Not a trade or business: Supreme Court rules legal services do not fall under Consumer Protection Act

The Supreme Court of India has finally set the record straight: The services of lawyers do not fall under the ambit of the Consumer Protection Act (CPA) and any claim of deficiency in service against advocates is not admissible in a court of law.

So, how did this complex and multifaceted issue start and how did it take a two-judge bench (Justices Bela M Trivedi and Pankaj Mithal) to lay the issue at rest?

On August 6, 2007, the National Consumer Disputes Redressal Commission (NCDRC) held that if there was any deficiency in service rendered by advocates, a complaint under the Consumer Protection Act, 1986 would be maintainable. As a result, the aggrieved advocate filed a civil appeal in the Supreme Court against the order passed by NCDRC.

What followed was a flurry of other civil appeals by the Bar of Indian Lawyers, Delhi High Court Bar Association, Bar Council of India and others, which were clubbed together and finally disposed of by the Supreme Court.

In the legal system, the role of lawyers stands as a cornerstone, facilitating access to justice and safeguarding individual rights. However, like any profession, legal services are not immune to lapses or disputes. The issue of whether legal services should be brought under the purview of the Consumer Protection Act has sparked considerable debate. While advocates argue for enhanced consumer rights and accountability, opponents highlight potential complexities and implications for the legal profession.

Legal services have traditionally been exempt from CPA, primarily due to the unique nature of attorney-client relationships and the complexities inherent in legal proceedings.

However, those opposing this leeway provided to advocates argue that subjecting the legal profession to consumer rights protections would empower clients and enhance accountability within the legal profession.

Clients often invest significant trust and resources in legal representation, and ensuring avenues for recourse in case of malpractice or negligence is crucial. By extending the reach of consumer protection laws to legal services, clients would have clearer mechanisms for addressing issues such as professional misconduct, over-billing or inadequate representation. Apart from encouraging transparency and ethical conduct among lawyers, it could serve as a deterrent against unscrupulous practices and incentivise legal practitioners to prioritise client interests.

However, the lawyers argued in the Supreme Court that the Advocates Act, 1961 provided for a robust mechanism laying down professional standards for compliance and for determining professional misconduct. Moreover, the Advocates Act being a special law prevailed over CPA regarding the conduct of advocates. Also, the legal profession was a noble profession and not a business or trade.

It was also argued that the legal profession was inherently different from other service industries due to its fiduciary nature. Advocates owe a duty of loyalty, confidentiality and competence to their clients, which may not neatly align with the framework of consumer transactions. Introducing consumer protection laws could lead to conflicts with existing regulatory frameworks governing legal ethics and standards of professional conduct.

Legal matters often involve intricate legal principles and subjective judgments, making it challenging to apply standard consumer protection metrics. If permitted, it could become an easy tool for disgruntled litigants to knock at the doors of consumer forums against advocates. It would lead to speculative or vexatious claims, rather than seeking relief in respect of bona fide grievances against professional misconduct.

Another concern is the potential chilling effect on legal innovation and access to justice. Subjecting legal services to consumer protection laws may increase the liability risks for lawyers, leading to higher insurance costs and reluctance to take on certain cases, particularly those with uncertain outcomes. This could ultimately restrict access to legal representation, particularly for marginalised or underprivileged individuals who rely on pro bono or low-cost legal services.

The judges rightly reached the conclusion that “the very purpose and object of the CP Act 1986, as re-enacted in 2019, was to provide protection to consumers from unfair trade practices and unethical business practices only. There is nothing on record to suggest that the legislature ever intended to include professions or professionals within the purview of the Act”.

Bridging the Justice Gap: Revitalising Pro Bono Legal Services

Access to justice is a cornerstone of a fair and equitable society, yet for those belonging to the underprivileged or economically weaker sections, this Fundamental Right granted by Article 39A of the Constitution of India remains out of reach.

Legal aid services aim to address this imbalance, but the reluctance of numerous lawyers to engage in pro bono work compounds the challenges faced by marginalised individuals. While commendable efforts are made by some legal professionals, the urgent need for more lawyers to offer their services without charge persists.

