment, right to practise
and discipline of the advocates. As provided by the
Act once a person is enrolled by any one of the State
Bar Councils, he becomes entitled to practise in all
courts including the Supreme Court. As aforesaid,
the Act creates one common Bar, all its members
being of one class, namely, advocates. Since all
10
those who have been enrolled have a right to
practise in the Supreme Court and the High Courts,
the Act is a piece of legislation which deals with
persons entitled to practise before the Supreme
Court and the High Courts. Therefore the Act must
be held to fall within entries 77 and 78 of List I. As
the power of legislation relating to those entitled to
practise in the Supreme Court and the High Courts
is carved out from the general power to legislate in
relation to legal and other professions in entry 26 of
List III, it is an error to say, as the High Court did,
that the Act is a composite legislation partly falling
under entries 77 and 78 of List I and partly under
entry 26 of List III.”
21. In Harishankar Rastogi v. Girdhari Sharma and
Another (1978) 2 SCC 165, the court held as under:-
“Advocates are entitled as of right to practise in this
Court (Section 30(i) of the Advocates Act, 1961). But,
this privilege cannot be claimed as of right by any
one else. While it is true that Article 19 of the
Constitution guarantees the freedom to practise any
profession, it is open to the State to make a law
imposing, in the interest of the general public,
reasonable restrictions on the exercise of the right.
The Advocates Act, by Section 29, provides for such
a reasonable restriction, namely, that the only class
of persons entitled to practise the profession of law
shall be advocates. Even so, is it not open to a party
who is unable for some reason or other to present
his case adequately to seek the help of another
person in this behalf? To negative such a plea may
be to deny justice altogether in certain cases,
especially in a land of illiteracy and indigence and
judicial processes of a sophisticated nature. That is
precisely why legislative policy has taken care to
provide for such contingencies. Sections 302, 303
and 304 of the Criminal Procedure Code are
indicative of the policy of the legislature. I do not
11
think that in this Court we should totally shut out
representation by any person other than the party
himself in situations where an advocate is not
appearing for the party….”
22. Mr. Paul appearing for the appellants also gave reference
to international law and conventions to strengthen his
submissions that only advocates enrolled with the respective
Bar Councils alone can practise in the Consumer Forums and
the agents cannot appear. He submitted that practice under
the Consumer Protection Act, 1986 requires extensive legal
skills which only a trained legal practitioner possesses and he
alone can discharge those functions. He submitted that the
agents have no legal training to handle complicated legal
matters pertaining to consumers and hence the agents cannot
be permitted to practise law before the Consumer Forums.
Historical perspective of the consumer movement
23. The consumer movement had primarily started in the
West. We can trace history of the consumer movement from
the judgment of the leading case Carlill v. Carbolic Smoke
Ball Company 1893 (1) Q.B. 256. In this case first time
Manufacturers’ liability for minimum quality standard for
product was established.
12
24. For the first time in 1856 a select committee
recommended that a cheap and easy remedy, by a summary
charge before a magistrate, should be afforded to consumers
who received adulterated or falsely described food. This
suggestion was taken up in the Merchandise Marks Act, 1887.
Section 17 of the Act provides as follows :
“That a person applying a trade description to a
product was deemed to warrant that it was true, so
that a false trade description constituted breach of
both criminal and civil law.”
25. In a leading English case Donoghue v. Stevenson (1932)
A.C. 562, where the consumer claimed to have suffered injury
as well as result of drinking from a bottle of ginger-beer
containing a decomposed snail. Over a strong dissent the
majority held that the manufacturer would be liable. The case
did not herald strict liability but it facilitated more claims than
were provided under the nineteenth century approach. Lord
Atkin enunciated the manufacturer’s duty of care in the
following words:
“……….the preparation or putting up of the
products will result in an injury to the consumer’s
life or property, owes a duty to the consumer to take
that reasonable care.”
13
26. This theory of strict liability already exists under the
Consumer Protection Act, 1961.
27. The organized English consumer movement started after
the Second World War. The Labour Party for the first time
gave slogan of “battle for the consumers” in Parliament. In the
decade of 1960, number of legislations were introduced in
Britain for the protection of the consumers. The Consumer
Safety Act, 1978 was enacted.
United States of America
28. The consumer movement in the United States of America
developed in the beginning of the 19th century when in Donald
C. MacPherson v. Buick Motor Company 217 N.Y. 382, 111
N.E. 1050 the New York Court of Appeal observed that a car
manufacturer had to compensate a consumer who had been
injured when one of the car wheels collapsed because of
defect. The court held that the manufacturer had been
negligent because the defect could have been discovered by
reasonable inspection. In 1972, the Consumer Product Safety
Act was enacted.
14
29. Paul S. Boyer, a distinguished author, in his article on
“Consumer Movement”, published by The Oxford Companion
to United States History, 2001, has mentioned about the
modern consumer movement. The relevant following extract is
instructive and is reproduced as under.
“The modern consumer movement arose in the
Progressive Era, as citizens concerned about unsafe
products and environmental hazards used lobbying,
voting, and journalistic exposés to press for
government protection. In the same vein, the
Consumers Union (1936), publisher of Consumer
Reports, tests products for safety, economy, and
reliability, to give consumers an objective basis for
choice.
…….Such socially engaged consumerism actually
had long historical antecedents, including
Revolutionary Era patriots who had boycotted
English tea and textiles and abolitionists who had
refused to purchase goods made of slave‐produced
cotton.
