Full Judgment Text
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CASE NO.:
Writ Petition (civil) 132 of 1988
PETITIONER:
Harish Uppal (Ex-Captain)
RESPONDENT:
Union of India and Anr.
DATE OF JUDGMENT: 17/12/2002
BENCH:
G.B.PATTANAIK CJI & M.B.SHAH & DORAISWAMY RAJU & S.N.VARIAVA & D.M.DHARMADHIKARI
JUDGMENT:
JUDGMENT
Delivered By:
S.N.VARIAVA (J)
M.B.SHAH (J)
S.N. Variava, J.
1. All these Petitions raise the question whether lawyers have a right to
strike and/or give a call for boycotts of Court/s. In all these Petitions a
declaration is sought that such strikes and/or calls for boycott are
illegal. As the questions vitally concerned the legal profession, public
notices were issued to Bar Associations and Bar Councils all over the
country. Pursuant to those notices some Bar Associations and Bar Councils
have filed their responses and have appeared and made submissions before
us.
2. In Writ Petition (C) No. 821 of 1990, an interim order came to be
passed. This Order is reported in (1995) 1 Scale p.6. The circumstances
under which it is passed and the nature of the interim order are set out in
the Order. The relevant portion reads as under:
"2. The Officiating Secretary, Bar Council of India, Mr. C. R. Balaram
filed an affidavit on behalf of the Bar Council of India wherein he states
that a ’National Conference’ of members of the Bar Council of India and
State Bar Councils was held on 10th and 11th September, 1994 and a working
paper was circulated on behalf of the Bar Council of India by Mr. V.C.
Misra, Chairman, Bar Council of India, inter alia on the question of strike
by lawyers. In that working paper a note was taken that Bar Association had
proceeded on strike on several occasions in the past, at times, State-wide
or Nationwide, and ’while the profession does not like it as members of the
profession are themselves the losers in the process’ and while it is not
necessary to sit in judgment over the wider question whether members of the
profession can at all go on strike or boycott of courts, it was felt that
even if it is assumed that such a right enures to the members of the
profession, the circumstances in which such a steps should be restored
should be clearly indicated. Referring to an earlier case before the Delhi
High Court it was stated that the Bar Council of India and made its
position clear to the effect "(a) Bar Council of India is against resorting
to strike excepting in rarest of rare cases involving the dignity and
independence of the judiciary as well as of the Bar: and (b) whenever
strikes becomes inevitable, efforts shall be made to keep it short and
peaceful to avoid causing hardship to the litigant public." (emphasis
supplied). It was in response to the above that a consensus emerged at the
Bar at the hearing of the matter that instead of the Court going into the
wider question whether or not the members of the legal profession can
resort to strike of abstain from appearing in case (sic) engaged, the Court
may see the working of the interim arrangement and if that is found to be
satisfactory it may perhaps not be required to go into the wider question
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at this stage. Pursuant to the discussion that took place at the last
hearing on 30th November, 1994, the following suggestions have emerged as
an interim measure consistent with the Bar Council of India’s thinking that
except in the rarest of rare cases strike should not be resorted to and
instead peaceful demonstration may be resorted to avoid causing hardship to
the litigant public. The learned counsel suggested that to being with the
following interim measures may be sufficient for the present:-
"(1) In the rare instance where any association of lawyers including
statutory Bar Councils considers it imperative to call upon and/or advise
members of the legal profession to abstain from appearing in courts on any
occasion, it must be left open to any individual member/members of that
association to be free to appear without let, fear or hindrance or any
other coercive steps.
(2) No such member who appears in court or otherwise practices his legal
profession, shall be visited with any adverse or penal consequences
whatever, by any association of lawyers, and shall not suffer any expulsion
or threat of expulsion therefrom.
(3) The above will not preclude other forms of protest by practising
lawyers in court such as, for instance, wearing of arm bands and other
forms of protest which in no way interrupt or disrupt the court proceedings
or adversely affect the interest of the litigant. Any such form of protest
shall not however be derogatory to the court or to the profession.
(4) Officer-bearers of a Bar Association (Including Bar Council)
responsible for taking decisions mentioned in Clause (1) above shall ensure
that such decisions are implemented in the sprit of what is stated in
Clauses (1) and (2) and (3) above."
3. Mr. P.N. Duda, Sr. Advocate representing the Bar Council of India was
good enough to state that he will suggest to the Bar Council of India to
incorporate Clauses (1), (2) and (3) and (4) in the Bar Council of India
(Conduct & Disciplinary) Rules so that it can have statutory support should
there be any violation or contravention of the aforementioned four clauses.
The suggestion that we defer the hearing and decision on the larger
question whether or not members of the profession can abstain from work
commends to u. We also agree with the suggestion that we see the working of
the suggestions in Clauses (1) to (4) above for a period of at least six
months by making the said clauses the rule of the Court. Accordingly we
make Clauses (1) to (4) mentioned above the order of this Court and direct
further course of action in terms thereof. The same will operate
prospectively. We also suggest to the Bar Councils and Bar Associations
that in order to clear the pitch and to uphold the high traditions of the
profession as well as to maintain the unity and integrity of the Bar they
consider dropping action already initiated against their members who had
appeared in Court notwithstanding strike calls given by the Bar Council or
Bar Association. Besides, members of the legal profession should be alive
to the possibility of Judge of different Courts refusing adjournments
merely on the ground of their being a strike call and insisting on
proceeding with cases."
The above interim Order was passed in the hope that better sense could
prevail and lawyers would exercise self restraint. In spite of the above
interim directions and the statement of Mr. P.N. Duda the Bar Council of
India has not incorporated Clauses (1) to (4) in the Bar Council of India
(Conduct & Disciplinary) Rules. The phenomenon of going on strike at the
slightest provocation is on the increase. Strikes and calls for boycott
have paralysed the functioning of Courts for a number of days. It is now
necessary to decided whether lawyers have a right to strike and/or give a
call for boycott of Court/s.
3. We have heard Mr. Dipanker Gupta, learned Amicus Curie. We have heard
the Petitioner in person and Advocates for the various Writ Petitioners. We
have heard the Bar Councils and Bar Associations who desired to be heard.
4. Mr. Dipanker Gupta referred to various authorities of this Court and
submitted that the reasons why strikes have been called by the Bar
Associations and/or Bar Councils are:
(a) confrontation with the police and/or the legal administration;
(b) grievances against the Presiding Officer;
(c) grievances against Judgments of Courts;
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(d) clash of interest between groups of lawyers and
(e) grievances against the legislature or a legislation.
Mr. Gupta submitted that the law was well established. He pointed out that
this Court has declared that strikes are illegal. He submitted that even a
call fro strike is bad. He submitted that it is time that the Bar Council
of India as well as various State Bar Councils monitor strikes within their
jurisdiction and ensure that there are no call for strikes and/or boycotts.
He submitted that in all cases where redressal can be obtained by going to
a Court of law there should be no strike.
