• Environment and lawOpen or Close
    World Environment Day (WED) is a day that stimulates awareness of the environment and enhances political attention and public action. It is on 5 June. It was the day that United Nations Conference on the Human Environment began. The first World Environment Day was on 1973. World Environment Day is similar to Earth Day. Theme 2011

    Forests-Nature At Your Service-Forests cover one third of the earth’s land mass, performing vital functions and services around the world which make our planet alive with possibilities. In fact, 1.6 billion people depend on forests for their livelihoods. They play a key role in our battle against climate change, releasing oxygen into the atmosphere while storing carbon dioxide. Thousands of activities were organized worldwide, with beach clean-ups, concerts, exhibits, film festivals, community events and much more.

    I start with the maxim that nothing is more pure than the state of nature and nothing is more unpolluted than man in the state of nature. In fact man is naturally corrupt or prone to pollution and requires civil institutions to make him pure both in terms of his ego and his ecology. Hunger and self preservation, the first concern of the primitive man, became, in the sophisticated venture in life, a lust for power, property and dominance. Self preservation curt across its bounds into self aggrandizement. The equilibrium of nature is determined by the complex processes of man employed for making a living and enjoying life, water, land and air as well as the flora and fauna, used for leading a life but the tragedy is that same are being abused to the end of living a thriftless life. The environment as it exists today is the example of the human activities with the nature and human being cannot elope or remain aloof after causing damage to the environment. Environmental degradation and pollution in various forms is affecting human life in the present time and therefore environmental protection and its preservation is a matter of concern for all nations around the world.

    To deal with the problem of industrialization and over exploitations of natural resources, nations all over the world came together at the United Nation’s “Conference on Human Environment” held a Stockholm in the year 1972 from 5th June to 16th June and to deal with the problems of environmental protection and concept of sustainable development was evolved. Sustainable development means development and meeting in needs of the present without compromising the ability of future generation to meet their own needs. The declaration of Stockholm is called Magnacarta of environment protection and its development and the first principle of the said Magnacarta speaks as follows:
    (A) Man has the fundamental right to freedom of equality and adequate condition of life in an environment of quality that Permits a life of dignity and wellbeing and (B) Man bears a solemn responsibility to protect and improve the environment for the present and future generations.

    There are various other principles in the declaration. Prior to Stockholm declaration of 1972, there were certain environmental laws in force in India namely, Indian Forest Act, Section 268 and 290 I.P.C. against public nuisance relating to environment, section 133 of the Code of Criminal Procedure. In Constitution of India also it is the duty of state to protect and improve environment and to safeguard forest and wildlife of the country. It also imposes of a duty on every citizen to protect and improve natural environment including forest, lakes, rivers and wildlife. Reference to environment has been made in the directive principles of state policy as well as in the fundamental right. Moreover, after the Magnacarta of environment, the Govt. of India enacted water (Prevention and Control of Pollution) Act 1974, the AIR (Prevention and Control of Pollution) Act, 1981, Environment (Protection) Act 1986 and the Forest (Conservation) Act, 1980. The department of environment was established in India in 1980 to ensure and handling environment for the country. This later becomes the Ministry of Environment and Forest in 1985. Environment Protection Act, 1986 came into force soon after the Bhopal Gas Tragedy and is considered as an Umbrella Legislation as it fills many gaps in the existing law. Presently environmental consciousness is growing as now people feels that environmental quality and economic growth are complementary. A policy framework has also been developed to complement the legislative provisions. The policy statement for abatement of pollution and national conservation strategy and policy statement on environment and development was brought by the MOEF in 1992, to develop and promote initiatives for protection and improvement of the environment. The Environment Action Program (EAP) was formulated in 1993 with the object of improving environmental services and integrity environmental considerations in to development programms. Other measures have also been taken by the Government to protect and preserve the environment. The judiciary is also very active in protection of the environment and it is giving full support in this regard. Environmental Laws are doing little to implement actual changes in the way a society conducts its activities. Rising pollution and increasing level of deforestation continues to play havoc with the environment. Water pollution becomes a serious problem mostly due to presence of untreated effluents, chemicals, pesticides etc in it. High level of pesticides in ground water poses great risk to the proper functioning of the nervous system and liver.

    Since the enforcing agencies are not taking proper steps to implement the laws, the Apex Court in the Indian Council for Enviro Legal Actions vs. Union of India, (1996)5 SCC 281 felt the necessity to pass orders or directions to the Implementing Agencies to implement the laws for protection of fundamental rights of people. It was held that tolerating of infringement of Environmental Laws is worse than not enacting the law at all as it adversely affects not only the existing quality of life but it will have to be born by the future generation. In the case of Vellore Citizens Welfare Forum vs. Union of India, (1996)5 SCC 647 the Supreme Court enunciated precautional principles and polluters pay principles as essential features for sustainable development. In various cases of M.C. Mehta vs. Union of India, (1996)4SCC 750, (2002)4 SCC 456, (1992)3 SCC 256, (1997)2 SCC 411, The Apex Court directed shifting, relocation of various industries from Delhi, approved the need for public transport system to run on CNG, directed relocation of stone crushing activities around Delhi and shifting relocating of Tanneries of Kolkata causing pollution. Even the Apex Court provided for taking penal action against the polluters under section 15 of the Environment (Protection) Act, 1986 and similar provisions of other Acts. Court also feels that procedure for filing complaints should be simplified and every person should be allowed to file complaint without giving notices to the Board as required. In Vinit Kumar Mathur vs. Union of India, (1996)7 SCC 714 the Apex Court directed Mohan Meakins Ltd for removal of deficiency in the affluent treatment plant to prevent pollution of river Gomti and imposed a fine of Rs. 5 Lakhs. In Indian Council of Enviro Legal Actions vs. Union of India, (1996)3 SCC 212 the Apex Court directed closure of Industries in Bichhari village in Udaipur discharging highly toxic affluent leading to water Pollution compelled the authorities to perform their statutory duties. In the case of India Council for Enviro Legal Actions vs. Union of India, (2007)15 SCC 633 the Apex Court directed to grant compensation for the loss suffered by the farmers due to pollution of subsoil, surface water for the purpose of maintaining ecological balance, conservation of water body resources, the Apex Court in the case of Susetha vs. State of TN, (2006)6 SCC 543 directed the States to maintain tanks for preservation of rain water and to construct other tanks so that there is no shortage of water.

