Regulation for Professional Misconduct by Doctors

professional misconduct by doctors

Professional Misconduct: Definition

Professional misconduct by doctors is such conduct which is considered disgraceful or dishonorable by other doctors of good repute and competence. [1] It is also called Infamous Conduct.

Law governing professional misconduct by doctors

The Indian Medical Council Act, 1956 empowers MCI (Medical Council of India) to make regulations for the professional conduct of doctors. The Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, notified by the MCI in 2002 governs the regulation of professional conduct, ethics, and etiquettes for registered medical professionals. [2]

Inclusive Definition of Professional Misconduct in the Regulation

The regulation prescribes an inclusive definition of professional misconduct. It means that the regulation does not contain all the instances of misconduct. So, different acts of misconduct given in the regulation are only extensive, not exhaustive.

Is professional misconduct different from medical negligence?

Medical negligence is a subset of professional misconduct.

A doctor has a duty of care in deciding whether to undertake the case or not, duty in deciding what treatment to give, the duty of care in the administration of that treatment, duty not to undertake any procedure beyond his or her control. It is expected that the doctor possesses a reasonable degree of skill and knowledge and exercises a reasonable degree of care. [3] Medical negligence is a breach of the duty of care resulting in damage or injury.

Professional misconduct is disgrace or dishonorable conduct of a professional and includes the breach of the duty of care.

What are the duties and responsibilities of a doctor?

Duties and responsibility of a physician are described in the Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations. It has been classified into the following categories:-

  1. Duties and responsibilities of a physician in general
  2. Duties of physicians to their patient
  3. Duties of physicians in consultation
  4. Responsibilities of physicians to each other
  5. Duties of physicians to the public and the paramedical profession [4]

Duties and responsibilities of physicians in general

Covers regulatory parts of duties. Pure character and diligence in caring for the sick, maintaining good medical practice, maintenance of medical records, display of registration numbers, use of generic names of drugs, exposing unethical conduct of other medical professionals, keeping patients interest above his/her own financial interest and following law of the land are prescribed in this category.

Duties of physicians to their patients

A physician is not bound to treat each and every person asking for his services, but he should always be ready to respond to the calls of injured and sick. He must show patience and delicacy towards his patients. Secrecy of medical dispositions of the patient must be maintained unless required to be revealed by law of the land. He should neither exaggerate nor minimize the gravity of patient’s condition. He should not neglect a patient once admitted.

Duties of physicians in consultation

In case of serious illness and in doubtful or difficult conditions, the physician should request a consultation. Such consultation should be in the interest of patient only and not for any other consideration. When a patient is referred to a specialist by the attending physician, a case summary of the patient should be given to the specialist. Consultation fees and other charges must be clearly displayed at the place of working.

Responsibilities of physicians to each other

Sometimes a physician is required to render services to other physicians as a consultant or substitute. In consultation, no insincerity, rivalry or envy should be indulged in. Normally, a consultant should not take charge of the case, especially on the solicitation of the patient or friends. A physician can request another physician to attend his patients during his absence. Professional courtesy requires the acceptance of such requests.

Duties of physicians to the public and the paramedical profession

Physicians should disseminate advice on public health issues. They should enlighten the public concerning measures for prevention of epidemic and communicable diseases. Recognition and promotion of paramedical services such as pharmacy and nursing fall under the responsibilities of physicians.

Unethical Acts

Advertising except on certain occasions, not making available patents or copyright for the interest of the larger population, running an open shop where drugs and appliances are sold by the physician fall under unethical acts. A physician should not receive any gift, gratuity, commission or bonus in consideration of referring, recommending or procuring any patient. Prescribing, manufacturing, promoting or selling any secret remedial drugs is unethical. Violation of human rights of the patient by inflicting, aiding or abetting any kind of physical and mental torture is also unethical. [5]

Stipulations for dealing with pharmaceuticals and allied healthcare industry

In dealing with pharmaceutical and allied healthcare industry, a medical practitioner should follow and adhere to stipulations given below:-

