Supreme Court of India
EX. CAPT. HARISH UPPALversusUNION OF INDIA AND ANR.
- Citation
- 2002 INSC 523
- Decided
- 7 December 2002
- Disposal
- Disposed off
- Bench
- G B PATTANAIK
Holding
Advocates have no right to strike or call for a boycott of courts; such conduct is illegal, constitutes professional misconduct and contempt, and may be punished, with only limited peaceful protest permissible.
Summary
The Supreme Court examined multiple writ petitions challenging the legality of lawyers striking or calling for a boycott of courts. It held that advocates, as officers of the Court, have no right to strike or boycott court proceedings; such actions interfere with the administration of justice and constitute professional misconduct and contempt. Only peaceful forms of protest, such as press statements, banners, arm‑bands, dharnas or relay fasts, are permissible, and even these may be overlooked for a single day when the dignity or independence of the Bar or judiciary is at stake, subject to the Court’s discretion. The Court directed Bar Councils to incorporate disciplinary clauses against strikes, to set up grievance‑redressal committees, and empowered High Courts under Section 34 of the Advocates Act to frame rules barring advocates who strike from practising. The petitions were dismissed and the matter was disposed of.
Issues considered
- Whether an advocate has a legal right to go on strike or call for a boycott of courts
- Whether participation in a strike or boycott amounts to professional misconduct and contempt of court
- Whether the Bar Council of India or State Bar Councils can permit or regulate strikes under the Advocates Act
- Whether courts are obliged to adjourn proceedings due to a strike by lawyers
- Whether a limited protest abstention for one day can be permitted when the dignity or independence of the Bar or judiciary is at stake
- Interpretation of Sections 34, 38, 48A, 50, 7 and 30 of the Advocates Act, 1961 in the context of strikes
Legislation cited
- Advocates Act, 1961s. 30, s. 34, s. 38, s. 48A, s. 50, s. 7
- Constitution of Indias. Article 145, s. Article 19(1)(a), s. Article 21
Subjects
lawyer strikecourt boycottadvocates' professional misconductcontempt of courtBar Council disciplinary powerspeaceful protestadministration of justiceAdvocates Act
Judgment
A EX. CAPT. HARISH UPPAL
v.
UNION OF INDIA AND ANR.
DECEMBER I 7, 2002
B (G. B. PATTANAIK CJ., M.B. SHAH, DORAISWAMY RAJU, S.N.
VARIAVA AND D.M. DHARMADHIKARI, JJ.]
Advocates Act, 1961:
c Strike or cal/for boycott of Courts by lawyers-Held: Lawyers have no
such right-Instead peaceful demonstra/ion may be resorted to-Further, cour/s
may overlook prates/ on an Issue involving dignity, integrity and independence
of the Bar and Judiciary provided ii does no/ exceed one day.
Advocate-Role of-Whether could resort to strike or call for boycott of
D Courts-Held: No, since Advocate has obligations and duties to ensure smooth
functioning of Court and owes a duty to his client-Strike interferes with
administration of justice-Advocate cannot disrupl Courl proceedings.
Sections 34 and 48A-Scope of-Discussed.
E Jn writ petition No.821 of 1991 an interim order was passed to the
effect 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 1(1995) I Scale p.61. It was suggested that
Bar Council of India incorporate certain clauses in the Bar Council of
F India (Conduct & Disciplinary) Rules. However the Bar Council of India
did not incorporate it in the Bar Council of India (Conduct and
Disciplinary) Rules and the phenomenon of going on strikes at the slightest
provocation is on the increase. Hence the need to decide whether lawyers
have a right to strike and/or give a call for boycott of courts.
G Amicus Curiae submitted that this Court has declared strikes illegal;
that even a call for strike is bad; that it is time that the Bar Council of
India as well as various State Bar Councils monitor str-ikes within their
jurisdiction and ensure that there are no call for strike~ and/or boycotts;
and that in all cases where redressal can be obtained by going to a Court
H of law there should be no strike.
