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The procedure for filing a complaint against a law...

The procedure for filing a complaint against a lawyerLawyers are the medium through whichhis client connects with thejudiciary. However, as the demand for the legal industry has increased, it is also noticed that mishaps in thisindustry have increased. Some lawyers tend to use this situation to extract a heftyamount of money from theirclients without providing proper services. To combat this situation, a person can file a legal complaint against the lawyer if he/she is not satisfied with the service provided by the legal person. Following are the steps to file a complaint against a lawyerStep 1: A complaint against an advocate needs to be filed through the mode of a petition. It is to be duly signed and verified as needed under the Code of Civil Procedure. A complaint is often filed either in English or Hindi or, in any regional language where the language has been declared to be a state language. In those cases where the complaint is in Hindi or another regional language, the State Bar Council shall translate the complaint into English whenever a disciplinary matter is shipped to the Bar Council of India as per the Advocates Act. Every complaint shall be attachedwith the fees prescribed bythe Bar Council of India Rules.Step 2: The Secretary of the Bar Council may require the complainant to pay the prescribed fees if the right fee has not been paid. He/she can alsocall the complainant to cater to any defects and attach the particulars or copies of the complaint or other documents whichneeds to be further submitted. On a complaint being found, it shall be registered and placed before the Bar Council for such order which may deem fit to be passed. Step 3:The complaintcan be dropped solely due to it having being withdrawn, settled, or because the complainant doesn't want to proceed with the inquiry. Before referring a complaint about the misconduct of an advocate to its disciplinary committee, the Bar Council may require the complainant to further furnish any requiredparticulars within a time fixed by the Council. Step 4: Once the Bar Council has referred the complaint to a Disciplinary Committee, the Registrar should expeditiously send a notice to the advocate. The notice will ask the concerned advocate to point out cause within a specified dateon the complaint made against him and to submit the statement of defence, documents, and affidavits in support of the defence. It will also further inform him that just in case of his non-appearance on the fixed date of hearing, the matter shall be heard and determined in his absence. An appearance usually includes the presence of an advocate or through a duly authorized representative.Step 5: The Chairman of the Disciplinary Committee will fix the date, hour, and place of the inquiry. This date won't ordinarily be later than thirty days from the receipt of the reference. The Registrar is responsible for giving notice of the date, hour, and place to the complainant or other person aggrieved, the advocate concerned,the Attorney General or the extra lawman of India or the Advocate General, in simple language, to whom so ever, the case is concerned. Step 6: The notices shall, subject to necessary modification, be in Form Nos. E-1 and E-2. It shall be sent to the advocates appearing for the parties. Notice to a celebration not appearing by the advocate shall be sent to the address as furnished within the complaint or the grounds of appeal. The value of the notices shall be borne by the complainant unless the Disciplinary Committee otherwise directs. The notices could also be sent ordinarily through messenger or by registered mail and served on the advocate or the party concerned or his agent or another person as provided in the Civil Procedure Code. Step 7: Parties can appear face to face or through an advocate who should file a vakalatnama giving the name of the Bar Council, his residential address, phone number if any, and his address for service of notices.The Bar Council or its Disciplinary Committee may at any stage of the proceeding appoint an advocate whose role will be amicus curie, i.e. a friend of the court. Such an advocate could also be paid such a fee depending upon the decision of the Council or the Committee. Proviso: If in an inquiry on a complaint received, either the complainant or the respondent does not appear before the Disciplinary Committee despite service of notice, the Committee may proceed ex-parte or direct fresh notice to be served.Any such order for proceeding ex-parte could also be put aside on sufficient cause being shown, when an application is formed supported by an affidavit, within 60 days of the passing of the ex-parte order. The provisions of Section 5 of the Limitation Act, 1963 shall apply to the present sub-rule.Proceedings and Exhibits- The Disciplinary Committee shall hear the Attorney General or the extra lawman of India or the Advocate General because the case could also be or their advocate and parties or their advocates.The matters can be heard and determined based ondocuments and affidavits. Cross-examination is not permitted unless the committee believes that it is in the interest of justice to permit cross-examination of the partiesor to take oral evidence, in which case the procedure for the trial of civil suits shall as far as possible be followed. On every document admitted, the subsequent endorsement shall be made which shall be signed by the Chairman or any member of the Committee:The exhibits shall be marked as follows: –·        Those of the complainant as C1, C2, and so on.·        Those of Respondent as R1, R2, and so on.·        Those of Disciplinary Committee as D1, D2, and so on.