Gifts:- Medical practitioners are barred from receiving any gifts from the allied healthcare industry. Violation will lead to censure or removal from the medical register for a specified period.
Travel facility:- Doctors should not accept any travel facility provided by the pharmaceutical or allied healthcare industry. Violation will lead to censure or removal from the medical register for a specified period.
Hospitality: Medical Practitioners should not accept any hospitality including hotel accommodation for self or any family member. Violation will lead to censure or removal from the medical register for a specified period.
Cash or monetary grants:- No cash or monetary grants should be accepted for individual purpose in individual capacity under any pretext. Violation will lead to censure or removal from the medical register for a specified period.
Research:- Practitioners are allowed to work in research projects being carried out by pharmaceutical and allied sector, but such projects should have necessary permissions, clearances, legal requirements. Violation for the first time will attract censure. Subsequent violation will lead to the removal of name from the medical register.
Maintaining Professional Autonomy while dealing with pharmaceutical and allied healthcare sector Violation for the first time will attract censure. Subsequent violation will lead to the removal of name from the medical register.
Affiliations:- only fully transparent affiliations, which are within the law, maintains professional integrity and freedom, as well as patients interest, are not compromised. Violation for the first time will attract censure. Subsequent violation will lead to the removal of name from the medical register.
Endorsement:- Public endorsement of any drug or product of the industry by a practitioner is prohibited. Violation for the first time will attract censure. Subsequent violation will lead to the removal of name from the medical register.

What constitutes professional misconduct?

Violation of regulations and laws

The Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002 lays down certain duties and responsibilities of medical practitioners towards their patients, to the general public, towards each other and to paramedical professionals. Violation of any provision of the regulation is a ground for action under professional misconduct.

A medical practitioner shall not contravene the provisions of Drugs and Cosmetics Act and regulations made thereunder. Prescribing steroids and psychotropic drugs without absolute medical indication and selling schedule ‘H’ and ‘L’ and poison to general public falls under contravention of the act.

Violation of the guidelines of ICMR (Indian Council of Medical Research) related to clinical drug trial and other research on patients or volunteers constitutes misconduct. Consent taken from patients or volunteers for such trials and research must conform to the guidelines of ICMR.

Abuse of professional position

Committing adultery or improper conduct or maintaining an improper association with a patient constitute professional misconduct.

Registered medical practitioners are required to issue certificates, notification, report and other documents of similar character for subsequent use in courts or administrative purposes. Issuing false, misleading or improper certificates, notification, report or other document falls under professional misconduct.

Association with incompetent persons

Enabling an unqualified person to perform an abortion or any illegal operation without any medical, surgical or psychological indication is professional misconduct.

Issuing certificates of efficiency in modern medicine to unqualified or non-medical person constitutes professional misconduct.

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A medical practitioner is open to writing to the lay press articles, deliver public lectures and give talks on various media on the matter of public health and hygienic living under his own name. But, contributing to the lay press articles and interviews related to diseases and treatments which may have the effect of advertising himself is professional misconduct.

Maternity home, nursing home, private hospital, rehabilitation centre or any type of training institution run by a medical practitioner may be advertised in the lay press, but such advertisements should not contain anything more than the name of the institution, type of patients admitted, type of training and other facilities offered and the fees.

Using an unusually large signboard and writing anything other than name, qualification, specialty, registration number and the name of State Medical Council under which he/she is registered is improper.

Not taking consent of patient

Performing an operation without taking the consent in writing from the husband or wife, parent or guardian in the case of a minor, or the patient himself as the case may be, constitutes misconduct. In an operation which may result in sterility, the consent of both husband and wife is needed.

Publishing photographs or case reports of patients without their permission, in any medical or other journals in a manner by which their identity could be made out is punishable.

In an operation which may result in sterility consent of husband and wife, both are needed.

Informed consent of female and her spouse must be taken before in-vitro fertilization or artificial insemination.

Absenteeism

Absence on more than two occasions of a physician posted in the rural area or in medical college as a teaching staff during the inspection conducted by concerned authorities is construed as a misconduct.