5. Mr. Nigam, on behalf of Petitioner in Writ Petition (C) No. 406 of 2000,
submitted that strike as a mean for collective bargaining is recognised
only in industrial disputes. He submitted that lawyers who are officers of
the Court cannot use strikes as a means to blackmail the Courts or the
clients. He submitted that the call for strike by lawyers is in effect a
call to breach the contract which lawyers have with their clients. He
submitted that it has already been declared by Courts that a strike is
illegal. He submitted that it is now time that Courts cast responsibility
on the Bar Councils and the Bar Associations to see that there is no strike
and/or call for boycott. He submitted that now the Executive Committee of
any Bar Council or Bar Association which calls for a strike or boycott
should be held responsible by the Courts. He submitted that the Courts must
take action against the Committee members for giving such calls on the
basis that they have committed contempt of court. He submitted that the law
is that a lawyer who has accepted a Vakalat on behalf of a client must
attend Court and if he does not attend Court it would amount to
professional misconduct and also contempt of court. He submitted that Court
should now frame rules whereby the Courts regulate the right of lawyers to
appear before the Court. He submitted that Courts should frame rules
whereby any lawyer who mis-conducts himself and commits contempt of court
by going on strike or boycotting a Court will not be allowed to practice in
that Court. He submitted that it should now be held that even if a
requisition for a meeting to consider a strike is received, the Committee
members or a Bar Association or the Bar Council should refuse to call a
meeting for that purpose. He submitted that no Association or Bar Councils
can have any legal or moral right to call a meeting to consider a call for
an illegal act. He submitted that this Court should now issue a mandamus to
the Bar Councils to frame rules in consonance with the interim directions
which have been passed by this Court.
6. Mr. Prashant Bhushan, for the Petitioner in W.P. (C) No. 821 of 1990,
supported Mr. Dipanker Gupta and Mr. Nigam. He further submitted that the
Court should also declare that lawyers who do not want to participate in a
strike should not be coerced by other lawyers or Committee members. He
submitted that such coercion amounts to interference with the
administration of justice and is therefore clearly contempt of court. He
submitted that this coercion need not necessarily be by physical prevention
from appearance but could also be by a threat to withdraw facility or to
terminate the membership of the Associations. He submitted that if any such
threats are given or any such coercion is used then the Court must punish
for contempt the party so coercing.
7. Submissions were made before us by the Bar Councils of Delhi, U.P.,
Maharashtra, Goa, West Bengal, Andhra Pradesh and Tamil Nadu. Submissions
were also made before us on behalf of Bar Associations of Madras, Kerala,
Calcutta, Nainital and the Supreme Court Bar Association. Counsels for the
Bar Councils and Bar Associations submitted that they were not in favour of
strikes and/or call for strikes. Many of them stated that their
Associations had not gone on strike at all and/or only on token strikes of
not more than one day. The consensus at the Bar was that lawyers cannot and
should not resort to strike in order to vent their grievances where a legal
remedy was available. The consensus at the Bar was that even where a legal
remedy was not available strike should be resorted to in the rarest of rare
cases like when the dignity of the court or the Bar was at stake. The
consensus was that even in such cases only a token strike of one day may be
resorted to. The consensus was that other methods of protests must be
resorted to, viz. passing of resolutions, making representations, taking
out silent processions without causing disturbance to Court work, holding
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dharnas or relay fast and wearing white ribbons. The consensus of the Bar
was that there must be a mechanism for redressing the grievances of the
lawyers. It was suggested that the Committees be set up to whom grievances
can be submitted.
8. It must however be mentioned that counsel on behalf of U.P. Bar Council
struck a discordant note. He submitted that lawyers had a right to go on
strike or give a call for boycott. He submitted that Courts had no power of
supervision over the conduct of lawyers. He submitted that Section 50 of
the Advocates Act, 1950 repealed earlier provisions which had permitted
Courts to control rights of Advocates to practice in Courts. He submitted
that there are many occasions when lawyers require to go on strike or gave
a call for boycott. He submitted that this Court laying down that going on
strike amounts to misconduct is of no consequence as the Bar Councils have
been vested with the power to decide whether or not an Advocate has
committed misconduct. He submitted that this Court cannot penalise any
Advocate for misconduct as the power to discipline is now exclusively with
the Bar Councils. He submitted that it is for the Bar Councils to decide
whether strike should be resorted to or not.
9. The learned Attorney General submitted that strike by lawyers cannot be
equated with strikes resorted to by other sections of society. He submitted
that the basic difference is that members of the legal profession are
officers of the Court. He submitted that they are obliged by the very
nature of their calling to aid and assists in the dispensation of justice.
He submitted that strike or abstention from work impaired the
administration of justice and that the same was thus inconsistent with the
calling and position of lawyers. He submitted that abstention from work, by
lawyers, may be resorted to in the rarest of rare cases, namely, where the
action protested against is detrimental to free and fair administration of
justice such as there being a direct assault on the independence of the
judiciary or a provision is enacted nullifying a judgment of a Court by an
executive order or in case of supersession of judges by departure from the
settled policy and convention of seniority. He submitted that even in cases
where the action eroded the autonomy of the legal profession, e.g.
dissolution of Bar Councils and recognized Bar Associations or packing them
with government nominees a token strike of one day may be resorted to. He
submitted even in the above situations the duration of abstention from work
should be limited to a couple of hours or at the maximum one day. He
submitted that the purpose should be to register a protest and not to
paralyse the system. He suggested that alternative forms of protest can be
explored, e.g., giving press statements, TV interviews, carrying banners
and/or placards, wearing black arm-bands, peaceful protest marches outside
court premises etc. He submitted that abstention from work for the
redressal of a grievance should never be resorted to where other remedies
for seeking redressal are available. He submitted that all attempts should
be made to seek redressal from the concerned authorities. He submitted that
where such redressal is not available or not forthcoming, the direction of
the protest can be against that authority and should not be misdirected,
e.g., in cases of alleged police brutalities Courts and litigants should
not be targeted in respect of actions for which they are in no way
responsible. He agreed that no force or coercion should be employed against
lawyers who are not in agreement with the "strike call" and want to
discharge their professional duties. The learned Attorney General relied
upon the following observations of a Full Bench of the Kerala High Court in
the case of Bharat Kumar K. Paricha and Anr. v. State of Kerala and Ors.
which are reproduced below:
"No political party or organization can claim that it is entitled to
paralyse the industry and commerce in the entire State or nation and is
entitled to prevent the citizens not in sympathy with its viewpoint, from
exercising their fundamental rights or from performing their duties for
their own benefit or for the benefit of the State or the nation." [emphasis
added]
10. He pointed out that the judgment of the Kerala High Court has been
approved by this Hon’ble Court in the case of Communist Party of India (M)
v. Bharat Kumar and Ors.
11. Before considering the question raised it is necessary to keep in mind
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the role of lawyers in the administration of justice and also their duties
and obligations as officers of this Court. In the case of Lt. Col. S.J.
Chaudhary v. State (Delhi Administration), the High Court had directed that
a criminal trial go on from day to day. Before this Court it was urged that
the Advocates were not willing to attend day to day as the trial was likely
to be prolonged. It was held that it is the duty of every advocate who
accepts a brief in a criminal case to attend the trial day to day. It was
held that a lawyer would be committing breach of professional duties if he
fails to so attend.
