​Legal profession is not a commercial activity

Whether the legal profession is a commercial activity or is it a trade or business?

Argument in affirmative:

When a lawyer has his office-cum-residence in particular premises the domestic rate is applicable. Where however only the chamber is functioning, clearly commercial activities are being carried out and therefore commercial rate was rightly applied. According to him, the two categories of consumers have to be classified as domestic consumers and non domestic consumers. Those who are not domestic consumers fall to the second category and merely because for the sake of convenience the description has been given as “commercial” it does not make a difference. When one is not a domestic consumer, as a natural consequence the rate applicable to the other category has to be charged.

Deliberations:

The word ‘commerce’ is a derivative of the word ‘commercial’. The word ‘commercial’ originates from the word ‘commerce’ which has been defined in Black’s Law Dictionary- Sixth Edition as under:

Commerce.-The exchange of goods, productions, or property of any kind, the buying, selling, and exchanging of articles. Anderson v. Humble Oil and Refining Co.226 Ga.252, 174 S.E.2d 415.

The expression ‘commerce’ or ‘commercial’ necessarily has a concept of a trading activity. Trading activity may involve any kind of activity, be it a transport or supply of goods. Generic term for most all aspects is buying and selling. But in legal profession, there is no such kind of buying or selling nor any trading of any kind whatsoever. Therefore, to compare legal profession with that of trade and business is far from correct approach and it will totally be misplaced. Continue reading “​Legal profession is not a commercial activity”

Sexual harassment in Supreme Court of India

First disciplinary order of Supreme Court in sexual harassment case.

Sexual harassment and gender sensitivity at work places is an issue which requires serious attention as this is seriously related to making work places safe for women however personal over sensitivity of an individual about these matters shall always be a matter of concern. India has already ratified United Nation’s Convention on the Elimination of all Forms of Discrimination against Women, on the 25th June, 1993.

The Supreme Court of India in their judgement in August, 1997, in the case of Vishaka v. State of Rajasthan, recognizing the International Conventions and Norms, interpreted gender equality of women, in relation to work and held that sexual harassment of women at the workplace, is against their dignity, and violative of Article 14, 15 (1) and 21 of the Constitution of India. It also held that it is the violation of the fundamental rights under Article 19 (1) (g) ‘to practice any profession or to carry out any occupation, trade or business.’ Therefore it laid down a binding guide lines in this regard.

Guidelines to prevent sexual harassment issued in Vishakha Case:

1. Duty of the Employer or other responsible persons in work places and other institutions: It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
2. Definition: For this purpose,sexual harassment includes such unwelcome sexually determined behaviour (Whether directly or by implication) as:

a) Physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non – verbal conduct of sexual
nature.

Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or
when it creates a hostile work environment. Adverse consequences might by visited if the victim does not consent to the conduct in question or raises any objection thereto.

3. Preventive Step: All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:

(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

4. Criminal Proceedings: Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

5. Disciplinary Action: Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

6. Complaint Mechanism: Whether or not such conduct constitutions an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

7. Complaints Committee: The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be heated by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them. The employers and person in charge will also on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

8. Workers’ Initiative:  Employees should be allowed to raise issues sexual harassment at workers’ meeting and in other appropriate forum and it should be affirmatively discussed in Employer – Employee Meetings.

9. Awareness: Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines ( and appropriate legislation when enacted on the subject ) in a suitable manner.

10. Third Party Harassment: Where sexual harassment occurs as a result of an act or omission by any third
party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
11. The Central / State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.

12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

Again in AEPC v. AK Chopra, Supreme Court decided:

This was the question formulated by Supreme Court:

Does an action of the superior against a female employee which is against moral sanctions and does not withstand test of decency and modesty not amount to sexual harassment ? Is physical contact with the female employee an essential ingredient of such a charge ? Does the allegation that the superior ‘tried to molest’ a female employee at the place of work, not constitute an act unbecoming of good conduct and behaviour expected from the superior ?

And it answered the question in these words:

Any action or gesture, whether directly or by implication, aims at or has the tendency to outrage the modesty of a female employee, must fall under the general concept of the definition of sexual harassment.

Though the Supreme Court in it’s previous decision in the case of Vishakha v. State of Rajasthan had given directions (in the year 1997 !) for formation of Committees at work places to look into the grievances of sexual harassment, it took no step to form such committee in it’s own establishment. With a view to redress such grivances in the premises of Supreme Court of India, itself, on 21st September 2013 SCI promulgated:

THE GENDER SENSITISATION & SEXUAL HARASSMENT OF WOMEN AT THE SUPREME COURT OF INDIA(PREVENTION, PROHIBITION AND REDRESSAL) REGULATIONS, 2013.

