Report No. 131
2.11. Strike by lawyers has become .a nauseatingly recurring phenomenon. It is of recent origin. Strong views are held on either side whether members of the legal profession can go on strike or not and if they can, what would be the justifying and compelling reasons and for what length of time. In the Questionnaire issued by the Law Commission, part of question No. 4 and question No. 5 referred to recent strikes by the members of the legal profession in different parts of the country. Members of the organised Bar with one voice supported the right to strike. On the other hand, a number of voluntary organisations, judges of High Court and individuals expressed the opinion that the lawyers have no right to go on strike.
2.12. The High Court of Orissa expressed the view that members of legal profession should not go on strike, nor, should they resort to strike in support of their demands or ventilating their grievances. Some Judges of the High, Courts in their individual capacity responding to the Questionnaire clearly, expressed themselves against a strike. The Bombay Bar Association was of the view that the Bar should, follow other means of protest in keeping with its dignity and resort to strike only if no other solution is possible.
On the other hand Ahmedabad Bar Association clearly expressed itself in favour of legal profession going on strike in support of the ends coveted by the Bar. In between these extreme views, opinions for and against strike were expressed by lawyers responding in their individual capacity. Voluntary organisations and others expressed an opinion that ordinarily members of the legal profession should not resort to strike because strike in the long run undermines the administration of justice.
2.13. A local journalist in his column stated that:
"Lawyers are the most organised community in the country with Statutory Bar Councils, voluntary Bar Associations and a host of legal societies well-oiled with funds derived from their licensed monopoly to run the legal business market provided by courts and tribunals. All this power is of awesome proportions for the ordinary citizen in Delhi. ... their strike raised some troublesome questions".1
The lawyers' strike with reference to the incidents that occurred at Tis Hazari Court in January-February, 1988, led a journalist writing in statesman to remark that 'lawyers' strike is delaying justice.'2 By and large, the print media showed little sympathy for the cause of the strike or for the strike itself. A Jurist has expressed himself that 'the members of the Bar proceeded on strike for maintaining the status quo'.
1. Krishan Mahajan in The Hindustan Times, dated 7-2-1988 - 'legal perspective'.
2. Avil Rana in The Statesman, dated 11-2-1988.
2.14. Some causes of the strike may be examined in view of the claim that there are justifying and compelling causes for which the Bar, if it does not resort to strike, would be failing in its duty. The Gujarat High Court Bar, was on long strike on the ground that the acting Chief Justice was not confirmed. The entire Bar in the State of Gujarat went on strike for a couple of months on the ground that some of the persons recommended for elevation to the Bench by the Chief Justice of the High Court were not appointed by the Government. The Delhi High Court Bar Association went on strike on the ground that the acting Chief Justice should have been appointed in a permanent capacity.
The repeat performance was when a district judge was elevated to the High Court over the head of his senior. The Allahabad High Court Bar Association resorted to strike for a period of about 13 days in May 1980 when the then Chief Justice initiated several reforms in the administration of the High Court, accusing the Chief Justice of 'massacring justice'. In November 1987, the members of the Delhi High Court Bar Association went on strike in protest against the decision of the High Court to raise its pecuniary jurisdiction to five lakh rupees in respect of civil suits.
This strike dislocated the work in the High Court to the extent that more than 20 civil suits which were either to be decided or had been listed for recording of evidence on the first two days of the strike would most probably be coming up for hearing around 1991-92.1 In January-February, 1988 advocates practising in all courts in the capital went on strike protesting against handcuffing of a lawyer by police and the two subsequent incidents in which police allegedly resorted to lathi charge. Sometimes the Bar so dominates the Bench as to subvert both the spirit and the text of law seeking to achieve a modicum of expedition in trial .2
About a few days back, lawyers practising in Tis Hazari Courts in the capital revived their strike which led Hindustan Times to comment editorially that the lawyers, by their over reaction, have put the public into much inconvenience and they seem to be reluctant to change their line of action. The paper exhorted the people to resist this attempt to dictate because, according to it, lawyers in Delhi are setting a bad example to their community in, the rest of the country.3
The members of the Criminal Court Bar Association, Ahmedabad went on strike on the ground that the powers under sections 107 and 151 of the Code of Criminal Procedure are being withdrawn from the Executive Magistrates and are being conferred upon Commissioner of Police wherever a Police Commissioner is appointed, for an area. Taking cue from their learned friends in Delhi, over 17,000 advocates in Bombay and adjoining Thane district abstained from courts to protest against police assault on a lawyer and his reported handcuffing.4 It will thus appear that the causes which have provoked strike would leave one bewildered.
