LABOUR LAW/SUPREME COURT/LAYWERS/BAR/LEGAL PROFESSION

E-mail this Comments Print Article

Of Advocates' Strike
by Shantimal Jain*

Cite as : (2006) PL May 13

The Supreme Court of India, rather the entire judiciary is probably the strongest in the world and it has an impressive index of delivering verdicts that display a rare jurisprudential vision irrespective of the fact whether such pronouncements have mass appeal or not. This is the uniqueness of the Indian judicial system.

When the executive, bureaucracy or other organs go astray, the Court comes to the rescue to inculcate a sense of responsiveness in those erring ones. Some of the judgments of the Supreme Court are sufficiently focussed and imaginative in this regard to meet the felt need of the society.

In this sequence the judiciary has recently metamorphosed the entire chemistry of the concept of strike. The Supreme Court in Communist Party of India (M) v. Bharat Kumar1 deprecated the call for enforcing a bandh affirming the ratio decidendi of the Kerala High Court in Bharat Kumar K. Palicha v. State of Kerala2 which held that calling for and holding "bandh" violated the fundamental rights of the citizen and the court could step in to protect such rights. Then again the Kerala High Court in Kerala Vyapari Vavasayi Ekopana Samithi v. State of Kerala3 held that the mere calling of a hartal or advocating it as understood in the strict sense, cannot be held to be objectionable. But the moment it comes out of the concept of hartal, strictly so-called and seeks to impinge on the rights of others, it ceases to be a hartal in the real sense of the term and actually becomes a violent demonstration affecting the rights of others.

Then the Supreme Court in T.K. Rangarajan v. Govt. of T.N.4 held that there exists no fundamental, statutory, equitable and moral right to resort to strike. Then, again the Full Bench of the Kerala High Court in George Kurian v. State of Kerala5 categorically held that: LLN p. 274, para 13(5)

"13. (5) Those who call for hartals or strikes by whatever reason should make it clear in their call that nobody will be compelled to participate in the hartals or strikes, that traffic will not be obstructed and those who are willing can go for work and that fundamental rights of others to move about will not be affected. They should also instruct their supporters to see that no coercion or force is used for compelling others to participate in the strike or hartal;"

Having disseminated the aforesaid verdicts on the concept of strike this article now refers to the question of strikes by lawyers. Common Cause, a voluntary association engaged in raising public issues, filed a writ petition in the Supreme Court challenging the right of lawyers to go on strikes. Obviously, it seems permissible to venture the comment that striking work by counsel amounts to refusal of discharging their contractual obligations to their clients who have paid them and who are, in no way associated with the quarrels the lawyers have with the Government. Hypothetically, it may be possible for the judges to call out the cases, record the default of appearance of parties or their counsel, dismiss the cases and reject applications for restoration since strike by lawyers is no basis for restoration. If that happens, the striking lawyers may even be asked to pay damages to their clients who suffered by their non-appearance. In this sense strikes may not even advance the interests of lawyers themselves.

The question of lawyers' strike has been dealt with in a number of decisions of the Supreme Court and Common Cause, A Registered Society v. Union of India6 and Ex-Capt. Harish Uppal v. Union of India7 importantly deal with this matter.

The Supreme Court in Common Cause 'A Registered Society' v. Union of India8 dealt with this question. This matter related to the punitive action of the Bar Associations i.e. the Delhi High Court Bar Association and the Supreme Court Bar Association, in visiting the advocates, who refuse to participate in strike call, with action of suspension and the action of the Bar Council of Delhi passing a resolution which inter alia proposed to take action against lawyers who did not participate in the strike call, which amounted to the contempt of the earlier judgment of the Supreme Court in Common Cause case6. In Ex-Capt. Harish Uppal v. Union of India7 the Supreme Court very lucidly per curiam held that: (SCC p. 47)

"The law is already well settled. It is the duty of every advocate who has accepted a brief to attend trial, even though it may go on day to day and for a prolonged period. He cannot refuse to attend court because a boycott call is given by the Bar Association. It is unprofessional as well as unbecoming for him to refuse to attend court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council. The courts are under an obligation to hear and decide cases brought before them and cannot adjourn matters merely because lawyers are on strike. It is the duty and obligation of courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike. If a resolution is passed by Bar Associations expressing want of confidence in judicial officers, it would amount to scandalising the courts to undermine its authority and thereby the advocates would have committed contempt of court. If the lawyers participate in a boycott or a strike, their action is ex facie bad in view of the decision in Mahabir Prasad Singh case9 The advocates would be answerable for the consequences suffered by their clients if the non-appearance was solely on ground of a strike call."