Other Grounds

  1. Not maintaining medical records of indoor patients and refusal to provide it Conducting sex determination test for the purpose of female foeticide
  2. Not displaying registration number on required places and documents refusal to treat a patient only on religious ground
  3. Using touts for procuring patients
  4. Conviction by court for offense related to moral turpitude or criminal acts

Consequences of professional misconduct

Consequences for professional misconduct by medical practitioner can be broadly categorized into three categories:-

  1. Criminal Liability
  2. Civil Liabilities
  3. Disciplinary Action

Criminal Liability for professional misconduct by doctors

Criminal liability for medical negligence may be imposed on one of the two findings:-

  1. the doctor was not possessed of the requisite skill which he professed to have possessed, or,
  2. he did not exercise, with reasonable competence in the given case, the skill which he did possess.

For imposing criminal liability a very high degree of negligence is required to be proved. [6]

Criminal liability is imposed generally in cases of medical negligence as per the provisions of the Indian Penal Code. Section 304A (Death due to negligence) [7], section 337 (causing hurt)[8] and section 338 (causing grievous hurt)[9] are often applied to deal with cases of medical negligence.

Prenatal sex determination except for the purpose of diagnosing abnormalities and diseases attracts an imprisonment up to three years. [10]

Civil Liability for professional misconduct by doctors

Simple lack of care by practitioner constitutes a civil liability.[11] An action seeking imposition of civil liabilities i.e. monetary compensation can be initiated by either the patient or his/her dependents before appropriate Civil Courts or consumer forums. Doors of Lok Adalats can also be knocked at by the complainant. [12]

Disciplinary Action

If a medical practitioner is found guilty of professional misconduct by appropriate Medical Council, it may award punishment which includes removal of name from the register of medical practitioner permanently or for a specified period. Deletion from the register is widely publicised through the local press as well as publications of different Medical Associations/Bodies/Societies. During the pendency of the complaint, the council may restrain the physician from performing the procedure or practice under scrutiny. [13]

Where to file a complaint of professional misconduct by doctors

For medical negligence, Prima facie evidence in the form of a credible opinion given by another competent doctor is needed to support the charge of rashness or negligence on the part of the accused doctor and file an FIR against the negligent doctor.[14]

For imposing civil liability, proceedings can be initiated before an appropriate civil court or consumer forum.

The civil court/consumer court and the criminal court usually refer cases of alleged medical negligence to the medical council to decide whether it is an act of negligence or not.[15]

Any complaint with regard to professional misconduct by doctors can be brought before the appropriate medical council for disciplinary action. Appropriate medical council for this purpose is State Medical Councils.

Post-complaint Procedures

The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion. It should be preferably from a doctor in government service qualified in that branch of medical practice who can be expected to give an impartial and unbiased opinion to the facts collected in the investigation. [16]

A doctor accused of negligence will not be arrested in a routine manner. An arrest can be made only for the purpose of furthering the investigation or collecting evidence. If the investigating officer is satisfied, that the doctor would not make himself available to face prosecution, the doctor may be withheld. [17]

Upon receipt of a complaint of professional misconduct, the appropriate Medical Council will hold an inquiry. During the inquiry, the medical practitioner will be given an opportunity to be heard in person or by pleader. A decision on the complaint has to be taken within six months from filing the complaint. If State Medical Council does not take a decision within six months of filing the complaint, Medical Council of India can impress upon the concerned State Council to decide the complaint in a time-bound manner. It can also withdraw the complaint to itself for expeditious disposal. [18]

What if professional misconduct is established?

The medical council can take following actions if professional misconduct is established during inquiry:-

  1. It may pardon the practitioner.
  2. Pleading guilty with an intention to get less punishment may result in being pardoned or merit a warning.
  3. It can order the practitioner to apologize publicly or to the aggrieved.
  4. It may award a compensation to the complainant.
  5. It may issue a warning to the practitioner.
  6. It may temporarily restrict the doctor from performing certain procedures or seeing certain types of patients.
  7. It may temporarily suspend the license to practice.
  8. It may permanently suspend the license to practice.
  9. It may refer the matter to the police for inquiry under relevant IPC sections [19]

Appeal and Limitation

A person aggrieved by the decision of State Medical Council can file an appeal to the Medical Council of India within 60 days from the date of receipt of the order passed by State Medical Council. Further extension may be granted by the MCI if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within 60 days. [20]

