Advocate, Barrister, Solicitors: Difference between them

Justice is an integral part of any Democracy. Such Justice been done in the Halls of Courts which are termed as temples of modern Democracy. To uphold justice, these modern temples rely on advocacy of a person who is well good at law of the land. As law is not an universal rule, it vary from place to place. Where one part of the state may rule an act wrong while other may uphold it right. Especially, when it comes to Federation of small States. Such difference is crystal clear. Example, United states of America, Republic of India were the each individual states may follow own law while federal law is applicable to whole of the state.

To uphold justice, a person who knows law must do advocacy. Such person is called in many different names depending of the place in which such person conduct his profession on law. While it is called as 'an Advocate' when it comes to South Asia, it is called as 'Attorney' when it is done in United State of America. But such wordly distinction is not able to demarcate clear difference between all those who practice law. All those who practice law is good to do advocacy in their respective country.

Lawyer:

It is a generic term used to denote whoever does legal service. To our interest, it would include wide range of person who work under the judiciary. All person who directly or indirectly help in upholding law of the land is a lawyer. To be simple, it would be difficult to draw a clear line. Yet an example might make it clear.

In United Kingdom of Great Britain and Northern Ireland, Lawyer would include clerks, judges and any other people who work under judiciary department. The term is so generic that it includes anybody irrespective of type of work done.

Lawyer is any person who is under Legal Service.

Solicitors:

In South Asia, person who is qualified to be an advocate could take up matter before any court of law. But in United Kingdom, the advocate profession has two branches. 

#1. Solicitors
#2. Barristers

Solicitors and Barristers, both are qualified to practice law. But Barristers have additional qualifications which is stated at the later stage of this post. Solicitors is the entry level. Whoever obtains qualification to practice law can be a solicitors. Most part of the solicitors work is to advise clients and represent them in lower criminal and civil courts.

Dress Code of Solicitors is the traditional 'Robe'.

Barristers:

Here comes the interesting part, Barristers. So who are the Barristers? How are they different from the Solicitors? What make Barristers stand separated from Solicitors? The Answers to those questions are simple. Though the wording of these classification is complex, it is simple to understand.

Foregoing section would have made clear about the solicitors. Barristers are made of 'Legal Qualification + Additional Qualification'. These are the professionals who are qualified to appear before Court of Appeal, High Court and House of Lords. The Hold monopoly to appear on behalf of their clients before the above mentioned courts. Solicitors are disabled from doing so. 

To become a Barrister, one has to come across 3 stages.

#1. One must complete LL.B program or under-graduate in other subject followed by conversion course.

#2. Vocation stage: Bar Professional Training course (BPTC) must be done. It is of choice. Either one may pick 1 year full time course or 2 year part time course.

#3. Pupilage: Completing the above mentioned steps, one must undergo 1 year pupilage in barrister chamber or any organisation approved by Bar Standard Board as PTO (Pupilage Training Organisation)

Barrister dress code is a Robe and Horsehair Wig.

Relation between Solicitor and Barrister:

It may appear that solicitor and barristers are different path in legal profession. But to put it right, one who is solicitor could take up Barrister by fulfilling the requirements of Bar Standard Board to become a Barrister. Solicitors and Barristers are interlinked with each other. They are inseparable when it comes to solving clients problem. 

Barristers' clients are solicitors who handle case on behalf of the clients in the lower courts. In other words, solicitors take of client needs in lower criminal and civil courts. But when it comes to appeals, Solicitors, on behalf of their clients, instruct Barristers to move appeal on the verdict of lower courts. So solicitors act as link between their clients and Barristers. 

Solicitors need to possess client management skills. Most part of time is spent with clients. So Solicitors must be able to understand the client need and must be confidence about all the facts and circumstances of the case. So then the Solicitors could provide confident instructions to the barristers. This make the part of the solicitors important. Any misunderstanding or misinformation will prejudice the client. 

Attorney:

It is equivalent of the Advocate in South-Asia. Attorney is a legal practitioner but in United States of America (USA). An Attorney is disabled to represent behalf of his client when it comes to handling administrative matters. It was to preserve the informal nature of such proceedings. You could see 'paralegal' in USA. 

1. 'A Paralegal is a person qualified through education and training to perform substantive legal work that requires knowledge of the law and procedures and who is not a qualified solicitor or barrister.' - Wikipedia.

