The High Court of Karnataka has declared Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act ultra vires of Section 30 of the Advocates’ Act, 1961, and therefore, it is rendered unenforceable.
Section 17 prohibits advocates from appearing on behalf of parties.
Justice M Nagaprasanna also issued a direction to the chief secretary for taking appropriate steps to notify the assistant and deputy commissioners to permit the representation of advocates to applicants, petitioners and appellants in the proceedings before them.
Srinivas Ganiga, 82, from Puttur village, Udupi district, had challenged the February 21, 2023, endorsement passed by the deputy commissioner denying representation by an advocate in the appeal proceedings.
He approached the assistant commissioner under the provisions of the Senior Citizens Act, seeking restoration of property to his name alleging that the settlement deed of November 2014 was fraudulently made by his children.
The assistant commissioner passed an order on December 22, 2022, directing that the petitioner and his wife should not be disturbed from the property and they will remain on the property until their lifetime.
It was also ordered that their needs should also be taken care of by the children.
The petitioner’s appeal against this order through a legal practitioner was rejected by the deputy commissioner on February 21, 2023, on the grounds that section 17 prohibits the representation of the legal practitioner.
Justice Nagaprasanna noted that Section 30 of the Advocates’ Act gives an absolute right to an advocate to practise before any court or tribunal, a tribunal, which would undoubtedly mean and include the tribunal created under the Senior Citizens Act as well.
“Parties to the list cannot always be said to be conversant with terms, to be knowing the nuances of the law of evidence, both oral or documentary, as to what is to be produced before the tribunal. It is, therefore, legal aid is necessary for such senior citizens. Legal aid is trite, a facet of the constitutional right guaranteed under Article 21 of the Constitution of India and such legal aid or legal assistance cannot be stifled or crippled only to tendering advice,” the court said.
Negating the apprehension of the Additional Government Advocate that the entry of an advocate would delay the proceedings or jeopardise the object behind the Senior Citizens Act, the court said that the presence of an advocate would neither delay the proceedings nor jeopardise the object of the enactment. “In the considered view of this court, it would streamline the proceedings to be in accordance with the law,” Justice Nagaprasanna said.