Legal Education and its Challenges

Chief Justice Burger in his address to the American College of Trial Lawyers in Columbia observed:

211

“In some jurisdictions, up to half of the lawyers who appear in court are so poorly trained in that they are not properly performing their job and that their manners, their professional performance and their professional ethics offend a great many people. They are engaging in on the job training at the expense of their clients’ interest and the public.”

Chief Justice Burger’s comment would hold equally good in the context of legal profession and its education in India. It is very general knowledge that a large part of the two lakh graduates being added every year to the existing ten lakh advocates in the country, are absentee law students who pass out from about 500 law colleges/schools. Such advocates ultimately learn, if at all, at the cost of the poor clients and court time. No wonder then that this, in turn, leads to the dispute resolution machinery to be seen as a villain by the society at large whereas this should be avoided as far as possible.
This unfortunate and disturbing situation demands that we ponder as to where the things have gone wrong. An effort has been made in this particular essay to identify the challenges the present legal education faces in India and also look into the means of arresting the falling standards so as to make it socially relevant.

Historical clock says:
The concept of dharma, in the Vedic period, can be seen as the concept of legal education in India. Although there is no record of a formal training in law, the dispensation of justice was to be done by the king on the basis of a self-acquired training. Justice was also administered by the king through his appointees who in turn were persons of known integrity and reputation of being fair and impartial. The guiding force for the king or his appointee was the upholding of dharma.
The institutions for formal legal education were introduced by British after the establishment of their rule in India. The first step in this direction was taken in 1857 when the three universities in the presidency towns of Calcutta, Madras and Bombay introduced legal education as a subject for teaching . This was followed by the setting up of a law college at Lahore after the establishment of PunjabUniversity. Thus, a beginning in the formal legal education grew stronger and showed its light in a part of the sub-continent.
At the initial stages, law courses were not full time. A student could take up law as a part-time course along with a full master’s course in social sciences or languages. There were hardly any standards or qualifications prescribed for the prospective law graduates. Though a beginning in imparting formal instructions in law leading to a degree was made with a limited number of law schools, the well offs in the society, however, would go to England to return as barristers.
Rule of law became the fundamental doctrine for governance of the country with adoption of the constitution in the post-Independence era. Consequently arose the need to streamline legal education in the country. During the decade of the fifties, law was introduced as a course (full time as well as part time) by a large number of institutions. In the absence of any rules for starting law courses and the qualifications for the faculty, the standard of the legal education went down during the infancy period itself. The decline was lamented by Dr. S.Radhakrishnan when he said:

“Our colleges of law do not hold a place of high esteem either at home or abroad, nor has law become an era of profound scholarship and enlightened research”.

The sorry state of affairs of legal education was echoed by the law commission in 1958. It observed :

“In the period of about ten years which has lapsed since the publication of the Radhakrishnan commission report, the position in regard to legal education in this country, it appears, has definitely deteriorated.”

The portals of our law teaching institution- manned by part-time teachers- open even wider and are accessible to any graduate of mediocre ability and indifferent merits. It is not surprising that in this chaotic state of affairs in a number of these institutions, there is hardly any pretence of teaching. This character is followed by law examinations held by the universities many of which are mere tests of memory and poor ones at that, which the students manage to pass by cramming short summaries published by enterprising publishers. The result, plethora of half baked lawyers who do not know even the elements of law and who are let loose upon society as drones and parasites in different parts of the country.

The Mushroom of Challenges:
In 1958, when the Law commission voiced its concern at the deterioration in legal education, there were hardly forty three institutions in the country preparing about twenty thousand students for the law examination. One notices a mushroom growth of law colleges in the sixties after enactment of the Advocates Act. This phenomenon continues unabated till date. The magnitude of mushrooming law colleges can be gauged from the fact that up till the early nineties, there were four law colleges in Bhopal whereas there are twenty two law colleges. Same is true about U.P. and Rajasthan in this region. These colleges work as money spinners and has put legal education at the back seat Admissions to these law schools are easy as the eligibility for admission is the minimum marks prescribed for the qualifying graduation examination. Thousands of students become eligible for admission and all of them get it. These sub-standard law schools have neither adequate buildings nor the qualified faculty in the required strength nor any library. Most of these institutions have part-time teachers with the exception of a few full time teachers. A student turns out a law graduate from such schools while sitting at home a few hundred miles away and without visiting the law school. These absentee law graduates play havoc with the clients and the court time after their enrollment as advocates. As of today, about 101 universities and about 500 law colleges are churning out two lakh law graduates every year. The first step to check the rot in legal education was to introduce the five year law course after the plus two level throughout the country. NationalLawSchool of IndiaUniversity, Bangalore is running exclusively a five year law course from the time it was set up in the year 1988 and along with it several other National Law Schools have come in various states of India. As a transitory measure, a three year programme is also allowed at various colleges and universities. Like other professional courses in engineering, medicine, commerce, architecture, etc. a student now decides his career in law at the turning point of plus two level. Introduction of a uniform five year law course would go a long way in improving the standard of legal education in the country. Still there remain some loopholes within the system.