·        The Disciplinary Committee may, at any direct the parties or their advocates to furnish such further and better particulars, because it considers necessary.Recording of Evidence- Any member of the Committee or any other person authorized by the committee shall record the evidence given before the Disciplinary Committee, preferably in English. The evidence so recorded shall be signed by the Chairman or by the other member of the committee if the Chairman isn't available.In the case where the records of evidence are in any other language than English,then the same has to be sent to the Bar Council of India or its Disciplinary Committee, then an equivalent hasto be translated into English. Such a translation thereof in English has to be made by an individual nominated by Committee or Registrar. Dropping of Enquiries on Certain Grounds- In the case of the death of the complainant during the inquiry proceedings (and if no representative is willing to conduct the case), the Disciplinary Committee may be having regard to the allegations made in the complaint and the evidence available, make a suitable order either to proceed with the inquiry or to drop it.In the case of an inquiry against one advocate only, on his death, the Disciplinary Committee shall record the fact of such death and drop the proceedings.Where the inquiry is against more than one advocate, on the death of 1 of them, the Disciplinary Committee may continue the inquiry against the other advocate unless it decides otherwise. Step 8: All proceedings before a Disciplinary Committee of the Bar Council shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code. The Disciplinary Committee of the State Bar Council, after giving the advocate concerned and therefore the Advocate-General a chance of being heard, may make any of the subsequent orders, namely:·        dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;·        reprimand the advocate;·        suspend the advocate from practicefor such period as it may deem fit;·        remove the name of the advocate from the State roll of advocatesAppealAppeal to the Bar Council of India- a person aggrieved by order of the Disciplinary Committee of a State Bar Council made under section 35, or the Advocate-General of the State may, within sixty days of the date of the communication of the order, prefer an appeal to the Bar Council of India. The Disciplinary Committee shall hear every such appeal of the Bar Council of India which may pass such order including an order varying the punishment awarded by the Disciplinary Committee of the State Bar Council thereon as it deems fit. However, as long as no order of the Disciplinary Committee of the State Bar Council shall be varied by the Disciplinary Committee of the Bar Council of India to prejudicially affect the person aggrieved without giving him reasonable opportunity of being heard.An appeal to the Council from the State Bar Council shall be in the form of a memorandum in writing. If the appeal is in other languages apart from English, it shall be translated into English. In every appeal, all persons who were parties to the first proceedings alone shall be impleaded as parties. In an appeal by the advocate against an order for misconduct, in case of death of the complainant, the legal representatives of the complainant shall be made parties. The appeal has to be presented on or before the last day of limitation. Any appeal could also be admitted after the amount of limitation if the appellant satisfies the Disciplinary Committee that he has sufficient cause for not preferring the appeal within such a period. An affidavit shall support any such application for condonation of delay.The memorandum of appeal shall contain necessary particulars as in Form G. The memorandum of appeal shall state when the order was communicated to the appellant with the time mentioned. Along with the memorandum of appeal, the appellant shall file:·        The certified copy of the order appealed against, signed by the Registrar of the Disciplinary Committee, or·        If there is only one respondent, five additional copies of the memorandum of appeal and the order appealed against.·        If there is more than one Respondent, such number of additional copies as may be necessary. All copies shall be certified as true copies by the appellant or by his counsel. Every memorandum of appeal shall be amid the prescribed fees in cash. If the papers filed in an appeal aren't sufficient, the Registrar shall require the appellant to get rid of such defects within a specified time.Exhibits and Records in Appeal- The appellant shall be required to file six typed sets of the papers properly paged and indexed if there's just one respondent. In the case of multiple respondents, as many sets as there may respondents, for the use of the Disciplinary Committee and by the other parties and for the record.The papers to be filed are: –·        The complaint and the statement in defence of the advocate.·        The oral and documentary evidence and such other papers on which parties shall rely.·        Any other part of the record as may be directed by the Committee.Where any of the above papers are in a language other than English, English translations thereof will be filed. The respondent shall, if he so desires, or if so-called upon, file six sets of typed papers of any a part of the record on which he intends to rely. He shall also file English translations of papers that aren't in English.Appeal to the Supreme Court- Any person aggrieved by an order made by the Disciplinary Committee of the Bar Council of India under section 36 or section 37 or the Attorney-General of India or the Advocate-General of the State concerned, because the case could also be, may within sixty days of the date on which the order is communicated to him, prefer an appeal to the Supreme Court and thus the Supreme Court may pass such order including an order varying the punishment awarded by the Disciplinary Committee of the Bar Council of India thereon as it deems fit. Provided that no order of the Disciplinary Committee of the Bar Council of India shall be varied by the Supreme Court to prejudicially affect the person aggrieved without giving him a reasonable opportunity of being heard.Conclusion We live in a country where most of us are dependent upon the judicial power of the court as most of us trust the legal system of our country. The constitution of India underArticle 21 grants every citizen of India the “Right to Speedy Justice”, and if this is delayed or hindered due to any reason, then it is a clear violation of the fundamental right of an individual. These scenario arises when lawyers instead of providing justice to the clients shift their focus in extracting money from their clients which in turn leads to a difficultsituation in India, as people here rely upon the judicial system for any trouble faced due to legalities of the country. Therefore, it becomes of utmost importancethat an individual chooses a lawyer very carefully as this whole process is financially as well as emotionally draining. The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters .Author :Kishan Dutt KalaskarAdvocate (Retired Judge)No.74, 1st Floor, 6th Cross,Malleswaram,Bengaluru-560003

