This article is written by Amandeep Kaur, a student of Symbiosis Law School, Pune. The author in this article has discussed the ethics which a public prosecutor or government attorney has or is supposed to have.
What are Ethics?
The first thing one should know is what exactly ethics includes. Ethics is the branch of philosophy or it can be said that ethics is a narrow concept whereas philosophy is a wider concept. Ethics are something which helps one to make decisions in life or which actually guides our lives in various ways. As every being has a different personality, similarly ethics are different for different beings. When clearly said what are ethics for one person may or may not be the ethics for others. For instance, drinking alcohol may not come under ethical values for one person but it can be ethical for the other person to drink alcohol.
What are Professional Ethics?
“Professional ethics can be defined as professionally accepted standards of personal and business ethics, value and guiding principles.” Professional ethics are actually what a professional is supposed to do during various faces of life. It can also be said that the standards or the basis on which a professional is supposed to take decisions are exactly what defines professional ethics. For instance, honesty is one of the most fundamental ethical values a professional should have. Every profession has ethical values and every professional involved in that profession should follow such ethics.
Professional ethics are different from general ethics in various characteristics. A professional should be an expert in his field which makes him different from a person who knows very little about that particular field. A professional is supposed to be competent and skilful. He should be updated with all the changes related to his field and should constantly keep researching. The most important thing is a professional should act in an ethical value, being a professional always creates various responsibilities which one must uphold.
Different Legal Spheres
There are various legal spheres. Some of them are specified below:-
- Corporate law (law firms and companies)
- Public Prosecutor
- Judicial Service
- Intellectual Property law firms
- Legal Academia
- Alternative Dispute Resolution
- NGOs and Think Tanks
- Tax Law
- Judge Advocate General
- Legal Journalism
- Litigation– It is actually a way to settle a problem or some controversy between two or more persons, organizations and the State by taking that issue before the Honorable Court by either party involved in that issue for settling that issue through a legal method. Litigation is not actually a legal method but a process which involves a series of steps leading to the judicial opinion which is said to be Judgment.
- Corporate Law– It is related to all the corporations, their formations, dissolutions, their operations, the contracts involved different corporations and conflicts among them. According to the Consumer Protection Act of 1986, a corporation is a legal entity. A lawyer pursuing a career under corporate law will be working for a high profile corporate. This field rarely includes courtrooms and related tasks.
- Public Prosecutor– It is also a kind of lawyer who does not work on its own instead represents the government or acts on behalf of the government in the court. The word Public Prosecutor itself defines a lawyer of the government and he is against the accused in a crime. Public Prosecutor also looks after the police that they are following all the rules and regulations during the investigation conducted by them under a crime.
- Judicial Service– This generally includes all the judges at different posts. All of them have the same work i.e. of giving judgments but their powers differ from each other. The decision of the Supreme Court is binding on all courts and similarly, decision of judges of the High Court is binding to all the lower courts. Whereas the judges of the lower court do not have such power.
- Intellectual Property Law Firms– These are the ones in which lawyers protect the different intellectual property of different firms. Intellectual Property is actually one of the branches of Corporate Law.
- LPO– “Legal Process Outsourcing is the industry in which in-house legal departments or organizations outsource legal work from areas where it is costly to perform, such as the United States or Europe to areas where it can be performed at a significantly decreased cost, primarily India.” This field is rapidly growing for the past 10 years.
- Judge Advocate General– The Indian Army has their separate legal advisors which usually consist of military persons who are the legally qualified officers. As the Indian Army has its different laws and justice according to them differs from justice for the public. Therefore they have their own branch to look after the legal issues and give legal advice to their commanders.
Ethics for a Public Prosecutor
A perfect Prosecutor must think about herself/himself as a specialist of equity. In India, we have an open prosecutor who acts as per the directions of the judge. Typically, control of the whole proceeding is in the hands of a preliminary judge. An examination is the right of the police. The general public prosecutor in India does not appear to be a promoter of the state as in the prosecutor needs to look for a conviction at any cost. The prosecutor must be unprejudiced, reasonable and honest, as an official as well as on the grounds that the prosecutor has a place with the good calling of law, the morals of which request these characteristics. In India, the criminal equity framework should work inside the system of the Indian Constitution. Concisely, the standards articulated in the Constitution are as infra:
- Assumption of blamelessness- Accused should always be presumed to be guiltless.
