3YDC-Viva Questions PEPA PDF

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1. Meaning of ethics and need of ethics for advocates Ethics is a branch of philosophy that used to study ideal human behaviour and ideal ways of being. As a philosophical discipline of study, ethics is a systematic approach to understanding, analysing and distinguishing matters of right and wrong, ...

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1. Meaning of ethics and need of ethics for advocates Ethics is a branch of philosophy that used to study ideal human behaviour and ideal ways of being. As a philosophical discipline of study, ethics is a systematic approach to understanding, analysing and distinguishing matters of right and wrong, good and bad, and admirable and deplorable as they relate to wellbeing of and the relationships among sentient beings.. 2. Advocates primary duties and towards court, clients, and opponents An advocate has a duty to the court, duty to the client, duty to the profession, duty to the opponent and duty to himself. The BCI has formulated a code of duties of the Advocates. Primary Duties: An advocate should uphold the Constitution of India and assist in enforcing the fundamental Rights and the Rule of Law. He should be honest and sincere, in all professional dealings. He should be a gentleman. Moral-excellence is his watch word. He should maintain his dignity and self-respect and should not undersell himself. Duties to the Court: The advocate should show respect to the judiciary and should not do anything to undermine its prestige.  He should not exert any personal influence on the court.  He should not speak ill of the judges.  He must attend the hearing of his cases or should make proper arrangement to attend.  He should not make a show of his familiarity with the judges nor should he do anything to affect the dignity and impartiality of the judges.  He should not mislead the court, by citing a repealed statute or an overruled decision etc. Duty to the client: It is 'the primary duty of the advocate to give proper advice to his client, and for this purpose, hear him patiently, and use his own skill and knowledge to the best advantage of the client. He should not disclose communications which are privileged according to the Evidence Act. The Advocate should not accept a brief which is against his professional conduct or which is not in the best interests of the administration of Justice. If, he is to give evidence as a witness, then he must not accept such a brief. An advocate should not refuse to defend an accused. It is his duty to put the defence to the best of his ability and to protect the life and personal liberties of individuals. In civil or in criminal cases, once the advocate is appointed, he should not withdraw without valid excuse. Non-payment of full fee is no reason to withdraw. Duty to opponent: As an advocate belongs to the noblest and the highly esteemed legal profession, he should be fair to the opposite party and to his advocate. No doubt, an advocate will be fighting a battle for his client, but at the same time, he is assisting the courts in the administration of justice. He should give due respect to the counsel, and should not interrupt unnecessarily, or laugh at or do anything to degrade the opposite counsel.' 3. What is legal aid? Legal aid means free legal service to the poor and needy who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or before an authority. It is for the promotion of the welfare of the people. In India many efforts have been made in this direction for example the introduction of Lok Adalats. 4. Who are entitled for legal aid? It states that those persons who have annual income of less than the amount prescribed by the respective State Government, if the case is before any court other than the Supreme Court, and less than Rs. 5 Lakhs, if the case is before the Supreme Court, are eligible for free legal aid. The sections of the society as enlisted under Section 12 of the Legal Services Authorities Act are entitled for free legal services, they are : 1|Page

(a) A member of a Scheduled Caste or Scheduled Tribe; (b) A victim of trafficking in human beings or beggar (Article 23 of the Constitution); (c) A woman or a child; (d) A mentally ill or otherwise disabled person; (e) A person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or (f) An industrial workman; or (g) In custody, including custody in a protective home or in a juvenile home or in a psychiatric hospital or psychiatric nursing home. (h) a person in receipt of annual income less than the amount mentioned in the following schedule (or any other higher amount as may be prescribed by the State Government), if the case is before a Court other than the Supreme Court, and less than Rs 5 L, if the case is before S.C. States/Union Territories Andhra Pradesh Telangana

Income Ceiling Limit (Per Annum) Rs. 3,00,000/Rs. 1,00,000/-

5. What is professional misconduct? Professional Ethics is defined as personal and corporate rules that govern the behaviour within the context of a particular profession. Violation of rules and boundaries set by the governing body of a profession is called as professional misconduct. Misconduct means dereliction of duty. Professional misconduct means dereliction of duty relating to Legal profession. U/S 35 of the Advocates Act, An Advocate is punishable not only for professional misconduct but also for other misconduct. Other misconduct means misconduct not directly connected with the legal profession.