Hope it would make clear about the distinction between Attorney and Paralegal. Paralegal is a person who act under an Attorney. Where Attorney is responsible for the acts of paralegal as they are deemed to be under the control of that Attorney or law firm.

Advocate:

Most popular term in South-Asia, India, Pakistan, Bangladesh. Advocate is person who is entitled to represent his client before any court of law. There is no hard line which distinguish a senior advocate and an advocate. Any body could make presentation before the court of law.Yet, you will find some differences when it comes to Supreme Court or High Courts in each state. Still Advocate is a common term used to denote person who is qualified to practice law.

To the best of my knowledge, these are the visible differences between legal practitioners. Any views or further clarifications are welcomed.

Madurai Bench of Madras High Court: Class 12 student to get 2 grace marks

The Madurai Bench of the madras High Court on Monday directed the director of government examination (DGE) to provide two marks to students who attempted questions 18 and 20 in the economics examination of Class 12 government higher secondary examination, held on March 27.

Tamil Nadu Post Graduate Teachers Association Madurai District President M. Chandran filed a petition stating allegations against the authority in setting the question paper. He said the two questions 18 and 20 for Tamil medium students, were unanswerable. When the case came up for hearing before the division bench of justice S.Manikumar and G.Chokalingam, the government side admitted the mistake and said it was ready to provide two marks to the concerned questions. It also produced a fax report from the education authority expressing consent.

Accepting it, the bench directed the director of government examination to provide two grace mark to the Tamil Medium Economics students



Source: Times of India

Tamil Nadu Play School Regulation

High Court Direction To Regulate Play Schools

While taking up a Public Interest Litigation (PIL) filed by Mr. K.Balasubramanian, a practicing advocate, sought direction to regulate unrecognized play schools operating in Tamil Nadu. The issue involves some 760 unrecognized play schools which are functioning without any sanction. The petitioner contended that these schools operate without any sanctions and admit hundreds of children and collect exorbitant fees from parents. The petitioner also highlighted the lack of infrastructure in unrecognized schools. Further, the petition brought to light the about complaints that are pending before education department officials unattended. 

The petitioner prayed for closure of all 760 unrecognized play schools running without any affiliation as prescribed by Tamil Nadu Recognized Private Schools Regulations 1973 and transfer those students from unrecognized play schools to recognized play schools.

Direction to Education Department

On August 14, 2014, when the petition came up before the Madras High Court, it was pleased to direct the Tamil Nadu Education Department to upload all details of the schools and related circulars in its website to avoid confusion. But Education Department failed to so. When the matter came up before the bench, State Government sought adjournments stating that norms under drafting and soon will be published.

When the issue came up April 6, 2015, another adjournment was sought be the Government, the bench comprising Justice Sanjay Kishan Kaul and Justice T S Sivagnanam observed the State appears to be not serious in finalizing the norms despite repeated directions.

Further, the bench ordered the Home Secretary and School Education Department Secretary  should be personally present on June 16, if they fail to finalize the norms by the next date of hearing.

Lack of Infrastructure:

With present situation, any body who own or rent 650 sq. ft of floor space, could start such play schools. As play school academics are not serious, parents are not mindful to verify such play school recognition. A school must contain good infrastructure such as class rooms, play ground, first aid, drinking water,etc. But many play schools which are started with business motive charge exorbitant fee from parents but fail to provide good service in return. 

Most play schools operating would lack good play ground size. All children are made to occupy the small place which is used to run the play school. These play schools are popular in residential areas. The close proximity to house encourage parents to get admission to children.

With the growth of IT companies near cities, unrecognized play school numbers are up in the city sub-urban areas. As parents are working professionals, who do not find time to take of children during day time, find play schools which are in vicinity as a good place to leave behind their children. 

But when admitting a child, parents must take notice on the recognition that must be sought from the concerned State Government, infrastructure, safety and security of their children which is often neglected. The convenience outweigh the requirements. A compromise on these standards would be fatal. As a parent, it is wise to make sure about the play school before admitting the child.

The Direction of Madras High Court is step closer to regulate unrecognized play schools in the State of Tamil Nadu.

Madras High Court: Conviction without Trial not valid

Madras High Court quashes murder case without trial

Madras High Court has upheld that a conviction without trial is invalid. Mere confession before the police officer is not sufficient to convict the accused.