It is further held that an 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 and strikes interfere with the administration of justice. They cannot thus disrupt court proceedings and put the interest of their clients in jeopardy. This brings us to the provisions of Article 145 of the Constitution which gives to the Supreme Court and Section 34 of the Advocates Act which gives to the High Court power to frame rules including rules regarding conditions on which a person including an advocate can practise in the Supreme Court and/or in the High Court and courts subordinate thereto. Many courts have framed rules in this regard. Such a rule would be valid and binding on all. It is therefore expected of the Bar Councils and the Bar Associations that they should counsel their members to exercise self-restraint else courts may have to step in and consider framing of specific rules which would debar advocates found guilty of contempt and/or unprofessional or unbecoming conduct from appearing before the courts. The Constitution Bench of the Supreme Court has cautioned the Bar Councils to rise to the occasion as it is responsible to uphold the dignity of court and majesty of law. However, in rarest of the rare cases absenteeism from work for one day could be tolerated but in such cases the Chief Justice or the District Judge, as the case may be, make final decision. The entire metaphysics therefore rotates round the enunciated position that advocates have no right to resort to strike/hartal or boycott of the courts.

On such an embargo being put on the right of the advocates to go on strikes, a question would be asked as to how should they ventilate their grievances when it is held that lawyers have no right to go on strikes or give a call for boycott not even for a token strike. Then it has been suggested that the protest, if any required, can only be by giving press statements, TV interviews, carrying out of court premises banners or play cards, wearing black or white or any colour arm bands, peaceful protest marches outside and away from court premises, going on dharnas or relay facts, etc.; this could be the legitimate course of protest.

It therefore follows that the judiciary has practically banned the strikes/hartals by advocates and has directed the subordinate courts not to countenance strikes but even then we find that advocates have been resorting to strikes all frequently and for no reason or rhyme and unfortunately courts are also accommodating such indulgences.

We have a sensitive, accountable, transparent and responsive system of dispensation and administration of justice and therefore the time has come when such indulgences should be audited for appropriate remedial measures.

The Supreme Court has done laudable work and has defined "whys", "whens" and "if at alls" for regulating the legal profession. In some cases it has also held that an advocate cannot have any lien on the file of the client and he cannot retain the file even if the client has not paid the fee of the advocate. The file is the property of the client.

The work on this write-up would remain incomplete if reference is not made to certain very befitting and apt observations made by the Hon'ble R.P. Sethi, J. in R.D. Saxena v. Balram Prasad Sharma10 on legal profession. A social duty is cast upon the legal profession to show the people beckon light by their conduct and actions. No effort should be made or allowed to be made by which a litigant could be deprived of his rights, statutory as well as constitutional. An advocate is expected at all times to conduct himself in a manner befitting his status as an officer. It is high time for the legal profession to join heads and evolve a code for themselves in addition to the mandate of the Advocates Act, rules made thereunder and the rules made by the various High Courts and the Supreme Court, for strengthening the belief of the common man in the institution of the judiciary in general and in their profession in particular. Creation of such a faith and confidence would not only strengthen the rule of law but also result in reaching excellence in the profession. Would such a noble profession get infected by the malaise of strike? Let it have a voluntary insulation against strikes.

---

* Vice President P, Rajasthan Textile Mills, Bhawanimandi Return to Text

1. (1998) 1 SCC 201 Return to Text
2. AIR 1997 Ker 291 (FB) Return to Text
3. AIR 2000 Ker 389 Return to Text
4. (2003) 6 SCC 581 Return to Text
5. (2005) 1 LLN 263 (Ker) (FB) Return to Text
6. (1995) 1 Scale 6 Return to Text
7. (2003) 2 SCC 45 Return to Text
8. (2005) 36 AIC 135 (SC) Return to Text
9. Mahabir Prasad Singh v. Jacks Aviation (P) Ltd., (1999) 1 SCC 37 Return to Text
10. (2000) 7 SCC 264 Return to Text