Consumer activism revived in the late 1960s,
flourished in the 1970s, and, despite a conservative
backlash against government regulation, survived in
diminished form in the 1990s. A by‐product of
1960s social activism, consumer advocates insisted
on citizens' rights to safe and reasonably priced
goods and services and to the full disclosure of
product information. The lawyer Ralph Nader gained
fame for Unsafe at Any Speed (1965), which detailed
safety hazards plaguing General Motors' (GM)
Corvair automobile. Using $425,000 won in an
invasion‐of‐privacy suit against GM in 1970, Nader
founded numerous consumer groups, nicknamed
“Nader's Raiders,” that pursued legal challenges to
unsafe products and demanded greater government
15
protection for consumers. The formation of the
Consumer Federation of America (1968), the
Occupational Safety and Health Administration
(1970), and the Consumer Product Safety
Commission (1972) attested to the movement's
success but also to its regulatory and legalistic
bent. Focused on consumers' rights, the modern
movement downplayed the power of consumers to
effect social change.”
30. Ralph Nader played an extremely important role in
consumer movement in the United States of America. A note
appears in “America in Ferment : The Tumultuous 1960s –
Ralph Nader and the Consumer Movement.’ An extract is
reproduced. It reads :-
“Ralph Nader has been called the nation's nag. He
denounced soft drinks for containing excessive
amounts of sugar (more than nine teaspoons a can).
He warned Americans about the health hazards of
red dyes used as food colorings and of nitrates used
as preservatives in hot dogs. He even denounced
high heels: "It is part of the whole tyranny of
fashion, where women will inflict pain on
themselves ... for what, to please men." Since the
mid-1960s, Ralph Nader has been the nation's
leading consumer advocate.”
31. Ralph Nader is an extraordinary example of total devotion
to the cause. It is men like him who leave an imprint and
make history. Consumer movements all over the world have
taken great inspiration from Ralph Nader.
16
32. Every year 15th March is observed as the World
Consumer Rights Day. On that day in 1962 President John F.
Kennedy of the United States called upon the United States
Congress to accord its approval to the Consumer Bill of Rights.
They are (i) right to choice; (ii) right to information; (iii) right to
safety; and (iv) right to be heard. President Gerald R. Ford
added one more right i.e. right to consumer education.
Further other rights such as right to healthy environment and
right to basic needs (food, clothing and shelter) were added.
Unfortunately, in most of the countries these rights are still
not available to the consumers. In India 24th December every
year celebrated as National Consumer Rights Day.
33. The General Assembly of the United Nations adopted a
set of general guidelines for consumer protection and the
Secretary General of the United Nations was authorized to
persuade member countries to adopt these guidelines through
policy changes or law. These guidelines constitute a
comprehensive policy framework outlining what governments
need to do to promote consumer protection in following seven
areas:
17
(i) Physical safety;
(ii) Protection and Promotion of the consumer
economic interest;
(iii) Standards for the safety and quality of
consumer goods and services;
(iv) Distribution facilities for consumer goods and
services;
(v) Measures enabling consumers to obtain
redress;
(vi) Measures relating to specific areas (food, water
and pharmaceuticals); and
(vii) Consumer education and information
programme.
34. Though not legally binding, the guidelines provide an
internationally recognized set of basic objectives particularly
for governments of developing and newly independent
countries for structuring and strengthening their consumer
protection policies and legislations. These guidelines were
adopted recognizing that consumers often face imbalances in
economic terms, educational levels and bargaining power and
bearing in mind that consumers should have the right of
access to non hazardous products as well as the importance of
18
promoting just, equitable and sustainable economic and social
development.
Indian perspective
35. It was in this background that the Indian Parliament had
enacted the Consumer Protection Act, 1986. The declared
objective of the statute was “to provide for better protection of
the interests of consumers.” It seeks to provide a speedy and
inexpensive remedy to the consumer.
36. The Consumer Protection Act, 1986 is one of the
benevolent social legislations intended to protect the large
body of consumers from exploitation. The Act has come as a
panacea for consumers all over the country and is considered
as one of the most important legislations enacted for the
benefit of the consumers. The Consumer Protection Act, 1986
provides inexpensive and prompt remedy.
37. The Consumer Protection Act, 1986 is dedicated, as its
preamble shows, to provide for effective protection of the rights
of the consumers. According to the Statement of Objects and
Reasons, it seeks to provide speedy and simple redressal to
consumer disputes. The object of the Act is to render simple,
19
inexpensive and speedy remedy to the consumers with
complaints against defective goods and deficient services and
for that a quasi-judicial machinery has been sought to be set
up at the District, State and Central levels. The Consumer
Protection Act has come to meet the long-felt necessity of
protecting common man from wrongs for which the remedy
under the ordinary law for various reasons has become
illusory.
38. The Consumer Protection Act, 1986 was amended in the
years 1991, 1993 and in 2002 to make it more effective and
purposeful.
39. To effectuate this objective, a provision has been made in
Chapter II of the Act for the constitution of ‘the Central
Consumer Protection Council’ and ‘the State Consumer
Protection Councils.” The purpose as indicted in section 6 is
to “promote and protect the rights of consumers” against the
“marketing of goods and services which are hazardous to life
and property; the right to be informed about the quality,
quantity, potency, purity, standard and price of goods or
services, as the case may be, so as to protect the consumer
20
against unfair trade practices; the right to be assured,
wherever possible, access to a variety of goods and services at
competitive prices; the right to be heard and to be assured
that consumer’s interests will receive due consideration at
appropriate Forums; the right to seek redressal against unfair
trade practices or restrictive trade practices or unscrupulous
exploitation of consumers and the right to consumer
education.”