12. In the case of K. John Koshy and Ors. v. Dr. Tarakeshwar Prasad Shaw ,
one of the questions was whether the Court should refuse to hear a matter
and pass an Order when counsel for both the sides were absent because of a
strike call by the Bar Association. This Court held that the Court could
not refuse to hear the matter as otherwise it would tantamount to Court
becoming a privy to the strike.
13. In the case of Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd., an
application had been made to the trial Court to suo moto transfer the case
to some other Court as the Bar Association had passed a resolution to
boycott that Court. It was stated that the lawyers could not thus appear
before that Court. The trial Court rightly rejected the application. In a
revision petition the High Court stayed the proceedings before the trial
Court. This Court held that the High Court had committed grave error in
entertaining the revision petition and passing an Order of stay. Following
the ratio laid down in Lt. Col. S.J. Chaudhary’s case, this Court held as
follows:
"15. This is not a case where the respondent was prevent by the Additional
District Judge from addressing oral arguments, but the respondents counsel
prevented the Additional District Judge from hearing his oral arguments on
the stated cause that he decided to boycott that Court for ever as the
Delhi Bar Association took such a decision. Here the counsel did not want a
case to be decided by that Court. By such conduct, the counsel prevented
the judicial process to have (sic) on its even course. The respondent has
no justification to approach the High Court as it was the respondent who
contributions to such a situation.
16. If any counsel does not want to appear in a particular court, that too
for justifiable reasons professional decorum and etiquette require him to
give up his engagement in that court so that the party can engage another
counsel. But retaining the brief of his client and at the same time
abstaining from appearing in that court, that too not on any particular day
on account of some personal inconvenience of the counsel but as a (sic)
feature, is unprofessional as also unbecoming of the status of an
advocated. No Court is obliged to (sic) a cause because of the strike call
given by any association of advocates of a decision to boycott the courts
either in general or any particular court. It is the solemn duty of every
court to proceed with the judicial business during court hours. No court
should yield to pressure tactics or boycott calls or any kind of
browbeating."
14. In the case of (sic) Razak v. State of Kerala, counsel did not appear
in Court as advocates (sic) called for a strike. As the appellant was (sic)
in (sic) this Court held that an adjournment would nor be justified. This
Court (sic) it is the duty of the Court to look into the matter itself.
15. In the case of U.P. Sales Tax Service Association v. Taxation Bar
Association, the question was whether the High Court could issue a writ or
direction prohibiting a statutory authority from discharging quasi
functions i.e. direct the State Government to withdraw all powers from it
and transfer all pending cases before the officer to any other officer and
whether advocates would be justified to go on strike as a pressure group.
In that context this Court observed as follows:
"11. It is fundamental that if rule of law is to have any meaning and
content, the authority of the court or a statutory authority and the
confidence of the public in them should not be allowed to be shaken,
diluted or undermined. The courts of justice and all tribunals exercising
judicial functions form the highest to the lowest are by their constitution
entrusted with functions directly connected with the administration of
justice. It is that expectation and confidence of all those, who have or
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are likely to have business in that court or tribunal, which should be
maintained so that the court/tribunal perform all their functions on a
higher level of rectitude without fear or favour, affection or ill-will
Casting defamatory aspersions upon the character, ability or integrity of
the judge/judicial officer/authority undermines that dignity of the
court/authority and tends to create distrust in the popular mind and
impedes the confidence of the people in the courts/tribunals which is of
prime importance to the litigants in the protection of their rights and
liberties. The protection to the judges/judicial officer/authority is not
personal but accorded to protect the institution of the judiciary from
undermining the public confidence in the efficacy of judicial process. The
protection, therefore, is for fearless curial process. Any scurrilous,
offensive, intimidatory or malicious attack on the judicial
officer/authority beyond condonable limits, amounts to scandalising the
court/tribunal amenable to not only conviction for its contempt but also
liable to libel or defamation and damages personally or group libel.
Maintenance of dignity of the court/judicial officer of quasi- judicial
authority is, therefore, one of the cardinal principles of rule of law
embedded in judicial review. Any uncalled for statement or allegation
against the judicial officer/statutory authorities, casting aspersions of
courts integrity or corruption would justify initiation of appropriate
action for scandalising the court or tribunal or vindication of authority
or majesty of the court/tribunal. The accusation of the judicial officer or
authority or arbitrary and corrupt conduct undermines their authority and
rudely shakes them and the public confidence in proper dispensation of
justice. It is of necessity to protect dignity or authority of the judicial
officer to maintain the stream of justice pure and unobstructed. The
judicial officer/authority needs protection personally. Therefore, making
wild allegations of corruption against the presiding officer amounts to
scandalising the court/statutory authority. Imputation of motives of
corruption to the judicial officer/authority by any person or group of
persons is a serious inroad into the efficacy of judicial process and
threat to judicial independence and needs to be dealt with the strong arm
of law."
16. It was held that the High Court did not have power to issue a writ of
direction prohibiting a statutory authority from discharging quasi judicial
functions. The question whether lawyers had a right to strike was not gone
into.
17. In the case of B.L. Wadehra v. State (NCT of Delhi) and Ors., one of
the questions was whether a direction should be issued to the lawyers to
call off a strike. The Delhi High Court noted certain observations of this
Court which are worth reproducing:
"In Indian Council of Legal Aid and Advice v. Bar Council of India, the
Supreme Court observed thus :
"It is generally believed that members of the legal profession have certain
social obligations, e.g., to render "pro bono publico" service to the poor
and the underprivileged. Since the duty of a lawyer is to assist the court
in the administration of justice, the practice of law has a public utility
flavour and, therefor,e he must strictly and scrupulously abide by the Code
of Conduct behoving the noble profession and must not indulge in any
activity which may tend to lower the image of the profession in society.
That is why the functions of the Bar Council include the laying down of
standards of professional conduct and etiquette which advocates must follow
to maintain the dignity and purity of the profession."
In Re: Sanjeev Datta, the Supreme Court has stated thus:
"20. The legal profession is a solemn and serious occupation. It is a noble
calling and all those who belong to it are its honourable members. Although
the entry to the profession can be had by acquiring merely the
qualification of technical competence, the honour as a professional has to
be maintained by its members by their exemplary conduct both in and outside
the Court. The legal profession is different from other professions in that
what the lawyers do, affects not only an individual but the administration
of justice which is the foundation of the civilised society. Both as a
leading member of the intelligentsia of the society and as a responsible
citizen, the lawyer has to conduct himself as a model for others both in
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his professional and in his private and public life. The society has a
right to expect of him such ideal behavior. It must not be forgotten that
the legal profession has always been held in high esteem and its members
have played an enviable role in public life. The regard for the legal and
judicial systems in this country is in no small measure due to the tireless
role played by the stalwarts in the profession to strengthen them. They
took their profession seriously and practice it with dignity, deference and
devotion. If the profession is to survive, the judicial system has to be
vitalised. No service will be too small in making the system efficient,
effective and credible."