Confessions Cannot Be the Basis for Conviction, Court Needs Recovery' - Justice R.S.Ramanathan

A case of wife-killing, slapped on a man, his lover and five of his family members, was quashed by the Madras High Court which said that they need not be made to go through the rigorous trial, as the entire case had been built on mere confessions made by key suspects to police.

"Chargesheet cannot be filed against the accused solely on the basis of confession, which does not lead to recovery. In this case, except the confession, there is no recovery, Therefore, confession cannot be the basis for conviction, even accepting it as true," said Justice R S Ramanathan, quashing the murder case against Natarajan and others, all from Namakkal district.

According to police, Natarajan had developed intimacy with another woman, and murdered his wife Vijayalakshmi, in order to marry her, After the crime, gold ornaments, mobile phone and other materials belonging to Vijayalakshmi were given to Natrajan's parents and brothers.

Besides Natarajan, police had his parents, sister, brother-in-law and paternal uncle as accused, apparently for having tried to tamper with evidence by destroying mobile phone and personal belonging of Vijayalakshmi. Chargesheet for murder and abetment was filed against all suspects before the judicial magistrate court in Paramathi, Namakkal district.

Supreme Court on Confessions and Recovery:

Counsel for suspects, seeking the quashing of the chargesheet, told the high court that except the confessions of Natarajan and his mother, no other incriminating statements or evidence had been obtained by police, and other evidence like mobile phone too had not been recovered by police.

Justice Ramanathan, accepting the arguments and relying on Supreme Court judgement covering the issue, said when the confession does not lead to recovery, the confession is inadmissible n law, and the chargesheet based on such confession has no legal basis, and is liable to be quashed.

"As confession is inadmissible as no recovery has been made following the confession, to permit the prosecution to proceed against the petitioners amounts to abuse of process of the court," the Judge said.

While framing charges on the accused, a court has to consider only the unrebuttable evidence which could get the suspect convicted, he said, adding: "If the evidence is not sufficient to convict the accused, then the court would not be justified in framing the charge against the accused." Non-recovery of the mobile phone too proved costly for the prosecution, as court declined to believe their claim that the co-suspects of Dharmalingam had destroyed the handset and SIM card, inviting another criminal charge of concealing evidence.

PIL to exempt film actors from Service Tax

Madras High Court refused to grant exemption for film actors

Is a film actor equal to a theatre artist and eligible for service tax exemptions for his earnings? No, the Madras High Court has ruled, refusing to grant exemption for actor Siddharth Suryanarayanan, who wanted to be treated on a par with theatre/folk artists and give tax exemptions.

“The mere fact that there is an element of drama or acting both in case of theatre and films does not mean that the two activities are identical”, said the first bench comprising Chief Justice Sanjay Kishan Kaul and Justice M M Sundresh in an order last week.

Siddharth, who has acted in Tamil, Telugu and Hindi movies, said his job involved skills to display different kinds of emotions, dialogue delivery skills and acting out characters specified by the film director. “These skills are not different from those of an actor who performs in a drama,” he said, assailing a June20, 2012 notification of the Centre exempting performing artists or folk or classical art forms of music, dance or theatre from the liability of paying Service Tax under Section 66 B of the Finance Act, 1994.

Noting that same benefits were not extended to other performing artists such as film actors, Siddharth said the notification was arbitrary and discriminatory and there was no reasonable basis behind such a classification.

Distinction in exemption of service tax is reasonable:

The Centre, in its reply, said the distinction was based on valid differences and pointed out the huge expenditure involved in films as well as the earnings of film actors.

This is distinct from native art and culture, which required protection as it is more in the nature of a non-profit activity, it said. Protection to cultural and educational right and preserving the heritage of composite culture of the nation is a constitutional mandate under Article 29, the Centre said.

PIL misconceived & without any merit:

Describing the PIL as misconceived and without any merit, the bench said: “In our view, the two categories are clearly different and distinguishable and cannot be treated at parity. The mere fact that there is an element of drama or acting both in case of films does not mean that two activities are identical, taking into consideration the circumstances in which films are made and theatre is performed. It is towards the object of Article 29 of the Constitution that a salutary endeavor has been made to give support to native art and culture and encourage them as they suffer from financial constraints. This is not the position of films.”

Also, taxation statutes have to be dealt with due deference to the legislative intent, the judges said, adding: “What is reasonable is a question of practical details and variety of factors, which the court would be reluctant and ill-equipped to investigate.” They then dismissed the petition filed by the actor.

