Advocate Challenges Restriction On Legal Representation; Delhi HC Issues Notice

The Delhi High Court has issued a notice to the Centre, the Bar Council of India and others on a petition challenging the constitutionality of Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act which prohibits legal representation for any party before the Maintenance Tribunal.

A bench headed by Chief Justice Rajendra Menon issued notices on the petition moved by advocate Pawan Reley and co-petitioner Mitu Choudhary, who faces a complaint filed by his father-in-law under Section 23 of the Act before the Maintenance Tribunal for Senior Citizens.

The petitioner had challenged Section 17 of the Act which reads, "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 petition contends that "Section 17 of the Maintenance and Welfare Of Parents And Citizens Act, 2007 places the absolute prohibition on the rights of Advocates to make legal representation on behalf of parties which is untenable in the eyes of law after Section 30 of the Advocate Act, 1961 coming into force".

Though the Advocates Act was enacted in the year 1961, Section 30 (Right of Advocates to Practise) was brought into effect only in the year 2011.

Section 30 provides that an advocate whose name is enrolled in the State roll shall be entitled to practice in all courts and tribunal or any authority.

Reley relied on the Punjab and Haryana High Court judgment in case titled Paramjit Kumar Saroya Vs Union of India and Another, wherein the court held that Section 17 would not come in the way of legal representation on behalf of parties post 15.06.2011 when Section 30 Advocates Act came into force, as it observed, "we are thus of the view that the decision vide section 30 of the Advocates Act has become law on a posterior date to Section 17 of the said Act which is sufficient for us to come to the conclusion that there cannot be an absolute bar to the assistance by legal practitioners to a Tribunal or the Appellate Tribunal despite the "notwithstanding" clause".

The petition came to be filed after Choudhary's father-in-law filed a complaint along with an application under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 in November, 2018 for declaring transfer of property made by him to his son and daughter in law void before the Maintenance Tribunal for Senior Citizens.

Choudhary engaged Reley to represent her before the tribunal. However, when Reley reached the tribunal on February 2, 2019, he was denied entry by the tribunal citing Section 17 of the Act.

They then moved the high court where Choudhary was represented by advocate Yogesh Agarwal.

The petitioners argued that Section 17 of the Maintenance Act not just imposes unreasonable restriction on the fundamental right of Petitioner to practice before the Maintenance Tribunal specifically after Section 30 of the Advocate, 1961 coming into force but is also violative of Article 19(1)(g) of the Constitution of India which provides that All citizens shall have the right to practise any profession, or to carry on any occupation, trade or business.

It was also contended that "Under the provisions of the Maintenance Act, 2007 they no more remain simple proceedings of just determining maintenance upto Rs 10,000, but deal with rights in immovable properties and declarations to nullify transfers under a deeming provision of fraud or coercion or undue influence as Stated under Section 23 of the Maintenance Act.

"These are ticklish legal issues for which any forum would require proper legal assistance. A Tribunal can enforce attendance of parties and issue bailable and non-bailable warrants. Powers under Civil and Criminal Procedure Codes have been conferred practically on the lines of a Court to a forum," it said.