The Delhi High Court then considered various other authorities of this
Court, including some set out above, and concluded as follows:
"30. In the light of the above-mentioned views expressed by the Supreme
Court, lawyers have no right to strike i.e. to abstain from appearing in
Court in cases in which they hold vakalat for the parties, even if it is in
response to or in compliance with a decision of any association or body of
lawyers. In our view, in exercise of the right to protest, a lawyer may
refuse to accept new engagements and may even refuse to appear in a case in
which he had already been engaged, if he has been duly discharged from the
case. But so long as a lawyer holds, the vakalat for his client and has not
been duly discharged, he has no right to abstain from appearing in Court
even on the ground of a strike called by the Bar Association or any other
body of lawyers. If he so abstains, he commits a professional misconduct, a
breach of professional duty, a breach of contract and also a breach of
trust and he will be liable to suffer all the consequence thereof. There is
no fundamental right, either under Article 19 or under Article 21 of the
Constitution, which permits or authorises a lawyer to abstain from
appearing in Court in a case in which he holds the vakalat for a party in
that case. On the other hand a litigant has a fundamental right for speedy
trial of his case, because, speedy trial, as held by the Supreme Court in
Hussainara Khatoon v. Home Secretary, State of Bihar, is an integral and
essential part of the fundamental right to life and liberty enshrined in
Article 21 of the Constitution. Strike by lawyers will infringe the above-
mentioned fundamental right of the litigants and such infringement cannot
be permitted. Assuming that the lawyers are trying to convey their feelings
or sentiments and ideas through the strike in exercise of their fundamental
right to freedom of speech and expression guaranteed by Article 19(1)(a) of
the Constitution. We are of the view that the exercise of the right under
Article 19(1)(a) will come to an end when such exercise threatens to
infringe the fundamental right of another. Such a limitations is inherent
in the exercise of the right under Article 19(1)(a). Hence the lawyers
cannot go on strike infringing the fundamental right of the litigants for
speedy trial. The right to practise any profession or to carry on any
occupation guaranteed by Article 19(1)(g) may include the right to
discontinue such profession or occupation but it will not include any right
to abstain from appearing in Court while holding a vakalat in the case.
Similarly, the exercise of the right to protest by the lawyers cannot be
allowed to infract the litigant’s fundamental right for speedy trial or to
interfere with the administration of justice. The lawyer has a duty and
obligation to cooperate with the Court in the orderly and pure
administration of justice. Members of the legal profession have certain
social obligations also and the practice of law has a public utility
flavour. According to the Bar Council of India Rules, 1975 "an Advocate
shall, at all times, comport himself in a manner befitting his status as an
officer of the Court, a privileged member of the community and a gentleman,
bearing in mind that what may be lawful and moral for a person who is not a
member of the bar or for a member of the Bar in his non- professional
capacity, may still be improper for an Advocate". It is below the dignity,
honour and status of the members of the noble profession of law to organize
and participate in strike. It is unprofessional and unethical to do so. In
view of the nobility and tradition of the legal profession, the status of
the lawyer as an officer of the court and the fiduciary character of the
relationship between a lawyer and his client and since strike interferes
with the administration of justice and infringes the fundamental right of
litigants for speedy trial of their cases, strike by lawyers cannot be
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approved as an acceptable mode of protest, irrespective of the gravity of
the provocation and the genuineness of the cause. Lawyers should adopt
other modes of protest which will not interrupt or disrupt court
proceedings or adversely affect the interest of the litigant. Thereby
lawyers can also set an example to other sections of the society in the
matter of protest and agitations.
31. Every Court has a solemn duty to proceed with the judicial business
during Court hours and the Courts is not obliged to adjourn a case because
of a strike call. The Court is under an obligation to hear and decide cases
brought before it and it cannot shirk that obligation on the ground that
the advocates are on strike. If the counsel or/and the party does not
appear, the necessary consequences contemplated in law should follow. The
Court should not because privy to the strike by adjourning the case on the
ground that lawyers are on strike. Even in the Common Cause case the
Supreme Court had asked the members of the legal profession to be alive to
the possibility of Judges refusing adjournments merely on the ground of
there being a strike call and insisting on proceeding with cases. Strike
infringes the litigant’s fundamental right for speedy trial and the Court
cannot remain a mute spectator or throw up its hands in helplessness on the
face of such continued violation of the fundamental right.
32. Either in the name of a strike or otherwise, no lawyer has only right
to obstruct or prevent another lawyer from discharging his professional
duty of appearing in Court. If anyone does it, he commits a criminal
offence and interferes with the administration of justice and commits
contempt of Court and he is liable to be proceeded against on all these
counts.
33. In the light of the above discussion we are of the view that the
present strike by lawyers is illegal and unethical. Whatever might have
been the compelling circumstances earlier, now there is absolutely no
justification for the continuance of the strike in view of the appointment
of the Commission of Inquiry and the directions being issued in this case."
18. In our view the conclusions reached are absolutely correct and the same
need to be and are hereby approved.
19. Thereafter in the case of Roman Services Pvt. Ltd. vs. Subhash Kapoor
reported in (2001) 1 SCC 118, the question was whether a litigant should
suffer a penalty because his advocate had boycotted the Court pursuant to a
strike call made by the Association of which the advocate was a member. In
answer to this question it has been held that when an advocates engaged by
a party is on strike there is no obligation on the part of the Court to
either wait or adjourn the case on that account. It was held that this
Court has time and again set out that an advocate has not right to stall
court proceedings on the ground that they have decided to go on a strike.
In this case it was noted that in Mahabir Prasad’s case (supra), it has
been held that strikes and boycotts are illegal. That the lawyers and the
Bar understood that they could not resort to strikes is clear from
statement of Senior Counsel Shri. Krishnamani which this Court recorded.
The statement is as follows:
"13. Shri Krisnamani, however, made the present position as unambiguously
clear in the following words:
"Today, it a lawyer participates in a Bar Association’s boycott of a
particular court that is ex facie bad in view of the clear declaration of
law by this Hon’ble Court. Now, even if there is boycott call, a lawyer can
boldly ignore the same in view of the ruling of this Hon’ble Court in
Mahabir Prasad Singh."
This Court thereafter directed the concerned advocate to pay the half the
amount of the cost imposed on his client. The observations in this behalf
are as follows:
"15. Thereafter, we permit the appellant to realise half of the said amount
of Rs. 5000 from the firm of advocates M/s B.C. Das Gupta & Co. or from any
one of its partners. Initially we thought that the appellant could be
permitted to realise the whole amount from the said firm of advocates.
However, we are inclined to save the firm from bearing the costs partially
since the Supreme Court is adopting such a measure for the first time and
the counsel would not have been conscious of such a consequence befalling
them. Nonetheless we put the profession to notice that in future the
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advocate would also be answerable for the consequence suffered by the party
if the non-appearance was solely on the ground of a strike call. It is
unjust and inequitable to cause the party alone to suffer for the self-
imposed dereliction of his advocate. We may further add that the litigant
who suffers entirely on account of his advocate’s non-appearance in court,
has also the remedy to sue the advocate for damages but that remedy would
remain unaffected by the course adopted in this case. Even so, in
situations like this, when the court mulcts the party with costs for the
failure of his advocate to appear, we make it clear that the same court has
power to permit the party to realise the costs from the advocate concerned.