    In State of MP –Vs- Kedia Leather & Liquor Ltd. (2003)7 SCC 389 it was held Environmental, ecological, air and water pollution amount to violation of right to life assured by Article 21 of the Constitution. Hygienic environment is an integral faced of healthy life. Right to live with human dignity becomes illusory in absence of humane and healthy environment which can be enforced U/S 133 Cr.P.C. Power under Section 133 Cr.P.C. are in the nature of preventive measures whereas powers under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 are not only curative but also preventive and penal.

    In Municipal Council Ratlam –Vs- Vardichand (1980)4 SCC 162 it was held that under Section 133 Cr.P.C. Magistrate can compel municipality to make drains and improve sewerage affecting the health and convenience of the residents. It permits enforcement of civic rights under the Municipal law where neglect has led to a public nuisance. It permits affirmative action to abet the nuisance on a time bound basis by issuing specific directives. Remedy public nuisance also lies under tort law apart from section 133 Cr.P.C.

    In Basant Manga, Nikumba –Vs- Babu Rao Bhikana Naidu (1995) Suppl. 4 SCC 54 it was held that nuisance is an inconvenience which materially interferes with the ordinary physical comfort of human existence which may be public or private. Under Section 268 IPC public nuisance is an offence against public either by doing a thing which tends to the annoyance of the whole committee in general or by neglect do anything which the common good requires. It is an act or omission which possess any common injury, danger or annoyance to the public who may have occasion to use public right.

    Recently due to serious violation of Environment (Protection) Act, Forest Conservation Act, Forest Rights Act, the Central Government finally pronounced its verdict against Vedanta Alumina’s $1.7 billon plan to mine Bauxite in Niyamgiri hills of Orissa after accepting the recommendation of the Forest Advisory Committee withdrawing the forest clearance granted in 2008.

    The Nation Green Tribunal has been established under the National Green Tribunal Act, 2010 for affective and efficacious disposal of cases relating to Environmental Protection, conservation of Forest and other natural resources etc. The Tribunal shall not be bound by its procedure laid down in Civil Procedure Code but shall be guided by the principle of Natural Justice. Although the stay was imposed by the Madras High Court on rules of appointment of its members but the Apex Court stayed the same and directed the MoEF to keep all Rules and Regulations ready and inform the court about its status so that the body may start functioning. With NGT coming into existence the National Environment Appellant Authority which was also not functioning for non appointment of members will cease to exist.

    India has also made commendable advances in the use of Remote Sensing for natural resource management. Remote Sensing is playing an important role in providing Physical Environmental Perimeters such as Land and Climate, Vegetation, Soils , Water, terrain and slope, land use, air and pollution etc. Remote sensing provide reliable information and bench mark survey mechanism in the context of making:

    1. Laws and regulation more effective
    2. Judicial and Administrative procedure
    3. Providing legal and support services
    4. Developing effective National Programs for reviewing and enforcing compliance, State and local laws on environment and development

    Remote Sensing is used for Forest Encroachment, mapping of postal regulation zones, environmental impact assessment, vegetation change detection studies and hand use planning studies.

    Global warming is warming of earth’s surface based upon worldwide temp. records maintained since 1880’s. It is the combined result of human caused emission of greenhouse gases and changes in solar irradiance.

    Govt. of India framed the Municipal Solid Wastes (Management and Handling) Rules 2000 which is applicable to all urban local bodies-
    1. Every municipality is responsible to provide facilities for collection, storage, segregation, transportation, processing and disposal of solid wastes. They are also required to obtain Authorisation of the Board for operating these facilities.
    2. The Department of Urban Development in the State has overall responsibility for enforcement of these rules in metropolitan cities. The District Magistrates or the Deputy Commissioners have the overall responsibility to enforce the rules in their jurisdiction.
    3. On the urban local bodies and operators applying for Authorisation for handling/processing/disposing solid wastes, the Board is to issue/refuse Authorisation. The Board is to monitor compliance with the conditions of the Authorisation and to take appropriate follow up action.

    Municipal solid waste (MSW), commonly known as trash or garbage, is a waste type consisting of everyday items we consume and discard. They are in either solid or semisolid form.