Learning from the Critical Legal Studies and its application:
We should develop our first year courses into systematic embodiments of our views about the present and future organization of social life. In particular, we should teach the students that bourgeois or liberal legal thought is a form of mystification. The students should be taught to understand the contradictions of that thought, and the law teachers should make utopian proposals to them about how to overcome those contradictions.
The beginning should happen with a practical proposal. I think it’s different both in content and in spirit from the ones that liberal or vaguely progressive law professors typically put forward. For the last maybe fifteen years in the United States there has been an attempt to politicize the classroom. Politicizing the classroom means trying to teach basic contract, property and tort doctrine using cases and hypos that will perform three functions.
First, the cases and hypos have to be pedagogically useful just to get the students to learn black letter law. The teachers should have the major responsibility to teach doctrine, bar review type stuff. Though the students should have the right to criticize the professor for not doing enough and also question the questions. The need for cases and hypos that will perform this function while still working well to further the second objective, which is that cases and hypos should illustrate gaps, conflicts and ambiguities in the system of black letter law. The students should be made to see the pervasiveness of occasions for choice by judges when they are deciding what the rules should be. The third element, the politicizing element, depends on the first two. The cases and hypos that pose the problem of what to do with a gap, conflict or ambiguity in the system of doctrine should split the conservatives and the liberals in the class as close to right down the middle as possible. In other words, the students should find themselves evenly divided between two sharply contrasting yet possible rules to govern the fact.

Socio-Legal Research Perspective:
The level of research facilities available to a law teacher in India is not conducive to sustained research. The lack of role-facilities generates confusion, conflict as well as ambivalence towards primary role obligation calling for sustained attempts to contribute to knowledge in the field. A law teacher (unless he is a dean or Head of the University Department or a principle of a law college) gets no typing and duplicating assistance. Very few know how to type and of these not many can afford a typewriter. Availing the services of a professional typist remains for most of them a luxury. The role of Indian Council of Social Science Research can be very significant. Much of the current research effort has no relevance to contemporary social and national problems and suffers besides from lack of rigor in its analysis of phenomena and synthesis of facts. It is not yet emancipated from its tutelage of western theories and has failed to develop research tools, designs and models of its own appropriate to the Indian situation. Multi-disciplinary and inter-disciplinary research is yet rare. A most encouraging feature in the recent times has been that the concept of Indian law schools with focused research has made some profound and everlasting mark. The law community has actually acknowledged the same.

Conclusion:
The legal education should be able to meet in the ever-growing demands of the society and should be thoroughly equipped to cater to the complexities of the different situations. Specialization in different branches of the law is necessary. The requirement is of such a great dimension that sizeable or vast number of dedicated persons should be properly trained in different branches of law every year by providing or tendering competent and proper legal education. This is possible only if adequate number of law colleges with proper infrastructure including expertise, law teachers and staff are established to deal with the situation in an appropriate manner. The area of deficiency should be located and correctives should be affected with the co-operation of competent persons before the matter gets beyond control. Reforms in legal education cannot wait any longer and that there can be no improvement in legal education unless we can convince the brilliant young people to accept teaching assignments in law. We need to produce a number of committed and dedicated teachers who in turn need to produce a new crop of hard working lawyers, honest judges and distinguished jurists. This is a tough and certainly a challenging task. As we all know, a teacher is a nation builder and only a committed and dedicated teacher can produce conscientious students, honest professionals, and informed citizens. This is what the nation in general and the legal profession in particular needs today.

Is Legal Process Outsourcing an Ethical Practice

Since time immemorial, the legal profession has been acknowledged as the ‘’nobel profession’’. The reason why legal profession was braded so was because of the firm emphasis made on ethical aspects in the profession. “It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, , but if there were no bad people, there would be no good lawyers” said Charles Dickens. Lawyers were often meant to be the rescuers  of the wounded. Thus , the nobility of the profession was seldom questioned. However, changes in the nature of practice of law have raised up queries questioining ethics in such practices. Outsorcing and Offshoring  of legal process is one such practice that has been vehemently crticized for being unethica whilst the patrons of Legal process outsourcing have defended it with commendable justifications.

What is Legal Process Outsourcing ?

LPO is the process of obtaining legal support services from an external unit. By, obtaining support services from an outside firm, the outsourcer firm relishes several advantages. If it is from an outside country, it is called as ‘’offshoring’’. “Legal process outsourcing refers to the offshoring of different elements in the legal process by law-firms, corporations, and in-house legal departments (mainly in US and UK) to offshore centres (mainly in India).[1] The object behind the outsourcing is to capture the opportunities prevailing in the external environment. In case of off shoring, the outsourcer shall be depreived of certain benefits and previleges which the outsourced shall be entitled to. Thus, the outsourcer can stay at one place and reap the benefits existing at two different environment.

Reasons for Outsourcing in India

India is the top notch destination for legal outsourcing from U.S.A and U.K. The service sector in India accounted for about 52% of GDP in 2004-05. In fact India’s service exports had more than doubled from US$ 25bn in 2003-04 to US$ 60bn in 2005-06 and now accounts for nearly 37% exports[2]. As Indian nation is geographically situation in a time zone exactly distincitive of these two nations, it facilitates the firms in the U.S.A and U.K to work round the clock. Secondly, Indian law has been inherited from the United Kingdom during the Colonial era, therefore similarities in issues of law diminishes ambiguity to a commendable extent. In addtion , English is considered of pivotal importance in India and priority is given to learn and speak English than the native languages. The linguistic deftness and familiarity in English makes Indians more demanded in the Outsourcing Industry. The cost of labour is another highlighting reason as to why India is preferred. As a result of such factors, the Westerners use India as a major player in the outsourcing Industry.

What is Outsourced ?