1. The Hindustan Times, dated 12-11-1987.
2. Dr. Upendra Baxi The Crisis of Indian Legal System, (1982), p. 75.
3. Editorial in The Hindustan Times, dated 22-8-1988.
4. The Hindustan Times, dated 24-8-1988.
2.15. Analysing the responses, the first thing that strikes us is that by and large the members of the legal profession individually or through organisations were unwilling to abdicate the right to strike which is fiercely and self-righteously claimed. The right to strike is claimed as a fundamental right, being a non-violent means of expressing protest to the unjust and improper actions of the authorities. It was claimed that if the right to strike is taken away from the lawyers, it will make the lawyers impotent which will jeopardise Indian democracy. The contrary view expressed in the debate needs mention:
"The lawyers, as a class, have come to believe that they are entitled to special consideration distinct from ordinary citizens because they have an access to courts and deal with the Judges direct, from day-to-day. A succession of strikes which ended with the acceptance by Government or the courts of their demands, has in effect, provided them with a clout, which they are now in a position to wield to bring the judicial system to halt". It was maintained by the members of the legal profession that the strike is not against the court but against the actions of the Government. But it was further claimed that if a member of the Judiciary is unfairly treated, the Bar has a duty to show its resentment by resorting to strike.
2.16. Individuals who had something to do with the court and voluntary organisations by and large adversely commented upon the strike by lawyers. It was said that it is not at all proper for the members of the Bar to go on strike for any reason, including an unfair treatment of a member of the Judiciary by the Government. It was generally maintained that the strike by lawyers caused irreparable and irreversible harm only to litigants and in the long run, weakens the system of administration of justice.
2.17. To recall, the Law Commission is examining the role of legal profession in strengthening the system of administration of justice. What is the fallout of this recurring strike? Available figures indicate that even if the strike, may be from the point of view of the legal profession was wholly justified and for a compelling reason, it had at least the dubious distinction of piling up the arrears and the victims are the consumers of justice, namely, litigants, whose cases could not be listed for hearing and would not be listed for years to come.
This can be substantiated by statistical information with regard to the piling up of arrears in the Supreme Court of India and the Delhi High Court between 31-12-1987 and 30-6-1988, during which period the lawyers almost in all courts in the capital were on strike for a fairly long period. The pendency as on 31-12-1987 in the Supreme Court of India was 1,75,748.1 The pendency as on 30-6-1988 in the Supreme Court of India is 1,85,950.2 There is, thus, an increase of 10,202 in the backlog of cases in a period of six months.
If previous graph of increase in pendency yearwise3 is compared to the present graph, what stares into the face is that this sudden rise is purely attributable to the strike of the lawyers even in the Supreme Court of India. Similarly, in Delhi High Court where the lawyers were on strike, the pendency on 31-12-1987 was 77,444 and it rose to 82,712 on 30-6-1988.4 Latter figure does not include cases which, though filed, were awaiting registration. Can a claim that the strike is for strengthening the administration of justice be entertained in the face of these stark facts? The irreducible minimum which flows from this situation is that while not strengthening at any rate the strike of lawyers weakens the system of administration of justice.
1. Annual Report of the Ministry of Law and Justice, Government of India, 1987-88, p. 31.
2. Answer by the Minister of State in the Ministry of Law and Justice to the Unstarred Question No. 303 in Rajya Sabha, dated 29-7-1988.
3. See LCI, 125th Report on The Supreme Court-A Fresh Look.
4. Figures supplied by the Additional Registrar, Delhi High Court.
2.18. The next subject that elicited a ferocious debate with entrenched positions being taken on either side is with regard to the disciplinary jurisdiction of the Bar Council over the members of the legal profession. Question No. 11 of the Questionnaire invited a debate on the disciplinary jurisdiction over the members of the Bar. The question was framed keeping in view the accountability of the profession to the consumer of its service. A view was expressed that the transfer of disciplinary jurisdiction to the Bar Council has weakened the control over the members of the Bar and, therefore, attempt must be made to examine whether the jurisdiction should be retransferred to the High Court.
2.19. Before Chapter V of the Advocates Act, 1961 came into force, the disciplinary jurisdiction over the members of the Bar vested in the High Court under the repealed sections 10 to 13 of the Indian Bar Councils Act, 1926. There was a demand for what is called Peer's justice which led to the conferment of disciplinary jurisdiction on the Bar Council, simultaneously extinguishing the jurisdiction of the High Court. The debate revealed irreconcilable positions between those who are enjoying the jurisdictions and those who desire a change. The Bar Councils generally were wholly opposed to any change in disciplinary jurisdiction; on the other hand, the Judges strongly felt that disciplinary jurisdiction of the High Courts should be restored.