However, such direction can be passed only after affording an opportunity
to the advocate. If he has any justifiable cause the court can certainly
absolve him from such a liability. But the advocate cannot get absolved
merely on the ground that he did not attend the court as he or his
association was on a strike. If any advocate claims that his right to
strike must be without any loss to him but the loss must only be for his
innocent client such a claim is repugnant to any principle of fair play and
cannons of ethics. So, when he opts to strike work or boycott the court he
must as well be prepared to bear at least the pecuniary loss suffered by
the litigant client who entrusted his brief to that advocate with all
confidence that his cause would be safe in the hands of that advocate.
16. In all cases where the court is satisfied that the ex parte order
(passed due to the absence of the advocate pursuant to any strike call)
could be set aside on terms, the court can as well permit the party to
realise the costs from the advocate concerned without driving such party to
initiate another legal action against the advocate.
17. We may also observe that it is open to the court as an alternative
course to permit the party (while setting aside the ex parte order or
decree earlier passed in his favour) to realise the cost fixed by the court
for the purpose, from the counsel of the other party whose absence caused
the passing of such ex parte order, if the court is satisfied that such
absence was due to that counsel boycotting the court or participating in a
strike."
(emphasis supplied)
20. Thus 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 prolonged period. It is also settled law that a lawyer who has
accepted a brief cannot refuse to attend Court because a boycott call is
given by the Bar Association. 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. The law is that 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. It is also settled law that
if a resolution is passed by Bar Association expressing want of confidence
in judicial officers it would amount to scandalising the Courts to
undermine its authority and there by the Advocates will have committed
contempt of Court. Lawyers have known, at least since Mahabir Singh’s case
(supra) that if they participate in a boycott or a strike, their action is
ex-facie bad in view of the declaration of law by this Court. A lawyer’s
duty is to boldly ignore a call for s trike or boycott of Court/s. Lawyers
have also known, at least since Roman Services case, that the Advocates
would be answerable for the consequences suffered by their clients if the
non-appearance was solely on grounds of a strike call.
21. It must also be remembered 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 client.
Strikes interfere with administration of justice. They cannot thus disrupt
Court proceedings and put interest of their clients in jeopardy. In the
words of Mr. H.M. Seerval, a distinguished jurist:-
"Lawyers ought to know that at least as long as lawful redress is available
to aggrieved lawyers, there is no justification for lawyers to join in an
illegal conspiracy to commit a gross, criminal contempt of court, thereby
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striking at the heart of the liberty conferred on every person by our
Constitution. Strike is an attempt to interfere with the administration of
justice. The principle is that those who have duties to discharge in a
court of justice are protected by the law and are shielded by the law to
discharge those duties, the advocates in return have duty to protect the
courts. For, once conceded that lawyers are above the law and the law
courts, there can be no limit to lawyers taking the law into their hands to
paralyse the working of the courts. "In my submission", he said that "it is
high time that the Supreme Court and the High Court make it clear beyond
doubt that they will not tolerate any interference from anybody or
authority in the daily administration of justice. For in no other way can
the Supreme Court and the High Court maintain the high position and
exercise the great powers conferred by the Constitution and the law to do
justice without fear or favour, affection or ill-will."
22. It was expected that having known the well-settled law and having seen
that repeated strikes and boycotts have shaken the confidence of the public
in the legal profession and affected administration of justice, there would
be self regulation. The above mentioned interim Order was passed in the
hope that with self restraint and self regulation the lawyers would
retrieve their profession from lost social respect. The hope has not
fructified. Unfortunately strikes and boycott calls are becoming a frequent
spectacle. Strikes, boycott calls and even unruly and unbecoming conduct
are becoming a frequent spectacle. On the slightest pretense strikes and/or
boycott calls are resorted to. The judicial system is being held to ransom.
Administration of law and justice is threatened. The rule of law is
undermined.
23. It is held that submissions made on behalf of Bar Councils of U.P.
merely need to be stated to be rejected. The submissions based on Advocates
Act are also without merit. Section 7 of the Advocates Act provides for the
functions of the Bar Council of India. None of the functions mentioned
therein authorise paralising of the working of Courts in any manner. On the
contrary, Bar Council of India is enjoined with the duty of laying down
standards of professional conduct and etiquette for advocates. This would
mean that the Bar Council of India ensures that Advocates do not behave in
unprofessional and unbecoming manner. Section 48A gives a right to Bar
Council of India to give directions to State Bar Councils. The Bar
Associations may be separate bodies but all Advocates who are members of
such Association are under disciplinary jurisdiction of the Bar Councils
and thus the Bar councils can always control their conduct. Further even in
respect of disciplinary jurisdiction the final appellate authority is, by
virtue of Section 38, the Supreme Court.
24. In the case of Abhay Prakash Sahay Lalan v. High Court of Judicature at
Patna, it has been held that Section 34(1) of the Advocate Act empowers
High Courts to frame rules laying down conditions subject to which an
Advocates shall be permitted to practice in the High Court and Courts
subordinate thereto. It has been held that the power under Section 34 of
the Advocates Act is similar to the power under Article 145 of the
Constitution of India. It is held that other Sections of the Advocates Act
cannot be read in a manner which would render Section 34 ineffective.
25. In the case of Supreme Court Bar Association v. Union of India, it has
been held that professional misconduct may also amount to Contempt of Court
(para 21). It has further been held as follows:
"79. 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.
The learned Solicitor General informed us that there have been cases where
the Bar Council of India taking note of the contumacious and objectionable
conduct of an advocate, had initiated disciplinary proceedings against him
and even punished him for "professional misconduct", on the basis of his
having been found guilty of committing contempt of court. We do not
entertain any doubt that the Bar Council of the State or Bar Council of
India, as the case may be, when apprised of the established contumacious
conduct of an advocate by the High Court or by this Court, would rise to
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the occasion, and take appropriate action against such an advocate. 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 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 contemner advocate. It must act in
accordance with the prescribed procedure, whenever its attention is drawn
by this court to the contumacious and unbecoming conduct of an advocate
which has the tendency to interfere with due administration of justice. It
is possible for the High Courts also to draw the attention of the Bar
Council of the State to a case of professional misconduct of a contemner
advocate to enable the State Bar Council to proceed in the manner
prescribed by the Act and the Rules framed thereunder. 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 justice. Learned counsel for the parties present before us
do not dispute and rightly so that whenever a court of record records its
findings about the conduct of an advocate while finding him guilty of
committing contempt of court and desires or refers the matter to be
considered by the Bar Council concerned, appropriate action should be
initiated by the Bar Council concerned in accordance with law with a view
to maintain the dignity of the courts and to uphold the majesty of law and
professional standards and etiquette. Nothing is more destructive of public
confidence in the administration of justice than incivility, rudeness or
disrespectful conduct on the part of a counsel towards the court of
disregard by the court of the privileges of the Bar. In case the Bar
Council, even after receiving "reference" from the Court, fails to take
action against the advocate concerned, this Court might consider invoking
its powers under Section 38 of the Act by sending for the record of the
proceedings from the Bar Council and passing appropriate orders. Of course,
the appellate powers under Section 38 would be available to this Court only
and not to the High Courts. We, however, hope that such a situation would
not arise.
