Professional Ethics in the Legal Profession:- A Dying Concept?

Also read article on Should Indian Lawyers be Allowed to be Paid on Contingency Basis

“Ethics is not definable, is not implementable, because it is not conscious; it involves not only our thinking, but also our feeling.”

-Valdemar W. Setzer

Introduction

Open the newspaper on any regular day and you will see news such as doctor being caught in the business of revealing the sex of a foetus or a judge accused of taking a bribe or similar stories. Only a person of the respective profession can understand the shame the members of their profession feel when they read such news.

Professional ethics is basically the standard or code of behavior that a professional must follow. There is no clear definition of the word ‘professional’, but for the purposes of professional ethics it may be safe to assume that a "professional" means any person in an occupation which requires public licensing or

Privacy in Cell Phone Communication: Issue still open

The is article is written by Arkady Bukh, a criminal defense lawyer in New York.

In U.S.A. this issue is still open at least on the Federal level.  However, many of the states have needed to make decisions on what Fourth amendment protections apply to cell phone text messages.  The questions being asked include whether the police can just pick up a cell phone and look at it contents without a warrant; can they even pick up the cell phone without a warrant, are the text messages to and from that particular phone protected private material of the cell phone owner, or even

Reciprocal / Mutual Wills in the Nature of Wagering Agreements and Against Public Policy - Sample Mutual / Reciprocal Will Format

(Also read 'Good WILL Hunting- The Importance of Making a Will - Sample Will Format' Sample Format of Mutual/Recirocal Will can be found below.)

One of the Fundamental Distinctions between a Will and a Contract is Privity. The beneficiary to a Will does not and cannot sign the Will of the Testator. There is no proposal or acceptance. However, there is one type of Will, in which the Testators must sign and the they  also stand a chance to be the beneficiaries. This is a mutual/reciprocal Will. This is where two or more persons make a mutual will where reciprocal benefits are conferred upon each other i.e. similar rights are given to each other in each other’s property. For example, A bequeaths all this property to B, and B makes a Will giving all his property to A.

It is well settled that a mutual/reciprocal will cannot

Should Indian Lawyers be Allowed to Work on Contingency Basis – Sample Draft Contingency Fee Agreement Format

The Bar Council of India prohibits advocates from charging fees to their clients contingent on the results of litigation or pay a percentage or share of the claims awarded by the Court. Bar Council of India Rules: Part VI, Chapter II, Section II, Rule 20 which reads as under:

“20. An advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof.” (Rules can be read here.)

Many have the misconception that the reason why lawyers do not work on a contingency basis is

Fair Competition & Monopolies

Also read article on 'Anti-Trust Laws: The Magna Carta of Free Enterprise'

“Competition is not only the basis of protection to the consumer, but is the incentive to progress.”

- Herbert Hoover (American President, 1874-1964)

Great words by a great man.However, President Herbert Hoover had somewhat erred while making this statement. He only said ‘competition’, whereas he should have stressed on ‘fair competition’. Competition is present even in oligopoly[1]or even when unfair trade or anti-competitive practices are being performed[2].However, in such competition, the consumer’s interests are not protected[3]. Also there is the constant danger that two or more major enterprises may merge giving rise to a monopoly[4].Barriers to competition caused due to unsuitable

How to Spread Legal Awareness among a Community: E.g. Uttarakhand

Map of Uttarakhand: Three regions

The following plan is a simple yet effective method to connect with the people with Uttarakhand and make them aware of their rights. It is cost-effective and realistic. A good plan need not constitute one complex strategy with several graph and map references but rather a mixture of several simple ones while keeping in mind short term as well as long term goals. If followed, the people's lives will be as beautiful as the region.

Name and slogan:

 People of Uttarakhand mainly speak the dialect of Kumaoni (in the Kumaoni area i.e. in Almora and northern Nainital, north-eastern Kumaoni in Pithoragarh, south-eastern Kumaoni in south-eastern Nainital, etc.) and Garhwali

Role of Comptroller & Auditor General (CAG) in Indian Economic Development

“The Comptroller & Auditor General must be as supreme as the judges of the Supreme Court, perhaps even more so.”          

