In a groundbreaking judgment which is also a grand victory for advocates, the Kerala High Court has just recently on March 30, 2021 in a latest, learned, laudable and landmark judgment titled Adv KG Suresh vs The Union of India and 3 others in WP(C)No. 21946 of 2011(S) has declared as unconstitutional the bar on lawyers representing parties in matters before the Maintenance Tribunals constituted under the Maintenance Welfare of Parents and Senior Citizens Act, 2007 (Maintenance Act). It also rightly held that, “Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961.” A two Judge Bench of Kerala High Court comprising of Chief Justice S Manikumar and Justice Shaji P Chaly pronounced this pathbreaking judgment thereby allowing a writ petition filed in 2011.
To start with, the two Judge Bench of Chief Justice S Manikumar who has authored this notable judgment for himself and Justice Shaji P Chaly of the Kerala High Court sets the ball rolling by first and foremost observing in para 1 that, “Petitioner, claiming to be an Advocate practicing in the Pathanamthitta courts, has filed the instant writ petition, seeking the following reliefs:-
“(i) Issue a writ, order or direction to declare that Section 17 of the Maintenance & Welfare of parents and Senior Citizens Act, 2007, is ultra vires the Constitution, and void, repugnant to Section 30 of the Advocates Act, 1960.
(ii) Issue a writ of mandamus or any appropriate writ, order or direction, declaring the right of the Advocates / Legal practitioners to represent the either parties before the Tribunal / Appellate tribunals / court, constituted under Act 56 of 2007.””
To put things in perspective, the Bench then enunciates in para 2 that, “Facts leading to the filing of this writ petition are that petitioner has challenged the validity of Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, (Act 56 of 2007). He has contended that the said provision is against the authority or right conferred by Section 30 of the Advocates Act, 1961, which speaks about the right of advocates to practice.”
To be sure, the Bench then points out in para 3 that, “Petitioner has further stated that Government of India have notified Section 30 of the Advocates Act, 1961, with effect from 15.06.2011, which according to him, is a subsequent legislation and overrides Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. According to him, by virtue of Section 30 of the Advocates Act, Section 17 of the Act 56 of 2007 is invalid.”
While elaborating further, the Bench then elucidates in para 4 that, “Petitioner has further stated that as per Section 30 of the Act, every advocate shall be entitled, as of right, to practice before any Court, Tribunal or person, legally authorised to take evidence. The said provision also enables the lawyers to practice in the courts across the country, irrespective of their enrollment in any Bar Council, without the need to transfer licence to their desired States.”
Furthermore, the Bench then states in para 5 that, “Referring to Sections 6(4) and 8(2) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, petitioner has stated that the Tribunal is empowered to take evidence and conduct inquiry, and, therefore, an Advocate and Legal Practitioner, is entitled as of right to appear before the Tribunal.”
Going ahead, the Bench then reveals in para 6 that, “Petitioner has further stated that the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, came into effect from 31.12.2007. By virtue of Section 1(3) of the Act, 2007, it came into force in the State of Kerala with effect from 24.09.2008, as per Notification SRO 999/2008.”
Be it noted, the Bench then observes in para 7 that, “Advocates for the last so many years have been claiming the right to practice in all the courts, as of right, and have been agitating for the enforcement of Section 30 of the Act in that behalf. Almost 50 years have passed since the Act was enacted and the provisions have been brought into force only w.e.f 15.06.2011.”
Seen in this light, the Bench then points out in para 8 that, “In this context, petitioner has relied on the decision in Aeltemesh Rein v. Union of India and Others [AIR 1988 SC 1768], wherein a writ of mandamus was issued to the Central Government, to consider, within six months, whether Section 30 of the Advocates Act, 1961 should be brought into force or not. The Hon’ble Supreme Court, however, held that it was the discretion of the Central Government to bring this Section into force by issuing a notification in that behalf.”
As a corollary, the Bench then puts forth in para 9 that, “Petitioner has further stated that pursuant to the abovesaid direction of the Hon’ble Apex Court, rendered in the year 1988, Government of India have brought Section 30 of the Advocates Act, 1961, in force only on 15.06.2011, and therefore, advocates can practice as a matter of right in all Courts and Tribunals.”
Significantly, the Bench then quite lucidly mentions in para 44 that, “Section 30 of the Act speaks about rights of advocates to practice and the same reads thus:
“30. Right of advocates to practise.― Subject to the provisions of this Act, every advocate whose name is entered in the 3 [State roll] shall be entitled as of right to practise throughout the territories to which this Act extends, ―
(i) in all courts including the Supreme Court;
(ii) before any tribunal or person legally authorised to take evidence; and
(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.””