    As per Rule 7 of the Rules any municipal solid waste generated in a city or a town shall be managed and handled in accordance with the compliance criteria and procedure laid down in Schedule –II which prescribes as to how the solid waste in the municipal area are to be collected. Different procedures are prescribe which includes house to house collection of municipal solid waste etc. and shall be transferred to community bin by hand driven containerized carts or other small vehicles etc. That segregation municipal solid wastes is to be made and municipality shall organize awareness programmes for segregation of wastes and shall promote recycling or re-use of this segregated materials. Further municipal authorities are to establish and maintain storage facilities in such a manner as they do not create unhygienic and insanitary conditions around it. These wastes are to be transported in vehicles which should be covered vehicle and waste should not be visible to public nor exposed to open environment preventing their scattering. Further municipal authorities are to adopt suitable technology or combinations of such technologies to make use of waste so as to minimize the burden or landfill. Biodegradable waste are to be processed by composting, vermicomposting, an-aerobic digestion or any other appropriate biological processing for stabilisation of wastes. As to waste containing recoverable resources shall follow the route of recycling. Land filling shall be restricted to non-bio-degradable, inert waste and other wastes that are not suitable either for recycling or for biological processing. Schedule-III of the Rule prescribes for specification for landfill sites. Schedule-IV prescribes standard for composting, treated leachates and incineration. In fact municipal solid waste can be used to generate energy and several technology have been developed that makes the processing of municipal solid waste into energy generation cleaner and more economical than any other process. Presently Delhi generates approximately 7000 metric tones of municipal solid waste everyday, which is likely to increase to 18000 metric tones per day by 2021.

    With a view to control the indiscriminate disposal of hospital waste / biomedical waste, the Ministry of Environment of Forests, Government of India has issued a Notification on Bio-Medical Waste management under Environment Protection Act whereby Bio-Medical Waste (Management and Handling) Rules 1998 was framed.

    These Rules applies to hospitals, Nursing Homes, Veterinary Hospitals, Animal Houses, Pathological labs & blood banks, generating hospital wastes (except such occupier of clinics dispensaries, pathological labs, blood banks providing treatment/service to less than 1000 (one thousand) patients per month. It shall be the duty of the every occupier of an institution generating bio-medical waste which includes a hospital, nursing home, clinic, dispensary, veterinary institution animal house, pathological laboratory, blood bank by whatever name called to take all steps to ensure-that such waste is handled without any adverse effect to the human health and the environment.

    Every occupier generating the bio-medical waste need to install an appropriate facility in the premises or set up a common facility to ensure requisite treatment of waste by 30.06.2000 in accordance with Schedule-I and in compliance with standards prescribed with Schedule-V.

    The bio-medical waste need to be segregated into container/bags at the point of generation in accordance with Schedule-II, prior to its storage, transportation, treatment and disposal. The container shall be labeled according to Schedule-III.

    Mandatory/Legal Requirement: Every occupier of an institution, generation, collecting, receiving, storing, transporting, treating, disposing and/or handling bio-medical waste in any other manner, shall make an application in Form-I for grant of authorization alongwith necessary fee.

    An operator of bio-medical waste facility may also engage in transportation of bio-medical waste on payment of additional fess prescribed for a transporter of bio-medical waste.

    An authorization shall be granted for a period of 3 years including an initial trial period of one year for which a provisional authorisation will be granted. All authorization shall be for a period of three years. Fee shall be payable for three years at time.

    In addition, they shall also submit an annual report in Form-II by 31st January every year to include information about the categories and quantities of bio-medical wastes handled during the preceding year and also maintain records relating to the generation, collection, reception, storage, transportation, treatment, disposal, and/or any form of handling of Bio-Medical Waste in accordance with rules and guidelines issued. The transporter, operator of a facility shall label the Bio-Medical strictly in accordance with the procedure given in Schedule-IV.

    Penalty: The defaulting hospitals/nursing homes, etc. are liable to be penalized as per the provisions of Environment (Protection) Act, 1986 and other pollution control Acts. Appeal is also provided.
  • Guardian for a major person with disabilityOpen or Close
    Besides natural guardian, guardians are appointed for a person who is a minor and has not completed 18 years of age and a guardian protects the interest of the minor and his property. Natural guardians are normally the parents of a child. It is because of the fact that a minor is considered to be unfit to take decision for himself and is not able to protect its own interest as well as his property and once minor attains majority, the appointment of guardian ceases.

    However, there are various persons who are majors completing more than 18 years of age but are unable to take care of himself or his property because of physical and mental deficiencies. Even natural guardians or the guardians appointed under the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956 ceases to be guardian after attaining 18 years to their son or daughter or any other person although he or she may be suffering from physical or mental disability. In India there are several cases where even the natural guardian faced various difficulties to look after the interest and property of their child. In a case where a widow after opening an account in her minor son's name in a bank was operating the account by way of deposits and withdrawals as and when required. But one day the back officials refused to allow the widow to withdraw amount from her son's account on the plea that her son had attained majority. Although he pleaded that her son is mentally retarded and she is looking after her son's well-being. Being the natural guardian, the bank officials did not allow her to operate the account and she was at a

    loss as she deposited her entire income into that account and was unable to withdraw the amount.
    Prior to 1999, there was no law for appointment of guardian of a person with disability after attaining majority except some provisions in Mental Health Act for mentally ill person who is in need of treatment by reason of any mental disorder but not mental retardation. Parliament for the first time enacted a law namely "The National Trust for Welfare of Persons with Autism, Cerebral Palsy. Mental Retardation and Multiple Disabilities Act, 1999", hereafter refer to as National Trust Act. Autism is a condition of uneven skill development primarily affecting communication and social abilities of person marked by repetitive and ritualistic behaviour, Cerebral Palsy is a disorder causing problems with movement and balance which happens when there is damage to that part of the brain which controls movement due to injury occurring in prenatal, perinatal or infant period of development, Mental Retardation is a condition of arrested or incomplete development of mind of a person which is specially characterized by sub normality of intelligence and multiple disabilities is a combination of two or more of the disabilities like blindness, low vision (impairment of visual functioning even after treatment or standard refractive Correction). Leprosy cured (person suffering from sensation in hands or feet or paresis in eye and eyelid with no manifest deformity, manifest deformity and paresis but having sufficient mobility in their hands and feet or extreme physical deformity as well as advanced age which prevents him from undertaking any gainful employment even after leprosy is cured or Leprosy cured is construed as such, hearing impairment (loss of sixty decibels or more in better ear in conversational range of frequencies), locomotors disability (disability of bones, joints or muscles leading to substantial restriction of movement) mental retardation and mental illness.