The quality of legal work outsourced to India has vastly improvedover the years and now a majority of work includes high end servicessuch as End to End E-Discovery Management (Litigation and Regulatory Reviews), Legal Research, Drafting of Pleadings, IP services, Compliance &Due Diligence and End to End Contract Management[3]. In End to End discovery managemnt  collection of electronically stored information, processing and reviewning by a team of lawyers to code relevant documents to a particular case or regulatory enquiry. The offshore legal team aids the US legal firm in decision making as to whether it would be appropriate for their clients to go to trial or settle out of court on the basis of the review findings. Ontract management involves managing the life cycle of a contract. This includes an extensive use of technology and a perpetualservice for clients from the time the contract is redlined until the expiry of the contract. In the field of Intellectual Property Rights aspects such as trademark search, Copyright search, technical research , registeration and proof reading are outsourced. Legal research on case laws, legislations and statutes pertaining to a particular case is also outsourced.

Ethical Arguments against Legal Process Outsourcing

 Unauthorized Practice of Law ;-

The first and foremost criticism of ‘’Offshoring’’ on ethical grounds is that a part of the legal practice is performed by persons without authorization. The outsourcer may have an authorization, however the agency to which the legal work has been outsourced will not have authentication or authorization as it it geographically located in a place beyond the jurisdiction of the outsourcer. Thus it can be argued that the outsourcer aids and abetts unauthorized practice. American Bar Association’s Model Rules of Professional Conduct states as follows in Rule 5.5[4] ;-

A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction or assist another in doing so.’’ limiting the practice

of law to members of the bar protects the public against rendition of legal services by unqualified persons[5].’’

For an illustration ; An Indian attorney is unallowed to practise or to represent any client outside India. In case of Offshoring, America obtains service support from an Indian attorney for an American Client. This is on perspective would amount to abetment of unauthorized practice of law by the American Firm.

However, jurists are of the opinion that Indian is often an ‘’outsourced’’ and it is governed by the Advocates Act and the Bar Council of India Rules

  1. Breach of Confidentiality ;-

The legal profession thrives on confidentiality. Confidentiality and Security have always been an integral possession of the the relationship of lawyers and his clients. It could even be stated that confidentiality would be the foremost factor that makes the attorney-client relationship very delicate. Contrastingly , in the case of the LPO, the confidential information is transmitted by the outsourcer to an outsider firm thereby breaking the strands of confidentiality in the Attorney-Client relationship.  The question of whether the information transmitted is irrelevant in ethical point of view by few scholars who emphasis that one of the important tenets of legal professional ethics is Confidentiality.

If Client Confidences and Secrets are to be Disclosed[6]

MRPC 1.6 Confidentiality of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b)[7].

To combat the criticism of lack of confidentiality Confidentiality agreements are being utilised. Albeit there are additional safeguards undertaken to prevent breach of confidentiality through world recognized standards and certifications, small sized LPOs are maimed due to credibility issues when pursuing clients.

  1. Biling for Outsourced legal support ;-

Another practice in case of legal outsourcing which is vehemently criticised is the billing for external legal support. The outsourcer hires expernal legal aid for considerable advantages such as cost and time. However, when he bills the client for the advantages he enjoys , it could be termed unfair and unethical.  This criticism can however be vitiated if the Outsourcer  himself bears the expense of the fruits he enjoys.

  1. Conflict of Interests

Cnflict of interest occurs when an LPO undertakes a project, conciously or unconciously, which is detrimental to the interest of the client. However, in order to ensure that there is no conflict of interest, credible LPOs conduct a thorough conflict check prior to undertaking a project and also reject client work in case of a conflict[8].To combat these cracks and crevices, LPOs take adequate precautions by requiring attorneys to sign Non-Disclosure Agreements and moreover maintain a database of attorney profiles and their past project experiences to validate any conflict.

  1. Incompetent Representation

As noted above, proper supervision is required to ensure your client is adequately represented. Conduct the necessary due diligence to ensure the LPO delivers the necessary level of competence. Interview the company in advance, obtain references for both the company and the individual who will be doing the work, request sample work product, and communicate directly with person assigned to your project to discuss to ensure he/she understands both the assignment and ethics involved.

Conclusion

 Ultimately , LPO’s are an impeccable system of generating work and employment. It also serves as an outstanding mode of extending legal services globally and an efficient and effective technique to minimise the cost and to improve the quality of legal research and work. However, as discussed earlier there are several criticisms against the functioning to LPO’s around the globe. Arguments on ethical grounds cannot be avoided as ethics, morality and law are different pages of the same book. While ethics is the branch of knowledge that deals with moral principles, professional ethics is the personal and corporate rules that govern behaviour within the context of a profession. As the ambit of profession has been diversifying and complexing over several years, the concern for ethical practices have arisen. Therefore, there is a necessary requirement for a standard set of rules or regulations to govern the function of legal outsourcing. The American Bar Association and the United Kindom bar have been much ahead of us in formulating a professional code of conduct with regard to Legal Process Outsourcing. On the contraray the Indian Advocates Act or the Bar Council Rules have absolutely no mention about Outsourcing.  To obtain a more holistic monitoring of the Legal Outsourcing activities there has to be either a regulatory or a statutory instrument such that unethical and undesirable actions could be remedied and regulated.

A Harmonious Judicial Review A Judicial Review Without Direct Collision

When it comes to the judicial review of a Security Council action by the ICJ, many observers would be concerned about the possible judicial supremacy of the ICJ, where the judges’ opinion overthrows a Security Council resolution, as has been seen in municipal settings. The judicial review, however, does not necessarily have to be limited to the case of the “judicial supremacy” version, in which the ICJ can vitiate a Security Council action after a direct petition for review by an individual state: this was illustrated by Judge Schwebel’s argument in the Pan Am 103 case.

