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University Of Mumbai

Nari Gurusahani Law College, Ulhasnagar-3


Three Year Course (semester II)
This project is projected by F.Y.LL.B student named
Mr. Shivling Kanni
Roll No. 65
For the concept of PRACTICAL TRAINING
Under the leader
Of
Prof. Nitin Bansode
For the Academic Year 2011-2012

PROFESSIONAL
ETHICS

PROFESSIONAL ETHICS

Introduction
Professional ethics is a code of conduct written or oral regulating the
behavior or practicing lawyer towards himself, client, his opponents in the court
etc., It means ethics of legal profession means the body of rules determine the
conduct of members of bar council.
DUTY TO COURT
Rules mention in Advocates Act 1961. Duties are as follows:

An Advocate is require to maintain towards court the respectful attitude


keeping in mind that the dignity of the judicial public is essential for the
survival of the free community.

No Advocate shall influence the decision of the court by any illegal or


improper peace.

The Advocate must use his best restraint and prevent his client from
resorting to unfair practice or doing anything in relation to the court
opposing council or parties which advocate himself ought not to do.

An Advocate shall appear in the court in the prescribed dress and his
appearance shall always been presentable.

An Advocate shall not enter, act plead or practice any way before a court,
Tribunal or any other authority, if the sole member or any member
thereof related to the Advocate as a grandfather, mother, wife, son, sister,
uncle, aunt, brother, brother-in-law, sister-in-law.

An Advocate should not wear bands, gown in public place.

An Advocate shall not act or plead in any matter in which he has


monetary interest.

DUTY TOWARDS HIS / HER CLIENT

An Advocate is bound to accept any brief in the court or in Tribunal


or before any other authority before which is proposed to practice act
feel consistent with its standing at Bar Council and also nature of case
at Bar.

An Advocate shall not Ordinary withdraw from engagement once


expectance without sufficient cause and reasonable notice to the client.

An Advocate shall not except the case or appear in a case in which he


has reason believe he will be witness Article 21 of Constitutional.

It is duty of an advocate to uphold. The interest fearlessly and by all


fair reasonable and sufficient means of his client.

An Advocate shall not commit a breach of obligation imposed by


section 126 of Indian Evidence Act.

It is duty of an Advocate not to act on the instruction of any person


other then client or his authorized agent.

The fee of an advocate depending upon success of suit is considered as


oppose to public policy.

An Advocate shall not directly or indirectly purchase either in his own


name for his own benefit, for benefit of any person any property sold
in the execution of the decree or other proceeding in which he was
professionally engaged.

DUTY TO OPPONENT
Rule 34 and 35 framed by the Bar Council of India contain provisions as to
the duties of an advocate to the opponent. Rule 34 provides that an advocate shall
not in any way communicate or negotiate upon the subject matter of controversy
with any party represented by an advocate except through that advocate. Rule 35
provides that an advocate shall do his best to carry out all legitimate promises made
to the opposite party even though not reduced to writing or enforceable under the
rules of the Court.

DUTY TO THE COLLEAGUES


Rules 36, 37, 38 and 39 framed by the Bar Council of India deal with the
duties of an advocate to the colleagues. Rule 36 provides that an advocate shall not
solicit work or advertise (either directly or indirectly) whether by circulars,
advertisement, touts, personal communications interview not unwarranted by
personal relations, furnishing or inspiring newspaper, comments or producing his
photograph to be published in connection with case in which he has been engaged or
concerned.
Rule 37 provides that an advocate shall not permit his name to be used in aid
of or to make possible the unauthorized practice of law by any agency.
Rule 38 makes it clear that an advocate shall not accept a fee less than the fee
taxable under the rules when the client is able to pay the same.
According to Rule 39 an advocate shall not enter appearance in any case in
which there is already a vakalatnama or memo of appearance filed by an advocate

engaged for a party except with his consent. The object of this Rule is to secured
goodwill among the advocates.