Self Defence not offence: Madras High Court

Every Person has right to Defend Body

Five years after two criminals- Dindigul Pandi and Velu- were gunned down by the city police in an encounter, the Madras High Court on Tuesday said the police action “done in exercise of the right of private defence” could not be termed as an offence.

“An action done in the exercise of the right to private defence can’t be termed as an offence under Section 96 of IPC. Every person has a right to defend his own body,” ruled the first bench comprising Chief Justice Sanjay Kishan Kaul and Justice M M Sundresh.

On February 8, 2010, Pandi and Velu were killed in an encounter at Neelankarai in Chennai. The two were accused in several cases. A PIL was filed by advocate P.Pugalenthi, director of NGO Prisoners Rights Forum, seeking a direction to TN government to register case of murder against the police personnel involved in the encounter.

Police said when they intercepted a vehicle of Pandi and Velu, the duo attacked police, injuring some policemen. In self defence, police retaliated by opening fire.

Police ought to have filed FIR & Probed:

M.Radhakrishnan, counsel for Pugalenthi, said the self-defence plea was available at the time of trial, and that the jurisdictional police ought to have registered an FIR and investigated. Since the death had occurred at the instance of police personnel, an independent probe ought to have been initiated, he said.

Independent probe by Revenue Divisional Officer (RDO):

The bench, pointing out that the report of the revenue divisional officer was exhaustive, said: “A perusal of the report would show that an exhaustive inquiry was conducted and statements from the deceased family members have been obtained. Publications calling for statements were made in the dailies. The report was accepted by the government.”

Pointing out that the petitioner has not assailed the report, they said, “we don’t have factual any premise leading to a conclusion of an offence having been committed.”

Disinterest towards Marital Life is Domestic Violence

Madras High Court ruling on Husband’s disinterest towards marriage life

The madras High Court’s ruling on Domestic Violence Act comes after a complaint was lodged by a woman named “Kalpana” against her husband, who was behaving differently, not showing any interest in the marital life. She said she was threatened that if she or her son revealed his condition, they would not get any share of his properties.

She married the man in August, 1993, and their son was born in March, 1995. She lodged the domestic violence complaint in 2010, when the boy was in Class 11. She demanded her jewellery, dowry and other assets she had brought from her home. She also wanted the court to order her husband to pay Rs. 15 lakh incurred as cost of the boy’s engineering education, besides maintenance of Rs. 10,000 each a month.

In July, 2012, a magistrate court in Coimbatore reiterated the magistrate court’s order and asked him to pay 50% of capitation fee, besides Rs.5000 as monthly maintenance for him.

The father then filed the present petition in the high court. Justice Manikumar, dismissing his appeal, said the man must pay Rs.2.11 lakh within 10 days.

Madras High court on Domestic Violence Victims for Monetary assistance

Madras high court had ruled that Victims of Domestic Violence be paid adequate monetary assistance

In a landmark ruling, the Madras High Court has said women who are victims of Domestic Violence must be paid adequate monetary assistance for food, shelter, health and education, at every stage of proceedings under the protection of women under Domestic violence act, 2005.  Justice S.Manikumar delivered a 120 page verdict to light up lives of thousands of women fighting Domestic violence cases as it provides for maintenance and compensation for almost every conceivable aspect of a married woman’s life.

Protection of Women and Children

Holding that the law envisaged exhaustive protection for the woman and child, Justice S.Manikumar said that man was legally and morally bound to provide for material assistance to a wife who has alleged domestic violence and child. Listing the circumstances in which interim monetary relief could be ordered by a magistrate. Justice Manikumar said:

“The magistrate may direct the husband to pay monetary relief to meet expenses incurred and losses suffered by the woman and her child as a result of domestic violence. Such relief may include, but not be limited to, loss of earnings, medical expenses, loss caused due to destruction, damage or removal of any property from the control of the aggrieved person and maintenance for the woman and her children, if any.”

Need not hear Husband/ exparte order is valid:

To award interim maintenance, the magistrates need not hear the husband and order could be even exparte, Justice S.Manikumar observed. “If any application prima facie discloses that the husband is committing, or has committed act of domestic violence or that there is likelihood that he may commit, the magistrate may grant an ex parte order on the basis of an affidavit by the women.”

