Case Study

Name of the case

Ex. Capt. Harish Uppal V. Union Of India

Citation
REFERENCE: W.P. (civil) 132 of 1988

Bench
Justice S.N. Variava, Justice Doraiswamy Raju, Justice D.M. Dharmadhikari

Name of the parties

Ex-Capt. Harish Uppal (Petitioner) Union of India and another (Respondent)

Relevancy of case
his is a landmark judgment in which the court has stated that lawyers have no right to strike
or give a call for the boycott of court.

Statutes and provision involved

1. Article 226: Powers given to the court to issue writs.
2. Article 145: defines the rules of court.
The Advocates Act:
1. Section 7: Functions of the Bar Council of India.
2. Section 30: defines the right of advocates to practice.
3. Section 34: Powers given to the High Court to make rules.
4. Section 38: Appeal to the Supreme Court.

Facts
i. The petitioner was an ex-army officer who served in Bangladesh during the Indo-Pak War
in 1972. He was then summoned before an Indian military court on charges of embezzlement.
ii. Following the investigation by the court, he was court-martialed from his position and
sentenced to two years in prison.
iii. Outraged by the court's decision, he filed a pre-affirmation application in the civil court to
have his case reviewed. After a long wait of 11 years, at the end of which the survey's
limitation period had passed, he received a response from the court.
iv. It was then discovered that his application's survey materials were lost as a result of the
Advocates' violent walkout.
v. And due to this particular reason, the petitioner field a writ petition in the High court and
further appealed to Supreme court to declare Strike by the advocates as illegal.

Issues involved
The issue analyzed by the court - Whether lawyers have a right to strike?

Arguments

CONTENTIONS MADE BY THE PETITIONER

The petitioner argued that as attorneys are employees of the courts, they shouldn't be
permitted to utilise strikes as a kind of extortion against the courts. He further said that
lawyers should be subject to severe punishments, such as being prevented from practising law
in any court, if they boycott courts and engage in strikes in an effort to show disrespect for
the legal system. It was argued that committees should face contempt charges if they issue a
call for strikes. Last but not least, he made the case that if an advocate accepts a Vakalat on
behalf of a client, he must show up in court. Advocates typically use strikes to violate the
agreement between their clients and to skip court. Thus, the Bar Council must establish
rigorous rules.

CONTENTIONS MADE BY THE RESPONDENT

The knowledgeable Attorney representing the respondents said that attorneys have the right
to strike and that it is up to the bar councils to determine whether an attorney strike should
take place or not.

Judgement
[Link] Hon'ble Supreme Court reached the conclusion in its decision on the case that a
lawyer's strike is illegal, and as a result, they have no authority to call for a boycott of court,
not even a symbolic strike.

ii. The court further held that a strike is only permitted in the rarest of cases, such as those
involving complaints against the office of the presiding judge, court judgements, conflicts
with the administration, or conflicts of interest between groups of lawyers, when the integrity,
respect, and proper operation of the Bar Association are at stake.
iii. The protest should also be carried out in a fashion that does not interfere with the court's
operation, such as by giving press interviews, appearing on television, issuing further notices,
wearing dark or white bands, or walking away from the court.
iv. The court additionally ruled that lawyers who are ready to work for the court shouldn't be
prevented from doing so or coerced to participate in a boycott under the guise of exerting
pressure, such as by threatening expulsion.
Together with all of the aforementioned, the court stated in v. that an advocate maintains a
unique role in the court and serves as its officers in front of the public. Hence, they must
uphold their promises and duties to ensure that the court runs efficiently in order to guarantee
justice to the people.
vi. In light of all of the aforementioned remarks, the court determined that strikes by
attorneys hinder the court's regular operations and also put the public's interests second. For
these reasons, the court has imposed a strike ban.