186
·-
EX. CAPT. HARISH UPPAL v. U.0.1. 187
Petitioner in Writ Petition (C) No.406 of 2000 contended that Courts A
have declared that a strike is illegal; that lawyers who are officers of the
Court cannot use strikes as a means to blackmail courts or clients; that
the call for strike by lawyers is in effect a call to breach the contract which
lawyers have with their clients and if he does not attend Court it would
amount to professional misconduct and also contempt of Court; that B
Courts should cast responsibility on Bar Councils and Bar Associations
to see that there is no strike and/or call for boycott and should also take
action against Committee members for giving such calls on the basis that
they have committed contempt of Court; that Committee members of a
Bar Association or Council should refuse any requisition calling a meeting
to consider a strike; that it cannot have any legal or moral right to call a C
meeting to consider a call for an illegal act; that Court should frame rules
regulating the right of lawyers to appear before Court and also against
lawyers who mis-conducts himself and commits contempt of court by going
on strike; and that this Court should issue a mandamus to Bar Councils
to frame rules in consonance with the interim directions which have been
passed by this Court. D
Petitioner in W.P. (C) No.821 of 1990 supported the aforesaid
contentions and further contended that 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, which can be by physical E
prevention from appearance, by a threat to withdraw facility or to
terminate the membership of Associations and if any such threats are given
or any such coercion is used then Court must punish the party so coercing
for contempt.
The Attorney General of India and most of the Bar Councils and F
Bar Associations inter alia contended that strike by lawyers cannot be
equated with strikes resorted to by other sections of society; that strike
or abstention from work impairs the administration of justice and is
inconsistent with the calling and position of lawyers; that abstention from
work by lawyers, may be resorted to where the action protested against
is detrimental to free and fair administration of justice; that cases where G
the action eroded the autonomy of the legal profession, token strike for
one day may be resorted to; that alternative forms of protest can be
explored; that abstention from work for the redressal of a grievance should
never be resorted to where other remedies for seeking redressal are
available; that ail attempts should be made to seek redressal from the H
188 SUPREME COURT REPORTS (2002] SUPP. 5 S.C.R.
A concerned authorities; 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; 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; that they were not in favour of
B strikes and/or call for strikes; that their Associations had not gone on strike
at all and/or only on token strikes of not more than one day; that 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; that even
where a legal remedy was not available strike should be resorted to when
the dignity of the Court or the Bar was at stake that also only a token
C strike for one day; 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; and that there must be
Committees for redressing grievances of lawyers.
D Bar Council of U.P. contended that lawyers have a right to go on
strike or give a call for boycott; that Courts have no power of supervision
over the conduct of lawyers by virtue of Section 50 of Advocates Act, 1950;
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
E to decide whether or not an Advocate has committed misconduct and this
Court cannot penalise any Advocate for the same; and that it is for the
Bar Councils to decide whether strike should be resorted to or not.
Disposing of the writ petitions, the Court
HELD: (Per Variava J. for himself. CJ/, and Doraiswamy Raju J):
F
I.I. An Advocate is an officer of the Court and enjoys special status
in society. Advocates have obligations and duties to ensu.re smooth
functioning of the Court and owe a duty to their client. Strikes interfere
with administration of justice. Lawyers cannot thus disrupt Court
G proceedings and put interest of their clients in jeopardy. 1208-C, DI
1.2. Lawyers have no right to go on strike or give a call for boycott,
not even on a token strike. 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
H protest marches outside and away from Court premises, going on dharnas
EX. CAPT. HARISH UPPAL v. U.0.1 189
or relay fasts etc. Lawyers ho_lding Vaka lats on behalf of their client cannot A
refuse to attend Courts in pursuance to a call for strike or boycott. They
must boldly refuse to abide by any call for strike or boycott. No lawyer
can be visited with any adverse consequences by Association or Council.
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 B
meeting for purposes of considering a call for strike or boycott and
requisition, if any, for such meeting must be ignored. Only in cases where
the dignity, integrity and independence of the Bar and/or the Bench are
at stake, Courts may ignore to a protest abstention from work for not more
than one day. [218-H; 219-A, B, q
1.3. It is clarified that it will be for Court to decide whether or not
c
the issue involves dignity or integrity or in.dependence of Bar and/or Bench.
Therefore, in such cases the President of Bar must first consult Chief
Justice or District Judge before Advocates decide to absent themselves
from Court. Their decision would be final and the Bar has to abide by it.