No wait till Final Order :

Perhaps aware of the practice among the magistrates to address a woman’s concerns in the final order, Justice Manikumar said: “if contention of the man that lumpsum payment can be awarded only at the time of final disposal of the main application is accepted, then the woman who is in dire necessity to meet medical expenses for children would be put to irreparable hardship.”

Domestic Violence: Economic abuse

Economic abuse is deprivation of financial resources to which the woman is entitled under any law or custom, Justice Manikumar observed. Further, he added: “It is customary that father is morally bound to maintain his wife and child by providing basic amenities like food, shelter and clothing. He is also bound to provide health and education. Protection of Women from Domestic Violence Act, 2005, is intended to provide for effective protection of rights of women guaranteed under the constitution.”

Land Acquisition: Madras High Court ruling restraining acquisition from freedom fighters and defence personnel

Courts Orders Return of 7.83 Acres of land acquired from family of Freedom fighter.

Ruling that movable and immovable properties held by freedom fighters and defence personnel should never be acquired by government for any purpose, the Madras High Court has ordered return of 7.83 acres of land, worth several crores now, at Maraimalai Nagar, near Chengalpet, to children of freedom fighters. Justice C.S.Karnan ruled that acquisition could not be sustained because it had come against a 1948 order of allotment. Neighborhood schemes are not of more paramount importance than freedom fighters, he said, adding that the family of the freedom fighter was cultivating the land for the last 66 years.

“Could the selfless sacrifices of such stalwarts as Mahatma Gandhi and others get obliterated overnight by a simple piece of unconsidered land acquisition? Freedom fights, defence personnel and their family members are shouldering the security of 125 crore-strong population of India. Therefore, their assets – moveable or immovable- should not be disturbed at any cost” – Mr. Justice C.S.Karnan observed in an order.

Freedom fighter Subbiah was among five beneficiaries for whom 50 acres of land was allotted a year after Independence. As his share Subbiah got 7.83 acres of land by a 1948 order which de-reserved a portion of reserved forest at katankulathur near   Maraimalai Nagar. Subbiah died on 1973. In 1974, the lands were acquired for the Maramalai Nagar neighbuorhood scheme, which envisaged developing residential plots to house about 1 lakh people.

Compensation for Land Acquisition:

Fourteen years later, in 1986, a compensation of Rs.2.68 lakh for the acquired land was announced, and deposited in a civil court as the sum could not be apportioned among the four children of Subbiah. Till date the family has not received any compensation, his son S.Balasubramaniam said. After many rounds of litigation and contempt proceedings, he filed a petition in the Madras High Court saying the acquired land was still under their physical possession and that even 29 years after acquisition the land remained vacant. Lands acquired for residential purposes had been used for Industrial and commercial purposes.

Re-conveyance ordered:

While delivering the judgment, Justic Karnan observed that the land was put for other use than the intended use for which the acquisition was made. He then directed the CMDA and other authorities to re-convey the land to the blood relatives of the freedom fighters within 2 months.

Chennai Public Health jobs: Removing illegal construction

Madras High court has come down heavily upon the Illegal constructions

Madras High court has come down heavily upon the Illegal constructions in Chennai. Popularity for star hotels in Chennai faces the challenge of illegal constructions. With economic growth, illegal construction weed has grown to the height that Madras High Court has directed the Chennai Metropolitan Development Authority (CMDA) officials to take extensive survey to prepare a list of illegally constructed building to ensure public health.

When a petition challenging the order of CMDA notice to stop-work and demolition was served on petition came up before the bench. The bench refused to quash the CMDA notice but ordered the CMDA to conduct an extensive survey in Chennai over the illegal building constructions. If it appears fit, the CMDA can issue proper notice, conduct enquiry and order demolition of illegal construction to achieve the purpose of public health and general welfare.

The petition on illegal construction in Choolai came up before the bench. The bench observed the condition existent in the Choolai location which causes serious health hazard. To the bench surprise, the unauthorized construction had electricity and water connection though it had to receive completed certificate from the CMDA. As the person who had done illegal construction failed to reply to the notice and defying stop-work notice, the bench has ordered the authorities to withdraw all amenities provided and demolish the illegal constructions.

The Madras High Court has ordered the Chennai Metropolitan Development Authority (CMDA) to survey for illegal construction in Chennai and remove them according to procedure established by law to ensure public health and general welfare. Many constructions, shopping malls and star hotels in Chennai have to take compliance of law to avoid CMDA from demolishing the illegal constructions which could cause inconvenience to the business.