Section 17 Of Senior Citizens Act Is Ultra Vires To Section 3O Of Advocate Act: Delhi HC

BACKGROUND OF THE CASE

• This judgement came after a decision rendered by a Division Bench of the Kerala High Court in April, 2021.
• It stated that the provision of Section 17 of the Senior Citizen Act is ultra vires to Section 30 of the Advocates Act, 1961.

ARGUMENTS BY THE PETITIONER

• The petitioner informed the Delhi High Court that evidence is not being allowed to be presented before the Maintenance Tribunals.
• It further clarified that, as Maintenance Tribunals follow summary procedure, the power to exercise discretion in matters of recording evidence is vested with them.

SECTION 17 IN THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007

• This Section defines the right of legal representation.
• It bars lawyers or any legal practitioner from representing parties related to the matters before the Maintenance Tribunals or Appellate Tribunals.

SECTION 30 OF ADVOCATES ACT

• This Section defines the right of advocate to practice.
• This Act allows an advocate, the right to practise throughout the territory, before all the courts and tribunals.

OBSERVATION MADE BY THE KERALA HIGH COURT

• While delivering the judgement, the Kerala High Court observed that Section 30 of the Advocates Act takes away the restrictions that are imposed on the appearance of lawyers.
• It also relied on Article 19 of the Constitution which guarantees the freedom to practice any profession, thus enabling the Advocates to appear before all the courts and tribunals.

OBSERVATIONS MADE BY DELHI HIGH COURT

• Relying on the above decision by the Kerala HC, Justice Prathiba M Singh held that declaring Section 17 ultra vires of Section 30 of Advocates Act, 1961 would mean that now an advocate has the right to represent the parties before the Tribunals under the Act.
• The Delhi HC then declared Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 as ultra vires.
• Further, it held that if the Tribunal thinks that the attendance of the witnesses and proving of documents is required then it has the power enshrined under Section 8(2) of the Civil Court for the purpose of taking evidence on record and enforcing attendance of witnesses.
• But it won’t mean that in every case, the Tribunal will record oral evidence or take on record documentary evidence.
• The discretion vests with the Tribunal to adopt the procedure which they think would be suitable to the facts and circumstances of each case.
• The High Court also clarified that though lawyers are allowed to represent the litigants, the summary procedure cannot be allowed to get converted into a long-drawn trial and adjudication, as it would defeat the very purpose of the legislation itself.

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