SCHOOL OF EXCELLENCE IN LAW
NAME : NANDHINEE. S
ROLL NO. : H320082
COURSE : LL. B (HONS.)
YEAR : FIRST YEAR
SECTION : ‘B’
SUBJECT : LEGAL ETHICS – CASE STUDY
TOPIC : CASE STUDY ON EX. CAPT. HARISH UPPAL VS UNION OF INDIA
STUDENT’S SIGNATURE FACULTY SIGNATURE
TABLE OF CONTENTS
[Link] Title [Link]
1 FACTS OF THE CASE 3
2 ISSUE 3
3 SUBJECT 3
4 IMPORTANT PROVISIONS 3
5 CASES REFERRED 4
6 CASE NOTE 4
7 RIGHT TO STRIKE 4
8 EFFECT OF STRIKE 5
9 STRIKE NOT TO PARALYZE THE INDUSTRY 6
10 RIGHT TO STRIKE VIS-A-VIS A CRIMINAL CASE 6
11 JUDGEMENT 7
12 ANALYSIS OF JUDGEMENT 15
13 CONCLUSION 16
14 REFERENCES 17
3
CASE STUDY ON EX. CAPT. HARISH UPPAL VS UNION OF INDIA
1. FACTS OF THE CASE
The petitioner, in the present case, was an ex-army officer. In 1972, the petitioner
was posted in Bangladesh, where some accusation which was related to embezzlement was
put on him and he was brought to the military court in India. Charges against him were
outlined and he was court-martialed from his post and titles alongside imprisonment for 2
years. He filed a pre-affirmation application in a civil Court to audit the matter and he got a
reply from the court after an extensive stretch of 11 years when the limitation period of the
survey has been expired. It was subsequently discovered that documents along with the
application got misplaced during a vicious strike by advocates. A special petition was filed
by the petitioner to announce strikes by advocates illicit.
2. ISSUE
The issue analyzed by the court - Whether lawyers have a right to strike?
3. SUBJECT: Civil
4. IMPORTANT PROVISIONS
The Constitution of India:
1. Constitution of India - Article 19
2. Constitution of India - Article 19(1)
3. Constitution of India - Article 21
4. Constitution of India - Article 144
5. Constitution of India - Article 145
The Advocates Act:
1. Section 7
2. Section 30
3. Section 34
4. Section 34(1)
5. Section 38
4
6. Section 48(A)
7. Section 49
8. Section 50
5. CASES REFERRED
1. Bharat Kumar K. Paricha and Anr. v. State of Kerala and Ors.;
2. Communist Party of India (M) v. Bharat Kumar and Ors., SC/0823/1998 ;
3. Lt. Col. S.J. Chaudhary v. State (Delhi Administration), SC/0094/1984 ;
4. John Koshy and Ors. v. Dr. Tarakeshwar Prasad Shaw, SC/1313/1998 ;
5. Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd., SC/0706/1998;
6. Razak v. State of Kerala, SC/2760/2000 ;
7. U.P. Sales Tax Service Association v. Taxation Bar Association,SC/0017/1996;
8. B.L. Wadehra v. State (NCT of Delhi) and Ors., DE/0296/2000 ;
9. Indian Council of Legal Aid and Advice v. Bar Council of India, SC/0134/1995;
10. In Re: Sanjeev Datta, SC/0697/1995 ;
11. Hussainara Khatoon v. Home Secretary, State of Bihar, SC/0119/1979 ;
12. Roman Services Pvt. Ltd. v. Subhash Kapoor, SC/3014/2000 ;
13. Abhay Prakash Sahay Lalan v. High Court of Judicature at Patna, BH/0018/1998 ;
14. Supreme Court Bar Association v. Union of India, SC/0291/1998
6. CASE NOTE:
Constitution of India - Article 145--Advocates Act, 1961--Section 34--Strikes by
Advocates--Illegal and unjustified--Lawyers have no right to go on strike, even on token
strike--They may protest in peaceful manner outside Court premises--High Courts to frame
rules under Section 34 of Advocates Act to regulate conduct of lawyers in Courts --
Necessary directions issued.
7. RIGHT TO STRIKE
Strike is often regarded as the non-violent form of protest usually adopted when
there is no other option left to acquire the means of social justice. So if we go by simple
understanding, this right shall be vested with the underprivileged class of the society who
have no other means to agitate against the powerful group. This is where the dilemma arises.
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An advocate is considered to be from the privileged profession and is an erudite individual
and his conduct is said to have a great impact on the society’s behavioral pattern.
1. They uphold the idea of striving towards ensuring justice for the mass.
2. The responsibility of maintaining a balanced relationship between the bar and the
bench lies upon them in order to maintain and enhance their own credibility and
reputation.