Posted By

Kishan Dutt Kalaskar Retired Judge

1 day ago

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LAW AND MORALS.! (MILLS, HART-DEVLIN DEBATE)

LAW AND MORALS(MILLS, HART-DEVLIN DEBATE) INTRODUCTION:v Morality can be defined as a set of rules or principles that guide the process of making decisions and behavior in society. It also includes principles that define what is acceptable and unacceptable in society. On the other hand, law refers to principles that augment and maintain the morality code in society.v The issue of law and morality is a complex matter that has been widely discussed in various fields including religion, law, and psychology. Many debates have discussed the relationship between morality and law. For instance, the Hart and Devlin debate tried to determine this relationship. Each of the two took a different side in an effort to establish the role that should be played by law with regard to morality. However, their views and suggestions contradicted each other and did present an agreement.v The two represent two schools of thought regarding the matter. The Wolfenden Committee investigated the critical issue of allowing homosexuality and prostitution in society. The report of the committee stated that it is not the responsibility of law to solve immorality. The Hart-Devlin debate was an attempt to contribute to the findings of the Wolfenden committee.v The debate was between Professor Hart and Patrick Devlin. The argument was that homosexuality should be made legal because of the freedom of choice and the privacy of morality. The recommendations of the committee emanated from the principles of utilitarianism. The law is not supposed to interfere with the lives of people as a way of influencing behavior.HART-DEVLIN DEBATE:v Devlin's philosophy of legal moralism takes an idealist's approach to role of law in society. Devlin's philosophy of law argued that the collective judgment of a society should guide enforcement of laws against both private and public behavior that was deemed immoral. According to Devlin, when a behavior reached the limits of "intolerance, indignation and disgust," legislation against it was necessary. v Hart's philosophy of legal positivism is a pragmatist's approach to the role of law in society. Hart's philosophy of law held that laws should not be based only on popular moral consensus, in the absence of other harms. This is consistent with Hart's argument that one role of law was to protect individual liberty.  v Devlin argued that it is important to establish laws that control morality because law not only protects individuals but also the society. To Devlin, morality is a requisite for maintenance of good laws that preserve the freedom of conscience, and reduce the probability of tyranny. In addition, he argued that any behavior is capable of causing harm if not regulated by law.v He was of the view that law should be superior to morality and thus control behavior. On the contrary, Hart argued that law should not adhere to the principles of populism.v According to Devlin, the majority is not always right. Their ideas and principles are always covered with superstition and prejudice that do not guarantee them to be referred to as guiding principles. To support his argument, Hart referred to John Stuart Mill’s harm principle.v Hart disagreed with Devlin’s argument that morality should be guided and determined by law. Hart supported the committee’s recommendation of legalizing homosexuality and prostitution based on the teachings of Mill. Hart argued that enforcing a moral code was unnecessary, undesirable, and morally wrong (Ward 26). He argued that doing so would interfere with individual liberty and curtail the development of moral principles. THE THEORY OF UTILITARIANISM·     Devlin’s arguments could be validated by the theory of utilitarianism. According to utilitarianism, an action is either right or wrong based on its outcome.·     The theory goes beyond the needs of one person to the needs of others. John Stuart Mill made critical contributions to this theory. According to Mill, utilitarianism emphasizes the happiness of the majority rather than that of an individual as a basis for determining right and wrong.·     This theory can be used to support Devlin’s arguments and determine whether they were sensible. Devlin stated that law should decriminalize conduct only in cases where certain acts or behaviors caused intolerance and disgust among people.·     According to Mill, an act is right if it gives happiness to the majority. If society becomes disgusted because of an act or behavior, then the act is an obstacle to happiness. According to utilitarianism, such an act is wrong.·     Bentham’s principle of utility explores the role of pain and pleasure in the lives of people. An important aspect of the principle is its criteria of measuring pleasure and pain. The principle considers the purity of an action as a basis for determining whether it is wrong or right. According to the Bentham, pleasure should not be followed by pain. The principle can be used to support Devlin’s arguments.