The purpose of this research article is to analyze the issue of frequent strikes
that were called by advocates in India in recent years. The article holds the
various aspects of the matter as to why the right to strike by lawyers is beyond
the scope of the fundamental right to form an association. It also reveals the
reasons why such call for strikes had been declared as unconstitutional and
illegal by the judiciary. The role of bar council of India and its duties for
curbing the menace has also been discussed. Further, the article deals about the
multiple obstructions that affect the administration of justice by holding such
strikes and protests. The article also highlights the recommendations of law
commission and its suggestions for addressing the grievances of advocates so
that equilibrium could be maintained in the legal system of the country.
Judiciary is the third estate in a democracy where advocates are the officers of
the courts who have certain responsibilities that need to performed effectively
while serving justice to the people but in recent years there have been various
instances when lawyers had called for strikes and protest which became the
reason of conflict between bar and bench. Despite various judgments by the apex
courts, the lawyers have continued to go on strikes. Lawyers who supposed to be
the defenders of legal values, they themselves had breached the trust of the
court by defying the verdicts of Supreme Court. In between all these conflicts
the consumer of justice is the real sufferers who are being denied of their
fundamental right of speedy trial guaranteed under Article 21 of the Indian
constitution.
Lawyer’s Right to strike – A Professional Misconduct
According to the constitutional perspective right to strike is a fundamental
corollary conferred by part III of the constitution under the right to freedom
of association art 19(c) where a group of people upholding a common interest can
come together and demand of their rights. However freedom of association under
art 19 is not an absolute right, certain reasonable restrictions are imposed on
it. Therefore one of the important question arises in the legal profession is
that do lawyers have the right to call for a strike. The Supreme Court and High
courts in its various verdicts had made it clear that Lawyer’s strike is illegal
and necessary steps should be taken to curb the growing tendency.
In the landmark judgment given by the supreme court in case of
Ex-Capt. Harish
Uppal v Union of India and Another
[1] the Court held that lawyers have no right
to go on strike or give a call for boycott, not even on a token strike. The
protest, if any is required, can only be by giving press statements, TV
interviews, carrying out of court premises banners and/or placards, wearing
black or white or any color armbands, peaceful protest marches outside and away
from court premises, etc. In another landmark case,
Hussain v Union of
India
[2] the court had clearly stated that the lawyers strike and suspension of
the court is illegal and it is high time that legal fraternity realizes its duty
to the society which is foremost.
Advocates are bound to maintain rules on professional conduct and etiquettes
which has been laid down in chapter II part IV of the bar council of India
Rules. Under this section, the advocates are abide by the certain duties towards
the court and their client. In Roman Services Pvt Ltd v Subhash Kapoor[3] the
question was when a lawyer goes for a strike call made by the association and
boycotted the Court proceeding, whether his litigant should suffer a penalty. It
was held by the Court that when an advocate involves himself in strike there is
no obligation on the part of the Court to either wait or adjourn the case on
that ground. It was held that advocate has no right to boycott court proceedings
on the ground that they have decided to go on a strike. In B.L.Wadhera v
State[4], the court held that if on the ground of strike a lawyer abstains from
appearing in court then he is conducting professional misconduct, a breach of
contract, breach of trust and breach of professional duty.
Role of Bar Council of India
Section 4 of the advocates act 1961 mentioned about the establishment of Bar
Council of India and further section 7 explains about the function of BCI,
wherein clause (b) conferees power to BCI to lay standards of professional
conduct and etiquettes of advocates[5]. according to verdicts of courts, the BCI
should ensure that lawyers should not involve in strikes and protest. However,
there are instances where BCI itself had called lawyers for strikes. The
judgment pronounced in the case of Ex-Capt. Harish Uppal v Union of India and
Another[6] wherein the supreme court made it clear that “lawyers have no right
to strike. No Bar Council or Bar Association can permit calling of a meeting for
purposes of considering a call for strike or boycott and requisition. Only in
the rarest of rare cases where the dignity, integrity, and independence of the
Bar and/or the Bench are at issue, courts may ignore to a protest abstention
from work for not more than one dayâ€. In Krishnakant Tamrakar v State of Madhya
Pradesh[7], the supreme court held that frequent strikes by lawyers are illegal
as they obstruct access to justice. The further court also observed that such
actions amount to contempt of court and office. In Common Cause a Registered
Society v. Union of India and Others[8] in this case it was held that, if any
associations of advocates call for a strike, then the State Bar Council or the
Bar Council of India must take actions against those persons who call for
strike In another case of Praveen Pandey v. State of Madhya Pradesh and
othrs[9] wherein the court held “the decision of the State Bar Council calling
upon the Advocates in the State to observe a week-long protest and to abstain
from all judicial works and Court proceedings is illegal, unconstitutional and
against the statutory provisions as well as contrary to the judgments of the
Supreme Courtâ€
Reasons for denying Lawyers the right to strike.