This mode of “direct” judicial review will bind all United Nations organs in all future cases as in the judicial review by domestic supreme courts of many countries.

It is doubtful, however, whether such system will prove feasible or helpful in the current decentralized international order composed of independent sovereign actors. It would indeed be problematic to apply such a “direct” judicial review formula to the international setting where central legislative, judicial or enforcement mechan­ism is still lacking. It is not practical for the 15-member ICJ to operate as the highest entity in the United Nations and the ultimate decision maker for the international community. Unfortunately, the member states are not ready to accept an international society in which a judicial organ has the final say in the operation of the United Nations, nor does the current Charter envision such a judicial supremacy system. That will become possible only when a much higher degree of homogeneity and organization is attained in the future. Unless and until such a point is reached, the ICJ may consider a variety of “indirect” judicial review whenever it is called upon to examine or give effect to a Security Council resolution, both in the advisory opinion situation and the contentious case context.

Even a cautious, indirect approach will still be meaningful as an effective altern­ative to “direct” judicial review. Mere warnings of illegality or suggestions of altern­ative options from the ICJ may well serve as a check on the ultra vires or unlawful activity of the United Nations bodies, including of the Security Council. The ICJ cannot force the Security Council to take a particular measure in a particular case; however, the next time the Security Council faces a similar issue, it will be more likely that the Security Council will pay attention to the Charter principles and procedures as interpreted by the ICJ. The Pan Am 103 case itself is a good example of this analogy: although the ICJ decided its merits as based only upon an issue of technicality, namely, the filing date of the Libyan government, there was a clear indication that the resolution adopted under the auspices of the US and the UK may have experienced some legal problems. These two countries and other countries in similar situations would probably pay closer attention to such issues in any future case. In that respect, any judicial evaluation by the ICJ of a Security Council action, equipped with legal terms and standards, will have its own raison d’etre.

Privy Council An Overview

INTRODUCTION

If we overview the history of Indian Legal System, it clearly reveals that the Indian Legal System is more or less based on the English Legal System. In fact, the systematic development of Indian judicial institutions, judicial principles, laws etc. has occurred during British regime itself. Besides this, the British regime in India has also developed a hierarchical judicial system in India. Accordingly, the highest judicial authority was conferred on a body of jurists, popularly called as ‘Privy Council’. It has played a significant role in shaping the present legal system in India. The same is discussed as under.

210

Origin and establishment of Privy Council

As it is an accepted fact that, every political system develops for itself a certain sort of legislative, executive and the judicial machinery for its smooth working and administration. Establishment of Privy Council was with the same objective. The Privy Council was  the judicial body, which heard appeals from various courts of the British colonies including India.

The origin of Privy Council can be traced back to the Norman Period of English. At the beginning of 11th century, the Normans introduced a Central Government in England for controlling their executive, legislative as well as judicial Departments. There was a Supreme Federal Council of Normans. It was known as ‘Curia’ and it acted as the agency of Normans to rule England. Through it the whole administration in England was controlled. However, gradually with the passage of time, Curia gets divided into ‘Curia Regis’ and ‘Magnum Concillium’. Out of them, Magnum Concillium was to deal with executive matters whereas Curia Regis performs judicial functions.

The Curia Regis was a small body consisting of high officials of the State, members of the Royal household and certain clerks chosen by the Crown itself. Their duty was to advice the King in matters of legislation and administration and to deliver a justice. In fact, the Curia Regis acted as a final Appellate Court for England and English Empire. Gradually, the Curia Regis came to be considered as the advisory body of the King performing most of the vital functions in the field of judicial administration. Finally, during the regime of Henry II, there was a tremendous increase in the Judicial Functions of Curia Regis and it lead to the formation of two different Common Law Courts in England. They are:

1.      King-in-Parliament i.e. Court of House of Lords

2.      King-in-Counsel i.e. Court of Privy Council.

The former became the highest Court of Appeal for the Courts in England while the later acted as the highest Court of Appeal for all British Possessions and Settlements beyond the seas. In this way, the Privy Council was established during the middle of 16th century. It thus acted as the advisory body of the King with regard to the affairs of the State. Headquarter of the Privy Council was at Landon and its powers were implemented through the means of royal proclamations, orders, instructions etc.

Composition of Privy Council

As far as India is considered, the Privy Council acted as an appellate body since 1726 with the establishment of Mayor’s Court in India. Earlier, the Privy Council used to do its work by means of a system of committees and sub-committees. However, the committees did not have permanent existence and membership and mostly members were the persons with little judicial experience. Naturally it affected the administration of justice. In 1828, Lord Bourgham criticized such a constitution of Privy Council keeping in view the extent and importance of the appellate jurisdiction of Privy Council. Subsequently, in 1830 he became the Lord Chancellor and during his regime, the British Parliament enacted the Judicial Committee Act, 1833 in order to reform the constitution of Privy Council. In this way, officially the Privy Council was created on 14th Aug. 1833 by the Act of the Parliament. The Act empowered the Privy Council to hear appeals from the courts in British Colonies as per the provisions of the Act. Accordingly under this Act, the quorum of judicial committee of Privy Council was fixed to be four. It composed of Lord President, Lord Chancellor and other Chancellors holding judicial offices. This quorum was reduced to three in 1843. The recommendations to the Crown were given by the majority of quorum. Thereafter, by means of the Appelate Jurisduction Act, 1908 this membership of the judicial committee was extended. It also empowered His majesty to appoint certain members not exceeding two. These were nothing but the judges of High Court in British India. Thus some of the members of the Privy Council were the persons versed in Indian Laws.

