Ex-Capt.
Harish Uppal Vs. Union of India & Anr [2002] Insc 547
(17 December 2002)
Cji,
Doraiswamy Raju, S. N. Variava, D. M. Dharmadhikari S. N. Variava, J.
(WITH
W. P. (C) No.394/93, W. P.(C)No.821/90, W. P. (C) No. 320/93 and W. P.(C)
406/2000)
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 had 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 or abstain from appearing in cases in Court in which they are 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
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 begin 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)
Office-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 spirit 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 us. 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 decide 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;
(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 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) 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 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) 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 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 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
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)
Before considering the question raised it is necessary to keep in mind 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
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.
12) In
the case of K. John Koshy & Ors. vs. Dr. Tarakeshwar Prasad Shaw reported
in (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. 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 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 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 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.
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." 14) 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.
15) 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:
"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 from 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 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 the
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 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.
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 vs. State (NCT of Delhi) & Ors. reported in AIR
(2000) Delhi 266, 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 reported in
(1995) 1 SCC 732 : (AIR 1995 SC 691), 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, therefore, 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, 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 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
consequences 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, (1980) 1 SCC 81: (AIR
1979 SC 1360) 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 limitation 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 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 Court 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 become
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 the 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 any 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 advocate 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 no 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 Krishamani, however, made the present position as unambiguously clear in
the following words:
"Today,
if 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 (1999) 1
SCC 37." 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.
Therefore, 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 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 canons 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 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.
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. 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 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
reported in AIR 1998 Patna 75, it has been held that Section 34(1) of the
Advocates Act empowers High Courts to frame rules laying down conditions
subject to which an Advocate 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 reported in (1998)
4 SCC 409, 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 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 b 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 or 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 contempt 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.
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
Judgment.
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 / misbehaviour 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 nomineee,
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 for 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 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 away from Court premises, going
on dharnas or relay fasts 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 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 Legislatures. 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 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 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 fasts 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 consequences by the Association or the
Council and no threat or coercion of any nature including that of expulsion can
be held 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.
...CJI.
.J.
(DORAISWAMY
RAJU) .J.
(S. N.
VARIAVA) .J.
(D. M.
DHARMADHIKARI) New
Delhi, December 17, 2002.
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