80. In a given case it may be possible, for this Court or the High Court,
to prevent the contemner advocate before it till he purges himself of the
contemner but that is much different from suspending or revoking his
licence or debarring him to practise as an advocate. In a case of
contemptuous, contumacious, unbecoming or blameworthy conduct of an
Advocate-on-Record, this Court possesses jurisdiction, under the Supreme
Court Rules itself, to withdraw his privilege to practice as an Advocate-
on- Record because that privilege is conferred by this Court and the power
to grant the privilege includes the power to revoke or suspend it. The
withdrawal of that privilege, however, does not amount to suspending or
revoking his licence to practice as an advocate in other courts of
tribunals."
Thus a Constitution Bench of this Court has held that the Bar Councils are
expected to rise to the occasion as they are responsible to uphold the
dignity of Courts and majesty of law and to prevent interference in
administration of justice. In our view it is the duty of Bar Councils to
ensure that there is no unprofessional and/or unbecoming conduct. This
being their duty no Bar Council can even consider giving a call for strike
or a call for boycott. It follows that the Bar Councils and even Bar
Associations can never consider or take seriously any requisition calling
for a meeting to consider a call for a strike or a call for boycott. Such
requisitions should be consigned to the place where they belong viz. the
waste paper basket. In case any Association calls for a strike or a call
for boycott the concerned State Bar Council 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.
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26. It must also be noted that Courts are not powerless or helpless.
Section 38 of the Advocates Act provides that even in disciplinary matters
the final Appellate Authority is the Supreme Court. Thus even if the Bar
Councils do not rise to the occasion and perform their duties by taking
disciplinary action on a complaint from a client against an advocate for
non-appearance by reason of a call for strike or boycott, on an Appeal the
Supreme Court can and will. Apart from this, as set out in Roman Services’
case, every Court now should and must mulct. Advocates who hold Vakalats
but still refrain from attending Courts in pursuance of a strike call with
costs. Such costs would be in addition to the damages which the Advocate
may have to pay for the loss suffered by his client by reason of his non-
appearance.
27. During hearing nobody, except on behalf of U.P. Bar Council, could deny
that the above legal position was well settled. On behalf of Bar Council of
India a request was made not to sign judgment as a meeting had been called
to formulate guidelines through consensual process. We had therefore
deferred delivery of Judgement.
28. The Bar Council of India has since filed an affidavit wherein extracts
of a Joint meeting of the Chairman of various State Bar Councils and
members of the Bar Council of India, held on 28th and 29th September, 2002,
have been annexed. The minutes set out that some of the causes which result
in lawyers abstaining from work are:
I. LOCAL ISSUES
1. Disputes between lawyer/lawyers and the police and other authorities.
2. Issues regarding corruption/misbehavior of Judicial Officers and other
authorities.
3. Non filling of vacancies arising in Courts or non appointment of
Judicial Officers for a long period.
4. Absence of infrastructure in courts.
II. ISSUES RELATING TO ONE SECTION OF THE BAR AND ANOTHER SECTION
1. Withdrawal of jurisdiction and conferring it to other courts (both
pecuniary and territorial).
2. Constitution of Benches of High Courts. Disputes between the competing
District and other Bar Associations.
III. ISSUES INVOLVING DIGNITY, INTEGRITY, INDEPENDENCE OF THE BAR AND
JUDICIARY.
IV. LEGISLATION WITHOUT CONSULTATION WITH THE BAR COUNCILS.
V. NATIONAL ISSUES AND REGIONAL ISSUES AFFECTING THE PUBLIC AT LARGE/THE
INSENSITIVITY OF ALL CONCERNED.
29. At the meeting it is then resolved as follows:
"RESOLVED to constitute Grievances Redressal Committes at the Taluk/Sub
Division or Tehsil level, at the District level, High Court and Supreme
Court levels as follows:-
I)(a) A committee consisting of the Hon’ble Chief Justice of India or his
nominee, Chairman, Bar Council of India, President, Supreme Court Bar
Association, Attorney General of India.
(b) At the High Court level a Committee consisting of the Hon’ble Chief
Justice of the State High Court or His nominee, Chairman, Bar Council of
the State, President or Presidents High Court Bar Association, Advocate
General, Member, Bar Council of India from the State.
(c) At the District level, District Judge, President or Presidents of the
District Bar Association, District Government Pleader, Member of the Bar
Council from the District, if any, and if there are more than one, then
senior out of the two.
(d) At taluka/Tehsil/Sub Divn, Senior most Judge, President or Presidents
of the Bar Association, Government Pleader, representative of the State Bar
Council, if any.
II) Another reason fro abstention at the District and Taluka level is
arrest of an advocate or advocates by police in matters in which the arrest
is not justified. Practice may be adopted that before arrest of an advocate
or advocates, President, Bar Association, the District Judge or the Senior
most Judge at the place be consulted. This will avoid many instances or
abstentions from court.
III) IT IS FURTHER RESOLVED that in the past abstention of work by
Advocates for more than a day was due to inaction of the authorities to
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solve the problems that the advocates placed.
(IV) IT IS FURTHER RESOLVED that in all cases of legislation affecting the
legal profession which includes enactment of new laws or amendments of
existing laws, matters relating to jurisdiction and creation of Tribunal
the Government both Central and State should initiate the consultative
process with the Representatives of the profession and take into
consideration the views of the Bar and give utmost weight to the same and
the State Government should instruct their officers to react positively to
the issues involving the profession when they are raised and take all steps
to avoid confrontation and inaction and in such an event of indifference,
confrontation etc. to initiate appropriate disciplinary action against the
erring officials and including but not limited to transfer.
V) The Councils are of the view that abstentions of work in courts should
not be resorted to except in exceptional circumstances. Even in exceptional
circumstances, the abstention should not be resorted to normally for more
than one day in the first instance. The decision for going on abstention
will be taken by the General Body of the Bar Association by a majority of
two-thirds members present.
VI) It is further resolved that in all issues as far as possible legal and
constitutional methods should be pursued such as representation to
authorities, holding demonstrations and mobilising public opinion etc.
VII) It is resolved further that in case the Bar Associations deviate from
the above resolutions and proceed on cessation of work inspite or without
the decision of the concerned Grievances Redressal Committee except in the
case of emergency the Bar Council of the State will take such action as it
may deem fit and proper the discretion being left to the Bar Council of the
State concerned as to enforcement of such decisions and in the case of an
emergency the Bar Association concerned will inform the State Bar Council.
The Bar Council of India resolves that this resolution will be implemented
strictly and the Bar Associations and the individual members of the Bar
Associations should take all steps to comply with the same and avoid
cessation of the work except in the manner and to the extent indicated
above."