- Dr. Pattabhi Sitaramayya 

Introduction

Today, the chief hindrance in the path of economic development in most countries is without a doubt corruption. In order to combat and even detect the corruption in India, responsible and efficient working of the Comptroller and Auditor General of India must be ensured. The CAG is an officer of the Constitution and not an officer of Parliament, even though he/she exclusively serves Parliament and State Legislatures[1]. Thus, the Comptroller and Auditor General is a dignitary who occupies a unique place in Indian democracy.

In order to meet the challenges of good governance the CAG’s office has been

Should Prostitution be Decriminalized in India?

This article is written by one of our authors  Shashank Sahay .

(Also read article on Women Exploitation in India)

The exponential rise in the number of women being trafficked inters and intra country has sparked off numerous debates. Some advocacy groups talk about issuing license to women involved in prostitution, thereby granting them the status of legitimate work.

Those in favor of legalization of prostitution as a profession argue that establishment of self regulatory boards constituted solely by sex workers would be able to check the inflow of new entrants especially with respect to their age and health. Once the women are

Incorporating Legal Education into School Curriculum

“Legal Education is essentially a multi-disciplined, multi-purpose education which can develop the human resources and idealism needed to strengthen the legal system….A lawyer, a product of such education would be able to contribute to national development and social change in a much more constructive manner.”[1]

Aspects of our society students will be more equipped to improve as a result of having a legal education (Also read article on 'Lawyers today Leaders Tomorrow'):

Lawyers are also referred to as ‘social engineers’. As we know, our society, the manner we live as well as what we do each day, are

Validity Of “Unregistered Agreement For Sale / General Power Of Attorney/Will Transfers” - Supreme Court Ruling

This article is written by Sushant Shetty.

The Supreme Court, in the case of Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr., held that the transactions of the nature of ‘GPA sales’ or ‘SA/ GPA/ WILL transfers’ do not convey title and do not amount to transfer, nor can they be recognized as valid mode of transfer of immoveable property and that the Courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. The judgement was

State Rent Control Acts Applicable To Tenants Of Public Sector Undertaking Properties - Rules Supreme Court

This article is written by Sushant Shetty.

(Also see the article on Deemed Conveyance, Analysis of Coastal Regulation Zone Notification 2011 and Key Provisions of The Draft Model Residential Tenancy Act, 2011 )

Public Sector Undertakings (PSU) India

A recent decision of the Supreme Court has held that the Public Premises Act governs only two issues, i.e. eviction of an unauthorized occupant and recovery of rent arrears from the tenants, and that henceforth the tenants would also be governed equally under the Maharashtra Rent Control Act on all other issues of standard rent and essential / basic services / facilities, as the two laws can sit side by side and their provisions are not conflicting.  It held that a guideline issued by the Centre in 2002 seeks to prevent the Act’s misuse besides setting obligations on Public Sector Undertakings (PSU) as Landlords

Whistleblower’s Bill, 2010: “Fortification Accorded To A Whistle Blower”-Adequate Or Derisory

(This article is written by Harshita Chaudhary.)

Centre finally blows the whistle on the Whistleblower's Bill. As of August 2012, India has a law lean on to eliminate corruption in the country's bureaucracy.[1] The Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010 also called Whistleblower’s Protection  Bill was approved by the Cabinet of India as part of a drive to eliminate corruption in the country's bureaucracy. The Whistle Blowers Protection Bill 2011 was voted for in Lok Sabha along with Lokpal Bill on December 27, 2011 during Anna Hazare’s

Bombay High Court:150 Glorious Years

The Bombay High Court on an old postcard

In order to celebrate completion of 150 years of the Bombay High Court, a small display has been organized in Court Room No. 46, on the second floor of the main building. Those who practice at Bombay H.C. know very well the significance of C.R. No. 46, for that is where Tilak's Trial had taken place. Tilak's last words in the trial are inscribed on a stane tablet outside the Court Room: 

"Inspite of the verdict of the jury, I still maintain that I am innocent. There are higher powers

Laws related to Women Exploitation in India

This article is written by one of our authors  Shashank Sahay .