References

[1]http://icfmt.net/journal/vol1no1/ethics.htmb

[2]Ch 7, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002

[3]Laxman Balkrishna Joshi (Dr) v. Dr. Trimbak Bapu Godbole AIR 1969 SC 128

[4]Ch. 1,2,3,4,5; Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002

[5]Ch. 6, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002

[6]Jacob Mathew v. State of Punjab & Anr. (https://indiankanoon.org/doc/871062/)

[7]S.304A, Causing death by negligence, Indian Penal Code 1860

[8]S.337, Causing hurt by act endangering life or personal safety of other, Indian Penal Code 1860

[9]S.338, Causing grievous hurt by act endangering life or personal safety of others, Indian Penal Code 1860

[10]S. 4 (2), S. 23(1), Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994

[11]Jacob Mathew v. State of Punjab & Anr. (https://indiankanoon.org/doc/871062/)

[12]Amit Agrawal, Medical negligence: Indian Legal Perspective, v19 (supple 1), 2016 Oct, Annals of Indian Academy of Neurology

[13] Ch 8, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002

[14]Ibid, Jacob Mathew v. State of Punjab & Anr

[15]Dr.K.K.Agrawal, Legal Issues in Medicine, http://module.ima-india.org/ima/Legal_issuesinMedicine_Dr%20KK-Aggarwal.pdf

[16]Ibid, Jacob Mathew v. State of Punjab & Anr

[17]Ibid, Jacob Mathew v. State of Punjab & Anr

[18] Ch 8, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002

[19]Ibid, Dr.K.K.Agrawal, Legal Issues in Medicine

[20] Ch 8, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002

Role of Lawyers in Social Transformation

“Lawyers are the foot soldiers of our Constitution.” RENNARD STRICKLAND & FRANK T. READ, The Lawyer Myth

On January 9 , 1915 at Apollo Bandar in Bombay a barrister returned to his motherland ,who would have thought than that he will lead India in one of the biggest war this country has ever seen and emerge victorious , he was no other than Mohandas Karamchand Gandhi . From early times of moderates like Motilal Nehru , Dadabhai Naoroji to extremists C Rajagopalachari , Bal Gangdhar Tilak or “Iron Man” Sardar Patel they all had their differences in opinions, thoughts and way of working but what they all had in common was they were practitioners of ‘law’. If not of the self sacrificing and dedicated efforts of these brave men how we would have won the independence we cherish.This was the first ever dynamic transformation in Indian society with many more to come.

At the dawn of independence, the parliament of independent India was the forge where a document that will guide the young nation was being crafted. It will fall on the keen legal mind of B. R. Ambedkar to formulate a constitution for the newly independent nation. The Indian Bar had a role in the Independence movement that can hardly be overstated – that the tallest leaders of the movement across the political spectrum were lawyers is ample proof. The new nation saw its first leader in Jawaharlal Nehru, and a paternal figure in M. K. Gandhi, both exemplary lawyers. Perhaps it is the consequent understanding of law and its relation to society that prompted the founding fathers to devote the energy required to form a Constitution of unprecedented magnitude in both scope and length.

lawyer

Lawyer in Ludhiana

Lawyers played a central role in drafting of constitution.The proceeding clearly show the part played by the lawyers in elaborating the basic concept of secularism, democracy and egalitarianism. It was because lawyers understood the than society in reality rather than substantive term.They also introduced well known ambiguities such as the uncertainty about fundamental rights and directive principles of state policy who were primary. Even after the constitution was adopted lawyers continued to play an important role in national politics .They represented 35.3 percent , 31.4 percent, 30 percent and 26.9 percent of the first four Lok Sabha.2

A man clad in black and white attire walking briskly in a corridor enters the courtroom, eyes of the victim turns to him with hope and belief that he will provide him with the justice he deserves, for him he is no less than the angel who saved his life. Lawyers are those small pillars in a building that are required during the construction of the main pillar as to give it support towards the right direction. We did not reach where we are in a days work , laws that governs us the freedom that we have to express , right to say what desire , choose what we want to work , practice the faith that we believe in. All these rights are conferred upon us by ‘law’ of India and lawyers are the officers who work to make sure that citizens of India are not deprived of their rights.