Courts are under no obligation to adjourn matters because lawyers are D
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. Further, if a lawyer,
holding a Vakalat ofa client, abstains from attending Court due to a strike
call, he shall be personally liable to pay costs which shall be in addition E
to damages which he might have to pay his client for loss suffered by him.
1219-C, D, El
B.L. Wadehra v. State (NCT) of Delhi and Ors., AIR (2000) Delhi 266,
approved.
F
Bharal Kumar K. Palicha and Anr. v. Stale of Kera/a and Ors., AIR
(1997) Ker 291; Communist Party of India (M) v. Bharat Kumar and Ors.,
119981 I SCC 201 at 202; Lt. Col. S.J. Chaudhary v. S1a1e (Delhi
Administration) 1198411 SCC 722; K. John Koshy and Ors. v. Dr. Tarakeshwar
0
Prasad Shaw, [19981 8 SCC 624; Mahabir Prasad Singh v. Jach Aviation
Pvt. lid., 1199911 sec 37; Koluttumottil Razak v. Slate of Kera/a, 120001 4 . G
sec 465; U.P. Sales Tax Service Association v. Taxation Bar A;sociation
1199515 SCC 716; Roman Sen•ices Pvt. Ltd. v •.. Subhash Kapoor, 1200111
SCC 118; Abhay Prakash Sahay La/an v. High Courl of Judicalure at Patna,
AIR (1998) Patna 75 and Supreme Courl Bar Associalion v. Union of India
[19981 4 SCc'409, -referred to.
H
190 SUPREME COURT REPORTS (2002] SUPP. 5 S.C.R.
A 2. The contentions of Bar Councils of U.P. are rejected since none
of the functions of the Bar Council of India mentioned under Section 7 of
the Advocates Act authorize paralysing 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
B 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
C control their conduct. (209-C, D, El
3. Courts are not powerless or helpless. Section 38 of the Advocates
Act provides that even in disciplinary matters the final Appellate Author~ty
is the Suprem!! Court. Thus even if the Bar Councils do not rise to the
occasion and perform their duties by taking disciplinary action on a
D 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. (212-B, Cl
4. The administration of justice and the reputation of the legal,
profession is at stake. It is the duty and obligation of Bar Council of India
E to now incorporate clauses as suggested in the interim order in their
disciplinary rules which they failed to do. 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
p for such exercise. Authority cannot refuse to act at its will or pleasure. If
such omission continues, particularly when there is an apparent threat to
the administration of justice and fundamental rights of the litigating
public, Courts will always have authority to compel or enforce the exercise
of the power by the statutory authority. Courts would then be compelled
to issue directions as are necessary to compel the authority to do what it
G should have done.on its own. (215-C, D, El
Per Shah J. (for himself and Dharmadhikari, J. (Supplementing):
1.1. The Bar should be strong, fearless and independent and should
be in a position to lead the society. These qualities could be and should be
H
EX. CAPT. HARISH UPPAL v. U.0.1. 191
utilized in assisting the judicial system, if required, by exposing any person, A
whosoever he may be, if he is indulging in any unethical practice. It is
hoped that instead of resorting to strike, Bar would find out other ways
and means redressing their grievances including peaceful demonstrations.
[220-E, F)
1.2. It is true that Advocates are part and parcel of judicial system B
as such they are the foundation of Justice-Delivery System. It is their
responsibility of seeing that justice delivery system works smoothly.
Therefore, it is for each and every Bar Association to be vigilant in
implementing the resolution passed by Bar Council of India of seeing that
there are no further strike any more. Bar Council of India in its resolution C
has also stated that the resolution passed by it would be implemented
strictly and hence, Bar Associations and the individual members of Bar
Associations would take all steps to comply with the same and avoid
cessation of the work except in the manner and to the extent indicated in
the resolution. [221-B, C)
D
1.3. All the Bar Associations in the country shall implement the
Resolution dated 29th September, 2002 passed by Bar Council of India
and High Courts would frame necessary rules under Section 34 of
Advocates Act, so that appropriate action can be taken against defaulting
advocates. [221-E)
E
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 132 of
1988.
(Under Article 32 of the Constitution of India.)
WITH F
W.P. (C) Nos. 320, 394/93, 821/90 and 406 of 2000.