6. Who is entitled to try professional misconduct cases? Under Sub-section (3) of Section 35 of the Act the DC of the SBC is empowered to pass an order imposing punishment on an advocate found guilty of professional or other mis-conduct. 7. Powers of disciplinary committee Section 42 of Advocate Act of 1961 detailed the powers of DC, it stated that , The DC of the BC .l99kk,, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely ;a. summoning and enforcing the attendance of any person and examining him on oath ; b. requiring discovery and production of any documents ; c. receiving evidence on affidavits ; d. requisitioning any public record or copies thereof from any court or office ; e. issuing commissions for the examination of witness or documents ; f. any other matter which may be prescribed ; All proceedings before a disciplinary committee of a Bar Council shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code, 1860 (45 of 1860), and every such disciplinary committee shall be deemed to be a civil court for the purpose of sections 480, 482 and 485 of Code of Criminal Procedure, 1898 (5 of 1898). For the purpose of exercising any of the powers conferred by sub section (1), a DC may send to any civil court in the territories to which this Act extends, any summons or other process, for the attendance of a witness or the production of a document required by the committee or any commission which it desires to issue, and civil court shall cause such process to be served or such commission to be issued as the case may be, and may enforce any such process as if it were a process for attendance or production before itself. 2|Page

Where no final order of the nature referred to in sub section (3) of section 35 can be made in any proceedings in accordance with the opinion of the Chairman and the members of a disciplinary committee either for want of majority opinion amongst themselves or otherwise, the case, with their opinion thereon, shall be laid before the Chairman of the Bar Council concerned or if the Chairman if the Bar Council is acting as the Chairman or a member of the disciplinary committee, before the Vice Chairman of the Bar Council, and the said Chairman or the Vice Chairman of the Bar Council, as the case may be, after such hearing as he thinks fit, shall deliver his opinion and the final order of the disciplinary committee shall follow such opinion. 8. What are the punishments that can be given by the disciplinary committee for misconduct? Section 35 in Advocate Act (1) Where 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 refer the case for disposal to its disciplinary committee. (1A) The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council.] (2) The DC of a SBC shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate-General of the State. (3) The DC of a SBC after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely:-(a) Dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed; (b) Reprimand (Scolding / warning) the advocate; (c) Suspend the advocate from practice for such period as it may deem fit; (d) Remove the name of the advocate from the State roll of advocates. (4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall, during the period of suspension, be debarred from practising in any court or before any authority or person in India. (5) Where any notice is issued to the Advocate-General under sub-section (2), the Advocate-General may appear before the DC of the SBC either in person or through any advocate appearing on his behalf. 9. What are the grounds for disqualification from rolls for an advocate? Section 24 A of Advocate Act of 1961 (ins by Act 60 of 1973, sec 19). Disqualification for enrolment (1) No person shall be admitted as an advocate on a State rolla. if he is convicted of an offence involving moral turpitude. b. If he is convicted of an offence under the provisions of the Untouchability (Offences) Act, 1955. c. If he is dismissed or removed from employment or office under the State or any charge involving moral wickedness. (2) Nothing contained in sub-section (1) shall apply to a person who having been found guilty is dealt with under the provision of the Probation of Offenders Act, 1958 (20 of 1958) 10. Can an appeal be filed against the decision of the disciplinary committee? If yes, where? Section 37 of Advocate Act of 1961 deals with the subject matter related to the appeal against the decision of the disciplinary committee: Any person aggrieved by an order of the disciplinary committee of a State Bar Council made [(Note:Subs. by Act 21 of 1964, sec.18, for the words "under sub-section (3) of section 35".) under Section 35] [(Note:- Ins. by Act 60 of 1973, sec.27) or the Advocate General of the State] may, within sixty days of the date of the communication of the order to him, prefer and appeal to the Bar Council of India. (2) Every such appeal shall be heard by the disciplinary committee of the Bar Council of India which may pass such order [(Note:- Ins. by Act 60 of 1973, sec.27) including an order varying the punishment awarded by the disciplinary committee of the State Bar Council] thereon as it deems fit. 3|Page

11. How should be the relationship be between the bench and the bar? The Bar and Bench play an 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 thereby assist the court in arriving at a correct judgment. The legal profession has been created not for private gain but for public good. It is a branch of the administration of justice. it is a partner with the judiciary in the administration of justice. 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 required to conduct himself with dignity and self-respect. He should not influence the decision of the court by any illegal or improper means. Besides, he is prohibited the private communication with the judge relating to a pending case. He should use his best efforts to restrain and prevent his client from restoring to unfair practices in relation to the court. An advocate should not consider himself mere mouthpiece of the client and should exercise his own judgment in the use of restrained language during arguments in the court. Besides, the court acts on the statements of the advocates and therefore the advocates are under obligation to be absolutely fair to the court. They are required to make accurate statements of facts and should not twist them. An advocate is under duty not to misguide the court. An advocate should not be servile and in case there is proper ground for complaint against a judicial officer, it is not only his right but also duty to submit his grievances to the proper authorities. He should always bear in mind that he is an officer of the court and part of the administration of justice. If the courts or judges are not respected, the whole administration of justice, of which he is a part, will result in the complete death of the rule of law. On account of such importance of the judges in the maintenance of the orderly society, it is the duty of the lawyers to play constructive role in the administrative of justice. They must be respectful to the judges but at the same time, in case of proper ground for complaint against a judge, they should submit the complaint to the proper authority in proper manner. 12. What is meant by contempt of court?/Types of contempt/punishment. Contempt of court means disobedience shown to the court by acting in opposition or disregarding the authority, justice, dignity thereof. Contempt is an act or omission whereby the order or directions of the court are wilfully disobeyed thereby interfering or obstructing the administration of justice. The contempt jurisdiction has been given to the court to uphold and protect the law and justice. Any kind of contempt of the court is punished to preserve the authority, dignity, solemnity, and efficacy of the court of justice. Contempt of court is a sense of insult to the court to low down the respect of the court in eyes of the public thereby creating dis-trust and general dissatisfaction in the minds of the people. Section-2(a) of the Contempt of Court Act, 1971, states that contempt of court means civil contempt or criminal contempt. CIVIL CONTEMPT- Section -2(b) states that civil contempt means any voluntary, wilful, disobedience to any order, decree, direction, judgment, writ, or any other process of court or any kind of wilful breach of an undertaking given to the court. CRIMINAL CONTEMPT- Section-2(c) states that criminal contempt means the publication either through verbal words or written or by signs or gestures or through visible representation or otherwise of any matter or doing some other action that scandalizes, prejudices, interferes, or tends to interfere with or obstruct or stop administering justice in any other manner.