Being lawyer is a noble and honorable profession which requires a manner and conduct to be carefully followed. In Bar Council of India rules a lawyer holds a duty to act with dignity and self-respect , to uphold the interest of client by all fair and honorable means and shall not take advantage of the confidence reposed in him by his client.A lawyer is bound to conduct himself in a manner befitting the high and honorable legal profession and if he departs from the high standard which the profession has set for itself and demands of him in professional matter, he will be liable to disciplinary actions.3

Apart from fighting cases lawyers provide their skills and knowledge to the society by doing pro bono cases and lending legal services to the poor and needy. A huge change has been brought upon by the legal aid services in India.Legal Aid implies giving free legal services to the poor and needy who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or before an authority.

Article 39A of the Constitution of India provides that State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability. Articles 14 and 22(1) also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all. Legal aid strives to ensure that constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the poor, downtrodden and weaker sections of the society. The Constitutional duty to provide legal aid arises from the time the accused is produced before the Magistrate for the first time and continues whenever he is produced for remand.

In 1987 Legal Services Authorities Act was enacted to give a statutory base to legal aid programs throughout the country on a uniform pattern. This Act was finally enforced on 9th of November 1995 after certain amendments were introduced therein by the Amendment Act of 1994.

Most social evils are an outcome or creation of poverty and the misery that comes with being poor in a country like India, at the same time it also needs to be borne in mind that the judiciary no matter however committed it may be towards uplifting the cause of the poor is ultimately bound by procedural formalities which do not take into account the misery or problems of the masses. Therefore the sufferings being so may it is not possible for the legal system to remove even few of such problems. In keeping with the same view Justice Krishan Iyer asserted that poverty is a creation of unjust institutions and unjust society. Therefore in a country like India if you are poor you are ineffective socially as well as economically the only way that you can then be empowered is through radical revamping of the socio-economic structure. Such a radical change according to him could only be brought about in the form of a revolution that the legal service program only is capable of gearing. Thus the legal aid program aimed at revamping the socio-economic structure by way of removing the socially unjust institutions and creating a new order based upon the ethos of human liberty, equality and dignity of mankind.Justice Blackmun in Jackson v. Bishop says that; “The concept of seeking justice cannot be equated with the value of dollars. Money plays no role in seeking justice.”4

Various branch of studies deals with the specific study of which they are specialized for. Eg. A medical practitioner can deal only in the line of medicine, an engineer only in his limited scope of engineering but a lawyer deals with all the fields of society including science,social values,human rights, banking , Intellectual property etc. As famously said “A lawyer should know something about everything and everything about something”. Julius Stone defined ‘The lawyer’s extraversion, It is the lawyer examination of the precepts, ideas and techniques of the law in the light derived from present knowledge in discipline other than the law’. Apart from their role in legal services lawyers have equal participation in imparting of knowledge i,e, Law Schools providing legal education from the old 3 years law courses to dynamic 5 years integrated courses. Not just Bar Council of India is supreme body that regulate the course it keeps in check the quality and methods of imparting legal education. For eg. 66% of the attendance is compulsory and there is no distance learning in law because law requires practical approach, students need direct confrontation with reality as they will be the future which will decide the direction in which the legal system will take place. With practical subjects like moot court and drafting there is scope for students to develop their personal skills. Lawyers are not extra-territorial creatures they are human beings who live in the society and are affected by its whereabouts but the difference is that they have the ability , power, resources and knowledge to change it. Question arises does common man working 9 to 5 around the clock does not have the power to change the law or the conditions of the society. Yes, he has and there are examples in the history but than taking a practical approach how many have actually tried the percentage is very low. How will I change it? To whom should I complain? Why should I take all the pain? These are the questions that stops a common man but our legal system has provided a way to by which we can bring change and help those who are affected but are unable to help themselves , answer is Public Interest Litigation(PIL).

businessman signing a contract

Attorney in Ludhiana

Public-Interest Litigation is litigation for the protection of the public interest. In Indian law, Article 32 of the Indian constitution contains a tool which directly joins the public with judiciary. A PIL may be introduced in a court of law by the court itself (suo motu), rather than the aggrieved party or another third party. For the exercise of the court’s jurisdiction, it is not necessary for the victim of the violation of his or her rights to personally approach the court. In a PIL, the right to file suit is given to a member of the public by the courts through judicial activism. The member of the public may be a non-governmental organization (NGO), an institution or an individual. 5

In the case of SP Gupta vs Union of India that the Supreme Court of India defined the term Public Interest Litigation in the Indian Context.The concept of Public Interest Litigation (PIL) is in consonance with the principles enshrined in Article 39A of the Constitution of India to protect and deliver prompt social justice with the help of law. Justice Bhagwati and Justice V.R, Krishna Iyer were the first to accept the PIL.The Court entertained a letter from two professors at the University of Delhi seeking enforcement of the constitutional right of inmates at a protective home in Agra who were living in inhuman and degrading conditions.