- Equality- The certification of equity under the steady gaze of law.
- Break even with Protection- Each and every accused to be given equal insurance of the laws. The blame on an accused must be demonstrated after all predictable doubts are cleared.
- Double Jeopardy- Protection against double jeopardy to be given to the accused.
- Disallowance of discrimination- Prohibition of discrimination forced upon the State.
- The privilege of the charged to stay quiet.
- Capture/detainment must be as per law and legal rules.
- Speedy Trial.
The Role of the Public Prosecutor
It is not the function of a Public Prosecutor to resolutely look for a conviction paying little heed to the confirmation however his/her central obligation is to guarantee that equity is conveyed. The Indian legal system has not specifically mentioned the role of a Public Prosecutor but after analysing several cases it can be observed that:
- The perfect Public Prosecutor isn’t worried about securing the conditions imposed on him by different departments of the State Government with which she/he has been in contact. He should think about herself/himself as a specialist of equity. The Allahabad High Court had decided that it is the obligation of the Public Prosecutor to see that equity is vindicated and that he ought not to get a corrupt conviction.
- A Public Prosecutor ought not by declaration infuriate the argument against the accused, or hold back a witness since her/his confirmation may weaken the case for the accusation. The main function of a Public Prosecutor is to help the court in finding the truth. A Public Prosecutor has to maintain a deliberate distance from any procedures liable to threaten or unduly impact witnesses on either side.
- A Public Prosecutor should put under the watchful eye of the Court whatever confirmation is in her/his ownership. The obligation of an open Prosecutor isn’t only to anchor the conviction of the blamed no matter what, however, to put under the watchful eye of the court whatever proof is in the ownership of the accused, regardless of whether it be agreeable to or against the accused and to leave the court to choose all such confirmation, whether the accused had or had not submitted the offence with which he stood charged. It is as much the obligation of the Prosecutor as of the court to guarantee that full and material facts are quickly recorded so that there probably won’t be premature delivery of equity.
- The obligation of the Public Prosecutor is to speak to the State and not to the police. A Public Prosecutor is a vital officer of the State Government and is selected by the State under section-24 of Code of Criminal Procedure, 1973. She/he isn’t a piece of the examining office and is a free statutory expert. She/he is neither the mail station of the examining office nor its sending office, yet is bound by a statutory obligation.
- The motivation behind a criminal proceeding isn’t to support a hypothesis, but to research the offense and to decide the blame or blamelessness of the blamed and the obligation for the Public Prosecutor is to speak to not the police, but rather the State and her/his obligation ought to be released by her/him reasonably, manly and with full awareness of others expectations that connects to her/his position. There can be no way of uncertainty that Parliament proposed that Public Prosecutors ought to be free from the control of the police officer.
- A Public Prosecutor should fulfil all of his obligations imposed on him by the State and shall make sure that justice is served. He cannot be forced by police to reveal any facts or any information regarding the accusation but he is answerable to the State if called upon.
- The Andhra Pradesh High Court had decided that trial ought not to mean oppression and it is the duty of the Prosecutor to be careful and reasonable for the accused and not to look for the conviction of the accused in every one of these cases. It additionally expressed that it is the duty of the courts to see that the decision of declaration of a guilty party ought not to be given to a private gathering. The Court likewise said that if there is nobody to control the circumstance when there is a probability of things turning out badly, it would add up to an illegitimate way of declaring the punishment for an accused.
- A Public Prosecutor can’t show up for the benefit of the charged. It is conflicting with the morals of legitimate calling and reasonable play in the organization of equity for the Public Prosecutor to show up for the accused.