    The Act was enacted to Provide for constitution of a body at national level for welfare of the disabled persons. Object of trust-
    (a) to empower such person to live independently,
    (b) to strengthen facilities to provide support to live wit! its own family,
    (c) to provide need based services during cri is in family
    (d) to deal with problems who do not have family support,
    (e) to promote measure for care or protection in the event of death of parent or guardian
    (f) to evolve procedure for appointment of guardian and trustees for such persons,
    (g) to facilitate realization of equal opportunity, protection of rights and full participation of persons with disability.

    Besides this Act, the parliament earlier enacted other acts namely the Persons with Disabilities "Equal Opportunities, Protection of Rights and Full Participation Act, 1995, Rehabilitation Council of Indian Act, 1992 and Mental Health Act, 1987". However, for the first time provision has been made U / S 14 of the National Trust Act whereby a parent of a person With disability (means a person suffering from any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of two or more of such conditions and person suffering from multiple disabilities) or his relative may make an application to the local level Committee for appointment of any person of their choice to act as a guardian of the person with disability. Even any registered organization may also make such application with the consent of the guardian of the disabled person and thereafter the local level committee processes the same and on satisfaction allow such application after following the guidelines prepared by the Board of Trustee.

    Duties of such guardian are provided in Section 15 and 16 of the Act and such guardian is to furnish inventory of immovable properties of the person and all assets and other movable properties together with a statement of all claims due to and 11 debts and liabilities due to such person. Such guardian can be removed if it is found that he is abusing or neglecting a person with disability or miappropriating or neglecting the property. Application for guardianship for personal care and maintenance shall be accepted to cover following areas-

    (l) Food, clothing and shelter needs
    (2) Health care needs,
    (3) Religious needs,
    (4) Education training and Employment needs,
    (5) Leisure and nutrition needs,
    (6) Protection from exploitation and abuse
    (7) Protection of constitutional and human rights and
    (8) Medical and Surgical needs.
    So, it appears that after the enactment of National Trust Act, 1999, parents of their children with various disabilities, as mentioned in the act, are empowered to represent them even after they attain the age of 18 years old even get some other person of their choice to be appointed as a guardian in case such parent feel that he or she may not survive to look after the child for a longer period and in that case he or she can even die peacefully without having any anxiety of the disabled child. Such guardians can operate bank accounts or any other account in any bank, post office etc. and can subscribe to company shares, bonds, securities etc. and may enter into any property dealing i.e. purchase and sale of immovable property, file income tax returns and pay taxes etc. for and on behalf of the disabled person.
    Under Regulation 11 of the Board of the Trust Regulations, the following persons can apply for guardianship i.e.

    (1) Parents
    (2) Siblings
    (3) Relatives and
    (4) NGO's and separate persons can be appointed s guardians of such person for separate properties belonging to such person.
    No guardian is entitled t any remuneration except administrative expenses.
  • Importance of soft skills for lawyersOpen or Close
    Soft skills are not only important for lawyers but also for other persons. As soft skills are those skills that influence how we interact with people. Normally lawyers in their practical field or in the school and colleges prior to their enrolment learnt technical skills or hard skills which is a category of skills relating to knowledge of law and legal practice, legal analysis, legal research, legal drafting, commercial knowledge, etc. However, soft skills is the most basic skill which includes affective communication, leadership, team building, listening skills / public speaking, time management, project management, marketing, etc.

    In law firms in the metro cities and others they have in-house training programmes for teaching soft skills to their members as well as partners. However, the lawyers who are doing practice generally in the Courts individually or in groups are not getting the benefit of the training of soft skills. Some lawyers feel that they don’t require any training of soft skills since they have become technically proficient in their area of expertise as they can master in soft skills in their day to day works. However, the importance of the soft skills cannot be denied in as much as lawyers generally experience difficulties and setback in their career if they are not trained in soft skills and it will be difficult for a lawyer to become a leader or a communicator unless he is not born as such. Proper communication with a potential client or taking instructions from such clients is also an art and a skill for which a lawyer needs training.

    After all everybody sales and even a lawyer cannot deny that he is not selling his expertise. For the purpose of his profession it is necessary to retain his existing potential clients and to develop business by as mining new clients to be a successful professional and for this reason, it is very much necessary to learn soft skills in as much as one must know how to build a special rapport and trust with the potential clients in as much as only knowledge in technical side or having good experience will not help. Many lawyers fail to manage the clients properly due to lack of communication skill and even they have failed to deliver good quality advice in connection with any case due to bad project management, as such it is very much necessary that lawyer must manage and organize the project affectively from the very beginning and he must know how to manage the time also.

    Not only in firms but otherwise soft skills help Senior Lawyers who keeps many juniors in their panel and for that reason also it is necessary to know not only the technical skill but as well as soft skills in as much as the leader must know how to manage his other associates, how to inspire them, how to allot works to them and how to get works done from them and how to develop the junior lawyers soft skills namely, the responsibility for doing the works, managing clients relationship etc. Now-a-days client has also become knowledgeable and clever and even they do not offer their works to the most skilled lawyers who can undertake the job rather they offer the job to someone else who appeared to possess some intelligible qualities, which the skilled lawyers do not possess. Communication skill is one of the most important skills which includes non-verbal communication, verbal communication and business etiquette respectively.