BAR
COUNCIL

BAR COUNCILS
INTRODUCTION
The Advocates Act provides for the constitution of two types of Bar CouncilState
Bar Councils and Bar Council of India. Section 3 of the Act provides for the
establishment of State Bar Councils and Section 4 of the Act provides for the
establishment of a Bar Council of India.
POWERS AND FUNCTIONS OF THE STATE BAR COUNCIL:
Section 6 of the Advocates Act makes provisions in respect of the functions of the
State Bar Council. It provides that the functions of the State Bar Council shall beSec 6 (a) To admit persons as advocates on its rolls;
(b) To prepare and maintain such roll;
(c) To entertain and determine cases of misconduct against advocates on its
roll;
(d) To safeguard the rights, privileges and interests of advocates on its roll;
(e) To promote and support law reform;
(f) To conduct seminar and organize talk on legal topics by eminent jurists
and public journals and papers of legal interest;
BAR COUNCIL OF INDIA
Section 4(1) of the Advocates Act provides that there shall be a Bar Council for the
territories to which this Act extends to be known as the Bar Council of India which
shall consist of the following members, namely
(a)
(b)

The Attorney-General of India, ex officio ;


The Solicitor-General of India, ex-officio ;

(c)

One member elected by each State Bar Council from amongst

its members.

POWERS AND FUNCTIONS:


Section 7 of the Advocates Act provides that the function of the Bar Council of India
shall bei)
ii)

To lay down standards of professional conduct and etiquette for advocate


To lay down the procedure to be followed by its disciplinary committee and

iii)
iv)
v)

the disciplinary committee of each State bar Council.


To safeguard the rights privileges and interests of advocates;
To promote and support law reform;
To deal with and dispose of any matter arising under this Act which may be

vi)
vii)

referred to it by a State Bar Council;


To exercise general supervision and control over State Bar Counsel;
To promote legal education and to lay down standards of such education in
constitution with the Universities in India imparting such education and the
State Bar Councils;

STATE BAR COUNCIL AND ITS DISCIPLINARY COMMITTEE:


Section 35 of the Advocate Act makes it clear that on receipt of a complaint or
otherwise a State Bar Council has reason to believe that any advocate on its roll has
been guilty of professional or other misconduct, it shall be refer the case for disposal
to its disciplinary committee. It is one of the functions of the State Bar Councils to
entertain and determine the cases of misconduct against the advocates on its roll.
2)Powers:- Section 35 provides that after giving the advocate concerned and the
Advocate-General an opportunity of being heard, the disciplinary committee of a
State Bar Council may make any of the following orders:(a)
Dismiss the complaint or where the proceedings were initiated at the instance
(b)
(c)
(d)

of the State Bar Council, direct that the proceedings be filed ;


Reprimand the advocate ;
Suspend the advocate from practice for such period as it may deem fit;
Remove the same of the advocate from the State roll of advocates.

BAR
BENCH
RELATIONS

BENCH BAR RELATION


The Bar and Bench play important role in the administration of justice. The judges
administer the law with the assistance of the lawyers. The lawyers are officers of the
Court. They are expected to assist the Court in the administration of justice.
Actually lawyers collect materials relating to the case and hereby assist the Court in
arriving at a correct judgment.

Since the lawyers are officers of the Court, they

are required to maintain towards the Court respectful attitude bearing in mind that
the dignity of the judicial office is essential for the survival of the society. During
the presentation of the case and while acting otherwise before the court an advocate
is require is conduct himself with dignity and self respect. He should not use
intemperate language during arguments in the court. He should avoid scurrilous
attacks in pleadings.

DUTIES OF JUDGES:
Judges must be impartial and must do everything for justice and nothing for
himself or his friend or his sovereign.

A judge must not allow himself to be

subjected to any influence other than influence of the law and justice of the cause.
He must discharge his duties out fear or favors affection or all-will. A judge should
possess calm temper.

He should always bear in mind that where passion is allowed to prevail, the
judgment in dethroned.