But a coin has two sides with the ability to file PIL there was a increased number of frivolous PIL. The 38th Chief Justice of India, S. H. Kapadia, has stated that substantial fines would be imposed on litigants filing frivolous PILs. His statement was widely welcomed, because the instance of frivolous PILs for pecuniary interest has increased.So necessary steps has been taken to stop its misuse.

We live in a world full of technology and gadgets, when we lose our cell phone or internet connection is hampered we feel like we have been handicapped.One know more about his distant friend what has he/she taken in breakfast but barely know the name of the person sitting next to him/her. A world were virtuality has become an integral part of reality and were there are people there are certain misadventures and to prevent those misadventures there is ‘cyber law’. It is the age where we the government is talking about digital India. With the increase in digital activities there is a hike in online frauds and scams. A recent study shows there is 50% increase in complaints of cyber crime than in 2013 to 2014. The problem does not end here along with these scams there is harassment, cyberbullying and degrading regards of human values as no one is there to keep a check.

Let us take a few examples Monika Lewinsky was the first victim of cyber world or as she herself called as ‘patient zero’, the infamous Delhi MMS scandal, Lottery fraud cases, Charity fraud and recent increase in Nigerian fraud were they make friends via facebook or through emails and then demand a brief amount of money to give you a substantial sum. Many have fallen ill to this , recent a Mumbai based education institute owner.

Engineers can provide you with better softwares so it may not happen again , Doctors will give you medicine so you may come out of your depression but who will provide you justice,who stand up for you and bring the culprit down.It is Lawyers. They will take the stand and bring notice the society what has happened and now what should be done so that the victim will recover from the injury suffered.

The Information Technology Act , 2000 is the statute that provide guidelines regarding the rules and regulations of laws prevailing in India for Cyber Crimes. Lawyers with the help of these laws help the victim as it is not possible for a common man to know all the laws and act accordingly.

When people hear the word lawyer being spoken, they usually think of an individual who goes to court everyday and stands before a judge defending the freedom of another individual. This is true in some cases; however, there are many different types of lawyers with a variety of job responsibilities and duties. No matter what type of lawyer one maybe they ultimately have an extremely important role in the lives of others. So, the lawyers have a wide range of responsibilities and duties when it comes to their profession. Their role in society is even more important as they are acting as a voice for others and a social engineer having intellectual challenges.

Lives of people are not only affected by standing in court and proving if one is innocent and guilty. They are affected even when a company takes over another, there is change in the banking rules or even there is increase in gas prices. One might not know but lawyers are not just confined to courtrooms but extended to the high profile business meetings of these Multinational Companies to the merchant selling his business to another.As their transactions are governed by law and a corporate lawyer is the one who helps them in solving out the legal paradoxes and allow them to do their business freely.
Public opinion of lawyers is that , one who will take up your time bind you into the legal system and instead of providing you with the remedy will take up all the remaining resources you have.But let me ask them this question, You can give your opinion freely and say what one wishes to say why because our constitution allows it. That constitution which was drafted by majority of lawyers headed by Dr. B.R. Ambedkar. When the Bhopal Gas tragedy took place who provided legal support to the public and provided them with remedy. Justice Bhagwati developed the concept of ‘Absolute Liability’ so the accused would be held liable for those innocent deaths. In ‘Nirbhya’ case it was the lawyers who demanded for speedy justice and asked the court if not ‘Justice Delayed is Justice Denied’ to that innocent girl who was battling for life and death.
Yes, there are corrupt lawyers some who work for their personal gains and benefits but dirty work of few who lack on morality and ethics should not hide the great achievements and role of a lawyer in building a nation and developing a society which is fearless and advance. Lawyers keep in check that there is no one force which dictates the shape of nation.A recent example ‘Beef Ban’ during Jain festival Paryushan which now is being challenged in court if it is against the Right to religion. These questions help us to evolve with the changing times and helps to repeal the old law with the modern one.