3. The members of the Bar Association thus have no right to boycott the courts in view of
the duties that have been vested in them which they are required to discharge in the
best of the interests of the clients.
8. EFFECT OF STRIKE
The judiciary has been of the opinion that the fundamental right of an individual or a
group cannot be prioritized over the fundamental rights of the people as a whole. In the case
Communist Party of India (Marxist) v. Bharat Kumar1 , the Supreme Court upheld the
decision of the High Court stating that no ‘bandh’ or strike should be enforced which
interferes with the fundamental freedom of other citizens or adding to any national loss.
Keeping this decision in mind, we can figure out that if the advocates go on a strike, there
can a manifold loss incurred thus causing greater impact. There have been several petitions
where the issue that was raised was whether boycott of the courts by the lawyers be
considered illegal? In “Indian Council of Legal Aid and Advice & others Vs. Bar Council of
India & another2”, it was discussed that the members of the legal profession have a special
responsibility to render “pro bono publico” service to the needy and underprivileged. The
lawyer is the one who assists the court in speedy administration of justice and imbibes the
favour of public utility. The advocates should not involve themselves in any practice which
tends to lower the image of this noble profession in the society. The lawyers must strictly
adhere to the standards laid down by the Bar Council in order to maintain the dignity and
sanctity of their profession. In the case of “Manoj Kumar and others v. Civil Judge (Junior
Division), Deoria and others” 3
, "the bench observed that- “It is deeply regrettable and
highly objectionable that there are strikes in district courts in U. P. on flimsy and frivolous
pretexts, and some district courts function only for about 60 or 70 days in a year. This is a
shocking State of affairs, and will no longer be tolerated by this Court. The judiciary and Bar
are both accountable to the public and they must behave in a responsible manner so that cases
1
AIR 1998 SC 184
2
1995 AIR 691 7 (1997)
3
UPLBEC 1767
6
are decided quickly and thus the faith of the public in the judiciary is maintained. Surely, the
public has a right to expect thisfrom us. We, therefore, issue a general mandamus to all the
judicial officers in all district courts in U. P. that if the lawyers go on strike, the judicial
officers must, despite the strike of lawyers, sit in court and pass orders in cases before them
even in the absence of the counsel. If the lawyers disturb the functioning of the court, the
District Judge shall contact the police and the police will give all protection to the Judges and
the cases will not be adjourned merely because of the lawyers'strike. People in this State are
fed-up with lawyers'strikes and thisstate of affairs must now end. The lawyers must realise
that litigants, witnesses, etc., often come from distant places at heavy expense and it is most
improper that they have to go away because of strikes by lawyers. The judiciary exists for the
people and not for lawyers or Judges.”
9. STRIKE NOT TO PARALYZE THE INDUSTRY
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 paralyze the system. In the case of “Bharat Kumar K. Paricha and
Anr. v. State of Kerala and Ors” 4
it was observed that, "No political party or organization
can claim that it is entitled to paralyze the industry and commerce in the entire State or nation
and is entitledto preventthe 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”
10. RIGHT TO STRIKE VIS-A-VIS A CRIMINAL CASE
The lawyers have a great deal of obligations to both their client and the court in
relation to administration of justice. In the case of Lt. Col. S.J. Chaudhary v. State (Delhi
Administration) 5, the High Court of Delhi had directed that the criminaltrial ought to go on a
regular basis. The rights of the client should not be jeopardized at any cost. Any advocate who
accepts a criminal case is bound to attend the day to day trial without any fail. It is a mandatory
duty which must not be breached whatever be the circumstances. The breach amounts to breach
of professional duties and the can attract penalty.
4
AIR 1997 Ker 291
5
1984 AIR 618
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11. JUDGEMENT
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 SC/0246/1996 : [1996]1SCR89 . The circumstances under which it is
passed and the nature of the interim order are set out in the Order. 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."
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3. 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;
(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. The respondent pointed out that this Court has declared
that strikes are illegal. He submitted that even a call for 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) 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
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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 of 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) For the Petitioner in W. P. (C) No. 821 of 1990, 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 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.
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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 assist 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
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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 & Anr. V. State of Kerala & 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."
[See (1998) 1 SCC 201 at 204, para 17] [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 & Ors.
(1998) 1 SCC 201 at 202.
11. This is not a case where the respondent was prevented by the Additional District
Judge from addressing oral arguments, but the respondent's 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 flowed on its even course. The respondent
has no justification to approach the High Court as it was the respondent who contributed
to such a situation.
12. 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
permanent feature, is unprofessional as also unbecoming of the status of an advocate. No
Court is obliged to adjourn a cause because of the strike call given by any association of
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advocates or 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.
