P.A.Qs

If you are influenced by Chakkarapani's web site and think these too are preemptively answered questions. Please be informed that I did not preempt these questions.
Here when I say P.A.Q I mean Prabhukarthik Asked these Questions. (in his comment to my earlier post named Pro Bono) As I really saw a potential to write a post in his questions, I decided to answer them in here

Kattai panchayatai ozhikka mudiyuma? [Can forceful mediation be erradicated?] I keep hearing that Lawyers themselves and sometimes Policemen are involved often.

When parties willingly submit to such meathods, little could be done to curb this. The courts are taking very serious note of this menace and doing their best to eliminate. When influential people are involved in such things, it becomes very difficult to ward of that evil. Needless to say that there is no legal sanctity to such mediations unlike Alternate Dispute Resolution (ADR) where the courts themselve would encourage the parties to mutually settle among themselves to resolve the dispute than invite the courts to pass judgment over the issues.

Why is that most of the lawyers seek political affiliation?, Of all the professions - doctors, engineers, CAs, why is that lawyers such a strong link with politicans?

There seems to be no real reason as to why there is such a link. Right from the days of freedom struggle, lawyers have been actively involved in the nation building process (Gandhiji, Nehru, Ambedkar, Rajaji and the like) I also do not think that the lawyers involving in politics is a phenomenon unique to India.
If you are talking of corrupt politicians, I feel they are corrupt because of being a politician not solely because they are lawyers.

How far is it ethically correct for a lawyer to defend someone when its clearly known that such a person has committed such an act?

There is something called the 'due process of law'. No one excepting the courts should judge a person of having committed an offence even if he voluntarily confesses . Law has sanctioned procedures for trial and it is the burden of the State to prove the offence and that too beyond resonable doubt. It becomes the duty of the lawyer to ensure that the procedures and rights gauranteed to his client are scruplously adhered. It is also the duty of the Court to ensure that an advocate is engaged to defend the accused unless he specifically gives up such a right and chooses to defend himself.
The bottomline: "to defend the client and ensure that he is given a fair trial is an advocate's reponsibility. "

The law provides that the discussion between the lawyer and a client is privy to them(is that the right word?). Leave aside the Law,is it ethically correct?

Advocates are prohibitted from disclosing without the client's consent, professional communications received as instructions in the course of employment. Now, there being a clear statutory prohibition on disclosure how are we to test the ethics. However, there are exceptions to the prohibition, such as communications made for criminal purposes and those comming to the knowledge of the advocate after commencement of the employmnt.
Please see the following 3 illustrations given in the Indian Evidence Act.

(a) When a client asks his attorney to defend in the case of forgery committed by him, the communication betweeen the client and attorney is protected from disclosure, since the defence of a man known to be guilty is not a criminal purpose.

(b) If a client asks his advocate to sue for possession of property by the use of the forged deed; this being in furtharance of a criminal purpose is NOT protected from disclosure.

(c) 'A' being charged with embezzelment, retains 'B' his lawyer to defend him. In the course of the proceedings, 'B' observes that an entry has been made in 'A's account books charging 'A' with the sum said to have been embezzeled, which entry was not in the book at the commencement of his employment. As this has been done after the commencement of the employment is NOT protected from disclosure.

Vasu please dont take it in a negative sense. I think these questions loom large to an average person.You are our legal representative adhaan ketten.

I am only happy and thankful to you for giving me an opportunity to write what I have learnt. But I cannot be your legal representative.
Legal Representative is a phrase denoting the person who comes in the place of a deceased litigant. That is to say if a case is filed against 'A' and if 'A' dies when it is pending, it is the obligation of the person who had filed the case to bring on record 'A's legal representatives and continue the case against them. (ususally it is the successors to the estate who are legal representatives). No one can maintain a case against a dead person. Similairly a dead person also cannot maintain a suit and hence the case will have to be continued by his L.Rs. There have been cases which have been fought by generations on either side.
This is one thing which happens as a routine in civil cases. Earlier to the family courts being established, marital disputes were tried in civil courts. It was on one such occassions that a wife had filed an application against her husband for 'restitution of conjugal rights'. The husband died in the meantime and hence the wife's lawyer was representing to the court about the respondent's death, without any second thought the Hon'ble judge immediately adjourned the matter directing the petitioner to take steps to bring on record the L.Rs of the deceased respondent. :-))

Another one: What is the difference between BL and LLB?.

Both only mean Bachelor of Laws, though LLB is an acronym of Legum Legis Baccalaureus. Laws being a faculty which can neither be grouped under Science nor Arts, Undergrads in Laws are awarded LLB, LLM [Legum Legis Magister] to the PGs and LLD [Legum Legis Doctor] to the doctorates. But a few universities confer these degrees as B.L., M.L., and Ph.D. Even such of those who award LLB only call the candidate a Bachelor of Laws.

Pro Bono

It may not be proper if I do not write about good things happening here in the courts. The High Court of Madras (not Chennai mind you) and the Government of Tamil Nadu have established in every district "Legal Aid Centres'.

