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District Bar Association v/s Ishwar Shandilya: Right To Protest By Bar Association

The following case summarises the recent Supreme Court ruling following the filing of a Special Leave Petition under Article 136 by the District Bar Association, which claimed that the order by the Honourable High Court of Uttarakhand, Dehradun, violated their right to protest as a fundamental right under Article 19(1) (a) of the Indian Constitution.

The District Bar Association, Dehradun, has challenged the High Court's decision to act against the advocates who declined to represent their client in front of the court in lieu of a protest as an overreach of its authority because they believe that doing so is the only way to protest and have their demands taken into consideration. Therefore, any such act done in good faith and intention is covered under Section 4 of the Constitution.

The Supreme Court had to weigh the pros and drawbacks of the court's protest, including the potential harm to the client the advocate had undertaken to represent, when weighing the freedom to protest against the right to a fair trial.

This case demonstrates the bureaucratic character of the profession's organisational structure and who ultimately decides how the advocates should behave. This court also serves as a reminder of the High Courts and Supreme Courts need to preserve the legal professional's ability to effectively represent their clients in the courts where they practice.

Primary Details Of The Case
Case No. : Special Leave Petition (Civil) No. 5440 of 2020
Jurisdiction: Supreme Court of India
Case Decided On: February 2, 2020
Judges: Justice M. R. Shah
Legal Provisions Involved: Advocates Act, 1961; Constitution of India, Article 19(1)(a), 144, 145; Contempt of Court Act, 1971

Brief Facts Of The Case
  • Advocates in the entire District of Dehradun, in several districts of Haridwar and Udham Singh Nagar district in the State of Uttarakhand have been boycotting the Courts on all Saturdays for the past more than 35 years. The strikes are seriously obstructing the access to justice to the needy litigants
     
  • According to the statistics shown by the High Court of Uttarakhand, Dehradun to the Law Commission in the State of Uttarakhand, The Advocates were on strike for about 455 days in Dehradun district and 515 days in Haridwar district averaging about 90 to 103 days per year. Taking cognizance of the matter, High Court of Uttarakhand passed an order taking action against the Advocates who abstained from representing their client in the court.
     
  • High Court delivered an order that whoever abstains from representing the client in the court for any reason and consideration in lieu of the strike calls will be punished by the court. Feeling impugned by the order of High Court, the petitioner filed a Special Leave Petition under Article 136 to seek redressal from the civil appellate jurisdiction of the Supreme Court.

    The Supreme Court referring to various judgments and idiosyncrasies of the Advocates Act, 1961, called upon the district bar association to withdraw their call of strike in case they do not start attending Courts, as directed hereinabove, the District Judges concerned shall submit their respective reports to the High Court for it to consider whether action should be initiated against the errant Advocates under the Contempt of Court Act, 1971.

    The court also issued direction to Uttarakhand State Bar Council to take disciplinary proceedings against the office bearers of the Dehradun District Bar Association, within the time period of four weeks under the offence of illegally having issued a call for illegal strikes/boycott of the Courts on Saturday in the jurisdiction of Dehradun, Haridwar and Udham Singh Nagar. The Court also took the initiative to direct the Bar Council of India to also take an appropriate action against the rebellious Bar Association in lieu of its notice published on July 12, 2019, within three weeks and also make sure that such an action does not repeat itself again in future by such Bar Associations.
     
  • Finally, The Supreme Court also requested The High Court and ordered the District Court to make sure the proper functioning of courts and such actions do not come in the way of providing speedy justice to the civilians.

Issues Involved In This Case
  1. Is the balance between the right to protest of an Advocate under Article 19(1)(a) and not denying fair and proper trial to a client?
  2. What is the Role of Bar Council of India in regulating recalcitrant Advocates and other Bar Associations?

Arguments Of The Parties
This case law is a bundle of orders and directions, to make the arguments coherent we shall discuss each issue separately along with the subsequent arguments of the parties. The Arguments were as follows:
  • Balance between right to strike of an Advocate and not denying fair and speedy trial to the client in the court Mr. Mahabir Singh, learned Senior Advocate appearing on behalf of the petitioner has vehemently submitted that the High Court has not properly appreciated and considered the fact that the right to go on strike/boycott courts is a fundamental right to Freedom of Speech and Expression guaranteed under Article 19(1)(a) of the Constitution of India.

    It was also submitted by the learned Senior Advocate appearing on behalf of the petitioner that the High Court ought to have held that the protection conferred by Section 48 of the Advocates Act is for any act done in good faith and therefore the directions issued by the High Court to take action against the Advocates on strike would be contrary to the protection conferred by Section 48 of the Advocates Act.

    The Supreme Court upholding the directions issued by the High Court and referring to the judgement of Harish Uppal v. Union of India[1] held that lawyers have no right to go on strike or even token strike or to give a call for strike. It is observed that nor can they while representing on behalf of clients, abstain from appearing in courts in pursuance of a call for strike or boycott. It is further observed by this Court that it is unprofessional as well as unbecoming for a lawyer to refuse to attend the court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council.

    It is further observed that an Advocate is an officer of the court and enjoys a special status in the society; Advocates have obligations and duties to ensure the smooth functioning of the court; they owe a duty to their clients and strikes interfere with the administration of justice. They cannot thus disrupt court proceedings and put interest of their clients in jeopardy.
     
  •  Role of Bar Council of India in regulating the behaviour of Advocates and working of other Bar Associations. Supreme Court in its judgement has laid down that any misconduct on the part of a lawyer will amount to Contempt of Court in the case of Bar Association v. Union of India.[2]

    Subsequently, it was laid down that an advocate who is found guilty of contempt of court may also, as already noticed, be guilty of professional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that advocate by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of each case. Under Article 144 of the Constitution 'all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court'.