Appeals from Courts in India to the Privy Council

This can be discussed under following sub-headings.

a)    Charters of 1726 and 1753

In the Indian Legal History, the Charter of 1726 granted the right to appeal from the Courts in India to Privy Council. The said Charter established three Mayor’s Courts at Calcutta, Madras and Bombay. The provision was made as to first appeal from the decisions of Mayor’s Court to the Governor-in-Council in respective provinces and the second appeal from to the Privy Council in England. Where as the Charter of 1757, which re-established the Mayor’s Courts reaffirmed the said provisions of Appeal to Privy Council from Mayor’s Courts.

b)     The Regulating Act, 1773

This Act empowered the Crown to issue a Charter for establishment of Supreme Court at Calcutta. Thus the Charter of 1774 was issued by the Crown to establish a Supreme Court at Calcutta and it abolished the respective Mayor’s Court. Section 30 of this Charter granted a right to appeal from the judgments of Supreme Court to Privy Council in Civil matters if following two conditions were followed;

i.            Where the amount involved exceed 1000 pagodas

ii.             Where the appeal is filled within six month from the date of decision.

In the same way, the Act of 1797 replaced the Mayor’s Court at Madras and Bombay with the Recorders Court and provided for direct appeals from these Courts to the Privy Council. Thus the right to appeal from King’s Court to Privy Council was well recognized. Besides this, there were Company’s Court i.e. Sadar Diwani Adalat and Sadar Nizamat Adalat. They also recognized the right to appeal to the Privy Council from their decisions. Accordingly the Act of Settlements, 1781 provided for right to appeal from Sadar Diwani Adalat at Calcutta in Civil matters.

c)     Appeals to Privy Council from High Courts

Under the Indian High Courts Act, 1861 the high Courts were established at three Provinces. It was the amalgamation of King’s Courts and Company’s Courts. This Act provided for the right to appeal from High Courts to Privy Council from all of its judgments except in Criminal matters. In addition to this, there was a provision of Special leave to Appeal in certain cases to be so certified by the High Courts.

d)    Appeals from Federal Court in India to Privy Council

The Government of India Act, 1935 provided for the establishment of Federal Court in India. The Federal Court was given exclusive original jurisdiction to decide disputes between the Center and constituent Units. The provision was made for filing of appeals from High Courts to the Federal Court and from Federal Court to the Privy Council. The Federal Court also had jurisdiction to grant Special Leave to Appeal and for such appeals a certificate of the High Court was essential.

e)     Abolition of jurisdiction of Privy Council

In 1933, a white paper was issued by the British Government for establishment of the Supreme Court in India so as to here appeal from Indian high Courts. It was the first step in avoiding the jurisdiction of Privy Council. After Indian independence, the Federal Court Enlargement of Jurisdiction Act, 1948 was passed. This Act enlarged the appellate jurisdiction of Federal Court and also abolished the old system of filing direct appeals from the High Court to the Privy Council with or without Special Leave. Finally in 1949, the Abolition of Privy Council Jurisdiction Act was passed by the Indian Government. This Act accordingly abolished the jurisdiction of Privy Council to entertain new appeals and petitions as well as to dispose of any pending appeals and petitions. It also provided for transfer of all cases filed before Privy Council to the Federal Court in India. All powers of the Privy Council regarding appeals from the High Court were conferred to the Federal Court.

Thereafter with the commencement of the Constitution of India in 1950, the Supreme Court has been established and is serving as the Apex Court for all purposes in India. It hears appeals from all the High Courts and Subordinate Courts. With this the appellate jurisdiction of the Privy Council finally came to an end.

Role of Privy Council

The Privy Council has contributed a lot in development of Indian Legal System. It served a cause of justice for more than two hundred years for Indian Courts before independence. As far as the judicial institution is concerned, the Privy Council was a unique and unparallel among all the Courts round the world. It set the task of ascertaining the law, formulating legal principles, molding and shaping the substantive laws in India. It also helped in introduction of the concept of ‘Rule of Law’, on which we have setup the whole philosophy of our ‘Democratic Constitution’. Besides the Privy Council also lead to the introduction of Common Law in India, which forms the basis almost all present Indian laws.

The contribution of Privy Council in personal laws like Hindu Law and Muslim Law is also noteworthy. It acted as a channel, through which English legal concepts came to be assimilated with the body and fabric of the Indian law. it always insisted on the maintenance of the highest standards of just and judicial procedure, especially in the field if criminal justice. In this way; the decisions of Privy Council have enriched the Indian jurisprudence in many respects. Its contribution to the statute law, personal laws, and commercial laws is of great importance. Thus during the period of 1726-1949 and specifically after 1833 and onwards, the Privy Council has played a magnificent role in making a unique contribution to Indian laws and the Indian Legal System. The fundamental principles of laws as laid down by the Privy Council are considered as path finder for the Indian Courts still today.

At present also, the Privy Council command a great respect among Indian lawyers, judges as well as Indian public as the highest judicial institution. Some of the principles laid down by the Privy Council are still followed by the Supreme Court of India. The view taken by the Privy Council is binding on the High Courts in India till the Supreme Court has decided otherwise. One of such instance can be given in the form of ‘principle of absolute liability’ as propounded by the Supreme Court in the historic olieum gas leak case. Thus as a whole, the contribution of Privy Council is considered as remarkable for the development of Indian Legal System and Indian Judicial Administration. It has played a great unifying role in shaping divergent laws in India.