40. A perusal of Chapter II clearly shows that the statute
seeks to protect the ‘consumer’ of goods and services in every
possible way. It aims at providing a speedy and inexpensive
remedy. Any interpretation of the provisions of the 1986 Act
and the rules framed thereunder must promote this objective
of the enactment.
41. In furtherance of the declared objective of protecting the
consumer against exploitation as well as providing an
inexpensive and speedy remedy, the competent authority has
framed Rules which enable the party to appear either
personally or through an ‘agent’.
21
42. The issue is – Do the Rules permit a party to have an
‘Agent’ for merely presenting the papers on its behalf or can
the Agent even act and argue?
Maharashtra Consumer Protection Rules, 1987
· Rule 2(b) defines an Agent to mean “a person
duly authorized by a party to present any
complaint, appeal or reply on its behalf before
the State Commission or the District Forum.”
· Under Rule 4(7), the parties are obliged to
either appear personally or through
“authorized agent.” If “the complainant or his
authorized agent fails to appear before the
District Forum” it may “in its discretion either
dismiss the complaint for default or decide it
on merit.” Similarly, “where the opposite party
(defendant) or its authorized agent fails to
appear on the day of hearing, the District
Forum may decide the complaint ex parte.”
· A perusal of the provisions show that while the
advocates have not been debarred from
22
pleading and appearing, the parties have been
given an option to either appear personally or
be represented by “duly authorized” agents.
Every advocate appointed by a party is an
agent. However, the agent as contemplated
under the rules need not necessarily be an
advocate.
· The provision in the Rules promotes the object
of the statute. It is meant to help the consumer
to vindicate his right without being burdened
with intricate procedures and heavy
professional fees.
· In the very nature of things, the disputes
under the 1986 Act can involve claims for
small amounts of money by way of
compensation. Engagement of advocates in all
such matters may not be economically viable.
It is equally possible that the claim may
involve professional expertise. To illustrate: A
person may sue a hospital for medical
23
negligence. Or an Architect for a faulty design.
Or a building contractor for defective work. In
such cases, a professional like a doctor,
architect or an engineer may be more suitable
than an advocate. Thus, both the parties have
been given an option to choose from an
advocate or any other person who may even be
a professional expert in the particular field.
43. Such an interpretation is not only literally correct but
also promotes the declared objective of the statute. It helps
the claimant and the defendant equally. It does not violate
any provision of the Advocates Act.
44. The Consumer Protection Act, 1986 was amended in the
year 2002, in pursuance to the United Nations resolution
passed in April, 1985 indicating certain guidelines under
which the Government could make law for better protection of
the interest of the consumers. Such laws were necessary,
particularly in the developing countries to protect the
consumers from hazards to their health and safety and to
24
provide them available speedier and cheaper redressal of their
grievances.
45. The amended Act 62 of 2002 reads as under:
“Amendment Act 62 of 2002. – The enactment of
the Consumer Protection Act, 1986 was an
important milestone in the history of the consumer
movement in the country. The Act was made to
provide for the better protection and promotion of
consumer rights through the establishment
Consumer Councils and quasi-judicial machinery.
Under the Act, consumer disputes redressal
agencies have been set up throughout the country
with the District Forum at the district level, State
Commission at the State level and National
Commission at the National level to provide simple,
inexpensive and speedy justice to the consumers
with complaints against defective goods, deficient
services and unfair and restrictive trade practices.
The Act was also amended in the years 1991 and
1993 to make it more effective and purposeful.”
46. In the developed countries the consumer movement has
been going on for several decades in which the trader and the
consumer find each other as adversaries.
47. The Consumer Protection Act, 1986 was enacted with the
object and intention of speedy disposal of consumer disputes
at a reasonable cost, which is otherwise not possible in
ordinary judicial/court system.
25
48. In the book on Administrative law, its distinguished
author M.P. Jain has brought about the distinction between
the Court and the Tribunal. According to him Courts are
bound by prescribed rules of procedures and evidence and
their proceedings are conducted in public. The lawyers are
entitled to appear before them and the judge in the open Court
hears the case and decides it by giving reasons for a judgment.
The courts are totally independent of the executive will,
whereas, the Tribunals are not ordinarily governed by the
provisions of Code of Civil Procedure and the Evidence Act,
except to the extent it is indicative in the Act itself. There is
also a significant difference between the Court and the
Tribunal with regard to the appointment of Members. The
object of the constitution of a Tribunal is to provide speedy
justice in a simple manner and the Tribunal be should easily
accessible to all.
49. According to the celebrated book on ‘Administrative Law’
by Wade, the other object of constituting a Tribunal is to
create specialist Forum which would include specialists in the
field to adjudicate efficiently and speedily the matters
requiring adjudication in that field and that commands the
26
confidence of all concerned in the quality and reliability of the
result of such adjudication.
50. The Consumer Protection Rules, 1987 also defines the
expression ‘agent’ in the same manner.
51. The appellants submitted before the High Court that the
complainant may appear through its authorized agent, but,
that doesn’t mean that authorized agent is empowered to act,
appear or plead on behalf of the party before the State
Commission or the District Forum as a lawyer. According to
the appellants (Bar Council of India and advocate), the agent
appointed by the complainant is empowered only to present
any complaint, appeal or rely on behalf of the party to the
complaint before the Consumer Forum by physically
remaining present on the date/dates of hearing. This
contention was rejected by the Division Bench of the High
Court.