    The image of a lawyer also depends partly on his communication skill, behaviour and it is very much necessary to know soft skills as lawyers are tough individuals known for their being technical, exacting and ruthless. A lawyer may be very senior, knowledgeable and expert in technical skill, even then neither the clients nor the juniors lawyers may approach him until and unless he properly behave them and communicate with them. Everybody wants more business and business development is an art or skill which requires training. Similarly, project management, public speaking, time and stage management are also necessary for the lawyers. One must learn how to market the lawyers service properly to the public at large.

    In this 21st Century, the practice of law is evolving in a rapid space. What was a law slow unyielding profession is now taking giant strides to keep pace with globalization, redefining traditional belief, practices and even roles. Lawyers, today, globally, must come with come to the terms with new and emerging concepts in the field that traditionally, would have meant professional hara-kiri. Even during the time of Abraham Lincoln, he shared a short and narrative about two wood cutters who decided to complete on who could chop down more trees in a day. The first man started out furiously and decided to chop way without taking any break. The Second man chopped for a while and then stopped, to sharp his Axe. All through the day, the first cutter did not stop whereas the second contestant regularly took ‘time out’ every couple of hours to hone his axe. Interestingly enough, at the end of the day, the second cutter has achieved twice as much and was half as tired as the first. Evidently the first man exerted more, made more noise, appeared to be busier and yet achieved far less, because after a while he was hacking away with blunt instrument. Even Albert Einstein said “We cannot solve the problems of today with the same thinking that we use to create them”. In order go up, we first need to grow up i.e. develop ourselves and in order to grow up, we need to give up i.e. our inhibition towards self development, relationship, enhancement and change. Soft skills development requires the element of discipline - nothing more nothing less, so it is certain that if a lawyer gets soft skills training he will be ahead of his colleagues and competitors and adjust himself in any situation or any place.

    The word ‘profession’ is defined as following an occupation for a livelihood or gain. It is a vocation requiring knowledge of some department of learning or science. Every profession has some explisive and some implisive code of conduct and understanding it is the boundary that separately qualified person, or a skill individuals from a professional. The number 1 requirement than to gain entry to the club of professionals is to understand, integrity and to practice it. Without that, a professionally qualified individual is a danger to the society. Integrity always precedes professional competence. One must first understand what integrity means professional context. Normally a professional should follow the rules and if no rule exists he should use their judgment and when in doubt, he should not go ahead and do what should him rather he should seek counsel and finally when placed with a dilemma he should ________ himself. Can his act stand public scrutiny without causing embarrassment to him. The concept of fair judgment is but essential it is the voice of conscience. Seek question one must ask himself whether how he would feel if someone did to him what he was doing about someone else if we start understanding integrity and do our works with integrity and fair judgment it becomes a way of life.

    Self awareness is an important factor. All of us, at the capacity to become progressively self aware through life experience. Most people can consciously cultivate as a quality if they want. To be a great professional, it is critical to develop the qualities of self awareness. Without it, we fail to balance ourselves thourgh the ups and downs of life, have problems of accept of reality and often do not know but is good for us. As a result, we may even end up making wrong professional choices that have a squarely downward impact. Integrity and ethics are the two critical qualities of self-awareness which can take one along the path in developing into a two professional. As we advance in our career, we outgrow many inadequacies of our past. We gains through experience of the assignment we handle, we acquire fresh knowledge from others that equates us to handle things differently from the past. Yet the self aware professional is conscious that there is bound to be some gap in his knowledge, knows that he may never believes the case, and, most importantly, feels comfortable with this fact. If one cannot at two value, then he must not at to the problem with his pretence. The more one pretence, the more naked one become. Sometimes, stating once ignorance can be the simplest solution. It was there is always bound to be gap in our training and knowledge to all the things and in such situation admitting ignorance is just one step. Actively seeking to breeze that get with the next important step in becoming self aware. Quiet often it is through the help of others. Seeking help from someone-appear a mentor a supervisor or even from a junior –is not a sign of weak. One must be self conscious to actively seek help from others and the moment one seek help, he actually expand inner capacity, he create the emptiness into which others poor in their capabilities. Many professionally qualified persons make comparison with colleagues and others which is not correct. It is futile to make such comparisons. They cause unnecessarily pain best as they are primarily on superficial knowledge and certainly devoid of an understanding of the other persons journey to reach that position. A professional who sees his work primarily as a means of earning money runs out of meaning may ________ beyond best comforts, after a while, request for material success actually erodes self-work. It becomes most pronounce in the later part of ones life. The greatest satisfaction and more entering one for a professional is admiration for the people with whom we do business. At certain stage of once career, it is spear recognition that sustains us. Do small things on a sustain basis, do things for their own profession, don’t worry about changing the world. Professional must be self observant. The capacity to us once own action and utterances is the starting point of being observant. A professional must welcome feedback. A good professional create real feedback. The ability to really seek feedback, most importantly take feedback and act on it, is something that can only be learnt overtime. Requires constant effort to master and without developing this ability one cannot be a true professional. Doing small things in life yourself is very important. These have greater significant than you. Sometimes, the most profound ideas come when we are in toilet. A professional must be a proactive as pro-action is an amazingly attitude and a behavior that get one memorable relationship in both life and business. Be one loves to deal with a proactive individual.
  • Restorative justiceOpen or Close

    Gajanand Sahewalla,
    (Senior Advocate)
    Chairman, Bar Council of Assam, Nagaland etc.

    Restorative Justice is one way to respond to criminal act. It is a process by which parties involved in a specific offence collectively resolve how to deal with the aftermath of the offence and its implication for the future. It puts emphasis on the wrong done to the person as well as on the wrong done to the community. It recognizes that crime is both violation of relationship between specific people and an offence against everyone- the State. It is concerned with restoration of the victim, restoration of the offender to a law abiding life, restoration of damage caused by the crime to the community so that there can be a better society in the present and the future.