The fundamental duty of Judiciary is to serve people who are seeking justice for
themselves and in order to do so its very important that every branch of it must
coordinate and cooperate with each other. Any deficiency in the system would
lead to the violation of the fundamental right to speedy trial guaranteed by
article 21 of the constitution. Therefore the call for a strike by lawyers has
an adverse effect in the functioning of the judiciary. The frequent protest and
strikes interfere with the administration of justice that leads to delay in the
trial of cases and ultimately resulting in the pendency of cases. From time to
time the supreme court in its various judgments had resorted the right to strike
by lawyers and directed the litigants to work efficiently for justice without
any failures.
The division bench comprising of justice AK Goel and UU Lalit in
Krishnakant
Tamrakar v State of Madhya Pradesh
[10] stated “By every strike, irreversible
damage is suffered by the judicial system, particularly consumers of justice.
They are denied access to justice. Taxpayers’ money is lost on account of
judicial and public time being lost. Nobody is accountable for such loss and
harassment†In Hussain and Anr. v Union of India[11] the court said “Hardships
faced by witnesses if their evidence is not recorded on the day they are
summoned or impact of delay on under trials on account of avoidable
interruptions of court proceedings is a matter of concern for any responsible
body of professionals and they must take appropriate steps. This needs the
attention of all concerned authorities and ways and means ought to be found to
tackle this menace…Judicial services and legal services are missions for serving
society. The mission is not achieved if the litigant who is waiting in the queue
does not get his turn for a long time.â€
Ex-Capt. Harish Uppal v Union of
India and Another
[12] It is settled law that it is unprofessional as well as
unbecoming for a lawyer who has accepted a brief to refuse to attend Court even
in pursuance of a call for strike or boycott by the Bar Association or the Bar
Council. It is settled law that Courts are under an obligation to hear and
decide cases brought before it and cannot adjourn matters merely because lawyers
are on strike.
Solutions to the Grievances of lawyers:
The ban imposed on strikes by lawyers is justified as consequences of strikes
were corroding the roots of the judiciary. However, it is also important to
safeguard the interest of the advocates, so that the functioning of the legal
system should be balanced. Section 7 clause (d) of the advocate's act
1961explains the functions of Bar Council of India to safeguard the rights,
privileges, and interest of advocates [13] therefore abiding by the rules
grievances of lawyers must be heard and further steps should be taken to tackle
their issues that they are facing.
In 266th report of law commission of India a suggestion has been made that at
every district headquarters, the District Judge may constitute an Advocates’
Grievance Redressal Committee headed by a Judicial Officer which will deal with
the day to day routine matters, a large number of issues and grievances arise in
the smooth working of the advocates. In this regard, the High Court may issue a
circular in an exercise of its power under article 235 of the Constitution
providing for redressal of grievances of the Advocates which will help in
improving their efficiency. In case there is some grievance against a Judicial
Officer, the Bar may raise the grievance before the Chief Justice of the
concerned High Court.
taking these suggestions into consideration[14]. Taking these suggestions into
consideration the grievances of advocates can be construed to a greater extent
that will ultimately help in curbing the menace of strikes by lawyers.
Conclusion:
In a nutshell, strikes by lawyers are beyond the scope of art 19 of the
constitution. There are the certain profession that should be treated alike as
they had a motto to serve the society at large and legal profession is one of
them that needs to work towards providing justice to people without any delay.
The landmark judgment of Ex-Capt. Harish case had declared the strikes by
advocates as illegal and only in rare of rarest case lawyers can call
for strikes as pointed by the supreme court in the judgment. The lawyers have
the right to demand solutions of their grievances but not at the cost of their
client’s right who had to suffer because of such strikes that lead to the delay
in the procedure of giving justice to people.
End-Notes
[1] Ex-Capt. Harish Uppal v Union of India and Another, (2003) 2 SCC 45
[2] Hussain v Union of India
[3] Roman Services Pvt Ltd v Subhash Kapoor (2001) 1 SCC 118
[4] B.L.Wadhera v State, AIR 2000 Delhi 266.
[5] Section I, Chapter II, Part VI “Bar Council of India Rules.â€
[6]Supra Note 1.
[7] Krishnakant Tamrakar v State of Madhya Pradesh, AIR 2018 SC 3635.
[8] Common Cause a Registered Society v. Union of India and Others AIR 2005 SC
4442
[9] Praveen Pandey v. State of Madhya Pradesh and other
[10] Supra Note 7
[11]Supra Note 2
[12] Supra Note 1
[13] Supra Note 5
[14] Draft of The Advocate (Amendment) Bill, 2017
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