The current compensation structure for pro bono work presents a significant barrier to attracting experienced professionals. Despite the option for lawyers with a minimum of three years of experience to volunteer for at least two years, they are prohibited from charging fees for their representation. Instead, they receive nominal honorariums from local authorities, often inadequate to cover their expenses. In some areas, these honorariums can be as low as Rs 1,500 in small towns to a maximum of Rs 7,500 in larger cities, falling far short of recognising the true value of the services provided.

This inadequate compensation not only dissuades seasoned lawyers from engaging in pro bono work, but also undermines the quality of legal aid available to those in need. Without sufficient financial incentives, it becomes challenging to attract top-tier talent committed to serving the underprivileged. Consequently, individuals relying on these services may receive substandard representation, perpetuating cycles of injustice and inequality.

Recognising the urgency of addressing this issue, proposals for reform have emerged to enhance incentives and support systems for lawyers engaged in pro bono work. One such suggestion is to mandate every lawyer to participate in at least one pro bono case annually, with the potential for securing relief funds from the Bar Council. This measure not only ensures broader participation, but also fosters a sense of civic responsibility within the legal profession.

Additionally, the formation of designated panels of Senior Advocates in High Courts and the Supreme Court to undertake pro bono work collaboratively has been proposed. Leveraging the expertise of experienced lawyers, these panels can provide invaluable assistance to those in need while setting a precedent for pro bono involvement at the highest echelons of the legal profession.

Furthermore, the establishment of merit-based recognition for pro bono contributions can incentivise lawyers to actively engage in such endeavors. Merit certificates awarded by the judiciary (Supreme Court, High Courts, District Courts) can serve as tangible acknowledgments of their efforts, potentially influencing future career advancements. These certificates can be taken into consideration when such lawyers apply for judicial posts, law officers’ posts, including appointment of High Court Judges and Supreme Court Judges, consideration of designation of Senior Advocates, etc.

Addressing the compensation issue is equally crucial to ensuring the sustainability and effectiveness of legal aid services. Empanelled lawyers must be adequately compensated to prevent instances of harassment or demands for illicit fees from beneficiaries. The National Legal Services Authority (NALSA) should prioritise fair remuneration for lawyers, accompanied by robust monitoring mechanisms to uphold accountability and quality standards in legal aid provision.

In conclusion, the reluctance of many lawyers to provide pro bono services poses significant challenges to ensuring access to justice for all. By implementing reforms that enhance incentives, support systems and compensation structures, legal systems can better fulfill their obligation to serve the most vulnerable members of society. Only through collective efforts and systemic changes can we truly bridge the justice gap and advance the cause of justice for all.

A review of the working of legal aid under the Legal Services Authorities Act, 1987 was presented to the Rajya Sabha and laid on the table of Lok Sabha on February 7, 2024.

Keelhauling digital pirates: Amended Cinematograph Act trying to cut losses of filmmakers

Imagine spending a considerable time writing a script, then hunting for producers to make it into a movie, and when the final product is ready to be released in cinemas it gets leaked on the web for illegal downloads! Won’t that dishearten you, make your blood boil, but also result in loss of revenue that you were hoping to generate after sweating it out for months on end?

This is what the Indian film industry has been facing for years and suffering losses to the tune of Rs 20,000 crore every year due to piracy.

In what could be termed a brief respite for those in the cinema world, the Ministry of Information and Broadcasting has appointed nodal officers to receive complaints against piracy and direct the intermediaries to take down pirated content on digital platforms. This strong step follows the Parliament passing the Cinematograph (Amendment) Act during this year’s Monsoon Session.

Till now, no institutional mechanism was in place to directly take action on pirated content, except legal action under the Copyright Act and Indian Penal Code. The nodal officers have been appointed in the I&B ministry and offices of the Central Board of Film Certification headquarters in Mumbai and its regional offices in major film production centres.

The last significant amendments to the Cinematograph Act were made in 1984, nearly 40 years ago. The Act now has provisions against film piracy, including digital piracy. Pirates can now be punished with a minimum of three months imprisonment and a fine of Rs 3 lakh, which can be extended to three years imprisonment and fine up to 5% of the audited gross production cost.

Any original copyright holder or any person authorised by them can apply to the nodal officer to take down pirated content. For complaints raised by people who do not hold the copyright or are not authorised by the copyright holder, the nodal officer can hold hearings in each case to decide its genuineness before issuing directions.