No less significant is what is then observed in para 45 that, “In exercise of the powers conferred by sub-section (3) of Section 1 of the Advocates Act, 1961, the Central Government have appointed 15th day of June, 2011 as the date on which Section 30 of the said Act shall come into force.”
What is also worth noting is that it is then most rightly and remarkably observed in para 50 that, “Contention of the learned counsel for the petitioner and the Bar Council of India, that the Tribunals are clothed with the powers of Civil Courts, for the purpose of taking evidence, enforcing attendance, production of evidence, and that denial of legal assistance to the parties before the Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, requires consideration, for the reason that parties to the lis are not expected to know the nuances of law, evidence, both oral and documentary , to be produced.”
Needless to say, it is then underscored in para 51 that, “Legal aid is a constitutional right guaranteed under Article 21 of the Constitution of India and legal assistance cannot be confined only to legal advice, which, in our view, would not be sufficient, in the interest of the parties.”
More significantly, the Bench then minces no words to observe in para 52 that, “Contention of the Union of India, that since the main intention of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is to provide speedy and cost effective mechanism to the parents/senior citizens, to claim maintenance from their children/grandchildren/relatives, as the case may be, and participation of advocates in the proceedings will jeopardize this objective, cannot be accepted, for the reason that mere engagement of a lawyer would not delay the process of adjudication of a dispute before the Maintenance Tribunal.”
Adding more to it, the Bench then observes in para 53 that, “Cost effective mechanism, cited as one of the reasons for denying legal assistance, also cannot be accepted, for the reason that if any litigant is enable to engage a lawyer of his choice, Legal Services Authority, constituted under the Legal Services Authorities Act, 1987, comes into the aid of such litigant, by engaging a lawyer to assist him.”
Simply put, the Bench then also makes it plainly clear in para 54 that, “Union of India, cannot undermine the role of the Legal Services Authority, and the lawyers engaged by them, to assist the litigants, in comparison to the lawyers to be engaged by the children/ grandchildren/ relatives, solely on the ground that they are financially in a better position to avail the services of the best advocates.”
Of course, the Bench then concedes in para 55 that, “True that the legislation, Maintenance and Welfare of Parents and Senior Citizens Act, 2007, has envisaged that the disputes and differences should be resolved amicably and in that context, laid emphasis on the role of a Conciliation Officer, nominated by the Tribunal, but he will not be a substitute for a lawyer.”
What’s more, the Bench then also makes it amply clear in para 56 that, “Contention of the Union of India, that the makers of the Act foresaw that engagement of legal practitioners to represent cases will prolong the matter and will be more of a harassment for the parents in their last phase of life as judgment will be delayed, is wholly unacceptable.”
Finally and far most significantly, the Bench then holds in para 57 that, “As Section 30 of the Advocates Act, 1961 has been brought into force from 15.06.2011, Advocates enrolled under the said Act have been conferred with an absolute right thereof, to practice before all the Courts and Tribunals. By virtue of Section 30 of the Advocates Act, 1961, coming into force from 15.06.2011, the restriction imposed is taken away and in such circumstances, Article 19 of the Constitution of India, which guarantees the freedom to practice any profession, enables the Advocates to appear before all the Courts and the Tribunals, subject to Section 34 of the Advocates Act, 1961. In the light of the above discussion and decisions, Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961 and thus, the petitioner is entitled for a declaration that he has a right to represent the parties before the Tribunal/Appellate Tribunal/Court, constituted under Act 56 of 2007. Accordingly, this writ petition is allowed.”
No doubt, this historic judgment is a victory not just of one or two advocates but of advocates as a whole because this will certainly benefit the entire class and not just one or two advocates only. It must be also mentioned here that the petitioner who is an advocate KG Suresh of Pathanamthitta instituted Public Interest Litigation in the year 2011 seeking a declaration that Section 17 was unconstitutional in light of the newly introduced Section 30 of the Advocates Act. Upon consideration of submissions, the Kerala High Court held that Section 30, being introduced and notified in 2011 had an overriding effect on Section 17 of the Maintenance Act. Of course, Kerala High Court thus clearly, cogently and convincingly holds that advocates are entitled to appear in Maintenance Tribunals and bar on legal representation is unconstitutional. Very rightly so!
Sanjeev Sirohi, Advocate