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professional ethics lecture notes, Lecture notes of Ethics

good document having details of the professional ethics subject

Typology: Lecture notes

2020/2021

Uploaded on 12/30/2021

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MODULE – I
INTRODUCTION
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MODULE – I

INTRODUCTION

Meaning of Ethics

  • (^) The word Ethics is derived from the Greek word ‘ethos’ which means character or conduct.
  • (^) Ethics is that science which is concerned with moral behaviour or with right or wrong and good or evil of human behaviour.
  • (^) Ethics refer to guide what human ought to do, usually in terms of right, obligations, fairness and specific virtue.
  • (^) It is mainly concerned with what ought to be done rather than what is the case. It differs from positive science. A positive science is concerned with facts and explains them by their causes, but ethics deals with values.

History of Legal Profession in India

  • (^) According to R.P. Kangle, legal profession was non-existant during the Hindu Period as there was no mention about it in Kautalya’s Arthashastra.
  • (^) Contrary view has been taken by Justice Ashutosh Mukherjee who said legal profession was existing during the Hindu Period in Regina Guha (1916) 21 CWN , 74.
  • (^) During the Mughal period, legal profession was in existence as there were persons known as ‘vakils’ who represented the litigants. However, it was not organized. They were more of agents for principles than as lawyers.

History Ctd…

  • (^) During the early British period, the legal profession was not given any attention by the East India Company (EIC).
  • (^) Charter of 1726, introduced Royal Courts in India, but did provide for any regulations. There were no provisions for legal training and qualifications to practice.

Charter of 1753

  • (^) Under the Charter of 1726, Judges were laymen and ignorant of the law. They did not have any legal training. Also, owing to the frequent conflicts between the Mayor’s Court and the Governor & his council, the EIC requested the Crown to bring in amendments to the charter of 1726.
  • (^) Charter of 1753 was issued to modify Charter of 1726, after recognizing that Mayor’s courts were becoming inefficient.
  • (^) Changes made in the organizational structure and defining Jurisdiction of the Mayor’s Courts. Deposit of the money, if any by the suitors to be given to the government and not the courts.
  • (^) Court of Request was Introduced.

Charter of 1753 Ctd…

  • (^) Privy Council or King in Council > Court of Governor & Council > Mayor’s Courts > Court of Request’s.
  • (^) The establishment of the court of requests was to provide for the expeditious and final settlement of petty demands. Also known as Courts of conscience.

The Bengal Regulation Act, 1793

  • (^) The Bengal Regulation VII of 1793 provided for a regular legal profession for the company’s court. However only Hindus and Muslims were entitled to be enrolled as pleaders.
  • (^) The Regulation XII of 1833 allowed any qualified person of any nationality or religion would be eligible pleaders of Sadar Diwani Adalat, a high court of civil and revenue jurisdiction. It was instituted by Warren Hastings.
  • (^) The Legal Practitioners act, 1846 (I of 1846) made three important innovations, namely, - (1) that people of any nationality of religion became eligible to be pleaders and the office was thrown open to all persons duly certificate: (2) attorneys and barristers enrolled in any of Her Majesty's Courts in India were by sections 3 and 5 respectively, made eligible to plead in the Sudder Courts of the Company subject to the rules of those courts as regards language or otherwise; and (3) pleaders were allowed to enter into agreements with their clients for their fees for professional services.
  • (^) By section 4 of the Legal Practitioners act, 1853 (XX of 1853), the barristers and attorneys of the Supreme Courts were permitted to plead in any of the Courts of the Company subordinate to the Sudder Courts subject to all the rules in force in the said subordinate courts as regards language or otherwise. While barristers and attorneys were thus permitted to practise in the Company's Courts, the indigenous Indian legal practitioners were rigorously kept out of the three Supreme Courts.

The Legal Practitioners Act, 1853

  • (^) This Act authorized the barristers and Attorneys of the Supreme Court to plead in any of the companie’s courts subordinate to Sadar court subject to rules in force in the said subordinate courts as regards language or otherwise.

