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Thursday, 1 September 2011

Non Lawyers can represent befor consumer courts following rules to be made:SC

The Supreme Court has ruled that non-lawyers can represent, appear and argue cases filed under the Consumer Protection Act before consumer district forums and commissions. Following the ruling, the National Consumer Commission may consider drafting rules that may accredit non-advocates to practise as representatives before a forum.

The SC passed the directive while dismissing an eight-year-old appeal filed by the Bar Council of India against a 2002 Bombay high court judgment that permitted agents to represent consumers. The SC bench of Justice Dalveer Bhandari, Justice R Mukundakam Sharma and Justice Anil Dave on Monday, however, said special guidelines were needed and accordingly, it directed the National Consumer Commission to "frame comprehensive rules within three months" to regulate the eligibility, ethics and conduct of non-legal representatives. Agents can be friends or relatives but they cannot accept any remuneration and must display competence.

Before concluding that the HC judgment required no interference, the apex court considered American, English and Australian laws that permitted similar non-legal representation in certain areas before quasi-judicial bodies or subordinate courts.

In India, rules framed in 1986 under the Consumer Protection Act permit authorized agents to represent parties. The SC noted that the National Commission has rightly placed "reasonable restrictions" on such rights to rule out misuse of liberty by any person or organization for "ulterior motive" or "to make a profession out of it".

But with even lawyers against it, the issue of "authorized agents" remained undecided for over a decade. In 2000, in a complaint against two tour operators in Mumbai for alleged deficiency in service at the South Mumbai District Consumer Forum, the operators demanded that non-advocates should not be allowed to represent consumers. The forum agreed and held that the authorized representative had no right to plead as he was not enrolled as an advocate. But earlier in 1997, the consumer forum held that authorized agents did have a right to act, appear and argue consumers' case.

The matter went to the state consumer commission that stayed the hearing of matters in which authorized agents appeared before the Consumer Forum.

The commission's order was challenged in the HC that held that litigants before consumer forums "cannot be compelled to engage advocates" as they were quasi-judicial bodies. The consumer law is meant to be a swift and inexpensive remedy for consumers at the receiving end of poor service, unfair trade practice or faulty goods.

The HC held that the consumers' right to authorize a non-lawyer to represent, appear and argue on their behalf in the district forums and state commission was "not inconsistent" with the Advocates Act that regulated legal practice by lawyers. It held that the agents did not practise law. Several other laws like the IT Act also permit non-advocates to represent the parties.

The SC agreed with the HC but said as in other countries, there must be guidelines. It held, "For smooth, consistent, uniform 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 for appearances of agents, representatives, registered organizations and/or non-advocates appearing before National and State Commissions and the District Forums governing their qualifications, conduct and ethical behaviour."

The SC has suggested certain points that the National Consumer Commission may consider while framing rules:

1. An agent appearing on an individual case basis:

a. Must have a pre-existng relationship with the complainant (eg, as a relative, neighbour, business associate or friend)
b. Must not receive any form of direct or indirect remuneration for appearing before the forum and file a written declaration to that effect
c. Must demonstrate competency

2. Accredition may be through written examination on law; academic and professional background, criminal record

3. Fees: The forum may decide on fee amount if an agent seeks to receive any; but he cannot ask for more than 20% of damages sought by a consumer.

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