13. 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.
14. 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.
15. 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.
16. 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."
17. 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 a 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
13
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 Associations expressing want of confidence in judicial
officers it would amount to scandalising the Courts to undermine its authority and
thereby 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 strike 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.
18. 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. Seervai, 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 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
14
and exercise the great powers conferred by the Constitution and the law to do justice
without fear or favour, affection or ill-will."
19. 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.
20. 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.
21. 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 Judgment.
22. 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
15
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
12. ANALYSIS OF JUDGEMENT
1. The Petitioner presented that strike as a method for collective bargaining was perceived
only in industrial disputes and lawyers who were officials of the Court could not utilize
strikes as a way to extort the Courts or the clients.
2. They further contended that the call for strike by lawyers was in actuality a call to break
the agreements which lawyers have with their clients.
3. Then again, the legal fraternity presented that lawyers retained the right to strike in
uncommon cases to get their interests imparted in the case of improper treatment being
given to them.
4. The Supreme Court stated that lawyers reserve no right to go on strike or give a call for
the boycott of court, not even on a symbolic strike.
5. The protest, if any is required, must be made by giving press explanations, TV interviews
completing of the Court premises standards and additionally notices, wearing dark or
white or any shading arm groups, tranquil dissent walks outside and away from Court
premises, going on dharnas or relay facts and so on.
6. The Court on acknowledging the fact that even those lawyers willing to go to the Court
couldn't go to inferable from the strike or the boycott asked the lawyers to intensely
decline to submit to any call for strike or boycott court.
7. The Court also stated that no lawyer might be visited with any adverse consequence by
the Association or the Council and no threat or coercion of any nature including that of
expulsion are often held call at an occasion of his refusal to attend to the strike or boycott.
8. The Court also saw that an Advocate is an official of the Court and appreciates
uncommon status in the public arena.
9. They have commitments and obligations to guarantee smooth working of the Court and
they additionally owe an obligation to their customer.
10. Strikes are meddled with the organization of equity, disturb Court procedures, and put
the interest of their customers at risk. Thus the Court has imposed a ban on strikes by
lawyers.
16
[Link]
The Supreme Court of India concluded that the strike by an advocate is
considered unlawful and illicit. A strike might be allowed in the most
extraordinary of the uncommon situations where respectability, regard, and
working of the courts are at the stake. A silent disappointment can be showed or a
meeting to the press and media can be given, till the time it does not affect the
working of the courts.
In our Country rule of law prevails and it is a basic structure of the
Constitution of the Country, therefore disputes are required to be resolved through
adjudication by a competent, Impartial, nonarbitrary and non-discretionary manner
in the court instead of Strike by the Lawyers. Hence Strike by lawyers is negation
of the basic structure. It is obvious that strike or boycott by lawyers or absence of
lawyers from the court in the name of one issue or the other has resulted in adding
to the already existing back breaking burden. The one way to sort out this problem
is to take public opinion and make understand this problem to local fraternity.
Though such attempts were attempted to solve this problem but then also it exists
and day by day, it is getting out of control as lawyers go on strike all over the
country on even smallest provocations.
However, it is not only the actions or duty of lawyers to be courteous, there
is a reciprocal duty for the court also to be courteous to the members of the Bar
and to make every endeavor for maintaining and protecting the respect which
members of the Bar are entitle to have from their clients as well as from the
litigant public. Both the Bench and the Bar are two limps of the Judiciary and
therefore the aforesaid mutual respect is necessary for the efficient functioning of
the system of Court. And it also does not conclude that any advocate or a group of
lawyers can boycott the courts or any particular court and ask the court to desist
from discharging judicial functions. The lawyers must realize that litigants,
witnesses, etc., often come from distant places at heavy expense and it is improper
that they have to go away because of strikes by lawyers. The Judiciary exists for
the people not for the lawyers or Judges. The lawyers, who hold the arguments of
17
the clients when they resolve to delay the disposal oftheir cases or allow their case
to be dismissed for default, betray not only the trust of their respective clients but
also the faith, confidence and hope which courts repose in the legal profession.
The problem through highlighted from various quarters has not so far been
tackled in a big way by the lawyers themselves who are master of their profession.
The statutory provisions available have not been found to be adequate to meet the
situation. Further direction and guidance issued by the Supreme Court and the Bar
Councils have produced no better results. Obviously if the problem persists and is
not tackled in right earnest, it will further add to the problem of arrears. In our
sincere attempt to ensure that the pendency of the old cases is liquidated to some
extent and the arrears cut down, we would suggest that if an Advocate appearing
for a party is absent without reasonable cause, the Presiding Officer should make a
note of it and proceed to dispose of the case.
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