Child Labour in India

The Child Labour (Prohibition and Regulation) Act, 1986, bans employment of children less than 18 years in certain fields such as transport, railways, ports etc. Employment of children is also regulated under several legislations such as Factories Act, 1948, Mines Act, 1983, Apprentices Act, 1951. The cut off age is 14 in most of the cases. However, the penalizing provisions of these Acts scarcely touch the exploiters/violators of the law. Monitoring of the law is extremely poor. The Supreme Court judgments on child labour have done little to improve the situation. (Image taken from here.)

Similarly, the Child Marriage Restraint Act, 1929, stipulates the

Indian Constitution & International Charters on Prevention of Child Exploitation

This article is written by one of our authors  Shashank Sahay .

Indian Constitution on Exploitation of Children

Child Labour is still a growing concern in India

There are certain provisions under Indian Constitution are provided for the protection of the children from exploitation and abuse and of course for the welfare of the children.

Article 39 provides certain safeguard to the children from exploitation and from the deprivation of the basic human dignity. According to Article 39 (e) of the Constitution, the state shall in particular, direct its policy towards securing that the tender age of the children are not abused and that citizens are not abused and that citizens are not forced by economic necessity to enter avocation unsuited to their age of strength. So by invoking this provision of Article 39 (e) of the Constitution, children can be protected from the abuse of dignity of life which may include sexual abuse. (Image taken from here.)

Moreover, as an preventive measure,

Abortion: The Indian Legal Scenario

This article is written by one of our authors  Shashank Sahay .

Abortion and the Indian Penal Code

Until 1971, the law relating to abortions was exclusively governed by the Indian Penal Code. Enacted in 1860, it reflects the prevailing morality and makes abortion an offence, except when it is performed to save the life of the women. Under the IPC any one causing miscarriage is, unless it is done in good faith to save the life of the pregnant women, is liable to imprisonment for three years. If the woman is quick with the child (i.e. the child has assumed foetal form, normally after 5 months) the punishment can be imprisonment up to seven years as stated in the Section 312 of the IPC. If the miscarriage is caused without the consent of women, the person is liable for imprisonment for life or ten years, as given in the

The Plight of Street Vendors

The above article is written by Monica Mishra.

(Also read article on Shoe shine men)

INTRODUCTION

The term vendor is roughly synonymous with peddler or costermonger. Simply the meaning of vendor “is a person who sells something on the street, either from a stall or van or with their goods laid out on the side walk.”[1] When we talk about vendors usually we think about the food vendors but actually  street vending is a vast concept which includes not  only food vendors but also different  type of hawkers who sells cloths, cosmetics , different types of toys , vegetables not only that other various domestic and commercial equipments on reasonable rates , and anyone can

Jihad in the Contemporary World

This article is written by one of our authors  Shashank Sahay and  Ashika Daga.

(Disclaimer: The views expressed herein do not reflect the views of this blog and the article is meant only for research purposes and neither does the author nor the this blog intend to hurt the sentiments of people of any religion or belief, whatsoever.)

Introduction

JIHAD- what does it mean?

Historically, Jihad means Holy War. For 1400 years, Muslims always understood the meaning of Jihad as Islamic Holy War. Every Islamic scholar, Mullah, Maulana and  Imamare of the same opinion regarding this meaning of JIHAD. Technically, Jihad is a war against the non-Muslims (Jihad al-kuffar or Jihad against disbeliever; and Jihad al-munafiqeen or Jihad against hypocrites) only, since Muslims are forbidden to fight the Muslims. Hundreds of books have been written by the Islamic scholars (Islamic Chintabid) on Jihad and everybody unanimously used the word Jihad as the religious war.  In the Islamic history, more than 80% of the texts are filled with Holy War (Jihad). Early Islam was spread in the Arabian Peninsula solely by these holy wars. Islam was propagated as a religion by series of wars/battles –both defensive as well as offensive. As many as 78 historic battles were fought by Prophet Muhammad himself, and out of 78, only one (battle of Ditch) was a defensive war, and the rest were simply offensive wars.  Did the Muslim soldiers

Insanity in Law

This article is written by Shashank Sahay.