Judge should have patience of hearing; he should allow the advocate on


party the fullest opportunity to present his case.

When the judge does not allow the advocate to present his client case as he

i.
ii.
iii.

considers it, best, the counsel owes to his client to protest against it.
According to C.L. Anand following are the duties of judges towards the bar.
The Judges owe to the bar is of consideration & Courtesy.
A Judge owes to the bar is to respect its privileges.
A Judge to the bar is to sit with respective mind.

ADVOCACY

Now a day it is often said that the legal profession has no future. It is

overcrowded and usually those persons join this profession who do not get other job.
But this view is not correct in relation to the persons who join this profession
keeping in mind that they are to devote their whole time to this profession. For a
person who is hard working and devoted to law has a bright future.

When a person after getting the degree of bachelor of law enters into

the legal procession finds the giants in the profession having vast experience as his
competitors and becomes nervous. In such conditions he should always remember
that the hard - work devotion and good dealing with the client and Judge will enable
him to complete with the senior lawyers having vast experience and good reputation.

He should give full attention to his profession. He should see how the

senior advocates conduct the cases.

The class room study, no doubt, provides

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theoretical knowledge of the law and a good background for the legal profession, but
for success in the legal profession a careful observation of the proceedings in the
Court is necessary.

CASES
ON
CONTEMPT OF COURT

CASES ON CONTEMPT OF COURT


E.M.S. Namboodaripad v/s. T.N. Nambiar

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In this case the Supreme Court has made it clear that the freedom of
speech and expression including the press is not absolute and restriction thereon
may be imposed by the State by making law on any of the grounds specified under
Article 19(2). Contempt of Court is one of the grounds specified in clause (2) of
Article 19 and, therefore, the restriction on freedom of speech and expression may
be imposed, if it amounts to contempt of Court.
In this case the appellant, E.M.S. Namboodaripad who was the Chief
Minister of Kerala at a press conference charged the judiciary as an instrument of
oppression and said that the judges were guided and dominated by class hatred,
class interest and class prejudice and favored the rich against the poor. He further
said that the judiciary works against workers, peasants and other sections of the
working classes. He was held guilty of contempt of Court. The Court observed.
Judge from the angle of Courts or administration of justice, there is
not a semblance of doubt that the appellant was guilty of contempt of Court.
Whether he misunderstood the teaching of Marx and Engles or deliberately
distorted them is not too much purpose. The likely effect of his words must be seen
and they have clearly the effect of lowering the prestige of Judges and Courts in the
eyes of the people. That he did not intend any such result may be matter for
consideration in the sentence to be imposed on him but cannot serve as a
justification.
Thus, the Court held that the statements of the Chief Minister,
E.M.S. Namboodaripad had effect of lowering the prestige of the Judges and Courts
in the eyes of the people and, therefore amounted to contempt of Court.
Consequently, the Court punished him for the contempt of Court.
Sukumar Mukhoupadhay v/s. T.D. Karamchandani
In this case the Supreme Court has made it clear that if the order is
substantially complies with, the contempt will not lie. Actually the trivialities are
ignored. No Court including the Court of Contempt is entitled to take frivolities
and trivialities into account while finding fault with the conduct of the person
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against whom contempt proceeding is taken. It is, now settled that trivialities is to be
ignored. Trivial means trifling or inconsiderable. No one should be convicted for
trifling and trivial matters.
In this case the contemnor was the Superintendent of Customs
(Preventive) at the material time. He moved a writ petition in the Calcutta High
Court challenging initiation of the departmental proceedings against him. The
Court directed the Excise and customs Department to give inspection/supply copies
of the documents demanded by the respondent. The order was as follows
The respondent shall be at liberty to proceed with the
impugned enquiry dated 11th May, 1984 and dated 21st July, 1984 after supplying the
document asked for by the petitioner. Respondents shall be at liberty to conduct the
enquiry, but no final order will be passed without the leave of this Court.
The copy of the order of the High Court was not personally served
on the appellant. He came to learn the gist of the order of the High Court from two
office notes. The appellant passed the following order:
I gave permission to allow inspection and /or comply with the
Courts order.

