LAW, ETHICS AND LEGAL ETHICS
Author: VINAY JUNEJA
As the famous adage goes,
"ETHICS IS KNOWING THE DIFFERENCE BETWEEN WHAT YOU HAVE A RIGHT TO DO AND WHAT IS RIGHT TO DO"
this provides the linkage between ethics and the law.
Law is a consistent set of rules that are widely accepted and enforced. This set of law describes how people are required to act in their relationships in society. These are the requirements to act in a particular way, not just the expectations or the suggestions to act in that way.
Ethics has the objective to resolve questions related to human morality by defining the concepts of good & evil, virtue & vice, and right & wrong. Ethics refers to the voluntary framework of guiding principles that would otherwise be void between laws. Ethics are the internal obligations on an individual, where Laws are external obligations.[1]
LEGAL ETHICS is the minimal number of standards for the appropriate conduct within the legal profession. It is all about the behavioral norms, morals, and values which govern judges and lawyers. It involves the duties that the members owe to each other, their clients, the courts, and society. The whole jurisprudential and philosophical aspect is that the basic obligation of advocate, judge, witnesses, and other stakeholders is not to act contrary or against the principles of morality, they must act honestly.[2]
LAW AND ETHICS: HELP IN CONDUCTIVE SOCIAL EXISTENCE
Ethics tries to mold the human character into a morally sound individual so that s/he follows a set of rules that uphold good values. These values make sure that the individual does not indulge in unethical and not acceptable activities. Laws are designed on certain principles of generating fear in an individual for violating certain regulations that are imposed by the state[3]. These regulations must be followed in all conditions so that society won't be in chaos. The laws have the ability and capability to create virtual boundaries for human behavior. The penultimate idea of law and ethics is to create clarity in the thought process so that people could understand good and bad. It will enable them to take the right decision, which would undoubtedly be beneficial for civilized society.[4]
LAW AND ETHICS: HOW TO DIFFER FROM EACH OTHER
Laws are codified by either the state or relevant authorities and explicitly defined, making their interpretation and understanding easier. Ethics do not have a fixed version[5], and it all depends upon the case to case basis when it comes to interpretation[6]. Ethical in one case might be unethical in another.
Ethics is based on the general idea of good and bad, and thus, it somewhat lacks specificity. Law is specific for a specific case and applies for that case only. Example: When a particular crime occurs, ethics helps to understand the underlying circumstances concerning the offense to say whether it is ethical or unethical. In law, there is no such focus on circumstances but instead, it only sees whether the act was falling within the definition of that particular crime under the law.
LEADING EXAMPLES
ADVOCATE SEEMA KUSHWAHA, lawyer of the victim in the 2012 NIRBHAYA CASE. She fearlessly took up the case and provided her service free of cost. She is the legal adviser of an NGO, now established by Nirbhaya Victim's family – NIRBHAYA JYOTI TRUST. This trust helps women who have experienced violence to find shelter and legal assistance. It is the inspiration to the budding advocates towards the legal profession and society.
Another instance could be when SENIOR ADVOCATE HARISH SALVE, who represented India at the International Court of Justice (ICJ) for the Kulbhushan Jadhav case for Re. 1, on the other hand, Pakistan spent more than Rs. 20 crores on lawyers.
It highlights the legal ethics in practical application.
In Hussainara Khatoon v. State of Bihar, Justice P.N.BHAGWATI[7] dealt with the issue of the conditions of the prisoners detained in the Bihar jail, whose suits were pending in the court. The prisoners had already undergone the punishment much more than they would have got if there would have been no delay in their conviction. The court immediately released the persons. The court held that the State cannot deny the constitutional right of the speedy trial, on the ground that the State doesn't have adequate resources. Thus, the court pointed out that Article 39A was an inalienable element of the right to free legal services that were implicit in Article 21 of the Indian Constitution.
In S.K. DAS v. UNION TERRITORY OF ARUNACHAL PRADESH, Justice P.N. BHAGWATI[8] emphasized creating legal awareness to the poor as they don't know about their rights and their free legal aid rights.
In Madhav Rao Hoskot v. the State of Maharashtra, Justice KRISHNA IYER rightly stated, "if a prisoner is sentenced to imprisonment and is virtually unable to exercise his constitutional and statutory right of appeal including special leave petition for providing legal assistance to the Supreme Court for want of legal assistance, there is an implied duty of the court under Article 142 read with Articles 21 and 39-A of the Constitution, the power to assign counsel for such imprisoned individual for doing complete justice".[9]
In Khatri & Ors. v. State of Bihar[10], it was held that the Magistrate or the Sessions Judge, before whom an accused appears must be held to be under an obligation to inform the accused, that if he being unable to take up the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of State. It comes within the purview of Legal ethics as it is a duty of an advocate towards society.