Eminent Lawyers (and also lawyers like me) have empanelled their services in these centres. Any person who is unable to afford the cost of litigation may approach the Legal Aid Centres and will be provided all services free of charge. The Lawyer will be paid for the expenses of the case and a nominal fee by the Legal Aid Board.

That apart, if a person is able to prove that he is not possessed of any money to pay court fee, that he is indigent, the law itself provides for filing a case 'informa pauperis'. The Court fee payable will be recovered later if and when the indigent person succeds the case and is awarded any money or property as a result.

Thriptiyaa irukku

On the way

An employer is liable to pay (workmen) compensation for injuries sustained by a workman out of an accident during the course of employment.
This theory has been extended to accidents arising within the employer's premises if there is any connection between the accident and the employment. The employers premises is further extended notionally to any driveway, private roads or approach roads etc. Courts these days are liberal to award compensation to workmen sustaining injuries due to road accidents occurring on the way to work or back home under this notional extension theory.

The moral of the story is that 'Law is an ass"

Justice delayed is Justice denied

In India though there are not much of law suits filed for damages, most of the disputes in the country are family disputes, relating to partition and adoption etc., by sheer magnificence of population, We Indians litigate a lot, there used to be a saying that Indians not only are born in litigation and die, but also bequeth it.

At the present scenario we have only about 13 judges per million people. The Law Commission as early as in 1987 had recommended that the ratio must be increased to 50 per million but nothing has changed for the better in all these years.

The government have now established fast track courts to expediate the hearing and dispossal of cases, this is proving to be a progress towards speedy dispossal of cases.

As a lawyer I encounter one practical peril in the quick hearing of cases which is of adjournments. There is no firm rule or law which would curb seeking adjournments and hence the progress in the case could be seen only if both sides co operate with the courts and conduct cases without seeking adjournments on frivolous reasons.

It is not an exageration to say that a raw junior in Chennai is first trained in seeking adjournments giving all creative reasons including hospitalising his senior who is otherwise enjoying his snack in the canteen.

There are of course the other difficulties such as service of summons on the parties, filing of pleadings in time and rendering of judgment by the court. All these add up to the delay in justice.

The judicial system has now learned from its counterpart overseas and insists on Alternate Dispute Resolution (ADR) meathods before filing of suits in courts. Already in commercial contracts the parties prefer to resolve disputes arising out of the contract through arbitration than to approach the courts and wait endlessly for a decision on it.

For although in the recent years Information Technology has develpoed by leaps and bounds particularly in this part of the globe, there is not much of it catching up with the judiciary here. In all these years the major change that IT has brought about in our courts are that the judgments these days are printed using computers.(dot matrix printers only please)

For the volume of records to be kept and mnaintained, I am sure the RDBMS packages would certainly improve efficiency of the courts; but there needs a major change in mind set here too.

I am able to see computers in almost all courts I attend, but they are kept among the pile of case papers- unused. Only one computer savvy court staff I could see has put the computer provided in the court he works to best use he can think of by playing solitaire during lunch.

In or Out?

So many people have asked me, as to how is it reasonable that a decision rendered by one court could be reversed by another. That is to say if a person is found guilty by the court after trial, what are the justifications in letting him free by the appeal court in the same case.

Here is an attempt to disuss this position-

The courts of first instance are ordinarily ones which record evidence and dwell on the questions of fact. Any decision given by the trial court is keeping predominantly in view the evidence recorded and the fundamental principles of law.

Law vests a right of appeal before the appellate court to the party losing in the trial. But the scope of appeal is usually restricted to the errors and irregularities of the judgment (of the trial court). Re-appreciation of evidence is done only if the trial court while passing the judgment has ommitted to consider relevant portions of the evidence or based the same on perversities. The application of law (by way of statutes and case laws) is the major concern in the appeal courts.

While still holding that the facts in issue against the appellant, there are chances for him to be let free on technical grounds.

The prime reason is: the law firmly believes that only those proven guilty beyond reasonable doubt should be faulted.

May Maasam

Summer is here and almost all the courts have closed. My wife and kid have gone to my in laws' place.
Thanks to my new broadband connection I am spending time sort of usefully.
Happy vacation

Husband Disappeared

My client's husband was last seen in the year 1997. He was working in a bank as a bill collector and for reasons unknown he left the family and never came back.
The Indian Evidence Act says that if a person was not seen for seven years, the presumption is that he is dead. This presumption is rebuttable by the one who asserts that the person in question was seen within this seven years and the onus is on him to prove the same.
Keeping in view the above stated position my client applied for the terminal benefits of her disappeared husband from his erstwhile employers.
Though the Bank has in principle agreed to disburse the benefits, is making my client run from pillar to post asking her fill an endless list of forms, affidavits and undertakings.
Let us hope that she does not disappear meanwhile unable to bear the red tapism of this bank. Dont we get a clue as to why their employee disappeared seven years back

yet another step

I write this more as a diary than a blog. This day I have made quite a few changes to this blog. All that I am waiting for is myself to sit tight and punch all that runs in my mind on the keyboard. That day is not far off will happen very soon....

hello

hello all I just signed up for this service and am typing this to try out how this looks. I hope to talk more and more in the time to come