The purpose of this research article is to analyze the issue of frequent strikes that were called by advocates in India in recent years. The article holds the various aspects of the matter as to why the right to strike by lawyers is beyond the scope of the fundamental right to form an association. It also reveals the reasons why such call for strikes had been declared as unconstitutional and illegal by the judiciary. The role of bar council of India and its duties for curbing the menace has also been discussed. Further, the article deals about the multiple obstructions that affect the administration of justice by holding such strikes and protests. The article also highlights the recommendations of law commission and its suggestions for addressing the grievances of advocates so that equilibrium could be maintained in the legal system of the country.

Judiciary is the third estate in a democracy where advocates are the officers of the courts who have certain responsibilities that need to performed effectively while serving justice to the people but in recent years there have been various instances when lawyers had called for strikes and protest which became the reason of conflict between bar and bench. Despite various judgments by the apex courts, the lawyers have continued to go on strikes. Lawyers who supposed to be the defenders of legal values, they themselves had breached the trust of the court by defying the verdicts of Supreme Court. In between all these conflicts the consumer of justice is the real sufferers who are being denied of their fundamental right of speedy trial guaranteed under Article 21 of the Indian constitution.

Lawyer’s Right to strike – A Professional Misconduct

According to the constitutional perspective right to strike is a fundamental corollary conferred by part III of the constitution under the right to freedom of association art 19(c) where a group of people upholding a common interest can come together and demand of their rights. However freedom of association under art 19 is not an absolute right, certain reasonable restrictions are imposed on it. Therefore one of the important question arises in the legal profession is that do lawyers have the right to call for a strike. The Supreme Court and High courts in its various verdicts had made it clear that Lawyer’s strike is illegal and necessary steps should be taken to curb the growing tendency.

In the landmark judgment given by the supreme court in case of

Ex-Capt. Harish Uppal v Union of India and Another

[1] the Court 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 court premises banners and/or placards, wearing black or white or any color armbands, peaceful protest marches outside and away from court premises, etc. In another landmark case,

Hussain v Union of India

[2] the court had clearly stated that the lawyers strike and suspension of the court is illegal and it is high time that legal fraternity realizes its duty to the society which is foremost.

Advocates are bound to maintain rules on professional conduct and etiquettes which has been laid down in chapter II part IV of the bar council of India Rules. Under this section, the advocates are abide by the certain duties towards the court and their client. In Roman Services Pvt Ltd v Subhash Kapoor[3] the question was when a lawyer goes for a strike call made by the association and boycotted the Court proceeding, whether his litigant should suffer a penalty. It was held by the Court that when an advocate involves himself in strike there is no obligation on the part of the Court to either wait or adjourn the case on that ground. It was held that advocate has no right to boycott court proceedings on the ground that they have decided to go on a strike. In B.L.Wadhera v State[4], the court held that if on the ground of strike a lawyer abstains from appearing in court then he is conducting professional misconduct, a breach of contract, breach of trust and breach of professional duty.

Role of Bar Council of India

Section 4 of the advocates act 1961 mentioned about the establishment of Bar Council of India and further section 7 explains about the function of BCI, wherein clause (b) conferees power to BCI to lay standards of professional conduct and etiquettes of advocates[5]. according to verdicts of courts, the BCI should ensure that lawyers should not involve in strikes and protest. However, there are instances where BCI itself had called lawyers for strikes. The judgment pronounced in the case of Ex-Capt. Harish Uppal v Union of India and Another[6] wherein the supreme court made it clear that “lawyers have no right to strike. No Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition. Only in the rarest of rare cases where the dignity, integrity, and independence of the Bar and/or the Bench are at issue, courts may ignore to a protest abstention from work for not more than one day”. In Krishnakant Tamrakar v State of Madhya Pradesh[7], the supreme court held that frequent strikes by lawyers are illegal as they obstruct access to justice. The further court also observed that such actions amount to contempt of court and office. In Common Cause a Registered Society v. Union of India and Others[8] in this case it was held that, if any associations of advocates call for a strike, then the State Bar Council or the Bar Council of India must take actions against those persons who call for strike In another case of Praveen Pandey v. State of Madhya Pradesh and othrs[9] wherein the court held “the decision of the State Bar Council calling upon the Advocates in the State to observe a week-long protest and to abstain from all judicial works and Court proceedings is illegal, unconstitutional and against the statutory provisions as well as contrary to the judgments of the Supreme Court”

Reasons for denying Lawyers the right to strike.