By the Act of 1987[11], an attempt has been made to reduce the workload of the courts by setting up Lok Adalats as an alternative dispute resolution system. It is also welcomed by the Indian Judiciary. Judicial pronouncements have time and again noted that not only providing legal aid is an essential ingredient of the judicial system but also highlighted the role of judges in ensuring that the right will be available to the needy and weaker sections of the society.
IMPLEMENTATION OF LEGAL ETHICS PRACTICALLY IN ADVOCACY
The existing legal framework must be enriched with better facilities, trained lawyers, and alternative ways to make people legally literate. For the sustainable growth of the Legal Profession, legal professionals should be given exposure to the diversification of the laws and extraordinary situations.
A good lawyer is not the man who has an eye to every side and an angle of contingency by possessing all qualifications. Rather a good lawyer is that person who throws himself on your part so heartily that he can get one out of scope.
JUDGE EDWARD ABBOT PARRY refers to the essential qualities an advocate must possess to succeed in his profession. These are (1) Honesty, (2) Courage, (3) Industry (Hard work), (4) Wit, (5) Eloquence, (6) Judgment, and (7) Fellowship.[12]
DANIEL WEBSTER aptly quotes:
"Lawyers on opposite sides of a case are like the two parts of shears, they cut what comes between them, but not each other".
LEGAL ETHICS IN DIGITAL ERA – IN TIMES OF COVID PANDEMIC
Digital Legal Ethics or Information Legal Ethics is the contemporary development. There is a shift from the computerization of courts towards the digitization of courts. This globalized world in the Post Pandemic world witnesses the use of Machine learning, chat bots, Artificial Intelligence, Quantum Computers, etc. Moreover, virtual hearings of the courts have become the new normal.
SUGGESTIONS: NEED FOR EFFICIENT AND EFFECTIVE MEASURES
The way forward lies to increase transparency and accountability standards. To increase transparency, drawing of international best practices can be adopted. The spirit of co-operation needs to be supplemented by a culture of co-operation. The task is to develop good social capital in the field of Advocacy. Media, movies, and other cultural platforms can be influential to increase awareness.
Undoubtedly, there is a need for transformative and breakthrough solutions to unlock the next wave of substantial gains for the Indian legal system. Moreover, conducting Academic Research (AR) is necessary, but what would be better would be Post-Academic Research. Free legal services and organizing Lok Adalats are the need of the hour in the 21st century.
PATH AHEAD: LOOKING FURTHER, GOING FARTHER
Strengthening the Pro Bono Culture and making the Legal professionals in India more accessible and feasible to the public will help in making a positive impact. The ultimate objective lies to add the eighth lamp of Advocacy i.e. "Lamp of commitment to Justice". Thus, the whole idea of legal ethics is that justice should not only be done but must also undoubtedly and manifestly seen to be done.[13]
[1] Kailash Rai's work "Legal Ethics". [2] Justice Sathasivam in OP Sharma v. High Court of Punjab and Haryana AIR (2011) SC 2101. [3] Daniel Markovits's work "A Modern Legal Ethics:Adversary Advocacy in a Democratic Age" (2008) [4] Ross Cranston's work "Legal Ethics and Professional Accountability". [5] Justice KT Thomas in RD Saxena v. Balram Prasad Sharma (2000) (7) SCC 264. The same part can be viewed in New India Assurance Co. v. AK Saxena AIR (2004) SC 311, AS Mohammed Rafi v. State of Tamil Nadu AIR (2011) SC 308, Kaushal Kishore Awasthi v. Balwant Singh Thakur AIR (2018) SC 199 [6] Supra note 3 [7] 1979 AIR 1369, 1979 SCR (3) 532. Also read with the Kishore Chand v. State of Himachal Pradesh AIR 1990 SC 2140. [8] 1986 AIR 991, 1986 SCR (1) 590 [9] Madhav Hayawadanrao Hoskot vs State Of Maharashtra 1978 AIR 1548, 1979 SCR (1) 192 [10] 1981 AIR 1068, 1981 SCR (3) 145 [11] The Legal Services Authorities Act, 1987 (No. 39 of 1987) [12] JUDGE EDWARD ABBOT PARRY's work "The Seven Lamps of Advocacy" [13] This dictum was laid down by Lord Hewart, the then Lord Chief Justice of England in the case of Rex v. Sussex Justices, [1924] 1 KB 256.
nirbaya case
Hussainara Khatoon v. State of Bihar
S.K. DAS v. UNION TERRITORY OF ARUNACHAL PRADESH
Madhav Rao Hoskot v. the State of Maharashtra
Khatri & Ors. v. State of Bihar
lok adalats