The complaint about sexual harassment:

A complaint of indecent behaviour bordering on sexual harassment was made against a practicing lawyer. The Committee under aforesaid Regulations of 2013 inquired into the matter and recommended that the said Advocate Mr. C.S. Nagesh, be barred from the premises of Supreme Court for a period of one year.

The Chief Justice of India, however did not accept the recommendation in entirety and barred the concerned advocate/lawyer for a period of six months only.

The relevant order dated 15th March, 2014, stated to have been passed under Regulation 15(c) can be reached here.

Comment: This is a new branch of discipline being developed. There are many new questions being raised by this order:

  1. In the absence of any law, does the order passed by Chief Justice of India, on administrative side, has sanction of law, especially when regulations do not provide for any punishment?
  2. Does this order serve a precedent to rusticate a person or to transfer out a person for minimum 6 months?
  3. The order of rustication being passed by Chief Justice of India himself, what are the judicial remedies against it?
  4. Would any court in the country, judicially review order passed by Chief Justice of India?

Lawyer: Conflict of interest.

Duty to avoid conflict of interest:

An advocate/lawyer who has been consulted by one party to a litigation may not appear on behalf of the other party, if the first party has conveyed to him any information of a confidential nature regarding the dispute between the parties.

The duty of an advocate who has been consulted by a party to a litigation who subsequently retains another counsel to conduct the litigation was considered in U Ko Ko Gyi v. U San Mya (1930) 17 AIR Rang 365. In that case a Bench of the Rangoon High Court upheld the order of the District Judge restraining a counsel from appearing for the defendants in a case in which he had been previously consulted by the plaintiffs. Upon a consideration of the evidence the learned Judges were satisfied that during the course of the consultation with counsel the plaintiffs had given him certain information which would be of use to him as counsel for the defendants. This, as already observed, was the decision by the learned District Judge. In the course of the judgment of the High Court, reference is made to the law upon the point in England as it has been expounded in Halsbury’s passage quoted as follows:

Counsel ought not to accept a brief against a party, even though the party refuse to retain him, in any case in which he would be embarrassed in the discharge of his duty by reason of confidence reposed in him by that party.

Confidential information creates conflict of interest:

The clear implication of this exposition of the law is that if no confidential information were conveyed to him, counsel would be free to accept a brief against a party who consulted him. In this connection reference may be made to the case in Cholmondeley v. Clinton (1815) 19 Ves 261. In the course of his judgment in that case Lord Chancellor Elden observed:

The practice of the Bar in my time was this: If a retainer was sent by a party against whom the counsel had been employed, the retainer being in a cause between the same parties, the counsel, before accepting it, sent to his former client, stating the circumstances, and giving him the option. That has, I believe, been relaxed; and the course now is as it has been represented at the Bar. I do not admit that he is bound to accept the new brief. My opinion is that he ought not, if he knows anything that may be prejudicial to the former client, to accept the new brief, though that client refused to retain him.

Decision on application to restrain a lawyer from appearing:

“I am positively of the opinion that the applicant has presented this application maliciously with some ulterior motive. I find absolutely nothing unprofessional in the conduct of Maharaj Singh Vakil, nor do I feel at all satisfied that any confidential information was given by Sri Ram to B. Maharaj Singh during the consultation which he had with him, or that the plaintiff in any way suffers any loss by B. Maharaj Singh conducting the defence in the suit.

It is a point not without significance that the application to have Mr. Maharaj Singh restrained from appearing for the defence was not presented until long after he had been instructed by the defendant. The applicant’s suit was filed in May 1938. The defendant’s written statement was filed on 27th July 1938. This written statement was signed by Mr. Maharaj Singh. On 1st September 1938 issues were framed when counsel for both sides including Mr. Maharaj Singh for the defendant were present. It was not until July 1939 however that an application was made to restrain him from appearing for the defendant. I find it difficult to believe that the plaintiffs were unaware that Mr. Maharaj Singh had been engaged for the defendant in their suit. I find it equally difficult to believe that the plaintiffs’ counsel were unaware that Maharaj Singh had been consulted by the applicants. The natural inference in the circumstances is that neither the applicants nor their counsel entertained any idea that Mr. Maharaj Singh was in possession of any confidential information which would have been of use to him in the conduct of the defence.”

[Source: Saharanpur Grain Chamber Ltd. vs. Maharaj Singh, AIR 1940 All 233.]