After receiving directions from the nodal officer, the digital platform will have to remove internet links hosting pirated content within 48 hours.

Apart from issues relating to film certification, the amended Act includes the issue of unauthorised recording and exhibition of films and transmission of unauthorised film copies on the internet. These amendments are in direct correlation with film piracy being addressed by the Copyright Act, 1957 and the Information Technology Act, 2000.

The newly inserted Section 6AB of the Cinematograph Act, 1952 provides: “No person shall use or abet the use of an infringing copy of any film to exhibit to the public for profit at a place of exhibition which has not been licensed under this Act or the rules made thereunder; or in a manner that amounts to the infringement of copyright under the provisions of the Copyright Act, 1957 or any other law for the time being in force”.

Section 7(1B)(ii), which has been introduced in the amended Act, states that the government may take suitable action for removing/disabling access to the pirated content exhibited/hosted on an intermediary platform, which is in contravention to Section 6AB.

Part of Life and Death: How organ donation is faring in India

Even in death, one can save many lives. And that holds true for deceased organ donors. With many superstitions attached to the extraction of organs of a deceased individual — as desecration of a dead body is considered taboo in many religions — it has been quite difficult to make reluctant family members agree to allow doctors to harvest the organs of their loved ones who have passed away.

In 2013, the total number of organ transplants in the country was a mere 5,000, but that increased threefold to nearly 15,000 in the year 2022.

Kidneys are the most demanded organs, followed by liver, heart, lung, pancreas and small bowels. The wait lists for kidney transplants are generally higher than for other organs. According to law, only a blood relative can be a living donor for kidneys and liver and the remaining patients have to register themselves to be eligible for getting organs through the central registry.

In India, the National Organ and Tissue Transplant Organisation (NOTTO), established under the Transplantation of Human Organs and Tissues Act, 1994, manages organ donation and transplant activities based on guidelines stipulated by the World Health Organization.

NOTTO’s coordination with regional and State-level authorities has resulted in more organs of deceased donors being utilised for saving lives. In 2016, 2,265 organs were utilised from 930 deceased donors, while 2,765 organs could be utilised from 904 deceased donors in 2022. In 2019, India had 550 transplant centres registered with the States and 140 non-transplant organ retrieval centres.

In 2019, most living donors were kidney donors (8,613) or liver donors (1,993). There were few heart and pancreas transplants in 2019, with the percentage of female donors being higher at 65.4% (5,633) and 54.3% (1,084), respectively. Also, 84% (10,600) of the transplants were from living donors compared with 2,023 deceased donors.

According to a study titled “Organ Donation and Transplantation in India in 2019” by Vasanthi Ramesh and Chaitali Pal from NOTTO and Safdarjung Hospital, New Delhi, India is the third largest country in terms of absolute number of transplants owing to higher demand due to both communicable and noncommunicable diseases among its population. Moreover, the country is the epicenter of various water-borne, vector-borne and zoonotic diseases, in addition to social and health inequalities among the population. All this combined results in end-stage organ failure in many patients, which requires organ transplantation.

India has also been submitting organ donation and transplant data to the Global Observatory on Donation and Transplantation and it is the only country in the WHO South-East Asia Region to have consistently done so since 2013.

As the total number of organ transplants has been increasing annually, the gap in supply is widening. If the data of the year 2019 is analysed, there were 29,636 kidney patients on the waitlist, 7,362 for liver, 975 for heart, 343 for lung, 121 for pancreas and 14 for small bowels. In the same year, 8,138 new patients were added to the kidney transplant wait list. The endless wait also resulted in 569 patients with kidney-related ailments succumbing to the disease. On December 31, 2019, 38,164 patients were on dialysis.

When the researchers interviewed 1,178 family members asking for consent to donate organs, 457 (39%) refused to give their nod.

The Indian Government is actively trying to increase the rate of organ donation of deceased persons through heightened awareness activities by providing information and education. As far as living donors are concerned, recently, as a public welfare measure, the Government allowed Special Casual Leaves of up to 42 days to Central Government employees who donate an organ to another human being.

To streamline procedures, NOTTO is working on a transplant manual as a step-by-step guide for implementation of the organ donation and transplantation progamme in hospitals, apart from a standard course for training of transplant coordinators.