Indian High Courts Act, 1861 Ctd…

  • (^) The Judges could be selected from barristers (5 years of experience), civil servants (10 years of experience including 3 years as a zillah judge), judges of small cause courts (5 years of experience), or Pleaders of High Courts (5 years of experience).
  • (^) The Chief Justice and Minimum of one-third of The Regular Judges were to be Barristers and Minimum of one third Regular Judges were to be from the Civil Service.
  • (^) All Judges held office during the pleasure of the Crown.
  • The law which the high court applied was the same as applied by the Supreme Court i.e., The English law.
  • (^) The High Courts were also permitted to use the principles of justice, equity and good conscience on the appellate side.
  • (^) In criminal law, it followed the Indian Penal Code (1860).
  • (^) The High Court’s followed civil and criminal codes.
  • Sir Thiruvarur Muthuswamy Iyer KCIE (28 January 1832 – 25 January 1895) was an Indian lawyer who, in 1877, became the first native Indian to be appointed as judge of the Madras High Court.

Legal Practitioners Act, 1879

  • (^) This act was passed to consolidate and amend the law relating to legal practitioners of the high court.
  • (^) It empowered the high court, not established under the royal charter, to make rules, with the previous sanction of the provincial government, as to the qualification and admission of proper persons to be pleaders of the high court.
  • In the chartered high court rules, apart from the attorneys, there were advocates and-lawyers.
  • (^) Advocates were the barristers of England or Ireland or members of the faculty of the advocates of Scotland. The High Courts other than the Calcutta High Court permitted the non-barristers as well to be enrolled as advocates under certain circumstances.
  • (^) The vakils were the persons who had taken the law degree from the Indian university and fulfilled certain other conditions.

Legal Practitioners Act, 1879 Ctd…

  • (^) Non-Chartered High Courts
  • (^) Legal Practitioners allowed to practice:

    Advocates: Should be Barristers at law. Pleaders: Indian Lawyers. (non-law graduates after passing the leadership examination conducted by the high courts to practice in subordinate courts). Mukhtars: Indian Lawyers. (who passed by mukhtars examination held by the high court after passing the matriculation or equivalent examination).

Admission of women to the profession under Legal Practitioners Act,

  • (^) In Regina Guha (1916) 21 CWN 74 the Calcutta High Court, and in Sudhangshu Bala Hazara (1922) ILR 1 Patna 104, the Patna High Court held that women otherwise qualified were not entitled to be enrolled as Vakil or Pleader. To remove the doubts Legal Practitioners (Women) Act, 1923 declared that notwithstanding the Letters Patent of any High Court no woman shall be disqualified to be enrolled as legal practitioners. The Allahabad High Court took the lead by enrolling Miss, Cornelia Sorabji as the first Indian lady Vakil of Allahabad High Court on August 24, 1921 by a decision of the English Committee of the Court (as the Administrative Committee was then called), consisting of Chief Justice Sir Grim Wood Meers.

Indian Bar Committee, 1951

  • (^) The next major step in transformation of the Indian legal practitioners was taken in 1951, when the Government of India constituted a Committee under the Chairmanship of Justice S.R. Das of the Supreme Court to examine and report on the professional governance of lawyers in the country.
  • (^) The mandate of the Committee was to look into:

The desirability and feasibility of a completely unified Bar for the whole of India The continuance or abolition of the dual system of counsel and solicitor (or agent) which obtains in the Supreme Court and in the High Courts at Bombay and Calcutta The continuance or abolition of different classes of legal practitioners, like Advocates of the Supreme Court, Advocates of the various High Courts, District Court Pleaders, Mukhtars (entitled to practice in criminal courts only), revenue agents, income-tax practitioners, etc. The desirability or feasibility of establishing a single Bar Council for the whole of India, or for each State, the establishment of a separate Bar Council for the Supreme Court, consolidation and revision of the various enactments (Central as well as State) relating to legal practitioners, and all other connected matters.

Indian Bar Committee, 1951

  • (^) Major recommendations:
  • (^) The Committee found that it is desirable and expedient as well as possible to create a unified National Bar. It was suggested that the uniform minimum qualification for admission to the roll of Advocates should be a law degree obtained after at least a two years’ study of Law in the University after having first graduated in Arts, Science or Commerce and a further apprentice course of study for one year in practical subjects. The Committee also stated that the establishment of an All-India Bar Council is desirable, necessary and is quite feasible. A State Bar Council for each of the states was also envisaged. The question of creating a separate Bar Council for the Supreme Court did not find favor with the Committee.