Drawbacks of Privy Council

In spite this contribution of Privy Council, it suffered from following drawbacks: –

1)      For long, it was staffed by Englishmen only, having no knowledge of Indian laws.

2)       The location of the Privy Council was in England far away for common man in India making it disadvantageous.

3)       The subjection to the jurisdiction to foreign judicial institution i.e. the Privy Council was considered as a symbol of slavery.

4)       All this put the poor man in India in difficult situations for seeking justice.

CONCLUSION

From the above discussion, it reveals that the Privy Council has rendered a meritorious contribution in the development of Indian legal system and judicial institutions. It introduced many fundamental legal principles in Indian legal system. It shaped the judicial institutions in India. As a whole its role is very significant in developing the legal system in India as it exists presently.

Get the Best Lawyer for Your Divorce Process

Everyone will completely love their family. Family is the everything for the family and also for each of the family member. If we do not have any family, we will feel so lonely to face any kinds of problems in our life. That’s why here we really know how family plays important role for us. Somehow when you feel so bored during your days, you can spend your time with your family. You can enjoy your best moment with the parents, wife or husband, and also your beloved children.

When you have married, you need to make sure that you can handle your family well. You can manage the time management with your beloved family and you will feel so happy during your time with your family. Moreover, the time with our husband or our wife is important also. That’s why when you can have and you can manage your time to spend your time with them, you will feel the peacefulness in your marriage life.

But somehow, the condition of the marriage is not always good. There are many up and down in the marriage life. You need to have the strong commitment and spirit to face any kinds of hardships with your husband or your wife. If you can have such the strong commitment with your partner, I believe that you can face the hardship and your marriage life will be alright. But when the problem cannot be solved and the problem becomes bigger and you decide to choose divorce as the solving point, you need to think and reconsider it further. You can ask for the help of divorce attorney Hilliard to help you get the solution how to fix the problem in your marriage life They are very experienced in handling many case of divorce in marriage life.

Is Being a Crewmember Aboard a Cruise Ship The Right Choice for You

Thousands of school and university leavers head off onto the open waters for a year or two working on cruise ships around the world. There is something so magical about the idea of working aboard a large luxury liner, visiting different countries and ports and earning lots of money.

There are some serious factors you need to take into consideration before you consider becoming a crewmember aboard one of these vessels. Each vessel have different requirements and staffing needs, many have strict guidelines they follow to ensure that you are the right person for the job. Remember there may be hundreds of other applicants all lobbying for the same job you are applying for.

Firstly, it’s a good idea to see what jobs are available aboard these ships. In most cases these cruise ships look for a wide selection of staff members from retail clerks to youth coordinators and entertainers to chefs and engineers. In some cases you may choose to go with a smaller vessel with a smaller team, where you feel part of the team rather than one of the over one hundred staff members aboard a larger ship at any time.

Next, you need to consider the crewmember wages on offer. Crewmember wages are usually based according to the position you are applying for, the company and your experience within that sector of the industry. A chef with two years’ experience will earn less than a chef with ten years of experience, for example.

Your crewmember wages will usually include room and board, you don’t have to pay additional for this. Ensure this is the case, in some instances the cruise company may offer a slightly lower wage to cover these expenses. The advantage is that everything is included, so you can enjoy meals and have a bed to sleep on.

Experience will play a big role on whether you are accepted for the position and the crewmember wages you can expect to receive. Most ships require you have a minimum of eighteen months experience in the chosen position before applying.

Be prepared to feel as though you are living in a university dorm when you live aboard the vessel. Often you will share a small cabin with one or more other crewmembers, some of which will have a television to keep you entertained. Some will have bunks and then there will be a separate television area for the staff.

Further, you will find that there is a staffing dining area, where everyone will eat out of sight of the guests aboard the ship. Often you will have full access to all the onboard facilities during your time off.

You may have decided to become a crewmember to explore different countries and ports, but you need to be aware that the time you are allowed off the ship will depend on the position you hold and your shifts. Each person will have different port leave times, where you may only get half a day or one day, another member may get three. Remember if you are part of the housekeeping team, you won’t get as much shore leave as a retail clerk, where their shop will close while the ship is at port.

Finally, be prepared to go through strict safety training before you step onto the ship. Staff members all have their own roles to play in terms of safety whether you’re applying to be a chef in the galley or a lifeguard at one of the swimming pools.

Crew Advocacy – Crewmember and Maritime Advocacy Center serves the Palm Beach, Broward and Miami-Dade County. The firm has over twenty years’ experience in maritime personal injury and commercial litigation law and has a bilingual team of dedicated lawyers and support staff to help you with your claim. Crew Advocacy cover everything from personal injury to wrongful death and wage disputes to sexual harassment cases and more. They offer a professional service with a focus on pursuit of legal justice. Crew Advocacy offer legal advice and can advise on whether you are able to claim or not.

Legal Round Up 2014 – Detailed

The Companies Act, 2013 partially replaced The Companies Act, 1956.The Ministry of Corporate Affairs has notified 183 sections of the new Companies Act, 2013, which have become effective from April 1, 2014. With this, 283 of 470 sections of the Act have gotten notified in a phased manner. The Ministry of Corporate Affairs has notified respective Rules related with the effective Sections of Companies Act, 2013.