Small Regions With Large Flight Paths: Fifth phase of regional airline connectivity gets airborne

Travelling has always been a painstaking and time-consuming task in India, more so when rural or far-flung areas are taken into consideration. For the past many decades, the only modes of public conveyance have been rickety buses and three-wheelers while travelling locally, and long-haul buses and trains for lengthy distances.

With cities enticing the rural population with better employment opportunities and a healthier lifestyle, migration from villages to metropolises has increased by leaps and bounds. Along with this, the demand for conveyance has also increased manifold. Now, people want to rush from point-A to point-B within the shortest possible period. However, affordability has always been a cause for concern as not everyone can pay fares demanded by the airlines.

The Indian Government pitched in to address this issue by introducing the UDAN (Ude Desh ka Aam Naagrik) Scheme in 2017. This regional airport development programme is part of the Regional Connectivity Scheme (RCS) under National Civil Aviation Policy, 2016 for upgrading under-serviced air routes and for providing affordable and subsidised airfares to the common man. The scheme would be in parlance for 10 years.

Six years ago, the RCS took flight by connecting Shimla to Delhi. As of now, there are 473 routes and 74 operational airports, heliports and water aerodromes, which have become game-changers for the Indian aviation sector in Tier-II and Tier-III cities.

Following four successful rounds of bidding, the Ministry of Civil Aviation on April 21, 2023 launched the 5th round of the RCS to further enhance connectivity to remote and regional areas of the country and to achieve last-mile connectivity.

UDAN 5.0 not only focuses on Category-2 (20-80 seats) and Category-3 (above 80 seats) segments, but the earlier cap of 600 kilometres has been waived and there is no restriction on the distance between the origin and destination of the flight. Now, no predetermined routes would be offered and only network and individual routes proposed by the airlines would be considered. The same route would not be awarded to a single airline more than once, whether in different networks or the same.

The action plan would have to be submitted by the airlines after two months from getting approval and they would have to mention their aircraft acquisition plan/availability, crew, slots, etc at the time of the technical proposal. While the earlier deadline for commencement of operations was six months from award of the route, it has now been reduced to four months.

Monopoly on a route would be curtailed through withdrawal of exclusivity if the average quarterly PLF (Passenger Load Factor) is higher than 75% for four continuous quarters.

The Government claims that the UDAN Scheme has benefited a diverse set of stakeholders. While passengers have got the benefits of air connectivity, airlines have received concessions for operating on regional routes, and unserved regions have received direct and indirect benefits of air connectivity for their economic development. Tourism and commerce have reportedly been the prime beneficiaries of this scheme. The government provides a grant (Viability Gap Funding) to the airlines to bridge the gap between their cost of operations and the expected revenue.

According to the Government, the fifth phase of the scheme will connect new routes and bring it closer to the target of making operational 1,000 routes and 50 additional airports, heliports, and water aerodromes in the future.

Virtually, the next big thing: Animation, VFX, Extended Reality creating a new growth path

If there is one thing that catches the fancy of every individual, it’s the fantasy world created in the media and entertainment industry with the help of visual graphics. Gone are the days when stunt-persons risked their lives to perform daring tasks in movies that were considered unbelievable or superhuman. Every superhuman feat witnessed on the silver screen now owes it to animation, visual effects and extended reality brought to life with the help of the green screen, technology and precise video editing.

GREEN SCREEN ON SILVER

According to a report by NITI Aayog, it is estimated that the Indian media and entertainment industry is expected to grow at 8.8% CAGR to reach USD 53.75 billion in 2026. In 2019, India’s Animation, VFX, Gaming, Comics and Extended Reality (AVGC-XR) sector had an overall market size of USD 2.3 billion, which was about 0.7% of the global market size. The industry is expected to grow 2.2 times over the next four years and constitute about 1.5% of the global AVGC market.

The increasing number of animated series and features being produced in India have attracted global audiences, with many works getting distributed globally. The demand for animation has expanded with the increase in children’s broadcasting viewership, availability of low-cost internet access, and growing popularity of OTT platforms.