    Restorative Justice involves voluntary participation of the victim of the crime, the offender and members of the community of both in discussions. The objective is to fully attend to the victim’s needs- material, financial, emotional and social, to prevent further commission of offence, to enable offender to assume active responsibility for his actions and in this way to restore the relationship. In this process, victim is provided with an opportunity to express his feelings about the harm that has been done to him and to contribute his views about what is required to put things right. The fundamental principle of Restorative Justice is that victim should not be re-victimized in any way. The process and outcome should not cause further harm.

    In Restorative Justice, community is always involved as it is presumed that crime has its origin in social conditions and relationship in the community and crime can be prevented if those conditions which are the root cause of crime are remedied.

    In Restorative Justice, victim-offender meeting are organized to give offenders a chance to take active steps to make voluntary separation of the victims. It is not only the question of payment of financial compensation but also an apology and an explanation as to how the crime was committed and to make the offender listen to the victim’s grievances and respond to it. Such meetings are facilitated by a skilled, specially trained mediator who creates a congenial atmosphere for direct talk between the victim and the offender by telling them the benefit of the process. In the process the minimal role but played by the communities of both parties is to prepare the persons to sit for a mediation session in which the mediator may be a local community member. Participation in such mediation may help the victims to achieve justice even more surely and satisfactorily than if the case were to be tried in the normal justice process which may serve other interests of which the court seldom takes cognizance.

    Relationship of Restorative Justice to Legal Justice : It is difficult, in practice, for two independent systems to co-exist. There is bound to be some influence each way and therefore problem cannot be avoided. Restorative Justice can and should be integrated as far as possible with Legal Justice as a complimentary process that improves the quality, effectiveness and efficiency of justice as a whole. The two processes reinforce one another for mutual benefit and evolve towards a single system in which the community and formal agencies co-operate. In India, the Criminal Law (Amendment) Act, 2005 introduced chapter XXI A in the Code of Criminal Procedure relating to ‘Plea Bargaining’ where application can be filed by an accused before the court stating that he has preferred plea bargaining and the judge after considering voluntariness of such offer grants time to workout a mutually satisfactory disposition which may include paying compensation and other expenses of the victim. But in that process, in cases instituted on the basis of report of police, public prosecutor, police officer are to be present besides the informant and the accused and in complaint cases the complainant and the accused are to discuss the issue. Here there is no provision for holding discussion in the presence of an independent mediator or community personnel and without a mediator, it is difficult to settle the matter.

    Moreover, without the initiative of the accused in filing petition for plea bargain, no steps can be taken to settle the matter. But in case of restorative justice, even the community personnel may initiate talk with both the accused and the victim to settle the matter and the mediator may convince both the parties to settle on some terms which are suitable to both.

    Limitation of Restorative Justice: Restorative Justice depends on voluntary co-operation of the parties. If one party is not willing to participate, the range of options is reduced. If neither party is willing, there is no option but to let formal justice take its usual course. Further, it is difficult to find out trained mediators in our communities who can take initiative. Besides being time consuming, the availability of fund is another difficulty, since expenses are required in the process.

    Victim, offender & Community: In traditional victim offender mediation, the community has a minimal role, except that the mediator may be a local community member. The community is given a more direct role in cases of group conferencing which is essentially an extension of victim-offender mediation to include more parties- the offender’s family, the victim’s family or supporters and community contacts of the offender who may be able to offer support or help. While the emphasis in victim offender mediation is on the victim’s suffering and how the offender may make compensation for this, the conference allows the offender’s family to share the blame and directly witness the harm caused and explore as to how to keep out of trouble in future.

    Conclusion: Restorative Justice programmes can be successful both in serving victim’s needs and having a reformative impact on offenders. In Restorative Justice, there is every possibility, that innocent offenders may plead guilty to avoid a prosecution. Further, victim’s right to justice includes the expectation that offenders will be appropriately dealt with and the wrongdoers condemned for their actions. Participation in mediation may help victims to achieve this even more surely than if the case is left to normal justice process. Moreover, confidentiality is also required to be maintained regarding mediation process unless the parties agree otherwise. It will be better if restorative justice process is introduced by legislature by making suitable amendment alongwith plea bargain in the Code of Criminal Procedure and once restorative justice is recognized by law, it may not only help disposal of the cases, but also reduce the incidence of crime in the society.
  • Role of Advocates in SocietyOpen or Close
    A lawyer is an architect of social structure; “Role of lawyer is not only inside the court but outside well”. We must look at the law and the profession in the social, regional, national and even international context. Lawyers, as professionals, have duty towards five c’s “the country, community, client, court and colleagues”, which may aptly be called as lawyers Panch Shilla because the Panch Sheel or five underlying lawyers fundamental duties have become international coin. A lawyer can serve the country in various ways provided they put their shoulders to the wheel and keep the motto “service above self”. Further lawyers have to realize that they are citizens and they owe a duty to the society in which they live. Lawyers were at the vanguard of the freedom movement. There was a time when lawyers are regarded as family friend. They commanded awe and respect and for good reasons; prominent freedom fighters belong to the legal fraternity and played a leading part in framing our constitution. Gandhiji, M.L. Nehru, Dr. Ambedkar, Madan Mohan Malavia, K.M. Munshi, Sardar Patel to mention just a few lawyers gave up their practice to join the freedom Movement and many of them went to jail in course of the freedom struggle. Other members played an invaluable role in preserving and upholding democratic principles. First Governor General C. Rajagopalachary, First Prime Minister J.L. Nehru, First President of India, Dr. Rajendra Prasad were from legal profession. In the 1st, 2nd and 3rd Lok Sabha, more than 50% members of parliament were from this profession. Last few decades have produced various lawyers of eminence, nationally and internationally. Moreover, the ground reality is that in the last few years credibility of many of the institutions have been largely eroded, including institutions of legal profession as well. At present, the public image of lawyers is far from frattering. They are seen as fortune makers rather than seeking to serve, a selfish class, who on account of their special knowledge and expertise, provides services on such terms as they pleas. In short, profession of law is regarded as money making racket.

