Whenever there is ambiguity in any provision of a Statute, the Judiciary is required to interpret the language used. Using the method of 'literal construction' in the overall 'context of scheme, scope and professed purpose' of the Act, and applying various Rules of construction, the judiciary elucidates the likely intent of the Parliament. The principal aim of the judicial construction is the Intent of the Parliament. Statutes may be presumed to incorporate certain components, as Parliament is "presumed" to have intended their inclusion.

Deliberating on the above basis the Hon'ble Supreme Court in Bar Of Indian Lawyers Through Its ... vs D.K.Gandhi Ps National Institute Of ... on 14 May, 2024 decreed:-

There was not a whisper in the statement of objects and reasons either of the CP Act, 1986 or 2019 to include the Professions or the Services provided by the Professionals like Advocates, Doctors etc. within the purview of the Act. It is very well accepted proposition of the fact that Professionals could not be called Businessmen or Traders, nor Clients or Patients be called Consumers.

The relevant parts of the judgment are extracted below:
Though the question posed before us is, whether a complaint alleging "deficiency in service" against Advocates practising Legal Profession, would be maintainable under the Consumer Protection Act, having regard to the entire spectrum and scheme of the said Act, following further questions stem from the said question, which deserve consideration.

1. Whether the Legislature ever intended to include the Professions or services rendered by the Professionals within the purview of the CP Act 1986 as re-enacted in 2019?

Though the question posed before us is, whether a complaint alleging "deficiency in service" against Advocates practising Legal Profession, would be maintainable under the Consumer Protection Act, having regard to the entire spectrum and scheme of the said Act, following further questions stem from the said question, which deserve consideration.

1. Whether the Legislature ever intended to include the Professions or services rendered by the Professionals within the purview of the CP Act 1986 as re-enacted in 2019?

Therefore, having regard to the nature of work of a professional, which requires high level of education, training and proficiency and which involves skilled and specialized kind of mental work, operating in the specialized spheres, where achieving success would depend upon many other factors beyond a man's control, a Professional cannot be treated equally or at par with a Businessman or a Trader or a Service provider of products or goods as contemplated in the CP Act. Similarly, the services rendered by a Businessman or a Trader to the consumers with regard to his goods or products cannot be equated with the Services provided by a Professional to his clients with regard to his specialized branch of profession.(emphasis added)

The legislative draftsmen are presumed to know the law and there is no good reason to assume that the legislature intended to include the Professions or the Professionals or the services provided by the professionals within the ambit of the CP Act. Any interpretation of the Preamble or the scheme of the Act for construing 'Profession' as 'Business' or 'Trade'; or 'Professional' as 'service provider' would be extending the scope of the Act which was not intended, rather would have a counter productive effect.(emphasis added)

We are therefore of the considered opinion that the very purpose and object of the CP Act 1986 as re-enacted in 2019 was to provide protection to the consumers from the unfair trade practices and unethical business practices only. There is nothing on record to suggest that the Legislature ever intended to include the Professions or the Professionals within the purview of the Act. (emphasis added)

It is worth mentioning here that the legislative history of CP Act 2019 clearly shows the parliament's intent to exclude Medical Profession from the Act. The drafted CP Bill 2018, placed before and debated by both the houses of the parliament, specifically included 'healthcare' in the inclusionary part of Sec 2(42). The members objected to the inclusion of 'healthcare' in the Bill. The minister piloting the Bill pointed out that it was in deference to IMA vs VP Shantha 1995 judgment of SC. The members did not agree. The Bill was amended and in CP Bill 2019 'healthcare' was removed. This was finally approved. The removal of 'healthcare' from the CP Act 2019 was deliberate decision of the parliament.

The fact that professionals are governed by their respective Councils like Bar Councils or Medical Councils also would not absolve them from their civil or criminal liability arising out of their professional misconduct or negligence. Nonetheless, as discussed hereinabove, we are of the opinion that neither the Professions nor the Professionals were ever intended to be brought within the purview of the CP Act either of 1986 or 2019. (emphasis added).

In that view of the matter, we summarize our conclusions as under:

1. The very purpose and object of the CP Act 1986 as re-enacted in 2019 was to provide protection to the consumers from unfair trade practices and unethical business practices, and the Legislature never intended to include either the Professions or the services rendered by the Professionals within the purview of the said Act of 1986/2019. (emphasis added)

After extensive analysis and deliberation, the Hon'ble Bench, on statutory interpretation, is unequivocal in their conclusion that professions of law and medicine are not, and cannot be included in the Consumer Protection Act 2019.

Now the physicians should raise a preliminary objection whenever a complaint is filed against them under CP Act 2019, that the profession of medicine is not included in the CP Act 2019, per this judgment, and let the matter take its due course. This is what had happened in the instant case. A lawyer against whom a case had been filed under CP Act, raised a preliminary objection that the profession of law is not included in the Act. The District Forum decided in favor of the advocate. On appeal to the National Commission, the Commission ruled, relying on the judgment of IMA vs VP Shantha, that the legal services are included in the Act. The Supreme Court on appeal overruled it.

Incidentally, this judgment of the Two Judge Supreme Court Bench in Bar Of Indian Lawyers Through Its ... vs D.K.Gandhi Ps National Institute Of ... on 14 May, 2024, over-rides and over-rules, on all counts, the judgment of Bombay High Court in Medicos Legal Action Group vs Union Of India (Through ... on 25 October, 2021

Medical fraternity should take into consideration all the above and take a consensus stand.

Written By: Dr.Shri Gopal Kabra, MBBS, LLB, MSc, MS (Anatomy), MS (Surgery)
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