52. According to the judgment of this Court in Harishankar
Rastogi (supra), a non-advocate can appear with the
permission of the Court. The Court may, in an appropriate
case, even after grant of permission withdraw it if the
27
representative proves himself reprehensible. It is only a
privilege granted by the Court and it depends entirely on the
discretion of the court.
53. The learned counsel for the respondent has drawn our
attention to Rule 9 of the Maharashtra Consumer Protection
Rules, 2000 which provides for procedure for hearing appeals.
He also referred to sub-rules 1 and 6 of Rule 9 which reads as
under:
“9. Procedure for hearing appeal –
(1) Memorandum shall be presented by the
appellant or his authorized agent to the State
Commission in person or sent by registered post
addressed to the Commission.
(6) On the date of hearing or any other day to
which hearing may be adjourned, it shall be
obligatory for the parties or their authorized agents
to appear before the State Commission. If appellant
or his authorized agent fails to appear on such date,
the State Commission may, in its discretion, either
dismiss the appeal or decide it on the merit of the
case. If respondent or his authorized agents fails to
appear on such date, the State Commission shall
proceed ex-parte and shall decide the appeal exparte
on merits of the case.”
54. The clear interpretation of the Rules is that the
authorised agent appointed by the (consumer) complainant
may appear before the Consumer Fora. The Consumer Fora
28
may, in its discretion, either dismiss the appeal or decide it on
the merit of the case. In this view of the matter, it is
abundantly clear that the authorized agent of the complainant
can act and plead before the State Tribunal otherwise the
complaint is liable to the dismissed.
55. The learned counsel for the respondents submitted that
non-advocates are permitted to appear in various Forums
including Income Tax Tribunal, Sales Tax Tribunal and
Monopolies and Restrictive Trade Practises Tribunal, therefore,
wherever the legislature has accorded the permission to the
persons other than advocates, who appear before these
Tribunals can act and appear according to the object of the
Act and legislative intention.
Legislative intention
56. We deem it appropriate to briefly deal with the
importance of gathering legislative intention while interpreting
provisions of law.
57. In Blackstone’s Commentaries on the Laws of England,
Volume I, published in the year 2001 (Edited by Wayne
Morrison), it has been observed as under:-
29
“The fairest and most rational method to interpret
the will of the legislator is by exploring his
intentions at the time when the law was made, by
signs the most natural and probable. And these
signs are either the words, the context, the subject
matter, the effects and consequence, of the spirit
and reason of the law.”
58. A Constitution Bench of this Court in R.M.D.
Chamarbaugwalla and Another v. Union of India and
Another AIR 1957 SC 628 has laid down that in interpreting
the statute the legislative intent is paramount and the duty of
the Court is to act upon the true intention of the legislature.
59. In Anandji Haridas & Company Private Limited v.
Engineering Mazdoor Sangh and Another (1975) 3 SCC
862, this Court laid down that as a general principle of
interpretation where the words of a statute are plain, precise
and unambiguous, the intention of the Legislature is to be
gathered from the language of the statute itself and no
external evidence such as parliamentary debates, reports of
the Committees of the Legislature or even the statement made
by the minister on the introduction of a measure or by the
framers of the Act is admissible to construe those words.
30
60. In another Constitution Bench judgment in Kartar
Singh v. State of Punjab (1994) 3 SCC 569, this Court has
observed that though normally the plain ordinary grammatical
meaning of an enactment affords the best guide and the object
of interpreting a statute is to ascertain the intention of the
legislature enacting it, other methods of extracting extracting
the meaning can be resorted to if the language is
contradictory, ambiguous or leads really to absurd results so
as to keep at the real sense and meaning.
61. In District Mining Officer and Others v. Tata Iron
and Steel Company and Another (2001) 7 SCC 358, a three
Judge Bench of this Court has observed:
“A statute is an edict of the legislature and in
construing a statute, it is necessary to seek the
intention of its maker. A statute has to be
construed according to the intent of them that
make it and the duty of the court is to act upon
the true intention of the legislature. If a statutory
provision is open to more than one interpretation,
the court has to choose that interpretation which
represents the true intention of the legislature.”
62. In Bhatia International v. Bulk Trading S.A. and
Another (2002) 4 SCC 105, a three Judge Bench of this Court
has held as under:-
31
“The conventional way of interpreting a statute is
to seek the intention of its makers. If a statutory
provision is open to more than one interpretation
then the Court has to choose that interpretation
which represents the true intention of the
legislature.”
63. It is the bounden duty of the courts to discern legislative
intention and interpret the statutes accordingly. The instant
case Act and Rules have made specific provisions by which the
agents have been permitted to plead and appear on behalf of
the parties before the Consumer Forums. Therefore, to
interpret it differently would be contrary to legislative
intention.
64. We have heard the learned counsel for the parties and
the learned amicus curiae.
65. In the written submissions, Shri Jawahar Lal Gupta,
learned amicus curiae, submitted that the advocates in these
appeals can have no cause for any apprehension. In case, a
party chooses an incompetent person as its agent before the
Consumer Forum or the State Commission, he can pose no
competition or threat to any profession. Such a person will get
automatically eliminated with the passage of time. However,
32
in case the parties choose competent persons to act an agents
and they perform well, it will not only promote the object of the
1986 Act and the Rules framed thereunder but also provide
healthy competition to the advocates. It violates no provision
of the Advocates Act, 1961 or any other law. It can provide no
cause for complaint.