    India is a country with its own definite problems. It is over populated, is devastatingly rural and is full of under privileged, exploited mendicants. So, lawyers have to take into account the contemporary problems and the needs of the society in order to be socially relevant. Although India has the second largest number of lawyers in the world yet in our country, lawyers to people ratio is merely 1:1800 in comparison to develop countries like Great Britain where it is 1:1300.

    The legal system affects nearly every aspect of the society, from buying a home to crossing the street, lawyers form the backbone of the vital system, linking it to the society in numerous ways. In courts lawyers represent one of the parties in criminal and civil trials by presenting evidence and arguing in Court to support their clients. However, as advisers, lawyers counsel their clients concerning their legal right and obligations and suggest particular courses of action in business and personal matters. Whether they act as an advocate in the Court or an adviser, they have to research the intent of laws and judicial decisions and apply the law to the specific circumstances faced by their clients. Legal process must be looked at a social process. The concept of justice is always linked to society. Just society ensures fair treatment to all individuals and groups.

    The practicing lawyer was given a pride place in our constitution. In the chapter of fundamental right itself, in Article 22(1), it is proclaimed that no person who is arrested “shall be denied the right to consult with and defended by lawyer of his choice”. When the Advocates Act was passed in 1961, it was intended that lawyers should be entitled – as of right-to practise throughout India in all Courts, in all Tribunals and before all persons authorized to take evidence (Section 30). It has been nearly 50 years since that law was enacted but section 30 has not yet been brought into force. However, the legal professionals have great responsibility and are obliged to adhere the strict code of ethics.

    A lawyer at the present moment has to realize is that he is a citizen and that he owes a duty to the society in which he lives. He should live the life of love, labour and service for others. Professor Einstein expressed “Man is here for sake of other man. Many times a day I realize how much my own outer and inner life is built upon the labours of my fellowmen, both living and dead: Low earnestly I must exert myself in order to give in return as much as I have received.” The opportunity of coming in touch with people and of being some services to them, should be the aim of a lawyer, rather than love for money. Lawyers should have no attraction for money as it sometimes may only make us do things unworthy of a member of the bar. Loving service is the surest and one of the sweetest experience of the world. I remember the words of Tagore- “I slept and dreamt life was joy and then awoke and realized life was duty. And then I went to work and lo and behold, I discovered that duty can be joy.” I am a firm believer that selfless service is the rent we pay for living in this wonderful planet, and that our destiny is to serve and in what way we can serve that is not relevant.

    Everybody wants a lawyer with character, dedication, disciplined, humble and mental roughness. Mental roughness is ability to see long-term gains rather than be put off by short term pains.

    As rightly observed by John Sturat Blackie” A man may be as brilliant, as clever, as strong and broad as you please and with all these, if he is not good, he may be a paltry fellow, and even the subline which he seeks to reach in his most splendid achievements, is only a brilliant sort of badness. Money is not needful, power is not needful, liberty is not needful, even health is not needful, but character alone- at thoroughly cultivated will is that which can truly excel oneself”. In other words, character is the sum total of many qualities which reflect values, which are intrinsic to our lives. Values act as general standard from which specific goals and norms of society can be deduced. Clear values reflect ethical decision. Lawyer must be honest and gentlemen- Like Albert Einstein after getting Nobel Prize said “I would prefer to be man of value than a man of success”.

    Abraham Lincoln was a very successful practising attorney. Once someone asked him to take up a case. After hearing the details, Lincoln said “I understand your case. It is technically strong but ethically weak. I cannot accept it. Because while I am arguing it, at the back of my mind all the time, I will keep saying to myself, “Lincoln, you are a liar, you are a liar. I will not be able to live with myself. So the message was clear that “I sell my professional time but not my conscience.” In 1850 he said “Resolve to be honest at all events’ and if in your judgment you cannot be a honest lawyer, resolve to be honest without being a lawyer.”

    The keystone of professional conduct is integrity. A professional must discharge his duties with fidelity to the public, his clients and employees and with fairness and impartiality to all. It is the professional’s duty to interest himself in public welfare and be ready to apply his specialize knowledge for the benefit of mankind. It is only then, that the professional can live upto the expectations, the society has of him by virtue of his superior education, skill and talent.

    Let us for the sake of our own children and future generations create a compassionate society where values like honesty, integrity and fruitfulness flow from all our actions in daily lives. Ethics and ethical way of life must begin with each one of us. Let us be an example to our children, to our families, to our business and professional associates, to every single person who come in contract with us. There is a Chinese proverb which says, “It is better to light one candle than to keep sitting cursing the darkness.”

    The first quality of an Advocate is to be a gentleman and all his actions must be transparent. You are watched by the society; and every advocate is a role model for the society to which he belongs. Further, an advocate must be competent, dependable, responsible and perseverant.

    In every profession, service etc., integrity is stronger than honesty. Integrity demands a clear cut distinction between right and wrong with no gray areas in between. In other words, integrity is a core value whereas honesty and dishonesty is a habit.