Insanity

The definitions of legal insanity differ from state to state, generally a person is considered insane and is not responsible for criminal conduct if, at the time of the offense, as a result of a severe mental disease or defect, he was unable to appreciate the nature and quality or the wrongfulness of his acts. This basic reason for allowing the 'Insanity Plea' as a defense is because willful intent is an essential part of most offenses; a person who is insane is not capable of forming such intent. Mental disease or defect does not alone constitute a legal insanity defense. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.  (Image taken from here.)

Mental condition rendering trial impractical

If the home secretary is satisfied by the reports from at least two medical practitioners that person is suffering from mental disorder, he may order that person to be detained in hospital in public interest. (this power is exercised by The Home Secretary only) or  If

UNCLOS-1982 and the new regime of ‘Exclusive Economic Zone’

 This article is written by Ashutosh Singh.

Brief Introduction

The concept of Exclusive Economic Zone [‘EEZ’] was initiated by Kenya in 1972 at the Geneva session of the U.N. Committee on peaceful uses of the sea-bed and ocean floor beyond the limits of National Jurisdiction. At a later stage, the concept of EEZ was discussed widely in different sessions of the Third Conference of the Law of the Sea of 1982.  Exclusive Economic Zone has developed out of earlier and more tentative claims, especially and particularly relating to fishing zones.[1] It developed as a result of developments in the negotiating processes leading to the 1982 Convention[2], and thus finally secured a place for itself in the Convention on Law of the Sea of 1982. From that date itself, it has become a generally accepted institution of the law of the sea. In Tunisia v. Libya,[3] it has been observed that

Environmental Crisis in India

This article is written by Shashank Sahay.

The rate of environmental degradation in India has perhaps surpassed the rapid rate of economic growth in the country. The scale of damages is so large that they cannot be relegated to the category of localized problems. They are global problems[1]. The already fragile global ecological systems are being strained even further. Demanding compliance with strict environmental standards would significantly retard the pace of growth in the economy and exacerbate their problems of poverty and unemployment. Innovative thinking to facilitate growth whilst protecting and restoring natural endowments is warranted. Some contemporary decision

Evolution of Indian Cyber Law from 2000 to 2012

The below article is written by Monica Mishra.

Introduction :-  

  “The internet interprets the US congress  as  system damage and route around it”                                                                                          Jeanne DeVoto.[1]    

 Computer crime, or cybercrime, refers to any crime that involves a computer and network.[2] The computer may have been used in the commission of a crime, or it may be the target.[3] Net crime refers to criminal exploitation of the Internet.[4] Cybercrimes are

Key Provisions of The Draft Model Residential Tenancy Act, 2011

This article is written by Sushant Shetty.

(Also see the article on Deemed Conveyance, Analysis of Coastal Regulation Zone Notification 2011 and State Rent Control Acts Applicable To Tenants Of Public Sector Undertaking Properties  )




The housing ministry has prepared the draft Model Residential Tenancy Act, 2011 (“Act”) that is intended to replace the outdated rent control legislations that cap rents. These old legislations have, over the years prevented the landlords from getting appropriate rents for their prime properties in metros. The key provisions of the Model Residential Tenancy Act, 2011 related to Restriction on Subletting,  Derequisition of Rental Units, Revision of Rent, Security Deposit, Rent Tribunals are

Admissibility & Enforcement of Electronic Evidence

A new generation of criminals has emerged in the past decade with cyber criminals taking the place of white collar criminals. These criminals are using  state of the art modern technologies to commit what we call "cyber crime",s which are far beyond the understanding of a layman or your common lawyer or judge. Therefore to rise up to this new breed of criminals, the Information Technology Act has brought about additions to the scope of the evidence, so as to include digital evidence or electronic evidence or cyber evidence. In this kind of crime not only computers but any type of electronic devices is either used a tool or a target. (Image taken from here.)