  1. Section 309 IPC :Attempt to suicide decriminalized

The government has decided to decriminalize “attempt to suicide” by deleting Section 309 from the Indian Penal Code (IPC). Under the said Section, a suicide bid is punishable with imprisonment of up to one year, or with fine, or both. The Law Commission of India in 2008 had recommended the repeal of Section 309 stating that the act of taking one’s own life should be treated as a manifestation of “deep unhappiness” rather than a penal offence. 18 states and 4 Union territory administrations have supported the deletion of Section 309.

  1. FDI Policy 2014: 100% FDI in Railways infrastructure, 49% in defence

The government has notified an increase in the FDI limit to 49 per cent through approval route in the defence sector. FDI ceiling in the defence sector has been hiked from current 26 per cent, with the condition that the company seeking permission of the government for FDI up to 49 per cent should be an Indian company owned and controlled by Indians. Further the Cabinet cleared a 100 per cent FDI in railways infrastructure. In the railway segment, FDI will be allowed in construction, operation and maintenance of suburban corridor projects through PPP, high speed train projects and dedicated freight lines.

  1. Wage ceiling hiked under the Employees provident fund scheme

Ministry of Labour and Employment issued notifications dated 22 August 2014 enhancing statutory wage ceiling (for becoming a subscriber of Employees’ Provident Fund Organisation) from existing Rs. 6500/-to Rs. 15000/-, fixing minimum pension of Rs. 1000/-per month and 20% additional relief on the amount of assurance benefit admissible under EDLI Scheme, 1976.

  1. New land acquisition law comes into force:

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 came into force from January 1, 2014, replacing the 120 year old, Land Acquisition Act, 1894. The new law stipulates mandatory consent of at least 70% of affected people for acquiring land for Public Private Partnership (PPP) projects and 80% for acquiring land for private companies. Compensation for the owners of the acquired land will be four times the market value in rural areas and twice in urban areas. It also stipulates that the land cannot be vacated until the entire compensation is awarded to the affected parties. The law has the provision that the companies can lease the land instead of purchasing it. Besides, the private companies will have to provide for rehabilitation and resettlement if land acquired through private negotiations is more than 50 acres and 100 acres in urban and rural areas, respectively.

FIVE SIGNIFICANT JUDGMENTS OF 2014

  1. No automatic arrests in dowry cases, due process to be followed

The Supreme Court, in this landmark judgment of Arnesh Kumar vs State Of Bihar & Anr has issued certain directions to be followed by the police authorities and the Magistrates while making arrests and/or authorizing detention of an accused. The Supreme Court stated that automatic arrests in cases under Section 498A of the IPC should be discouraged and discontinued. Examining the powers of the Police under Section 41 of the Code of Criminal Procedure, the Court held that no automatic arrests/detentions shall be made by the Police/Magistrates even in in dowry harassment cases unless the conditions precedent to making arrest/authorizing detention under the Code of Criminal Procedure, 1973 are satisfied.

  1. Supreme Court redefines territorial jurisdiction in cases of cheque dishonor

The Supreme Court in its decision in Dashrath Rupsingh Rathod v. State of Maharashtra & Anr., held that in cases of dishonour of cheque, only those courts will have the jurisdiction to try the case within whose territorial limits the drawee bank is situated i.e. where the cheque has been dishonoured. The Hon’ble Court, overruling an earlier decision made in K. Bhaskaran Vs. Shankaran Vaidhyan Balan, held that , an offence under Section 138 of the Negotiable Instruments Act is committed as soon as a cheque is returned unpaid to the drawee. Hence the place, place of judicial inquiry and trial of the offence must logically be restricted to where the drawee bank, is located.

  1. No transfer-pricing provisions if shares issued by domestic subsidiary to parent company

The Bombay High Court in the case of Vodafone India Services Pvt. Ltd. v. Union of India held that shares issued at premium by a resident entity to a non-resident entity didn’t give rise to income and there is no ‘international transaction’ to trigger transfer-pricing provisions as provided under the Income Tax Act, 1961. The Court added that ‘Income’ as defined under the Income Tax Act cannot be given a broader meaning to include notional income within its ambit. Transfer pricing provisions under the Act are not a code by itself but only a machinery provision to compute Arm’s Length Price.

4. No royalty on excavated earth for laying foundation

The Supreme Court in Promoters & Builders Association of Pune vs State of Maharashtra & Others has held that the government is not entitled to any mining royalty if a developer excavates land for laying foundation of a building. A Court ruled in favour of the Promoters and Builders Association of Pune, which had challenged Maharashtra government’s move to impose penalties on them claiming that the activity of digging up earth for any such concrete foundation is akin to mining operations. The Court held that Builders excavating “ordinary earth” to lay foundation of a building cannot be deemed to be carrying out “mining” of a minor mineral and hence no royalty was payable. The Builders had all the building sanctions and did not require special nod to excavate as they were not using the earth for levelling purposes in roads, railways, embankments, etc.

  1. New rules to adduce digital evidence in Courts:

The Supreme Court in Anvar P. K. vs. P.K Basheer & Ors redefined the evidentiary admissibility of electronic records. The court held that documentary evidence in the form of an electronic record can be proved only in accordance with the procedure under Section 65B of the Evidence Act. Thus, in the case of a CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible. Hence compliance with Section 65B is now mandatory for persons who intend to rely upon emails, websites or any electronic record in a civil or criminal trial.