30. Whilst we appreciate the efforts made, in view of the endemic situation
prevailing in the country, in our view, the above resolutions are not
enough. It was expected that the Bar Council of India would have
incorporated clauses as those suggested in the interim Order of this Court
in their disciplinary rules. This they have failed to do even now. What is
at stake is the administration of justice and the reputation of the legal
profession. It is the duty and obligation of the Bar Council of India to
now incorporate clauses as suggested in the interim Order. No body or
authority, statutory or not, vested with powers can abstain from exercising
the powers when an occasion warranting such exercise arises. Every power
vested in a public authority is coupled with a duty to exercise it, when a
situation calls for such exercise. The authority cannot refuse to act at
its will or pleasure. It must be remembered that if such omission
continues, particularly when there is an apparent threat to the
administration of justice and fundamental rights of citizens, i.e. the
litigating public, Courts will always have authority to compel or enforce
the exercise of the power by the statutory authority. The Courts would then
be compelled to issue directions as are necessary to compel the authority
to do what it should have done on its own.
31. It must immediately be mentioned that one understands and sympathisises
with the Bar wanting to vent their grievances. But as has been pointed out
there are other methods e.g. giving press statements, TV Interviews,
carrying out of court premises banners and/or placards, wearing black or
white or any colour arm bands, peaceful protest marches outside and from
Court premises, going on dharnas or relay facts etc. More importantly in
many instances legal remedies are always available. A lawyer being part and
parcel of the legal system is instrumental in upholding the rule of law. A
person casts with the legal and moral obligation of upholding law can
hardly be heard to say that he will take law in his own hands. It is
therefore time that self restraint be exercised.
32. Now let us consider whether any of the reasons set out in the affidavit
of Bar Council of India justify a strike or call for boycott. The reasons
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given are:
1. Local Issues: A dispute between a lawyer/lawyers and police or other
authorities can never be a reason for going on even a token strike. It can
never justify giving a call for boycott. In such cases an adequate legal
remedy is available and it must be resorted to. The other reasons given
under the item "Local Issues" and even items (IV) and (V) are all matters
which are exclusive within the domain of Courts and/or Legislature. Of
course the Bar may be concerned about such things but there can be no
justification to paralyse administration of justice. In such cases
representations can and should be made. It will be for the appropriate
authority to consider those representations. We are sure that a
representation by the Bar will always be seriously considered. However, the
ultimate decision in such matters has to be that of the concerned
authority. Beyond making representations no illegal method can be adopted.
At the most, provided it is permissible or feasible to do so, recourse can
be had by way of legal remedy. So far as problems concerning Courts are
concerned we see no harm in setting up Grievance Redressal Committees as
suggested. However, it must be clear that the purpose of such Committees
would only be to set up a forum where grievance can be ventilated. It must
be clearly understood that recommendations or suggestions of such
Committees can never be binding. The deliberations and/or suggestions
and/or recommendations of such Committee will necessarily have to be placed
before the appropriate authority viz. the concerned Chief Justice or the
District Judge. The final decision can only be of the concerned Chief
Justice or the concerned District Judge. Such final decision, whatever it
be, would then have to be accepted by all and no question then arises of
any further agitation. Lawyers must also accept the fact that one cannot
have everything to be the way that one wants it to be. Realities of life
are such that, in certain situations, after one has made all legal efforts
to cure what one perceives as an ill, one has to accept the situation. So
far as legislation, national and regional issues are concerned, the Bar
always has recourse to legal remedies. Either the demand of the Bar on such
issues is legally valid or it is not. If it is legally valid, of all the
persons in society, the Bar is most competent and capable of getting it
enforced in a Court of law. If the demand is not legally valid and cannot
be enforced in a Court of law or is not upheld by a Court of law, then such
a demand cannot be pursued any further.
33. The only exception to the general rule set out above appears to be item
(III). We accept that in such cases a strong protest must be lodged. We
remain of the view that strikes are illegal and that Courts must now take a
very serious view of strikes and calls for boycott. However, as stated
above, lawyers are part and parcel of the system of administration of
justice. A protest on an issue involving dignity, integrity and
independence of the Bar and judiciary, provided it does not exceed one day,
may be overlooked by Courts, who may turn a blind eye for that one day.
34. One last thing which must be mentioned is that the right of appearance
in Courts is still within the control and jurisdiction of Courts. Section
30 of the Advocates Act has not been brought into force and rightly so.
Control of conduct in Court can only be within the domain of Courts. Thus
Article 145 of the Constitution of India gives to the Supreme Court and
Section 34 of the Advocates Act gives to the High Court power to frame
rules including rules regarding condition on which a person (including an
Advocate) can practice in the Supreme Court and/or in the High Court and
Courts subordinate thereto. Many Courts have framed rules in this behalf.
Such a rule would be valid and binding on all. Let the Bar take note that
unless self restraint is exercised, Courts may now have to consider framing
specific rules debarring Advocates, guilty of contempt and/or
unprofessional or unbecoming conduct, from appearing before the Courts.
Such a rule if framed would not have anything to do with the disciplinary
jurisdiction of Bar Councils. It would be concerning the dignity and
orderly functioning of the Courts. The right of the advocate to practise
envelopes a lot of acts to be performed by him in discharge of his
professional duties. Apart from appearing in the courts he can be consulted
by his clients, he can give his legal opinion whenever sought for, he can
draft instruments, pleadings, affidavits or any other documents, he can
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participate in any conference involving legal discussions, he can work in
any office or firm as a legal officer, he can appear for clients before an
arbitrator or arbitrators etc. Such a rule would have nothing to do with
all the acts done by an advocate during his practice. He may even file
Vakalat on behalf of client even though his appearance inside the court is
not permitted. Conduct in Court is a matter concerning the court and hence
the Bar Council cannot claim that what should happen inside the Court could
also be regulated by them in exercise of their disciplinary powers. The
right to practice, no doubt, is the genus of which the right to appear and
conduct cases in the Court may be a specie. But the right to appear and
conduct cases in the Court is a matter on which the Court must and does
have major supervisory and controlling power. Hence Courts cannot be and
are not divested of control or supervision of conduct in Court merely
because it may involve the right of an advocate. A rule can stipulate that
a person who has committed contempt of Court or has behaved
unprofessionally and in an unbecoming manner will not have the right to
continue to appear and plead and conduct cases in Courts. The Bar Councils
cannot overrule such a regulation concerning the orderly conduct of Court
proceedings. On the contrary it will be their duty to see that such a rule
is strictly abided by. Courts of law are structured in such a design as to
evoke respect and reverence to the majesty of law and justice. The
machinery for dispensation of justice according to law is operated by the
Court. Proceedings inside the Courts are always expected to be held in a
dignified and orderly manner. The very sight of an advocate, who is guilty
of contempt of Court or of unbecoming or unprofessional conduct, standing
in the court would erode the dignity of the Court and even corrode the
majesty of it besides impairing the confidence of the public in the
efficacy of the institution of the Courts. The power to frame such rules
should not be confused with the right to practise law. While the Bar
Council can exercise control over the latter, the Courts are in control of
the former. This distinction is clearly brought out by the difference in
language in Section 49 of the Advocates Act on the one hand and Article 145
of the Constitution of India and Section 34(1) of the Advocates Act on the
other. Section 49 merely empowers the Bar Council to frame rules laying
down conditions subject to which an Advocate shall have a right to practice
i.e. do all the other acts set out above. However, Article 145 of the
Constitution of India empowers the Supreme Court to make rules for
regulating this practice and procedure of the Court including inter-alia
rules as to persons practising before this Court. Similarly Section 34 of
the Advocates Act empowers High Courts to frame rules, inter-alia to lay
down conditions on which an Advocate shall be permitted to practice in
Courts. Article 145 of the Constitution of India and Section 34 of the
Advocates Act clearly show that there is no absolute right to an Advocate
to appear in a Court. An Advocate appears in a Court subject to such
conditions as are laid down by the Court. It must be remembered that
Section 30 has not been brought into force and this also shows that there
is no absolute right to appear in a Court. Even if Section 30 were to be
brought into force control of proceedings in Court will always remain with
the Court. Thus even then the right to appear in Court will be subject to
complying with conditions laid down by Courts just as practice outside
Courts would be subject to conditions laid down by Bar Council of India.