·     Immorality offers momentary pleasure. However, it is followed by pain that lasts for a long time. It hurts individuals and society. According to utilitarianism, the interests of the majority are more important than the interests of the minority. Therefore, if an act or behavior vexes the majority, then it should be criminalized. Differences emerged between Devlin and Hart because of the difficulty experienced in determining the scope of law with regard to morality.·     In his arguments, Devlin asked a question that sought to know the type of conduct that should be criminalized. He offered an answer by introducing the aspect of harm. If certain conduct causes harm, it should be criminalized.·     Hart ignored the social aspect of human beings. As social beings, humans rely on their communities, social groups, and families for support. These families, communities, and social groups form what is referred to as society. Therefore, society is an important aspect of human life. If individuality is important to people, so is society.·     Law should protect and promote the development of individuality as well as the advancement of society. Hart viewed law as an obstacle to the progress of individuality. However, it serves both individuals and society. Devlin was aware of the critical role played by law in advancing individuality. He argued that legislature should consider certain core principles when enacting laws. For example, it should enact laws that respect individual freedom and individual privacy.·     He argued that law should only act when the integrity of society is severely violated. According to Devlin, this allowed for toleration of maximum individual freedom as long as it fostered and respected the integrity of society. He was right because certain conduct even though immoral, does not violate the integrity of society. Law should be applied selectively and legislature should consider the aforementioned principles before implementing laws that affect morality.·     Hart further used Mill’s harm principle to support his arguments. According to the harm principle, limits should be placed on an individual’s actions only if they harm people. Hart used this principle selectively by failing to evaluate the harm that immorality causes. As mentioned earlier, immorality causes harm to both individuals and society.·     It is impossible to satisfy everyone in society. For that reason, compromise is an important factor in finding a common ground on which to operate. According to Dworkin, the Hart-Devlin debate should be overlooked. He stated that criminalization or decriminalization of behavior should be based on whether it is a basic or universal liberty. He suggested that law should not criminalize all basic liberties but only those that harm other people. It is important to reach consensus when defining harm as well as basic and universal liberties.·     The definition of immorality is relative but its relationship to law could be well defined by considering the arguments of Devlin. Devlin’ argument was the most sensible because it considered and valued individual liberty as well as the importance of society. Hart ignored the value of society in the development of individual welfare. CONCLUSION·     The Hart-Devlin debate was motivated by a report published by the Wolfenden committee that recommended the decriminalization of prostitution and homosexuality.·     The committee argued that law should not interfere with the freedom of choice and the privacy of morality. Hart’s arguments were weak because they were biased. They emphasized the importance of individual liberty and ignored the significance of creating a society that advances individual liberty.·     On the other hand, Devlin’s arguments were strong and unbiased. They included the importance of individual liberty and society. Devlin argued that it is important to control conduct in order to foster the well-being of individuals and society.·     Further, he argued that society and individual liberty are equally important to human beings. However, he urged legislature to respect individual liberty in its process of implementing laws that affect morality.·     Devlin’s arguments are augmented by the theory of utilitarianism and the principle of harm. The theory of utilitarianism states that the happiness of the majority is more important than that of the minority when defining right and wrong. Devlin’s arguments can be based on this theory. If immorality does not bring happiness to the majority in society, it should be criminalized.·     Hart’s arguments disrespected society as a vital aspect of human life. In formulating and presenting his arguments, Hart ignored the importance of advancing society through criminalization of conduct that harms other people. People are social beings. Therefore, the well-being of the society should be preserved and advanced because society is a product of people’s socialization.

Posted By

KETKI JALTARE

1 week ago

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Sanju Lata

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: Uttar Pradesh

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Advocate in Allahabad High Court and practice in civil ,criminal cases ,and matrimonial cases

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