    Legal professional not only demands knowledge and skill, but also honesty, integrity and sincerity. Lawyers as professionals must do their duty to the best of ability, knowledge and judgment for which they may not earn wealth and distinction, but self satisfaction, peace of mind, which is a crown of crowns, which no wealth can buy, nor any patronage can bestow or any calamity or even death may take away. Lawyers must have compassion and sympathy for the poor and downtrodden and should live the life of love. In this respect I tell you as story-

    “A woman came out of her house and saw three old men with long white beard sitting in her front yard. She did not recognize them. She said, ‘I don’t think I know you, but you must be hungry. Please come in and have something to eat.’
    ‘Is the man of the house home?, they asked. ‘No, she replied. “He’s out’.
    ‘Then we cannot come in,’ they replied.

    In the evening when her husband came home, she told him what had happened. “Go and tell them I am home and invite them in’ the husband said.

    The woman went out and invited the men in. We do not go into a house together,’ they replied. Why is that? She asked. One of them explained: ‘His name is wealth,’ he said, pointing to one of his friends, and pointing to the other, he said, ‘He is Success, and I am Love.’ Then he added, ’Now go in and discuss with your husband which one of us you want in your home.’ The woman went in and told her husband what the old man had said. Her husband was overjoyed. ‘How nice”, he said. ‘If that is the case, let us invite wealth. Let him come and fill our home with wealth, His wife disagreed. “My dear, why don’t we invite success? Their daughter was listening from the other corner of the house. She jumped in with her own suggestion: “Would it not be better to invite Love? Our home will then be filled with love’. ‘Let us heed our daughter’s advice,’ said the husband to his wife. ‘Go out and invite Love to be our guest.’ The woman went out and asked the three old men, ‘which one of you is Love? Please come in and be our guest.’ Love got up and started walking towards the house. The other two also got up and followed him. Surprised, the lady asked wealth and success, “I only invited Love, why are you coming in? The old men replied together, “If you had invited Wealth or Success, the remaining two of us would have stayed out, but since you invited Love, wherever He goes, we go with him. Wherever there is love, there is also wealth and success.

    A distinction needs to be made between profession, trade and business. Merely selling services is not legal profession, to provide service for the benefit of the society is the primary objective of legal profession. It is a calling but not a trade or business. Collection of fee for services rendered is a part thereof. Of late, money spinning has become practice of the profession leading to several unfortunate incident. Charging fee should commensurate with the time involved in the case and services rendered and the standing of the advocate concerned. Commercialization of the profession denigrates the respect one seeks to get and undermines the high traditions of the profession.

    Lawyers make the system of justice work. The role is more active in litigation process. Litigants have a fundamental right to speedy justice and justice delivery system is craving for fast track movement. In this context, advocates have a role to preserve the faith of the people in administration of justice and rule of law. Delay defeats justice and as such advocates should not pray for adjournment except in exceptional circumstances and they should not resort to strike. They should uphold the dignity and decoroum of court. Lawyers play an important role in law making as well as many lawyers serve in legislature. In democratic country, like India lawyers surely play an important role that no other professionals do and they are the guardians of rule of law. Lawyers also act on many occasions as arbitrators, conciliators or mediators for resolving dispute between parties. But everywhere they have to follow the ethical principles and work with integrity. As a public citizen, a lawyer should seek improvement of law, access to the legal system, the administration of justice and equality of service rendered by the legal profession. They should cultivate knowledge of law beyond their use for clients, employ that knowledge for reform of law and work to strengthen legal education. They should devote professional time and resources to ensure equal access to justice for all those who because of economic and social barriers cannot afford or secure adequate legal counsel and lawyers should aid the legal profession in pursuing these objectives. Legal profession is monopolistic in character and it inheres high tradition, which the members are expected to up-keep and up-hold. A lawyer is an officer of justice and friend of the Courts and is in integral part for administration of justice. There are legal obligations to conduct the case of poor litigant without reward and rule 46 of the Bar Council of India Rules cast a duty to provide legal assistance to the indigent and the oppressed. Assignment of a competent advocate to take up the case of a poor litigant is the most crucial component in providing effective and purposeful legal aid to the weaker sections of the society. The advocate as a class and Senior Advocates in particular have a solemn duty to ensure justice to all citizens and particularly to poor and marginalized sections of the society. They should rise up to meet the challenge effectively and successfully. Elements of law and social change, enforcement and protection of human right, law and industrial development, law and agricultural development, law and environment, international development law, law and poverty, law and society, discrimination against woman, legal problems of the schedule castes and schedule tribes and Other Backward Communities and such are other subjects are to be looked into by the lawyers. Role of lady advocates is more important.

    Every week out of 168 hours available, a lawyer should spend a few hours in services to others. Selfless service soon becomes a key focus within our lives. We should take out time to give a public lecture on our expertise, as awareness is even more essential than legal aid in as much as in India, not only most of the rural people but even the urban people, are unaware of the laws, and as such it is a duty of a lawyer to create awareness of the laws, specifically those which affects their day to day lives and fundamental rights. Rights of a man are not only against Government but also against people collectively. Many persons traffic in drugs and claim fundamental rights to exploit sex and violence commercially. Minors and ladies are sold for Rs.2000/- to Rs.10,000/- and illegal trafficking is going even for Rs. 5/- to Rs.100/- Lawyers must fight against such exploitations and motivate people against such vices. Today corruption is one of the main problems of the country and we must fight against it. We must create awareness of the right to information as established by 2005 Act.

    Last but not the least, I say that a lawyer cures a society by fighting against vices and fighting for justice and humanity. If one intends to choose law as career, then he must learn to strike balance between the duty of providing his services to the community at large, and the desire of becoming a lawyer of name and fame.