    The Supreme Court affirmed that the Bar Council which performs a public duty and is charged with the obligation to protect the dignity of the profession and maintain professional standards and etiquette is also obliged to act 'in aid of the Supreme Court'. It must, whenever facts warrant, rise to the occasion and discharge its duties uninfluenced by the position of the recalcitrant advocate. In the current case, the Supreme Court took cognizance of the inactivity of the Bar Council to maintain dignity and professional conduct among the abstaining advocates.

    The Supreme Court warned of taking actions into its own hand under the lieu of Section 38 of the Advocates Act by sending for the record of the proceedings from the Bar Council and passing appropriate orders as set in Ramon Services case.[3]

    Advocate is an officer of the court and enjoys special status in society. Advocates have obligations and duties to ensure smooth functioning of the court. They owe a duty to their clients. Strikes interfere with administration of justice. They cannot thus disrupt court proceedings and put interest of their clients in jeopardy.

Legal Aspects Involved In The Case
  1. Strikes by Bar Associations and Advocates are illegal and unlawful.
    Conducting cases in the court is a matter which is under the jurisdiction of the court and thus, the court has major supervisory and controlling powers. Therefore, courts cannot be and are not divested of control of supervision of conduct in court just on the doubt that it may involve the right of an advocate.

    An Advocate cannot deny representing his client in the court under the guise of Section 48 of Advocates Act. Advocates have obligations and duties to ensure the smooth functioning of the court; they owe a duty to their clients and strikes interfere with the administration of justice.

    They cannot thus disrupt court proceedings and put interest of their clients in jeopardy. Also, in case any Association calls for a strike or a call for boycott the State Bar Council concerned and on their failure the Bar Council of India must immediately take disciplinary action against the advocates who give a call for strike and if the Committee members permit calling of a meeting for such purpose, against the Committee members. Further, it is the duty of every advocate to boldly ignore a call for strike or boycott.
     
  2. Duty of the Bar Council to ensure professional conduct and behavior
    The Bar Council is a public organization and hence it is its responsibility to ensure the upkeep of thehighest standards of professional service and standards towards the client and the court. Under Article 144, it is obliged to work in the aid of the Supreme Court. Therefore, it should take timely cognizance of resistance on parts of such bar associations and advocates and take a timely action. Any latency will invite interference from the Supreme Court under Section 38 of the Advocates Act.

    There is no justification to assume that the Bar Councils would not rise to the occasion, as they are equally responsible to uphold the dignity of the courts and the majesty of law and prevent any interference in the administration of justice.

    The High Court can also make Bar Council aware of any intractable conduct under their jurisdiction to allow a proportionate action on the perpetrators. Under section 34 of the Advocates Act, the High Court and under Article 145, the Supreme Court can also frame rules of its own regarding the conduct in the court to punish the defaulting advocates.

Judgement In Brief
  • The Supreme Court taking into consideration the right to protest under Article 19(1)(a) of the Indian Constitution and also the right to ensure smooth functioning of the courts, held that advocates cannot abstain from representing the client under the garb of a call for strike.
     
  • It held that any call for a strike by Bar Associations is fraudulent and illegal and advocates should seldom follow them. Being a professional ecosystem, resistance cannot be excused under the lieu of right to protest which cannot be exercised in contrary to the Indian Judicial System. They cannot thus disrupt court proceedings and put the interest of their clients in jeopardy.
     
  • The Supreme Court, therefore, upheld the decision of the High Court to punish the misdemeanor of the defaulting advocates and disrupt the working of the court. Therefore, the Special Leave Petition was dismissed.
     
  • The Court also recognized the inactive behavior of the Bar Council of India and directed it to take action against defaulting advocates as soon as possible and not to allow such possible slip-ups again in the future. The Bar Council has to act in the aid of the Supreme Court and ensure cordial and professional behavior among the esteemed profession. In the event such disruptions happen again in the future, the Supreme Court has the imprimatur to interfere in the matter and take rightful actions for the smooth functioning of the courts. Additionally, the High Court can also formulate guidelines and rules for regulating the behavior of advocates in the courts under its jurisdiction.

Commentary
The Supreme Court has vociferously asserted its dominance over the affairs of the courts and has maintained hard line upon its independence. While the court is rightful to assert that right to protest cannot be used to deny the right to a trial to a client and also disrupt Indian Judicial System, Supreme Court rather than denying the opportunity to protest at all should have taken into considerations of the actual problems advocates have to face during day to day working.

The only reason protest happens is due to the unprofessional state of affairs, and shutting down protest can set a bad precedent not only for the judiciary but also other machineries of the Law. While India is already suffering from an identity crisis as the world's largest democracy and also the denier of basic rights such as right to internet, this judgement does not help and only gives more lieu to the government to suppress protest. Judiciary has to take a stand and make sure the feedbacks of the advocates is taken into consideration to desecrate the problem at its core rather than only focusing upon the outlet of such feedback.

The advocates form as important part of the judicial eco system as the judges and the courts. One cannot exist without each other. On the other side, advocates have a responsibility to abide by the Constitution they so rightfully preach and passionately represent their client in the court despite all their other problems. Perfection can only be achieved when each member of the system performs his/her own function perfectly rather than focusing on the shortcomings of the other.

End Notes:
  1. Harish Uppal v. Union of India, (2003) 2 SCC 45.
  2. Bar Association v. Union of India, (1998) 4 SCC 409.
  3. Ramon Services Pvt. Ltd. v. Subash Kapoor and Ors, (2001) 1 SCC 118.
  4. Krishant Kant Tamrakar v. State of Maharashtra, (2018) 17 SCC 27.

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