Thereafter the appellant went to Delhi in connection with his official


duty on return from Delhi he was intimated that the respondent was verbally
requested to take inspection but he did not do so on account of non-availability of a
particular document. The Court held that the appellant could not be held guilty of
contempt because there was substantial compliance of the order of the Court. The
Court made it clear that the appellant has substantially complied with the Courts
order and he could not be held guilty for contempt on the ground of non-supply of
copies of documents.

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It was more so when the copies of the documents were also


subsequent by given to the respondent, though after the time allowed by the order.
The principal and substantial demand was inspected and that was admittedly
allowed within time. Consequently non-supply of copies of document could not be a
ground for holding the appellant to have deliberately disobeyed the order. In case
the appellant intended to disobey the order he would have not even permitted
inspection. By inspection the appellant could copy out the documents. The Court
has observed that no court including the Court of Contempt is entitled to take
frivolities and trivialities in to account while finding fault with the conduct of the
person against whom contempt proceeding is taken.

T.R.Dhananjay v/s. J. Vasudevan


In this case the petitioners claim for promotion as the Chief
Engineer was accepted by the High Court in contradistinction with that of the then
incumbent and the decision of the High Court was affirmed by the Supreme Court.
The fact that the Petitioner was not eligible under relevant rules for promotion as
the Chief Engineer was not brought to the notice of the Court. When the claim inter
se had been adjudicated and the claim of the petitioner had become final, the
Government did not promote the petitioner in accordance with the Courts order on

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the ground that he could but be promoted under the relevant rules. The Court held
that the refusal amounted to contempt of Court. When the order has been passed
by the Court the Government or authority or person to whom the order has been
made has no option but to give effect to the order as passed by the Court.
If there is any doubt, he should ask for clarification. The respondent
was held liable for contempt of Court.

PLEADINGS:
In civil case a suit is required to be instituted by presenting a plaint
to the Court or such officer as it appoints on his behalf. Suit is, thus commenced by
presentation of the plaint. Section 26 of the Code of Civil Procedure provides that
every suit shall be instituted by the presentation of a plaint or in such other manner
as may be prescribed. In every plaint facts shall be proved by affidavit. The
statement of a plaintiff regarding his claim is taken as a plaint. Actually through the
plaint the plaintiff present his case along with cause of action, etc. After the plant
being filed the party against which it has been filed is also given opportunity to
admit or deny the facts stated in the plaint and present his own case. This is called
written statement.
The object of the pleading is to make both the parties aware of their
cases and allegations made against each other.
The main function of the pleading is to ascertain with precision the
matters on which the parties differ and the points on which the parties agree.

Writ Jurisdiction of the Supreme Court (Articles 32)


Article 32 provides for enforcement of fundamental rights
guaranteed by the Constitution. Article 32(1) provides that the right to move the
Supreme Court by appropriate proceedings for the enforcement dof the
fundamental rights is guaranteed. It means that in the case of infringement of the

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fundamental rights, the right to move the Supreme Court is itself a fundamental
right.

It is the duty of the Supreme Court to enforce the fundamental rights

guaranteed by the Constitution. The Supreme Court has thus been made the
protector and guarantor of the fundamental rights.
What is guaranteed by article 32 is the right to move the Supreme
Court by appropriate proceedings for the enforcement of the fundamental rights
guaranteed by the Constitution. An application under Article 32 cannot be where no
fundamental right has been infringed.

No question other than relating to a

fundamental right can be determined in a proceeding under Article 32.

The

freedom of inter-State and intra-State trade or business guaranteed by Article 301 is


not a fundamental right guaranteed by Part III of the Constitution and therefore, it
is not enforceable under Article 32. If the petitioner make out a prima facie case
that their fundamental rights are either threatened or violated their petition will be
entertained by the Supreme Court.