The Indian VFX industry has been gradually making progress with the adaptation of world-class techniques and innovative technology. Content creators are experimenting storytelling with high-quality VFX advancements. VFX and animation can be the next IT-BPM boom with the potential of playing a fundamental role in India becoming a USD 100 billion media and entertainment industry by 2030.

Recently, the Indian Ministry of Information and Broadcasting organised the First National Workshop and Consultation on Draft AVGC Policies at New Delhi for industry, academia and the government. Several Central and State Government bodies, along with industry associations and leaders of the AVGC sector participated in the workshop to fine-tune the modalities of this growing sector.

TOGGLING WITH IDEAS

Build-up of the metaverse ecosystem is expected to boost the adoption of real time 3D technology and there’s a huge potential in its application beyond gaming in areas such as education, e-commerce, entertainment and industry.

The global animation and visual effects market size was estimated at USD 168 billion in 2021 and is projected to grow to USD 290 billion by 2024 at a CAGR of 10.94% between 2020 and 2026. Television and OTT largely dominate the use of animation and VFX, followed by films. Between 2020 and 2024, gaming is expected to be the fastest growing segment of animation and VFX services with a CAGR of 12%.

The AVGC-XR sector can make Indian culture accessible to the world, connect the Indian diaspora to India, generate direct and indirect employment, and benefit tourism and other allied industries. In recent times, many global players have expressed interest in the Indian talent pool to avail offshore delivery of services as India is now seen as the primary destination for high-end, skill-based activities in the AVGC-XR sector.

This steadily growing industry has emerged as a sunrise sector, both at the national level as well as globally. And with the right set of interventions, it has the potential to become the backbone of the media and entertainment industry in the country.

Power Play: Can nuclear energy help solve electricity generation woes?

Everything needs electricity to run these days. Gone are the days when lighting needs were met through kerosene or petromax, heating needs were fulfilled through wood or coal, and cooking was done on either coal or wood-fired stoves or with the help of biogas.

Electrical appliances now flood the market and air-conditioners, desert coolers, fans, oil-filled radiators and blowers, microwaves and OTGs, induction cooktops, mixers and grinders, etc are a common sight in every household. Even industries are heavily reliant on electricity to aid in production of goods. Farming is also aided by electricity, especially when it comes to winnowing, crushing, grinding grains and storing produce in cold storage for long periods.

With this rapid increase in the usage of electricity, power outages have become a common scenario. The policy of the Indian and State governments to attempt to provide round-the-clock electricity in urban areas and at least 16 hours of power in the suburbs and rural areas has also put pressure on generating agencies.

Data from the Central Electricity Authority (CEA) shows that in 2009-10, the total requirement of power was 8,30,594 BU, but there was a 10.1% deficit in supply. The scenario in 2022-23 was much better as the total demand of 13,82,920 was nearly met with a mere 0.5% deficit in supply.

India’s electricity generation, including renewable resources, has grown from 805.4 billion units (BU) in 2009-10 to a whopping 1,491.9 BU in 2022-23 (up to February 2023).

India’s total installed generation capacity from fossil fuels (coal, lignite, gas, diesel) is 2,36,469 megawatt (57.4 %), while from hydro, wind, solar and other renewable energy is 168,963 MW (41%). Nuclear power accounts for a mere 6,780 MW or 1.6% of the total generation capacity, as on February 28, 2023.

ATOMS TO ENERGY

Given the prevailing scenario, it becomes pertinent for the government to stop replying heavily on plants that run on fossil fuels due to climate crisis concerns and for availing carbon credits. Of course, the next big thing to meet the ever-rising consumption of electricity is increasing the capacity of nuclear power plants.

The Indian Government has stated that nearly 9% share of electricity is likely to be contributed from nuclear sources by the year 2047, when the country celebrates 100 years of Independence. This would also help in getting closer with the commitment of achieving net zero target by 2070.

The other targets laid down by the Department of Atomic Energy are achieving 20 gigawatt capacity of nuclear power generation by 2030, which would be a major milestone placing India as the third largest producer of atomic energy in the world after the USA and France.

For the first time since 1947, India approved 10 reactors in fleet mode in a single order and allowed nuclear installations to be developed under joint ventures with public sector undertakings so that nuclear energy can be used for peaceful purposes. Now, India is the sixth largest in the world in the number of functional reactors and the second largest in the total number of reactors, including those under construction.