66. He further submitted that there is another aspect of the
matter. Every person has the right to lead a life of dignity.
Every person has a right to work and make an honest living.
Every individual has the right and freedom to do anything so
long as he does not violate any law. Thus, a retired or even an
unemployed doctor, engineer, scientist, teacher or any other
person has the right to offer his/her services as an ‘agent’. In
other words, an individual has the right to choose ‘acting as
agent’ as his profession. Article 19(1)(g) guarantees that
freedom. The mandate of Article 21 is fulfilled. In doing so, he
does not practise the profession of law or violate the provisions
of the Advocates Act, 1961. He only invokes the freedom
guaranteed under the Constitution and exercises the right
conferred by the Rules. He merely helps the party before the
Consumer Forum or the Commission. It also enables him to
33
earn some money and lead a dignified existence. He has the
freedom and the right to do so. The action is in conformity
with the Constitution. It even promotes the objective as
contained in Article 39A.
67. Shri Gupta further submitted that the provision
permitting the parties to be represented by agents as made in
the Rules has not been challenged. In fact, the provision is in
strict conformity with the constitution. It violates no law.
Actually, there are various statutes which permit the parties to
be represented by persons who may not be advocates. By way
of instance, reference may be made to the provisions of the
Industrial Disputes Act; the Income Tax Act and the Sales Tax
Act or the Monopolies and Restrictive Trade Practices Act.
Such instances can be multiplied.
68. Shri Gupta also dealt with the disciplinary aspect of the
matter. He submitted that in the appeal filed by the Bar
Council, considerable emphasis on discipline and ethics was
expressed by the learned counsel for the Council. During the
course of hearing, a reference was made to the Regulations as
framed by the National Consumer Disputes Redressal
34
Commission (For short, ‘National Commission’) under the Act
with the approval of the Central Government in 2005. The
Regulations actually appear at page 52 of the Bar Act
(Professional’s – 2010 Edition).
69. A perusal thereof shows that the Regulations appear to
have been framed by the National Commission in exercise of
the power conferred by section 30A with the previous approval
of the Central Government. The footnote indicates that these
were published in the Gazette of India dated May 31, 2005.
70. Specifically, Regulation 16 inter alia makes provision to
ensure that the agents do not indulge in any malpractice or
commit misconduct. The relevant part provides as under:-
“(6) A Consumer Forum has to guard itself from
touts and busybodies in the garb of power of
attorney holders or authorised agents in the
proceedings before it.
(7) While a Consumer Forum may permit an
authorised agent to appear before it, but authorised
agent shall not be one who has used this as a
profession: Provided that this sub-regulation shall
not apply in case of advocates.
(8) An authorised agent may be debarred from
appearing before a Consumer Forum if he is found
guilty of misconduct or any other malpractice at any
time.”
35
71. Mr. Bharat Sangal, learned counsel appearing for the
respondents submitted that Maharashtra Consumer
Protection Rules, 2000 defines ‘agents’. The authorized agents
can appear on behalf of complainant in consumer fora.
72. Mr. Sangal also submitted that when the legislature
permits the authorized agents to appear, then they cannot be
restrained from appearing before the consumer fora.
73. Mr. Sangal also submitted that the authorized agents
can’t be said to practise law. He further submitted that there
are many Forums and Tribunals where non-advocates are
permitted to appear, therefore, there is no merit in restraining
the agents from appearing before the Consumer Fora.
74. Reliance was placed on the judgment in the case of
Lucknow Development Authority v. M.K. Gupta (1994) 1
SCC 243. This court observed that the provisions of the Act
have to be construed in favour of the consumer to achieve the
purpose of enactment as it is a social benefit oriented
legislation. The primary duty of the court while construing the
provisions of such an Act is to adopt a constructive approach
36
subject to that it should not do any violence to the language of
the provisions and is not contrary to the attempted objective of
the enactment. In other words, according to the purpose of
enactment the interest of the consumer is paramount.
75. In Laxmi Engineering Works v. P.S.G. Industrial
Institute (1995) 3 SCC 583 this Court observed thus:
“10. A review of the provisions of the Act discloses
that the quasi-judicial bodies/authorities/agencies
created by the Act known as District Forums, State
Commissions and the National Commission are not
courts though invested with some of the powers of a
civil court. They are quasi-judicial tribunals brought
into existence to render inexpensive and speedy
remedies to consumers. It is equally clear that these
forums/commissions were not supposed to
supplant but supplement the existing judicial
system. The idea was to provide an additional forum
providing inexpensive and speedy resolution of
disputes arising between consumers and suppliers
of goods and services. The forum so created is
uninhibited by the requirement of court fee or the
formal procedures of a court. Any consumer can go
and file a complaint. Complaint need not
necessarily be filed by the complainant himself; any
recognized consumers' association can espouse his
cause. Where a large number of consumers have a
similar complaint, one or more can file a complaint
on behalf of all. Even the Central Government and
State Governments can act on his/their behalf. The
idea was to help the consumers get justice and fair
treatment in the matter of goods and services
purchased and availed by them in a market
dominated by large trading and manufacturing
bodies. Indeed, the entire Act revolves round the
consumer and is designed to protect his interest.
37
The Act provides for “business-to-consumer”
disputes and not for “business-to-business”
disputes. This scheme of the Act, in our opinion, is
relevant to and helps in interpreting the words that
fall for consideration in this appeal.”
76. In Indian Photographic Company Limited v. H.D.
Shourie (1999) 6 SCC 428 the court has held that a rational
approach and not a technical approach is the mandate of law.
