In ‘Ex. Cap. Harish Uppal v. Union of India (2002)’, four writ petitions were filed before Supreme Court to declare Lawyers’ call for boycotts and strikes illegal. The question for consideration before the court was that whether lawyers have a right to strike and/or give a call for boycotts of Court/s.
Before considering the question of lawyers’ right to strike, the court referred previous decisions of the Supreme Court on this question where the Supreme Court.
Court’s reasoning on lawyers’ call to strike
In the case of Lt. Col. S. J. Chaudhary vs. State (Delhi Administration) reported in (1984) 1 SCC 722, 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.
In the case of K. John Koshy & Ors. vs. Dr. Tarakeshwar Prasad Shaw (1998) 8 SCC 624, 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.
The 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.
In the case of Mahabir Prasad Singh vs. Jacks Aviation Pvt. Ltd. reported in (1999) 1 SCC page 37, 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 rejected the application.
In a revision petition the High Court stayed the proceedings before the trial Court. Supreme 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:
“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 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 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.”
In the case of Koluttumottil Razak vs. State of Kerala reported in (2000) 4 SCC 465, counsel did not appear in Court as advocates had called for a strike. As the appellant was languishing in jail this Court held that an adjournment would not be justified. This Court held that it is the duty of the Court to look into the matter itself.
In the case of U.P. Sales Tax Service Association vs. Taxation Bar Association reported in (1995) 5 SCC 716, the question was whether the High Court could issue a writ or direction prohibiting a statutory authority from discharging quasi-judicial 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:
“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 or 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 court’s 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.
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.”
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.
In Re: Sanjeev Datta, reported in (1995) 3 SCC 619: (1995 AIR SCW 2203) 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 his professional and in his private and public life.
The society has a right to expect of him such ideal behaviour. 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 practise it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalized. No service will be too small in making the system efficient, effective and credible.”
The Final Conclusion on Lawyers’ Right to Strike
The Supreme Court has expressed its approval with the reasoning of the court in above mentioned case and further said-
- “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 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.
- 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.
- 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. 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.
- 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.
Conclusion of the Court in Harish Uppal Case
While concluding the judgment, 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 colour arm bands, peaceful protest marches outside and away from Court premises, going on dharnas or relay fasts etc.
- 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 consequences by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out.
- 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.
- 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 Ex-Capt. 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.
- 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.
- 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.
Reference
Harish Uppal v. Union of India, (2002)