The role as a lawyer is challenging and demanding. The role of lawyer is not simply to appear in court and argue passionately on the behalf of the client, but there is a multitude of background work as well as responsibilities related to this profession especially in favor of the country and not personally. A lawyers contribution is not seen in terms of calculative methods but its impact can be felt by generations to come.

A lawyer must be very careful about his attributes and behavior.As Mahatma Gandhi said –
Keep your thoughts positive, because your thoughts become your words.
Keep your words positive, because your words become your behavior.
Keep your behavior positive, because your behavior become your habits.
Keep your habits positive, because your habits become your values.
Keep your values positive, because your values become your destiny.
Open Your Mind, Open Your Life: A Book of Eastern Wisdom

Family settlement better option than approaching a court

Property disputes are a common occurrence in India. Since greed is a great leveller, wars over wealth take place across the strata, from low-income households to ultrarich families. Even an iron-clad will may be challenged by unhappy beneficiaries. The obvious solution for most squabbling relatives is to take the matter to the courts.

However, that is a time-consuming, tedious and expensive process, which in no way guarantees a satisfactory resolution. A far more amicable, and pocket-friendly, solution is to opt for a family settlement. Here is a ready reckoner.

property disputes

Lawyer in ludhiana

In a nutshell, a family settlement is an agreement where family members mutually work out how a property should get distributed among themselves. All the parties should be related to each other and have a claim to a share of the disputed property. The latter need not be limited to real estate, but can also cover movable assets like jewellery or money in bank accounts. A family settlement is usually used to settle common property or joint property that the family owns as opposed to individual or self-acquired property.

Those who wish to avoid protracted, public and messy court battles will find that family settlements are a quicker, more harmonious way to resolve disputes. Of course, a family may not be able to reach a consensus, in which case the legal recourse is the only way out.

This is a conciliation process where a third person, usually a lawyer or a senior family member, helps the family arrive at a mutually acceptable solution to the property dispute. A family settlement need not strictly be a single document incorporating the distribution of assets. It may also be a series of documents spelling out the property rights of each family member.

Say, a family of two brothers and a sister are squabbling over a flat, an office and some ancestral jewellery. They could draw up a settlement agreement stating that the oldest brother gets the flat, the sister bags the jewellery and the office goes to the remaining sibling.

The most important thing to remember is that this instrument is neither treated as a gift nor as a transfer as per the Income Tax laws. So one would have to draw up separate transfer of property documents in addition to the family settlement agreement—to bring about an actual transfer. This is where instruments like gift and sales deeds come into play.
Says Sandeep Nerlekar, founder, Mumbai-based Terentia Consulting Group: “The tax factor must be considered when deciding on a transfer of property document. For instance, if you use a gift deed to transfer property to relatives, there is an income tax component.

Similarly, a sales deed may invite capital gains tax. However, so long as no transfer takes place, the parties to a family settlement won’t be subject to capital gains tax in respect of the profits derived from their share of the property.”

Merely reaching a consensus is not enough; there are a few legal formalities that must be completed to ensure that the agreement is valid. Firstly, the settlement document must be signed by all the family members involved. A missing signature can easily become ground for challenging the document in court at a later date. “In addition, as a safety measure, the document should be attested by two witnesses, though it is not mandatory,” says Ravi Goenka, advocate, Goenka Law Associates.

The next step is to register the agreement. According to Section 17 of the Indian Registration Act, a family settlement that purports to assign immovable property must be mandatorily registered or the deed would be invalid. A stamp duty is applicable on such deeds and the amount would depend on the value of the property involved.

While a duly executed family settlement cannot be revoked, except with a court decree, it can be challenged in a court of law. An agreement that is brought about by fraud or coercion is a case in point. Any misrepresentation of facts regarding the title of the disputed property, too, can lead to future altercations. Adds Goenka: “Another common ground on which it is challenged is improper execution.”

Paying heed to these common tripwires while drawing out an agreement will result in a foolproof, amicable and binding family settlement, which benefits everybody.