The individuals who responded to the Questionnaire and some voluntary organisations were in favour of restoring the disciplinary jurisdiction of the High Courts. One voluntary organisation asserted that, 'most of the matters pending before the Disciplinary Committees of the Bar Councils are the complaints by the litigants against their advocates. That such complaints are at present evaluated and decided by the professional brothers of the accused is by itself ironic and strange'. One reason why Bar Councils are not geared up, the way they ought to be, is that, 'criticisms of the Bar Councils and Bar is absent because people are afraid of this pressure group, even Judges are afraid of them, then how can any individual dare to do it'.
This was the view expressed by another voluntary organisation. A suggestion was made by a third voluntary organisation that in order to confer credibility on the Disciplinary Committee of the Bar Council, the complainant should be empowered either to be a member of the Disciplinary Committee or to nominate his representative on the Disciplinary Committee.
2.20. The Law Commission had the expert assistance of an academe who, for long number of years, was closely associated with the Bar Council of India. His view is:
"Closely related to the above issue is the lack of adequate enforcement of professional discipline and standards of ethical conduct. Very few people outside the profession are aware of the existing system of punishing erring advocates. Peer Group Justice has not been a success if one were to go by the statistics of violations and the extent of indiscipline often noticed among the advocates. Puni had to be corrected by the Supreme Court.1
The cases are not punishments administered are said to be too mild which in many cases licised and the public are in dark about the misdeeds of many lawyers on whom they depend for their life, liberty and property. A number of unholy practices, such as 'Bench fixation', fee sharing, etc., are not even recognised as unethical conduct inviting disciplinary jurisdiction. Besides, strike and boycott of courts at State and local levels have become a regular feature with the advocates who are getting unionised on political and regional grounds.
The fond hope of the All-India Bar Committee for an integrated Bar with high professional standards is steadily being eroded by the actions and nomissions of a certain section of the advocates themselves The situation call for a revision of the rules of professional conduct and etiquettes keeping in mind not only the interests of the members of the profession but also those of the litigating public Supervisory role of the High Courts on disciplinary matters may have to be revived at least in a limited manner to enforce accountability from recalcitrant members of the Bar".
1. See e.g. cases, Bar Council of Maharashtra v. M.V. Dabholkar, AIR 1975 SC 2092; P.J. Ratnam V.D. Kanikaram, AIR 1964 SC 244; V.C. Rangadurai V.D. Gopalan, AIR 1979 SC 281 and M. Veerbhaora Rao v. Tek Chand, 1984 SCC Supp 571.
2.21. It is undoubtedly true that section 38 of the Advocates Act confers appellate jurisdiction on the Supreme Court of India over the decision of the Disciplinary Committee of the Bar Council of India at the instance of any person aggrieved by the same or at the instance of the Attorney-General of India or the Advocate General of the concerned State, as the case may be. The appellate jurisdiction inheres the power to vary the punishment which has been interpreted to include the power to enhance the punishment also. It is for consideration whether this jurisdiction is sufficient to allay the apprehension of the litigating public about the outcome of peer's justice. It is equally necessary to examine this aspect from the point of view of the accountability of the profession, amongst others, to the litigants.
2.22. One more facet of the debate which needs to be examined has reference to the mounting cost of litigation which litigants have to bear at present.1 In the present context, the aspect is examined with regard to only one limb of it, namely, lawyer's fees. Question No. 14 in the Questionnaire was whether it was desirable to have a standardised schedule of fees that would be charged by the lawyers from the clients. If the view favours such a standardisation, a request was made for suggesting a method for enforcing the same.
1. For analysis of this aspect, reference is insisted to LCI, 128th Report on The Cost of Litigation
2.23. The trend is not in favour of standardisation of fees. The view varied from it being desirable but not practicable 'because the cost of living and the standards of living differ not only from man to man but from locality to locality also', on the other- hand, it was stated that, 'the need to have a standardised schedule of 'fees that may be charged from clients is being largely felt but it is important to arrive at a schedule of fees and to enforce it'. One State Bar Council was of the opinion that such a measure, if adopted, would give rise to greater corruption and encourage the growth of black money.
Voluntary organisations, on the other hand, suggested that they or para-legal bodies should be given due encouragement to appear in the court to render assistance to the needy for legal services. The voluntary bodies working in the field of legal aid to the needy favoured standardisation of fees payable to lawyers. In fixing the schedule of fees, it was recommended that it must be done after consultation with the organised bodies of legal profession. There should be a committee to which alone the fee will be paid and the committee will render account to the lawyer.
2.24. Though it is difficult to quote any single specific instance, the fees charged by some senior advocates are astronomical in character. And it so happens that the corporate sector is willing to retain talent at a very high cost. The payment thus develops into a culture and it permeates down below. Undoubtedly a schedule of fees has been drawn up by the Bar Council of India but the views expressed to the Law Commission would reveal that nobody takes note of it. It is not merely the attempt to prescribe standardisation of fees but the enforcement machinery that would become more relevant.