Many a times it is difficult to test the authenticity of such electronic evidences, even with the assistance expert. In simple terms electronic evidence may defined as collection, preservation, analysis and court presentation of computer related evidences.

How to manage electronic evidence

It is very important to understand the nature of electronic evidences. Unlike any other

Constitutional Validity of Narco-analysis: Valid Defence of Public Interest or a Result-motivated Stand?

This article was written  by one of our Ghost Writers

Introduction: “Nemo Tenetur Seipsum prodere”

Narco analysis 

In the current scenario, technology has been seen outpacing the law, and some of the main tools of this technological advancement are the methods of narco-analysis, brain mapping and lie detector tests that are extensively used by police for criminal investigation. The paper examines the extent of their permissibility in the legal framework that recognizes the conflicting interests manifested in the form of individual fundamental rights versus larger public interest. The paper analyzes the progressive decision[1] by a three-judge bench that

Critical Analysis of the Coastal Regulation Zone (CRZ) Notification, 2011

This article is written by Sushant Shetty.

For the purpose of protecting coastal resources from depletion and degradation and to manage developmental activities along the coastline, the Ministry of Environment and Forests (MoEF), Government of India, on February 19, 1991, issued the Coastal Regulation Zone (CRZ) Notification in 1991 under the Environment (Protection) Act, 1986. This notification declared the coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters influenced by tidal action upto 500 metres from the ‘High Tide Line’ (“HTL”) and land between ‘Low Tide Line’ (“LTL”) and the HTL as the Coastal Regulation Zones (CRZs). Restrictions were imposed on developmental activities and the notification would accordingly regulate the use of land within 500 meters of the coast & 100 meters along the tidal-influenced water bodies. (The notification can be viewed here.)

There have been about 25 amendments to this notification from 1991 till 2009, as several state governments and other stakeholders expressed difficulties in implementing its provisions, some of which have been based on the directions of the Supreme Court. Eventually this notification was

The Importance of IPR in the Business World

“The future of the nation depends in no small part on the efficiency of industry, and the efficiency of industry depends in no small part on the protection of intellectual property." 

                                    -Judge Richard Posner[1]

In today's economy, companies must innovate if they wish to succeed and endure. The emerging scenario in India appears to be one of domination of industries such as information technology, communication and other knowledge based industries. Hence, it is of the utmost importance that attention be paid to IPR related agreements and transactions. Let us understand the Importance of IPR in the businesses world:

 Intellectual Property makes your business distinguishable and

Shoeshine: The Endangered Profession

(Also read article on Plight of Street Vendors)

Summary: They are a quite breed; the only sound you will hear them make is that of them hitting their wooden boxes. Some avail their services every week day; some just before an important interview; the others don’t even notice they are there. The profession of polishing shoes is one that has always been looked down upon. Shoe shine men do not make much but they are hard workers looking to make a decent living. They do not make as many headlines as Auto rickshaw drivers or street vendors. Their numbers may be few and substantially decrease every year, but that is only because of the low earning potential and mental attitude towards dealing with people’s feet. Those handicapped

Tortious Liability in the Case of Misuse of Personal Information

This article is written by Ashutosh Singh.

(Also read article on basics of Law of  Torts.)

Introduction

“Tortious liability arises  from the breach of a duty primarily fixed by law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”[1] Salmond defined Tort as “a civil wrong for which the remedy is a civil law action for unliquidated damages and which is not exclusively the breach of contract or breach of a trust or other merely equitable obligation.” Furthermore, Limitation Act defines Tort as civil wrong which is not exclusively a breach of contract or breach of trust.[2]

From the above definitions of tort or tortious liability, the basic idea of what tortious liability becomes apparent. The first part of the topic deals about what tortious liability actually is; the same has been done taking into account of Indian as well as outside world context. The second part of the topic ‘misuse of personal information’ has been dealt with in light of various Indian and foreign statutes. ‘Misuse of personal information’ in true terms means