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PUNISHMENT FOR CONTEMPT OF COURT: Section 12 of the Contempt of Court Act, 1971 provides that contempt of court shall be punished with simple imprisonment extending up to 6 months, or with a fine extending up to two thousand rupees or with both.

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DEFENCES AVAILABLE TO THE CONTEMNER: For constituting civil contempt, the disobedience of the judgment, order of the court, or breach of an undertaking given to the court must be wilful. Thus, a person knowing the order of the court and its consequences and implications ignores or violates it is guilty of contempt of court. A person can prove that he had no knowledge of the order of the court and thereby defend himself in contempt proceedings. In cases where the order of the court that is violated or the undertaking given by the court is violated and it is proved that such order passed or undertaking given is without jurisdiction then such this disobedience of violation does not amount to contempt of court. When the order passed by the court is incomplete, ambiguous, vague, not specific then the contemnor can plea that its violation or disobedience does not amount to contempt as the order itself is not clear or complete. In the case where the order passed by the court involves more than one reasonable interpretation and the respondent follows any one of them then he cannot be said to have committed contempt of court. In the case where complying or following the order of the court was impossible and thus the disobedience of the order of the court does not amount to contempt of court. If the contemnor has no knowledge of the order of the court or continues to work against the direction of the order of the court before receiving the order is not liable for contempt of court.

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CONTEMPT OF COURT BY LAWYERS: The uncourteous conduct or misconduct of a lawyer such as using insulting words against the judge, imposing scandalous allegations on the judge, hiding or suppressing the facts and evidence for obtaining favourable judgment, hurling a shoe at the judge, alleging judge to be partial, biased, unfair amounts to contempt of court. A lawyer who advises his clients to disobey the judgment or the order of the court is guilty of contempt of court. Further, when a lawyer refuses or ignores to answer the question asked to him by the court, he is liable for contempt of court. The lawyer in his pleadings or arguments cannot use language which is intemperate or unparliamentarily, which undermines the dignity of the court. A lawyer who is disrespectful to the judge, questions his authority, shouts or yells at him, loses his temper in the court, threatens the judge with impeachment or transfer, uses insulting or abusive language, dictates the judge to pass a favourable judgment, or does any act that interferes or obstructs the administration of justice amounts to contempt of court. In re Nandlal Balwani case, 1999, the advocate chanted slogans in court and even hurled his shoe towards the court. This was taken as gross criminal contempt of court and was punished for the same. The advocate’s apology was rejected by the court by saying that it was not genuine or bonafide and was made only to escape punishment. A lawyer imposing unfounded and false allegations of corruption on the judge, accusing the judge to be unfair as a ground of appeal to the appellate court, convincing the client to make a false affidavit, false documents, give false testimony amounts to contempt of court. Moreover, a lawyer withholding the funds of the client and not giving back even after repeated requests by the client, or acting as a lawyer without having necessary qualification also amounts to contempt of court. 13. What are the conditions to be fulfilled to be enrolled as an advocate on record in the Supreme Court? Section 20 of Advocate Act 1961. (Note:- Subs. by Act 60 of 1973, sec.15) Special provision for enrolment of certain Supreme Courts Advocates (1) Notwithstanding anything contained in this Chapter, every advocate who is entitled a of right to practice in the Supreme Court immediately before the appointed day and whose name is not entered in any State roll may, within the prescribed time, express his intention in the prescribed form to the Bar Council of India for the entry of his name in the roll of a State Bar Council and on receipt thereof the Bar Council of India shall 5|Page

direct that the name of such advocate shall, without payment of any fee, be entered in the roll of that State Bar Council, and the State Bar Council concerned shall comply with such direction. (2) Any entry in the State roll made in compliance with the direction of BCI under sub-sec (1) shall be made in the order of seniority determined in accordance with the provisions of sub-sec (3) of sec 17. (3) Where an advocate referred to in sub-section (1) omits or fails to express his intention within the prescribed time, his name shall b...