Bar council of India and Right to Strike

The Supreme Court ruled in the case already mentioned that no bar association has the
authority to call a strike. According to Section 7 Clause (b), the BCI has the authority to
establish certain norms of professional conduct and etiquette that advocates must adhere to. It
has been ruled in numerous instances that protecting the interests of those looking for justice
is the judiciary's fundamental obligation. And the Supreme Court has questioned BCI and
state bar councils about their need to address the issue of the advocates and prevent them
from going on strike. Chapter II, Part IV of the Indian Bar Council Advocates must uphold
the rules of professional conduct, as stated in the regulations. If the BCI determines that an
advocate has violated any of his professional obligations or engaged in any misconduct, the
BCI may convene a disciplinary committee to investigate the matter. In the case Common
Cause a Registered Association v. Union of India4, the Supreme Court ruled that the Bar
Council of India has a responsibility to take severe measures against any conduct that impede
court operations.

Analysis
The petitioner argued that strikes as a form of collective bargaining were exclusively used in
industrial disputes and that attorneys serving as court officials were not permitted to use
strikes as a form of extortion against the courts or their clients. They also argued that the
lawyers' demand for a strike was really a call to violate the contracts that lawyers have with
their clients. Nonetheless, the legal community argued that lawyers still had the right to strike
in exceptional circumstances to advance their interests in the event that they were treated
unfairly.
The Supreme Court ruled that attorneys do not have the power to advocate for a boycott of
court or to go on strike, not even for a purely symbolic strike. The protest, if any, must be
made by press statements, TV appearances, completion of the Court's rules and notices,
wearing dark, white, or any other coloured arm bands, peaceful dissent walks outside and
away from the Court's premises, participating in dharnas, relaying information, etc. The
Court instructed the lawyers to adamantly deny to comply to any request for a strike or
boycott court after conceding that even those lawyers who were eager to attend to the Court
couldn't go because of the strike or boycott.
The Court further ruled that no lawyer may face any unfavourable treatment from the
Association or the Council and that he could not be subjected to any form of coercion,
including threats of expulsion, for refusing to participate in a strike or boycott. The Court
further observed that an Advocate enjoys a unique role in the public sphere as a court
employee. They owe a duty to their client as well as commitments and obligations to ensure
the efficient operation of the Court. Strikes disrupt court proceedings, interfere with the way
equity is organised, and jeopardise the interests of their clients. As a result, the Court has
prohibited lawyer strikes.

Conclusion
The walkout by an advocate was deemed to be illegal and criminal by the Supreme Court of
India. When respectability, consideration, and the proper operation of the courts are at issue,
a strike may be permitted under the most extraordinary of the uncommon circumstances.
While it does not interfere with the operation of the courts, a tacit disapproval may be
expressed or a news conference may be held.
The Ex-Captain Harish Uppal Landmark Decision provides a general indication of the
Supreme Court's reasoning. The past few years have made it very clear that the Bar
Association will call for a strike if a minor incident also occurs. Only recently, the Bar
Council of Jammu went on strike in the Union Territory of Jammu and Kashmir to protest the
decision of the union government to turn Jammu and Kashmir into a UT and to call for the
restoration of Statehood. Similar to that, a group of attorneys challenging the appointment of
a female CJI in Karnataka in 2009 imprisoned the candidate.
And based on these instances, we can conclude that it is crucial to manage the Advocates and
prevent them from calling for a strike. The aforementioned events also imply that we must a
suitable law in order to have a suitable method to address the grievance of these offended
People. Advocates have the right to demand answers to their problems, but they must do it in
a competent manner and through the appropriate channels. Furthermore, these strikes
shouldn't be carried out while the clients' rights to justice are still in jeopardy.
Since the general public would ultimately suffer the most and because of these types of
strikes, judicial proceedings are disrupted and the delivery of just compensation is delayed.
The fact that advocates are in charge of the court's operation and have the right to speak up
and voice their concerns if the court or authorities are keeping them in the dark is also a well-
known fact. The law measures are insufficient to address this issue, so the attorneys who are
experts in their field must take on their case independently, regardless of the consequences to
others. Thus, we need a law that is appropriate.