There is thus no conflict or clash between other provisions of the
Advocates Act on the one hand and Section 34 or Article 145 of the
Constitution of India on the other.
35. In conclusion it is 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 the Court premises banners and/or placards, wearing black or white
or any colour arm bands, peaceful protect marches outside and away from
Court premises, going on dharnas or relay facts etc. It is held that
lawyers holding Vakalats on behalf of their clients cannot not attend
Courts in pursuance to a call for strike or boycott. All lawyers must
boldly refuse to abide by any call for strike or boycott. No lawyer can be
visited with any adverse consequence by the Association or the Council and
no threat or coercion of any nature including that of expulsion can be held
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out. It is held that no Bar Council or Bar Association can permit calling
of a meeting for purposes of considering a call for strike or boycott and
requisition, if any, for such meeting must be ignored. it is held that only
in the rarest of rare cases where the dignity, integrity and Independence
of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind
eye) to a protest abstention from work for not more than one day. It is
being clarified that it will be for the Court to decide whether or not the
issue involves dignity or integrity or Independence of the Bar and/or the
Bench. Therefore in such cases the President of the Bar must first consult
the Chief Justice or the District Judge before Advocate decide to absent
themselves from Court. The decision of the Chief Justice or the District
Judge would be final and have to be abided by the Bar. It is held that
Courts are under no obligation to adjourn matters because lawyers are on
strike. On the contrary, it is the duty of all Courts to go on with matters
on their boards even in the absence of lawyers. In other words, Courts must
not be privy to strikes or calls for boycotts. It is held that if a lawyer,
holding a Vakalat of a client, abstains from attending Court due to a
strike call, he shall be personally liable to pay costs which shall be
addition to damages which he might have to pay his client for loss suffered
by him.
36. It is now hoped that with the above clarifications, there will be no
strikes and/or calls for boycott. It is hoped that better sense will
prevail and self restraint will be exercised. The Petitions stand disposed
off accordingly.
_________________________________________________________________________
Shah, J.
37. We fully agree with what has been stated and discussed by brother
Variaya, J. However, we would like to add as under;
38. For just or unjust cause, strike cannot be justified in the present day
situation. Take strike in any field, it can be easily realised that that
weapon does more harm than any justice. Sufferer is the society - public at
large.
39. On occasions result is - violence or excess use of force by the
administration. Mostly the target is to damage public properties.
40. Further, strike was a weapon used for getting justice by downtrodden,
poor persons or industrial employees who were not having any other method
of redressing their grievances. But by any standard, professionals
belonging to noble profession who are considered to be an intelligent
class, cannot have any justification for remaining absent from their duty.
The law laid down on the subject is succinctly referred to in the judgment
rendered by brother Variava, J.
41. However, by merely holding strikes as illegal, it would not be
sufficient in present-day situation nor serve any purpose. The root cause
for such malady is required to be cured. It is stated that resort to strike
is because the administration is having deaf ears in listening to the
genuine grievances and even if grievances are heard appropriate actions are
not taken. To highlight, therefore, the cause call for strike is given. In
our view whatever be the situation in other fields lawyers cannot claim or
justify to go on strike or give a call to boycott the judicial proceedings.
It is rightly pointed out by Attorney General that by the very nature of
their calling to aid and assist in the dispensation of justice, lawyers
normally should not resort to strike. Further, it had been repeatedly held
that strike is an attempt to interfere with the administration of justice.
42. It is no doubt true that the Bar should be strong, fearless and
independent and should be in a position to lead the society. These
qualities could be and should be utilized in assisting the judicial system,
if required, by exposing any person, whosoever he may be, if he is
indulging in any unethical practice. It is hoped that instead of resorting
to strike, the Bar would find out other ways and means of redressing their
grievances including passing of resolutions, making representations, and
taking out silent processions, holding dharnas or to resort to relay fast,
having discussion by giving T.V. interviews and press statements.
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43. At present it is admitted that judiciary is over-burdened with pending
litigation. If strikes are resorted to on one or the other ground,
litigants would suffer as cases would not be decided for years to come.
Therefore, some concrete joint action is required to be taken by the Bench
and the Bar to see that there are no strikes any more.
44. For this purpose, in our view, the suggestion made by the Bar Council
of India in its resolution dated 29th September, 2002, requires to be
seriously considered and implemented by each Bar Association. Grievances
Redressal Committees at Taluka level, district level, High Court level and
Supreme Court level should be established so that grievances of the
advocates at all levels could be resolved. If action is required to be
taken on the grievances made by the advocates it should be immediately
taken. If grievances are found not to be genuine then it should be made
clear so that there may not be any further misunderstanding.
45. It is true that advocates are part and parcel of judicial system as
such they are the foundation of Justice - Delivery System. It is their
responsibility of seeing that justice delivery system works smoothly.
Therefore, it is for each and every Bar association to be vigilant in
implementing the resolution passed by the Bar Council of India of seeing
that there are no further strike any more. The Bar Council of India in its
resolution has also stated that the resolution passed by it would be
implemented strictly and hence, the Bar associations and the individual
members of the Bar associations would take all steps to comply with the
same and avoid cessation of the work except in the manner and to the extent
indicated in the resolution.
46. Further appropriate rules are required to be framed by the High Courts
under Section 34 of the Advocates Act by making it clear that strike by
advocate/advocates would be considered interference with administration of
justice and concerned advocate/advocates may be barred from practising
before Courts in a district or in the High Court.
47. Hence, it is directed that (a) all the Bar Associations in the country
shall implement the resolution dated 29th September, 2002 passed by the Bar
Council of India, and (b) under Section 34 of the Advocates Act, the High
Courts would frame necessary rules so that appropriate action can be taken
against defaulting advocate/advocates.