The fundamental duty of Judiciary is to serve people who are seeking justice for themselves and in order to do so its very important that every branch of it must coordinate and cooperate with each other. Any deficiency in the system would lead to the violation of the fundamental right to speedy trial guaranteed by article 21 of the constitution. Therefore the call for a strike by lawyers has an adverse effect in the functioning of the judiciary. The frequent protest and strikes interfere with the administration of justice that leads to delay in the trial of cases and ultimately resulting in the pendency of cases. From time to time the supreme court in its various judgments had resorted the right to strike by lawyers and directed the litigants to work efficiently for justice without any failures.

The division bench comprising of justice AK Goel and UU Lalit in

Krishnakant Tamrakar v State of Madhya Pradesh

[10] stated “By every strike, irreversible damage is suffered by the judicial system, particularly consumers of justice. They are denied access to justice. Taxpayers’ money is lost on account of judicial and public time being lost. Nobody is accountable for such loss and harassment” In Hussain and Anr. v Union of India[11] the court said “Hardships faced by witnesses if their evidence is not recorded on the day they are summoned or impact of delay on under trials on account of avoidable interruptions of court proceedings is a matter of concern for any responsible body of professionals and they must take appropriate steps. This needs the attention of all concerned authorities and ways and means ought to be found to tackle this menace…Judicial services and legal services are missions for serving society. The mission is not achieved if the litigant who is waiting in the queue does not get his turn for a long time.”

Ex-Capt. Harish Uppal v Union of India and Another

[12] 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.

Solutions to the Grievances of lawyers:

The ban imposed on strikes by lawyers is justified as consequences of strikes were corroding the roots of the judiciary. However, it is also important to safeguard the interest of the advocates, so that the functioning of the legal system should be balanced. Section 7 clause (d) of the advocate's act 1961explains the functions of Bar Council of India to safeguard the rights, privileges, and interest of advocates [13] therefore abiding by the rules grievances of lawyers must be heard and further steps should be taken to tackle their issues that they are facing.

In 266th report of law commission of India a suggestion has been made that at every district headquarters, the District Judge may constitute an Advocates’ Grievance Redressal Committee headed by a Judicial Officer which will deal with the day to day routine matters, a large number of issues and grievances arise in the smooth working of the advocates. In this regard, the High Court may issue a circular in an exercise of its power under article 235 of the Constitution providing for redressal of grievances of the Advocates which will help in improving their efficiency. In case there is some grievance against a Judicial Officer, the Bar may raise the grievance before the Chief Justice of the concerned High Court.

taking these suggestions into consideration[14]. Taking these suggestions into consideration the grievances of advocates can be construed to a greater extent that will ultimately help in curbing the menace of strikes by lawyers.

Conclusion:

In a nutshell, strikes by lawyers are beyond the scope of art 19 of the constitution. There are the certain profession that should be treated alike as they had a motto to serve the society at large and legal profession is one of them that needs to work towards providing justice to people without any delay. The landmark judgment of Ex-Capt. Harish case had declared the strikes by advocates as illegal and only in rare of rarest case lawyers can call for strikes as pointed by the supreme court in the judgment. The lawyers have the right to demand solutions of their grievances but not at the cost of their client’s right who had to suffer because of such strikes that lead to the delay in the procedure of giving justice to people.

End-Notes

[1] Ex-Capt. Harish Uppal v Union of India and Another, (2003) 2 SCC 45
[2] Hussain v Union of India
[3] Roman Services Pvt Ltd v Subhash Kapoor (2001) 1 SCC 118
[4] B.L.Wadhera v State, AIR 2000 Delhi 266.
[5] Section I, Chapter II, Part VI “Bar Council of India Rules.”
[6]Supra Note 1.
[7] Krishnakant Tamrakar v State of Madhya Pradesh, AIR 2018 SC 3635.
[8] Common Cause a Registered Society v. Union of India and Others AIR 2005 SC 4442
[9] Praveen Pandey v. State of Madhya Pradesh and other
[10] Supra Note 7
[11]Supra Note 2
[12] Supra Note 1
[13] Supra Note 5
[14] Draft of The Advocate (Amendment) Bill, 2017