- It is an obligation on the Public Prosecutors to highlight the reality for the steady gaze of the court. Reasonable proceeding means a proceeding under the watchful eye of a fair-minded Judge, a reasonable Prosecutor and air of legal quiet. The Prosecutor who does not act decently and acts more like a direction for the resistance is an obligation to the reasonable legal framework.
- The District Magistrate or the Superintendent of Police can’t arrange the Public Prosecutor to move for the withdrawal, in spite of the fact that it might be available to the District Magistrate to convey to the notice of the Public Prosecutor and recommend her/him to consider whether the charge imposed on the accused should be pulled back or not. Be that as it may, the District Magistrate can’t order and can just prescribe on this matter.
Present situation of Public Prosecutors
- Zahira Habibullah vs. State of Gujarat, where the direct of the ”BEST BAKERY” case in the Hon’ble Gujarat High Court, including the torching of a foundation in Vadodara which caused the demise of 14 people, came up for thought under the steady gaze of the Hon’ble Supreme Court, prompting what Rajeeva Dhavan has portrayed as ” The severest trial ever of the Justice and administration framework of any State”. The Hon’ble Supreme Court requested retrial of the issue in The Hon’ble High Court of Maharashtra, and saw that in Gujarat, ” The Public Prosecutor seems to have acted more as a guard of the accused than one whose obligation was to introduce reality under the steady gaze of the Court”.
- In R K Jain’s case, the Hon’ble Supreme Court held citing Shamsher Singh v. Territory of Punjab, as regarded, the importance and substance of official forces tend to regard people in general prosecutor’s office as official. Be that as it may, the conclusion of a few courts makes the question as to its correct nature. To the proposal that people in general prosecutor ought to be unbiased (a legal quality), the Kerala High Court correlated the general population prosecutor with some other insight and reacted accordingly: Every material evidence and fact which is to be represented in the court of law is required to be reasonable and honest. He should obviously, advocate the reason for his client as proficiently and adequately as could be allowed, yet reasonably honestly. He isn’t relied upon to be unbiased yet quite reasonable and honest. [Aziz v. Territory of Kerala (1984) Cri. LJ 1060 (Ker)]
- In Jitendra Kumar Ajju vs. State (NCT of Delhi) Crl. W.P. 216/99, Delhi High Court, it was seen that In the Criminal Justice System that the role which is performed by a Public Prosecutor for the State has been portrayed as a role of Minister of Justice who assumes a basic part in keeping up innocence and biases in the field of organization of criminal equity.
What is an Obligation for the Public Prosecutor?
The commission of a criminal demonstration is regularly viewed as an offence against the State which is managed by the Criminal Justice System of the State Executive. In this way, on an exhaustive examination of the above statement, it is completely clear that it isn’t the obligation of Public Prosecutors to ensure conviction at all cost. Nor, is their obligation to go about as an avenging plot for the casualty. Despite what might be expected, their major obligation is to guarantee that equity is conveyed and incompatibility of, this they should lay under the watchful eye of the court all significant confirmation including the proof that supports the charged.
End product to this is the obligation of a Public Prosecutor to convey to consideration of the Court, any issue that the police officer could have raised, however, has neglected to do. In any case, in doing as such, they can’t go about as though they are protecting the casualty, nor would they be able to show up for the benefit of the charged. At the point when the Prosecutor proves in a way as though she/he was protecting the accused, at that point, there is no reasonable proceeding.
Rules on Professional Standards of Advocates as mentioned by the Bar Council of India
There is no mention of a specific code of conduct for government attorneys. But there are some rules mentioned by the Bar Council of India in Chapter II, Part VI of Bar Council of India Rules which are common to both private advocates and government attorneys. These rules are also placed in sec-49(1)(c) of the Advocates Act of 1961. All these rules are mentioned below-
Rules on an Advocate’s Duty towards the Court
- Respect the court– An advocate should always keep in mind that maintaining respect and dignity towards judicial office is necessary for the survival of a free community and therefore it is essential for an advocate to always show respect towards the court.
- Refuse to act in an illegal manner towards the opposition– It is one of the rule that an advocate should always act in a fair and unbiased manner even towards the opposition party. He should also try its best to stop his client from adopting any illegal or improper methods.