FIVE DEVELOPMENTS AWAITED IN 2015

1.          The Companies (Amendment) Bill, 2014

The Companies (Amendment) Bill, 2014 was passed in the Winter Session of the Lok Sabha. The Bill introduces amendments such as jurisdiction of special courts to try certain offences, making common seal optional, no approval required from non-related shareholders for transactions between holding companies and wholly-owned subsidiaries, fraud involving a lesser amount will no longer be reported to government but to the audit committee or to the board of the company, etc. The proposed amendments aim to ensure ease of business transactions and give some respite to Corporate India

  1. Labour Reform Bills

The Union Labour and Employment Ministry tabled two Labour Reform Bills in the Lok Sabha on 7 August 2014 namely the Factories (Amendment) Bill 2014 and the Apprentices (Amendment) Bill 2014. The purpose is to enable the government to make certain rules in consultation with the States to ensure safety and welfare of workers at workplace. Once passed, they are expected to make it easier to do business in India by allowing flexibility in both hiring and working hours.

  1. Securities Laws (Amendment) Bill, 2014

The Securities Laws (Amendment) Bill, 2014, was also introduced in the Lok Sabha in 2014. The Bill aims to empower the capital market regulator i.e. SEBI by giving powers such as authority to seek call data records and information “not only from the people or entities associated with the securities market but also from persons who are not directly associated with the securities market”. The objects and reasons listed by the government on the Bill said, “To protect the interests of investors and to ensure orderly development of securities markets, it has become necessary to enhance the powers of the Board”. Once the bill becomes an Act, SEBI would have powers to check fraudulent investment schemes, to call for documents on entities under probe and provide for constitution of special courts to expedite the cases.

  1. Insurance Laws (Amendment) Bill:

The Insurance Laws (Amendment) Bill raising the foreign direct investment (FDI) limit to 49 % was introduced in the Parliament in August 2014 The composite 49 per cent cap would include foreign direct investment, foreign institutional investments, foreign portfolio investments as well as all instruments that may be included as FII at a later date.The Bill also proposes a rider that management control rests in the hands of an Indian promoter alongside the eased FDI cap.

 Ordinance to amend the Arbitration and Conciliation Act, 1996

The cabinet in December 2014, cleared an ordinance to amend the Arbitration and Conciliation Act, 1996 which would make settlement of contractual disputes between foreign companies and their Indian partners easier. The Ordinance is aimed at making it mandatory for commercial disputes to be settled within nine months and also putting a cap on fee of arbitrator. The arbitrator will be free to seek an extension from the High Court. But in case of further delays, the High Court will be free to debar the arbitrator from taking up fresh cases for a certain period.

 Prepared By: The Team of Lawyers at Abhay Nevagi & Associates, Pune

Disclaimer: This circular provides general information and guidance as on date of preparation and does not express views or expert opinions of Abhay Nevagi & Associates. Contents of this Newsletter should neither be regarded as comprehensive nor sufficient for making any decisions. No one should act on the basis of information provided in this newsletter without obtaining proper expert professional advice. Abhay Nevagi & Associates disclaim any responsibility and hereby accept no liability for consequences of any person acting or omitting or refraining to act on the basis of any information contained herein

Why Complete Documentation In A Personal Injury Claim Is Essential

Insurance companies are in the business of making money. As such, they not only seek ways to minimize payout of claims, but are savvy of attempts to pad them with unnecessary expenses. While your personal injury attorney knows that you are honest and forthright, the insurance company doesn’t; it relies not on a claimant’s word but on supportive documentation.

Complicating Factors

It is important to keep in mind from the outset that expenses not backed by documentation in a claim will likely be disregarded. From the insurance company’s point of view, you are just another claimant; therefore, objective evidence of your injuries will be required. This does make sense if you consider the alternative: If, for instance, you claim that your medical bills total $23,500, how will the insurance company be sure that this figure is accurate without supportive documentation? Indeed, the question of how you arrived at this number will surely be raised.

Moreover, certain issues tend to raise the suspicion of insurers. If yours is a soft tissue injury, such as severe back pain, conventional medical tests such as X-rays may not be able to verify this. The insurance company may be reluctant simply to take the doctor’s word that you are truly hurt. Likewise, a few doctors are unscrupulous. Insurance companies maintain lists of doctors who tend to appear in personal injury claims on a suspiciously regular basis. Your doctor very likely is not one of the handful of bad apples, but if he happens to have treated multiple individuals who then filed personal injury claims, his credibility may be called into question.

Wage Records

Often, a person who has been injured in an accident is not able to work for a period of time. Any loss of wages reported in a claim needs to be substantiated by documentation from your employer. Your personal injury attorney will likely have secured a letter from your company verifying that you missed work. It is also necessary to obtain information regarding your income, hours you normally work and number of days missed.

Medical Records

Medical records constitute the single most important and costly portion of a personal injury claim. Without a complete record of your treatment, the insurance company will have no way of knowing what injuries you suffered, how severe they were or how far along in your recovery you have come. It is vital that you and your personal injury lawyer provide the insurer with all relevant records. Unfair as this may seem, ultimately the insurance adjuster’s position is going to be that if it is not verifiable through records, it likely didn’t happen.

Contact a Personal Injury Lawyer for Help

If you were injured in an accident due to another’s negligence, a dedicated and knowledgeable personal injury attorney may be able to help you gain compensation for medical bills, lost wages, pain, suffering and more.

Copyright (c) 2014 SLAPPEY & SADD, LLC

Why Complete Documentation In An Atlanta Personal Injury Claim Is Essential

Insurance companies are in the business of making money. They not only seek ways to minimize payout of claims, but are savvy of attempts to pad them with unnecessary expenses.