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CONTEMPT OF
COURT

CONTEMPT OF COURT:

The contempt of courts Act, 1971 define Contempt of court for the first time.
Before it, there was no statutory definition of the concept, contempt of court. Even
the definition of contempt of court given in the contempt of court Act, 1971, is not a
definition, but only the classification or categories of contempt of courts.

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KINDS OF CONTEMPT OF COURTS:


Section 2(a) of the contempt of courts Act, 1971, provides that Contempt of Court
means civil contempt or criminal contempt. It, thus, classifies the contempts of
court into two categories, civil contempt and criminal contempt.

CIVIL CONTEMPT:
Civil contempts are taken as acts and omissions in procedure involving a private
injury by the disobedience of the judgment, order or other process of the court.
According to Section 2(b) of the Contempt of courts Act,1971 Civil Contempt
means willful disobedience to any judgment, decree, direction order, writ or other
process of a court or willful breach of undertaking given to a court. For civil
contempt there must be disobedience to the order, etc, Of the court or breach of
undertaking given to the court and the disobedience or breach must be willful. To
constitute civil contempt both these element must be proved. The purpose of the
proceeding for the civil contempt is not only to punish the contemnor but also to
exercise enforcement and obedience to the order of the court.

CRIMINAL CONTEMPT
In India the definition of contempt of Court is found in clause (c) of section 2 of the
contempt of Courts Act, 1971. It provides that Criminal Contempt means the
publication whether by words, spoken or written or by signs, or by visible
representations, or otherwise of any matter of the doing of any act whatsoever which

i)

Scandalizes or tends to scandalize or lower or tends to lower the authority of


any Court ; or

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ii)

Prejudice or interferes or tends to interfere with the due course of any

iii)

judicial proceeding ; or
Interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner.

CONTEMPT JURISDICTION OF THE HIGH COURT AND SUPREME COURT


An issue is as to whether the contempt jurisdiction is based on some
statutory provisions or it is inherent jurisdiction available to them on account of
being the Court of record. The contempt law in India has been developed mainly on
the basis of English contempt law. In England a superior Court of record has been
exercising the power to indict a person for its contempt in a summary manner. This
power is taken as a necessary attribute of a superior Court of record have inherent
power to punish the contempt of court. Even in America a Court of record has
inherent power to punish for the contempt of Court. This power has been given by
the Constitution and therefore it cannot be materially interfered or taken away by
the law made by the Legislature. In India the constitution declares the Supreme
Court and High Court as the Court of record. Article 129 of the Constitution
provides that the Supreme Court shall be a Court of record and shall have all
powers of such a Court including the power to punish for contempt of itself.

DEFENCES IN CRIMINAL CONTEMPT:

Sections 3 to 7 of the contempt of court Act, 1971 make provision in respect of the
defence available to the contemnor in the proceeding for criminal contempt. The
defences may be discussed under the following headings:
Fair and accurate report of judicial proceeding:

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Section 4 of the contempt of courts Act, 1971 provides that a person shall not be
guilty of contempt of court for publishing a fair and accurate report of a judicial
proceeding or any stage thereof. This provision is subject to the provisions contained
in Section 7 of the said Act.
Fair criticism of judicial act:
Section 5 of the contempt of courts Acts, 1971 provides that a person shall not be
guilty of contempt of court for publishing any fair comment on the merit of any
cases which has been and finally decided.

DEFENCES IN CIVIL CONTEMPT:

Important defences open to a contemnor in civil contempt may be discussed under


the headings, stated below:
Disobediences or Breach was not willful:

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For civil contempt the disobedience of the order, decree, etc. Of the court or breach
of undertaking given to the court must be willful. Consequently, it would be a
defence in the contempt proceeding that the disobedience or breach has not been
willful. However the words willful disobedience should not be taken to mean that
for constituting civil contempt the act must, in all cases, be designed and deliberate.
Order disobeyed is vague or ambiguous:
It would be a defence in the contempt proceedings that the order is vague or
ambiguous.

COURT REPORT

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