77. In Dr. J.J. Merchant and Others v. Shrinath
Chaturvedi (2002) 6 SCC 635 it is observed as under:-
“7. …One of the main objects of the Act is to
provide speedy and simple redressal to consumer
disputes and for that a quasi-judicial machinery is
sought to be set up at the district, State and Central
level. These quasi-judicial bodies are required to
observe the principles of natural justice and have
been empowered to give relief of a specific nature
and to award, wherever appropriate, compensation
to consumers. Penalties for non-compliance with
the orders given by the quasi-judicial bodies have
also been provided. The object and purpose of
enacting the Act is to render simple, inexpensive
and speedy remedy to the consumers with
complaints against defective goods and deficient
services and the benevolent piece of legislation
intended to protect a large body of consumers from
exploitation would be defeated. Prior to the Act,
consumers were required to approach the civil court
for securing justice for the wrong done to them and
it is a known fact that decision in a suit takes years.
12. …It should be kept in mind that legislature
has provided alternative efficacious, simple,
inexpensive and speedy remedy to the consumers
38
and that should not be curtailed on the ground that
complicated questions of facts cannot be decided in
summary proceedings. It would also be totally
wrong assumption that because summary trial is
provided, justice cannot be done when some
questions of facts required to be dealt with or
decided. The Act provides sufficient safeguards.”
78. In Common Cause, A Registered Society v. Union of
India and others (1997) 10 SCC 729, the Supreme Court
held thus:
“The object of the legislation, as the Preamble of
the Act proclaims, is “for better protection of the
interests of consumers”. During the last few years
preceding the enactment there was in this country a
marked awareness among the consumers of goods
that they were not getting their money's worth and
were being exploited by both traders and
manufacturers of consumer goods. The need for
consumer redressal fora was, therefore, increasingly
felt. Understandably, therefore, legislation was
introduced and enacted with considerable
enthusiasm and fanfare as a path-breaking
benevolent legislation intended to protect the
consumer from exploitation by unscrupulous
manufacturers and traders of consumer goods. A
three-tier fora comprising the District Forum, the
State Commission and the National Commission
came to be envisaged under the Act for redressal of
grievances of consumers…”
79. The agent has been defined both in the Consumer
Protection Rules, 1987 and under the Maharashtra Consumer
Protection Rules, 2000. The agents have been permitted to
39
appear before the Consumer Forums. The appearance of
authorized agents is not inconsistent with section 33 of the
Advocates Act, 1961.
80. The legislature in its wisdom has granted permission to
the authorized agents because most of the cases before the
Consumer Forums are small cases of relatively poor people
where legal intricacies are not involved and great legal skills
are not required, which may be handled by the authorized
agents.
81. The other reason is that a large number of litigants may
not be able to afford heavy professional fees of trained
advocates, therefore, authorized agents have been permitted.
82. It is the bounden duty and obligation of the Court to
carefully discern the legislative intention and articulate the
same. In the instant case we are not really called upon to
discern legislative intention because there is specific rule
defining the agents and the provisions of permitting them to
appear before the Consumer Forums. The agents have been
permitted to appear to accomplish the main object of the act of
40
disposal of consumers’ complaints expeditiously with no costs
or small costs.
83. In our considered view the High Court was fully justified
in observing that the authorised agents do not practise law
when they are permitted to appear before the District Forums
and the State Commissions.
84. In the impugned judgment the High Court aptly observed
that many statutes, such as, Sales Tax, Income Tax and
Competition Act also permit non-advocates to represent the
parties before the authorities and those non-advocates cannot
be said to practise law. On the same analogy those nonadvocates
who appear before Consumer fora also cannot be
said to practise law. We approve the view taken by the High
Court in the impugned judgment.
85. The legislature has given an option to the parties before
the Consumer Forums to either personally appear or be
represented by an ‘authorized agent’ or by an advocate, then
the court would not be justified in taking away that option or
interpreting the statute differently.
41
86. The functioning, conduct and behaviour of authorized
agents can always be regulated by the Consumer Forums.
Advocates are entitled as of right to practise before Consumer
Fora but this privilege cannot be claimed as a matter of right
by anyone else.
87. When the legislature has permitted authorized agents to
appear on behalf of the complainant, then the courts can’t
compel the consumer to engage the services of an advocate.
88. However, at this stage we hasten to add that the National
Commission being aware of a possibility of misuse of the right
by an agent had framed Regulation 30-A of the Consumer
Protection Act, 1986, wherein certain restrictions on the right
of audience and also certain precautions to rule out any
misuse of liberty granted has been taken by way of framing
Regulation 16. Reference is made to Clauses 6 and 7 thereof.
We may extract the aforesaid provisions for ready reference:
42
“16. Appearance of Voluntary Consumer
Organization:
(6) A Consumer Forum has to guard itself
from touts and busybodies in the garb of
power of attorney holders or authorized
agents in the proceedings before it.
(7) While a Consumer Forum may permit an
authorized agent to appear before it, but
authorised agent shall not be one who
has used this as a profession:
Provided that this sub-regulation shall
not apply in case of advocates.”
89. These provisions are enacted for providing proper
guidelines and safeguards for regulating appearance and
audience of the agents. The aforesaid regulation in our
considered opinion is a reasonable restriction on the right to
appear by an agent. Such reasonable restrictions as provided
for are to be strictly adhered to and complied with by the
Consumer Forum hearing cases under the Consumer
Protection Act so as to rule out any misuse of the privilege
granted. In terms of the said regulation and other regulations
as provided and framed by the National Commission and as
approved by the Parliament of India, the Consumer Forum has
the right to prevent an authorized agent to appear in case it is
found and believed that he is using the said right as a
43
profession. The Consumer Forums being empowered with
such Regulations would be in a position to judge whether the
agent appearing before it is in any manner exercising such
privileges granted for any ulterior purpose.