- Appear in proper dress code– An advocate should always appear presentable and in dress code as prescribed by the Bar Council of India.
- Not to wear bands or gowns in public places– An advocate should never wear his gown or band in any public place unless there is any ceremonial event or event prescribed by the Bar Council of India or court.
- Not to appear in matters of pecuniary interest- Where an advocate has any pecuniary or financial interest it is a rule that he should not plead for that matter or act in any way regarding that matter. For instance, he should not plead in a matter of bankruptcy where he is a creditor of that bank.
Rules on an Advocate’s duty towards the Client or the Party
- Not to withdraw from service- An advocate one agreed for serving should not except in special circumstances withdraw from serving his client or the party.
- Not to suppress material or evidence– An advocate should play fair and should not exercise any unfair practices which lead to the conviction of an innocent and acquittal of the accused. He should not try to suppress any material or evidence related to the case which can bring a remarkable change in the case.
- Not to disclose communications between client and himself- It is popularly known as a contract of disclosure which is an implied contract under sec-126 of the Indian Evidence Act, 1872. This section imposes a mandatory obligation on an advocate to not to disclose any information shared by his clients or the party.
- Full and frank disclosure– It is one of the rules that an advocate should disclose about his connections with the parties if any. He should make full and frank disclosure to the party if he himself has any personal interest or in engaged in the case in some way. He should not forget to make such disclosure if his interest or engagement in the case is likely to affect the decision of the presiding judge.
- Not to appear in matters where he himself is a witness– An advocate should never represent a party in a matter where he himself is a witness or he has a reason to believe that he might become a witness in due course of events.
Rules on an Advocate’s Duty towards Fellow Advocates
- Not to advertise or solicit work- An advocate is not allowed to advertise himself or solicit work in any manner such as by circulars, advertisements, touts, personal communications, interviews other than through personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned.
- Not to promote the unauthorized practice of law– It is the duty of the advocate to not permit the use of his professional services or his own name for promoting or initiating any unauthorized practice of law.
Reported Misconducts by Advocates
Contempt of Court as Misconduct
Contempt of court refers to an offence of disobeying any orders passed by the court or disrespecting the court of law. A judge has been given the authority that if someone is found guilty of contempt of court it can impose sanctions such as fine or jail. India has divided contempt of court into civil contempt and criminal contempt and sec-2(b) and sec-2(c) of Contempt of Courts Act, 1971 defines them respectively. Many cases have been reported of contempt of court by advocates and the recent one is that Apex Court of the Court held an advocate namely Mathews J Nedumpara guilty of contempt because he alleged that sons and daughters of judges were given priority over others’ in awarding the designation of “senior advocate”.
Strike by Advocates
Advocates usually go on strike when their demands are unheard by the court of law or when they ask for some legitimate actions to be taken by the court but these conditions are not fulfilled. Whereas the Supreme Court had declared several times that lawyers cannot go on strike as it leads to the delay in delivering justice to the common masses. After advocates in Uttarakhand went on strike for 455 days i.e. from 2012-2016, the Supreme Court has decided to take strict action against the advocates or bar councils who passes a resolution for going on strike. Strike by advocates is one of the reasons behind huge pendency of cases in India.
Misleading the Court
One can normally find some advocates misleading the court by suppressing some material facts or wasting the precious time of a court by bringing up some frivolous issues in the court of law. Many such cases are reported on a daily basis and there are some cases in which the court has imposed fine on the advocate misleading the court, for instance, Madras High Court imposed a cost of Rs 10,000 on an advocate who filed a frivolous case in the court.
A Public Prosecutor is an autonomous substance from police and police can’t arrange her/him to lead arraignment especially. Police, legislators or some other incidental gathering can’t impact her/his activities, including her/his circumspection to choose withdrawal of a case. The Public Prosecutor speaks to the State yet not the police and must be affected by open intrigue. Incompatibility of their obligations, open prosecutors ought not to utilize inappropriate techniques figured to create wrongful feelings and she/he should release her/his capacities in a conscientiously reasonable and fairway.