Chief Justice Burger in his address to the American College of Trial Lawyers in Columbia observed:
“In some jurisdictions, up to half of the lawyers who appear in court are so poorly trained in that they are not properly performing their job and that their manners, their professional performance and their professional ethics offend a great many people. They are engaging in on the job training at the expense of their clients’ interest and the public.”
Chief Justice Burger’s comment would hold equally good in the context of legal profession and its education in India. It is very general knowledge that a large part of the two lakh graduates being added every year to the existing ten lakh advocates in the country, are absentee law students who pass out from about 500 law colleges/schools. Such advocates ultimately learn, if at all, at the cost of the poor clients and court time. No wonder then that this, in turn, leads to the dispute resolution machinery to be seen as a villain by the society at large whereas this should be avoided as far as possible.
This unfortunate and disturbing situation demands that we ponder as
If we overview the history of Indian Legal System, it clearly reveals that the Indian Legal System is more or less based on the English Legal System. In fact, the systematic development of Indian judicial institutions, judicial principles, laws etc. has occurred during British regime itself. Besides this, the British regime in India has also developed a hierarchical judicial system in India. Accordingly, the highest judicial authority was conferred on a body of jurists, popularly called as ‘Privy Council’. It has played a significant role in shaping the present legal system in India. The same is discussed as under.
Origin and establishment of Privy Council
As it is an accepted fact that, every political system develops for itself a certain sort of legislative, executive and the judicial machinery for its smooth working and administration. Establishment of Privy Council was with the same objective. The Privy Council was the judicial body, which heard appeals from various courts of the British colonies including India.
The origin of Privy Council can be traced back to the Norman Period of English. At the beginning of 11th century,
The Famous American Judge ,Justice Oliver Wendell Holmes had declared in 1929 that “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought we hate.” Our Constitution too accommodates a hateful thought under article 19 (1) (a) subject to the restrictions mentioned therein. Sedition forms one such restriction. However the lack of understanding of the concept of sedition has several misgivings and has the tendency to color an expression of political dissent as sedition. This coloring is attributable to the definition of sedition under section 124A which makes any expression of disaffection towards existing government seditious . Therefore it becomes pertinent to dispel the doubts about the situation under which the law may become applicable and procedural changes it requires in a developing democratic society to eliminate the fear of prosecution for smooth exercise of the free speech right.
The offence of sedition in India
The first judicial interpretation of section 124A was rendered in the case of Queen Empress v Jogendra
Since time immemorial, the legal profession has been acknowledged as the ‘’nobel profession’’. The reason why legal profession was braded so was because of the firm emphasis made on ethical aspects in the profession. “It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, , but if there were no bad people, there would be no good lawyers” said Charles Dickens. Lawyers were often meant to be the rescuers of the wounded. Thus , the nobility of the profession was seldom questioned. However, changes in the nature of practice of law have raised up queries questioining ethics in such practices. Outsorcing and Offshoring of legal process is one such practice that has been vehemently crticized for being unethica whilst the patrons of Legal process outsourcing have defended it with commendable justifications.
What is Legal Process Outsourcing ?
LPO is the process of obtaining legal support services from an external unit. By, obtaining support services from an outside firm, the outsourcer firm relishes several advantages. If it is from an outside country, it is called as ‘’offshoring’’. “Legal process outsourcing refers to the offshoring of different elements in
Jurisdictional issues and applicability of the correct domestic law and conflict of legal remedies in Indian courts viz-a-viz foreign courts have assumed great PRIVATE INTERNATIONAL LAW importance in the recent past in view of the world becoming a global village. The realm of Private International Law has assumed greater significance and dimensions with the spread of the Indian community across the globe in large numbers. Young and enterprising men and women desirous of career opportunities abroad, move on and relocate themselves for permanent settlement in foreign countries without any hesitation to satisfy their financial needs apart from enhancing their technical skills and intellectual content. We, Indians are being appreciated across the globe for our adaptability to new language, community living and altogether new lifestyles. While all these positives have come with the economic growth and the pursuit for excellence abroad in our younger generation, the most important aspects of our culture and value systems have received a true and genuine beating. As a result in many cases pertaining to Indian spouses/couples settled abroad, we can notice incompatibility of temperament (not at an acceptable marginal level but at a very high level), intolerance to accept the changed life style of
Section 185, effective from September 12, 2013 and Section 186, effective from April 1, 2014 are two provisions of the (“Act”) which have created much anxiety among the business community because of its direct impact on capability of the businesses to raise finance.
A bare reading of Section 185 of the Act, suggests that advancing of loans or giving of corporate guarantee or providing any security by any company (for the purposes of this article, the “Lending Company”) to a firm and/or body corporate with common management with such Lending Company is completely proscribed. Also prohibited are transactions where the Lending Company is advancing loans, providing security or guarantee to body corporate, the management of which is accustomed to act in accordance with the direction or instructions of the board of directors/or any director of such Lending Company. No guidance has been provided as to what constitutes “acting in accordance with the direction or instructions of the board of directors/or any director”. Furthermore, this provision has been made applicable both to the public and private companies and even the provision of undertaking such transactions with the approval of the Central Government (as under Section 295 of the
The Companies Act, 2013 partially replaced The Companies Act, 1956.The Ministry of Corporate Affairs has notified 183 sections of the new Companies Act, 2013, which have become effective from April 1, 2014. With this, 283 of 470 sections of the Act have gotten notified in a phased manner. The Ministry of Corporate Affairs has notified respective Rules related with the effective Sections of Companies Act, 2013.
- Section 309 IPC :Attempt to suicide decriminalized
The government has decided to decriminalize “attempt to suicide” by deleting Section 309 from the Indian Penal Code (IPC). Under the said Section, a suicide bid is punishable with imprisonment of up to one year, or with fine, or both. The Law Commission of India in 2008 had recommended the repeal of Section 309 stating that the act of taking one’s own life should be treated as a manifestation of “deep unhappiness” rather than a penal offence. 18 states and 4 Union territory administrations have supported the deletion of Section 309.
- FDI Policy 2014: 100% FDI in Railways infrastructure, 49% in defence
The government has notified an increase in the FDI limit to 49 per cent through approval route
Natural justice is indeed a humanising principle for it seeks to ensure that law is fair and just and that there occurs no miscarriage of justice. The phrases ‘substantial justice’, ‘fundamental justice’, ‘universal justice’ or ‘fair play in action’ also alludes to the notion of natural justice. It functions on the basis of preconceptions such as ‘man is basically good and hence he must not be harmed’ and ‘one ought to treat others as one would like oneself to be treated’. Though considered a highly noble concept that has much potential, there exists no definition for the same, because the vagueness and ambiguity of the concept is so much so that it has been criticized as ‘sadly lacking in precision’ as per the 1914 decision of R v. Local Government Board, ex p Arlidge. In spite of its flaws, natural justice is widely accepted, adopted and enforced and is considered “an essential part of the philosophy of law.” You may disagree with the previous statement saying ‘uncertainty of law is a cardinal sin’. However, do bear in mind that the vice of said uncertainty is far outweighed by virtues such as greater possibilities of fairness and prevention of