90. In the foregoing paragraph, it has been indicated that
many statutes and Acts in India permit non-advocates to
represent the parties before the authorities and forums.
91. In other jurisdictions also, non-advocates are permitted
to appear before quasi-judicial fora or subordinate courts. In
most of these jurisdictions, specific rules have been framed for
the regulation of qualifications, conduct and ethical behaviour
of the non-advocates appearing in these fora.
92. In most jurisdictions, the statutes or court rules impose
some form of restrictions on appearances of non-advocate
representatives in quasi-judicial fora or subordinate courts.
Restrictions on non-advocates agents vary significantly in
terms of their specificity, but most forums have rules granting
44
them some discretion in admitting or refusing the appearance
of a non-advocate representative.
Brief summary of Rules pertaining to Non-Advocates in
different jurisdictions
United States of America
· Congressional legislation neither grants nor denies the
right to have a non-attorney representative in quasijudicial
proceedings.
· The individual fora (administrative law courts) are
allowed to create their own rules for non-attorney
representatives.
· Several administrative law courts/fora allow nonattorney
representatives to appear if they meet certain
qualifications.
Social Security Administration
93. In addition to administering Social Security Retirement
and Disability payments, the Social Security Administration
(SSA) handles disputes arising from Social Security Payments
or the lack thereof. If a current or former recipient of social
security believes that he has been wrongfully denied some or
all of his benefit amount, he may first apply for
reconsideration.
45
94. According to SSA Rules, any attorney in good standing is
allowed to represent a claimant before the ALJ and Appeals
Council. A non-attorney is allowed to represent a claimant if
the non-attorney :
1) Is generally known to have a good character and
reputation;
2) Is capable of giving valuable help to you in connection
with your claim;
3) Is not disqualified or suspended from acting as a
representative in dealings with us; and
4) Is not prohibited by any law from acting as a
representative.
95. SSA rules also restrict the amount that any
representative of claimant (attorney or non-attorney) may
receive for the services rendered by him.
Tax Court
96. The US Tax Court adjudicates disputes over federal
income tax. Taxpayers are permitted to litigate in many legal
forums (such as a district federal court), but many choose the
46
Tax Court because they may litigate their case without first
paying the disputes tax amount in full.
Non-Attorney Representation
97. Tax Court Rules state that all representatives must be
admitted to practice before the Tax Court in order to appear in
proceedings on behalf of a taxpayer. To be admitted, a nonattorney
must pass a special written examination and obtain
sponsorship from two persons who are already admitted to
practice before the Court.
98. Representatives before the Court are instructed to act “in
accordance with the letter and spirit of the Model Rules of
Professional Conduct of the American Bar Association.”
Representatives may be disciplined for inappropriate conduct
and may be suspended or banned from appearing in the
Court.
Court of Appeals for Veterans’ Claims
99. The Court of Appeals for Veteran’s Claims reviews
decision of the Board of Veterans’ Appeals, which adjudicates
disputes pertaining to Veteran’s benefits.
47
Non-Attorney representation
100. A non-attorney may represent claimants if (1) he is under
direct supervision of an attorney or (2) he is employed by an
organization that the Secretary of Veteran’s Affairs has deemed
is competent to handle veterans’ claims. However, if the
Court deems it appropriate it may admit non-attorney
representatives to represent the claimants.
South Africa
The Equality Court
101. The Equality Court hears complaints pertaining to unfair
discrimination, harassment and hate speech. The court rules
allow parties in this court to be represented by lawyers and
non-lawyers. However, the rules also require the judge of the
court inform a party accordingly if he is of the opinion that a
particular non-attorney representative “is not a suitable
person to represent the party.”
England and Wales
102. There are two kinds of courts in England that are similar
in structure and function to the consumer courts in India:
Magistrate Courts and Tribunals.
48
Magistrates’ Courts
103. Magistrates’ Courts are lowest level of court in England
and Wales and deals with minor civil and criminal offences.
There are also specialist courts within the Magistrates’ Courts
system, such as the Family Proceedings Court and the Youth
Court. Under statute, a party may only be represented in a
Magistrates’ Court by a “legal representative”. A “legal
representative” is a person who has been authorized by a
government-approved regulator to perform “reserved legal
activities.”
Tribunals
104. England and Wales also have a fairly complex system of
tribunals that hear special complaints. These tribunals are
similar to US administrative courts in that they are allowed to
create their own procedural rules that regulate representation.
For instance, the Asylum and Immigration Tribunal permits
non-attorney representatives to appear if they meet certain
requirements elaborated in Section 84 of the Immigration and
Asylum Act, 199. Other tribunals may follow different
procedures.
49
Small Claims Court
105. There is no bar for small claims court. A non-attorney
may appear as a representative without prior authorization
from the court. He may, however, be dismissed at the judge’s
discretion.
1) Non-attorney advocates do not appear to be bound
by any code of conduct. But they may be dismissed
by a judge if they judge disapproves of their
conduct.
2) The judge may disqualify a non-attorney from
appearing in court if the judge “has reason to
believe” the non-attorney “has intentionally misled
the court, or otherwise demonstrated that he is
unsuitable to exercise [the right to be a
representative]. The statute specifically mentions
that the judge may disqualify a representative for
conduct done in previous judicial appearances.
