A STATUTE WHICH IS
VIOLATING THE WTO AND GATT PROVISIONS
Even the Indian Supreme Court
in the case of Tata Press Ltd. v. Mahanagar Telephones Ltd has
recognized commercial speech as being a part of the right to
free speech and thereby highlighted the high importance
of the right to advertise, which will be beneficial not only for the advertiser but also for the
consumer.
Ironically, India lay down its rules of prevention
of advertising of advocate as per the rules of Bar Council as not to advertise
by lawyers as per the tradition in
British law which itself allowed it’s attorneys to advertise since late
eighties as laid down by Rule 7 of the code of conduct laid down by the
Solicitors Regulation Authority unless Rule 7.05 lays down that they have to
take responsibility for publicity done by them and also they can’t authorize
somebody else to advertize on behalf of them. Advertising shouldn’t be deprived
of the integrity of the profession or shouldn’t harm the reputation of the
profession.
Therefore,
leaflets and pamphlets and brochures relating to a certain advocate’s work and
expertise are commonly noticed there. Also, as per the British Codes of
Advertising and Sales Promotion, barristers may even include their own
pictures, previous cases argued by them, information regarding their
specialization or expertise or even their methods of charging etc. However,
they are not allowed to solicit their work on basis of their experience, or
through any fellow practitioner or any solicitor. France has somewhat a
conservative approach towards legal advertising though it’s not a blanket ban
like India and other European countries like Italy (through the Basil Decree on
2004), Spain or Germany have fully allowed legal advertising. India have opened
up as a liberal economy way back in 1991 and as a process, have embraced
globalization then why can’t it allow legal advertising in this highly
competitive market when most of its lawyers and law firms want and are fully
capable enough to compete in the international market for which they need
advertising as a tool. Though some International directory can provide lawyers
and law firms in India and their areas of specialization which can’t be used
for domestic purposes by the clients.
Also, Asian countries like Malaysia, Hongkong and
Singapore have started relaxing their rules on advertising by advocates as it
was held totally illegal for a long period in these countries. However, Malaysia’s
Legal Profession Publicity Rules (2001) led down that lawyers can
advertise in legal and non legal directories various publications, journals etc
and interviews in electronic and print media but not through clients. Lawyers are prohibited from advertising in Hong Kong on
television, radio and cinema but are allowed in print, and also
through various PR and branding progammes. In Singapore legal advertisements are allowed with limited restrictions.
Most countries in the world have
already adopted a liberal policy towards legal advertising because used
implemented properly, it can outweigh the negative effects of misleading and
false advertisements and can meet the global demands imposed on the present
Indian legal industry. It would also prove beneficial for the clients as they
will have informed choices about the legal industry.
It has often argued that advertising can only be
guided by the Consumer Protection Act and whether legal profession in India can
be held as a trade or business. It will be relevant enough to quote here some
of the landmark judgments regarding this issue. As in the case of Supreme Court in
Bangalore Water Supply and Sewerage Board v.
A. Rajappa, the supreme court held that legal profession is covered under the
definition of the term Industry under the Industrial Disputes Act, 1947 and
also in the case of Srimathi vs. Union of India, the Madras High Court held that section 3 of the
Consumer protection Act says that the Consumer Redressal Forums can deal with
advocates regarding their services as section 2(u)of the Consumer Protection
Act clearly lays down that the term service can be held in as per the Consumer
ProtectionAct,2002.Therefore, legal services can be held as one of the services
under the Consumer Protection Act.
Also
,as India is part of the WTO and therefore, all WTO laws and regulations can be
held bound upon it and WTO fully recognizes legal services as a part of the business services as it is listed as a subsection of Business Services in WTO
Services Sectoral Classification list. And as legal services can be held as a part of the business
services therefore advertising should be allowed there in order to effectively
market itself or a part of its marketing strategies. Also, GATT lays down12
services as a Business services which is further divided into 6 types of
professional services. And legal services have been termed as one of these 6
professional services. As India is one of the founder signatories of the GATT,
it should abide by its criteria and allow advertisement as one of the demands
of the professional services. Also, as per commitments are concerned, India
have only made them regarding engineering services and not regarding legal
services unlike several countries of the world.
