Legal aid is everyone’s right for securing justice. On the authority of Article 39-A of the Constitution of India, the State shall secure that the operation of the legal system promotes justice based on equal opportunity and shall in particular provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied...
Legal aid is everyone’s right for securing justice. On the authority of Article 39-A of the Constitution of India, the State shall secure that the operation of the legal system promotes justice based on equal opportunity and shall in particular provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen because of economic or other disabilities. Articles 14 and 22 (1) of the Constitution also make it obligatory for the State to ensure equality before the law and a legal system which promotes justice on a basis of equal opportunity to all.
Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, (hereinafter “Senior Citizens Act”) specifically denies the right to legal representation. It reads as under: -
“17. Right to legal representation- Notwithstanding anything contained in any law, no party to a proceeding before a Tribunal or Appellate Tribunal shall be represented by a legal practitioner.”
The object of Section 17 of the Senior Citizens Act, as discussed in the Parliament, was to encourage conciliation between the parties and reduce time consuming court procedures, apart from costs. It was observed by the legislature that the Maintenance Tribunal would follow a summary procedure and the claims would be disposed of, speedily. However, some members of the legislature expressed their reservation as to how the applications would be drafted, argued, etc. without the help of a legal practitioner. In this regard, it was observed that Section 30 of the Advocates Act, 1961, dealing with the right of advocates to practice, had not been implemented and if the advocates will not be allowed to appear before the Maintenance or Appellate Tribunal under the Senior Citizens Act, there would be no accountability of the persons representing the senior citizens and adducing evidence would become a major problem. It would be apposite to reproduce Section 30 of the Advocates Act, 1961, below:
“30. Right of advocates to practise. —Subject to the provisions of this Act, every advocate whose name is entered in the 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.”
In Paramjit Kumar Saroya v. Union of India, 2014 SCC OnLine P&H 10864, the Punjab and Haryana High Court, had the occasion to interpreted the ambit of Section 30 of the Advocates Act, 1961, in relation to the Senior Citizens Act, 2007, and it was held that Section 30 of the Advocates Act, 1961, came into force on 15.6.2011, i.e., after coming into force of the Senior Citizens Act, 2007. The Court held that Section 17 of the Senior Citizens Act begins with the “notwithstanding” clause but while determining the right of representation by a legal practitioner, a complete phrase used is “notwithstanding anything contained in any law” and the reference in law can only be a law which is in force. On the date when the Senior Citizens Act came into force, i.e., 31.12.2007, Section 30 of the Advocates Act did not exist in the statute book, therefore, Section 30 of the Advocates Act would be “any law” only if it was on the statute book.
It was further held that the Maintenance Tribunal under the Senior Citizens Act is authorized to take evidence and such evidence is crucial while dealing with Section 30 of the Advocates Act. Other provisions of the Senior Citizens Act also leave no room for doubt about the powers of the Tribunal including taking the evidence on oath, enforcing attendance of witnesses, compelling discovery of documents, etc. The Bench requested the Central Government to have a relook into the provisions of the Senior Citizens Act in the context of Section 30 of the Advocates Act and held that Section 17 of the Senior Citizens Act would not come in the way of legal representation on behalf of parties post 15-6-2011, in view of Section 30 of the Advocates Act. The High Court of Delhi in Pawan Reley v. Union of India, 2022 LiveLaw (Del) 928, agreed with the view taken by the Punjab and Haryana High Court and held that Section 17 of the Senior Citizens Act would not come in way of legal representation on behalf of the parties before the Maintenance Tribunal.
In Adv.K.G. Suresh v. Union of India, Represented by Secretary and Others, 2021 SCCOnLine Ker 1686, a writ petition was filed to declare Section 17 of the Senior Citizens Act, 2007, as ultra vires the Constitution, and void, repugnant to Section 30 of the Advocates Act, 1960. The Kerala High Court held that cost effective mechanism for denying legal assistance cannot be accepted, for the reason that if any litigant is unable to engage a lawyer of his choice, Legal Services Authorities comes into the aid of such litigant, by engaging a lawyer to assist him. It was held that the Senior Citizens Act has envisaged that the disputes and differences should be resolved amicably and laid emphasis on the role of a Conciliation Officer, nominated by the Tribunal, but he will not be a substitute for a lawyer. The Bench held that as Section 30 of the Advocates Act, 1961 has been brought into force from 15.06.2011, Advocates enrolled under the Advocates Act have been conferred with an absolute right to practice before all the Courts and Tribunals and by virtue of Section 30 of the Advocates Act, 1961, 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. The Court declared Section 17 of the Senior Citizens Act, 2007, as ultra vires of Section 30 of the Advocates Act, 1961 and held that the petitioner is entitled for a declaration that he has a right to represent the parties before the Tribunal/Appellate Tribunal/Court, constituted under the Senior Citizens Act, 2007.
Another writ petition was filed before the Karnataka High Court in KSrinivas Ganiga And Union of India & Others, 2023LiveLaw (Kar) 253, seeking a declaration to declare Section 17 of the Senior Citizens Act, 2007, to be unconstitutional and quashment of an order passed by the Deputy Commissioner denying representation of the petitioner by an Advocate in the appeal proceedings before the Deputy Commissioner. The Court held that parties to the lis cannot always be said to be conversant with terms, to be knowing the nuances of law of evidence, both oral or documentary, as to what is to be produced before the Tribunal, therefore, a legal aid is necessary to such senior citizens. The Court held that in the teeth of the enactment, its purpose and the right of the Advocate under Section 30 of the Advocates Act, legal assistance by an advocate cannot but be given to the applicants before the Assistant Commissioner, as well as the Deputy Commissioner and the argument of the State that an entry of an Advocate would delay the proceedings or jeopardize the object behind the Senior Citizens Act was rejected. It was held that the presence of an advocate would neither delay the proceedings nor jeopardize the object of the enactment but it would streamline the proceedings to be in accordance with law. Therefore, the Court declared Section 17 of the Senior Citizens Act, 2007 as ultra vires of Section 30 of the Advocates Act, 1961 and rendered it unenforceable.
A conspectus of the aforesaid decisions makes it clear that legal aid is a facet of the constitutional right guaranteed under Article 21 of the Constitution of India and such legal as well as legal assistance cannot be stifled. The Maintenance Tribunal, being a civil court, has the powers to take evidence on oath, enforce attendance of witnesses, compel discovery of documents, etc., as a result, there is definitely a right of an advocate to practice before the tribunal as the disputing parties cannot always be familiar with the terms or the nuances of law of evidence or what is to be legally produced or argued before the Tribunal. Article 19 of the Constitution guarantees the freedom to practice any profession and hence enables the Advocates to appear before all the Courts and the Tribunals. Advocates enrolled under the Advocates Act have been conferred with an absolute right to practice before all the Courts and Tribunals and therefore, Section 17 of the Senior Citizens Act, 2007 which denies the right to legal representation is rightly ultra vires of Section 30 of the Advocates Act, 1961.
Muneeb Rashid Malik is an Advocate and views expressed are personal. `