3) The court rules and relevant legislation do not
appear to prescribe a limit to the number of
appearances a non-lawyer can make before the
small claims court. However, the statute allows a
50
judge to discipline a non-attorney representative for
conduct in previous judicial proceedings. This
suggests that if a judge believes a non-attorney is
making frequent appearances before a small claims
court and charging in appropriate fees, the judge
may disqualify the non-attorney from appearing in a
particular case.
Australia
106. State Governments in Australia have their own court
systems and also specialized courts to deal with certain
subject matter. In the State of Victoria, statutory law states
that only lawyers may appear in court as representatives with
a few exceptions. A non-attorney may represent a party in a
cause of action for a debt or liquidated demand if the nonattorney
is in the exclusive employment of the aggrieved party.
Also, the statute mentions that a non-attorney representative
may appear if empowered by some other piece of legislation.
New Zealand
107. New Zealand has a large number of tribunals that are
similar to India’s consumer courts and seek to provide quick
and easy dispute resolution. There appears to be a strong
51
preference in tribunals for the parties to represent themselves;
professional lawyers are rarely allowed to appear as
representatives. Two tribunals are discussed below, but New
Zealand’s other tribunals should function similarly.
Disputes Tribunal
108. The Disputes Tribunal hears civil complaints that
concern amounts less than $15,000. Parties subject to
proceedings are generally required to represent themselves.
However, the Tribunal may permit a representative to appear
on a party’s behalf under certain special circumstances.
Representatives may only appear with specific authorization
from the Tribunal and cannot be lawyers.
Directions
109. In order to ensure smooth, consistent, uniform and
unvarying functioning of the National Commission, the State
Commissions and the District Forums, we deem it appropriate
to direct the National Commission to frame comprehensive
rules regarding appearances of the agents, representatives,
registered organizations and/or non-advocates appearing
before the National Commission, the State Commissions and
the District Forums governing their qualifications, conduct
52
and ethical behaviour of agents/nonadvocates/
representatives, registered organizations and/or
agents appearing before the consumer forums.
The National Commission may consider following suggestions
while framing rules
110. The Commission may consider non-advocates appearing
without accreditation - A party may appoint a non-advocate as
its representative provided that the representative –
1) is appearing on an individual case basis
2) has a pre-existing relationship with the complainant
(e.g., as a relative, neighbour, business associate or
personal friend)
3) is not receiving any form of direct or indirect
remuneration for appearing before the Forum and files
a written declaration to that effect
4) demonstrates to the presiding officer of the Forum that
he or she is competent to represent the party.
Accreditation Process
a) The National Commission may consider creating a
process through which non-advocates may be accredited
to practice as representatives before a Forum.
53
b) Non-advocates who are accredited through this process
shall be allowed to appear before a Forum on a regular
basis
c) The accreditation process may consist of –
1) an written examination that tests an applicant’s
knowledge of relevant law and ability to make legal
presentations and arguments
2) an inspection of the applicant’s educational and
professional background
3) an inspection of the applicant’s criminal record
d) the National Commission may prescribe additional
requirements for accreditation at its discretion provided
that the additional requirements are not arbitrary and do
not violate existing law or the Constitution.
Fees
a) A representative who wishes to receive a fee must file a
written request before the Forum
b) The presiding officer will decide the amount of the fee, if
any, a representative may charge or receive
c) When evaluating a representative’s request for a fee, the
presiding officer may consider the following factors :
54
1) the extent and type of services the representative
performed
2) the complexity of the case
3) the level of skill and competence required of the
representative in giving the services
4) the amount of time the representative spent on the
case; and
5) the ability of the party to pay the fee
d) If a party is seeking monetary damages, its representative
may not seek more a fee of more than 20% of the
damages
Code of Conduct for representatives
- The National Commission to create a code of conduct which
would apply to non-advocates, registered organizations and
agents appearing before a Forum.
Disciplinary Powers of a Forum
(a) The presiding officer of a Forum may be given specific
power to discipline non-advocates, agents, authorized
organizations and representatives for violating the code of
conduct or other behaviour that is unfitting in a Forum
55
(b) In exercising its disciplinary authority, the presiding
officer may –
1) revoke a representative’s privilege to appear before
the instant case
2) suspend a representative’s privilege to appear
before the Forum
3) ban a representative from appearing before the
forum
4) impose a monetary fine on the representative
111. We direct the National Commission to frame
comprehensive Rules as expeditiously as possible, in any
event, within three months from the date of communication of
this order. The copy of this judgment be sent to the National
Commission.
112. On consideration of totality of the facts and
circumstances, the view taken by the Division Bench of the
Bombay High Court in the impugned judgment cannot be said
to be erroneous and unsustainable in law. Consequently,
these appeals being devoid of any merit are accordingly
dismissed.
56
113. In the facts and circumstances of the case, we direct the
parties to bear their own costs.
114. Before we part, we would like to observe that we had
requested Shri Jawahar Lal Gupta, a distinguished Senior
Advocate to assist the court as amicus curiae. He graciously
agreed and provided excellent assistance to this court. Shri
Gupta also submitted written submissions. We record our
deep appreciation for his valuable assistance provided by him
to this court.
……….………………………..J.
(Dalveer Bhandari)
……….………………………..J.
(Dr. Mukundakam
Sharma)
……..……….…………………J.
(Anil R. Dave)
New Delhi;
August 29, 2011
57
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