Soli J. Sorabjee, Attornery General, Dipanker Gupta, Shanti Bhushan,
Kailash Vasudev, V.R. Reddy, M.N. Krishnamani, P.P. Rao, R.K.P.
Shankardass, Mahati M. Parkeday. P.S. Mishra and Amarendra Sharan. G
K. Subrarnaniurn. C.S. Vaidyanathan, G.L. Sanghi, Upender K. Jallali,
S.S. tehar, Gopal Subramanium, R.K. Jain, P.N. Mishra, Jagdeep Dhankhar,
Dr. Harish Uppal-in-Person, Prashant Bhushan, Vishal Gupta, Sanjeev Kapoor.
Narendra Verma, S.K. Pathak, Anil Kumar Mittal, Ms. Kamini Jaiswal, A.K.
Nigam, S. Bakshi, Ms. Aishwarya Rao, Vishal Gupta, Sanjeev Mahajan, G.G. H
192 SUPREME COURT REPORTS (2002] SUPP. 5 S.C.R.
A Upadhya, Syed Ali Ahmed, Syed Tan.weer Ahmad, Ms. Artia Upadhyay,
R.D. Upadhyay, Ms. Binu Tamta, S.N.Terdol, Sanjeev Sachdeva, D.V. Subba
Rao, Adish Aggarwala, N. Karvendan, Mrs. Setia Vaidialingam, G. Balaji,
Ashok Kr. Pandey, A. Mariarputham, Anurag D. Mathur, Mrs. Aruna Mathur,
K.R. Sasiprabhu, Ranjan Mukherjee, Ramesh Babu M.R. Robson Paul, V.K.
Sidharthan, S~ Chandra Shekhar', Tathagat Harshwardhan, Mrs. S. Reddy, Dr.
B J.P. Singh, C.D. Singh, Amit Kumar, S.A. Khan, A.A. Tiwary, Ashok Arora,
Ms. Sumita Rao, C.V.S. Rao, K.M.K. Nair, Rishi Agarwal, Manu Krishnan,
Alok K. Agarwal, E.C. Agrawala, Mahesh Agarwal, Ashwini Kumar, K.C.
Kaushik, Ms. Bina Gupta, Ms. Rakhi Ray, Mr. Vanita Bhargava, Raj Kumar
Gupta, Sheo Kr. Gupta, A.N. Baradiyar, S.K. Kulkarni, Gireesh Kumar,
C Anukur S. Kulkarni, Ms. Sangeeta Kumar, S. Guru Krishna Kumar, S.S.H.
Rizvi, D.N. Mishra. P.S. Narasimha, A. Bhattacharya, P. Sridhar, Sakesh
Kumar, S.K. Aganihtri, A.K. Srivastava, Prakash Kumar Singh, U.U. Lalit,
S.S. Shinde, Raghupathy V.N. Ms. Manmeet Arora, Angad Narula, T.V.
Ratnam, K. Subba Rao, Rajendra Singhvi, Ashok K. Singh, S.L. Singh, J.S.
Bhasin, H.A. Raichura, S.H. Raichura, A.V. Palli, Rajnesh Jaswal, Mrs. Rekha
D Palli, Aruneshwar Gupta, M.N. Shroft, Pravir Chaudhary, Ms. B.
Vijayalakshmi Menon, M. Veerappa, Ms. S. Janani, Ms. Aruna Gupta, Ashwani
Bhardwaj, Abhishek Atrey, S.P. Sharma, Krishnammihi Swami, Mrs. Sarla
Chandra, S.R. Setia, Raj Kumar Mehta, M.P. Shorawala, C.L. Sahu, B.V.
Desai, Bijan Kumar Ghosh, Goodwill Indeevar, Sanjay Parikh, J.S. Atri,
E K.K. Rai, Radha Shyam Jena, Sushi! Kumar Jain, S.K. Kulkarni. M.G. Kumar,
A.K. Kulkarni Adv, for Surya Kant, K. Ram Kumar, A.S. Bhasme, H.K. Puri,
R.K. Virmani, V.B. Joshi, Sandeep S. Tiwari, Ravi Kini, Ms. Leela Pujari,
P.O. Sharma, Arun K. Sinha, Rakesh Singh Rajiv Mehta, K.M.K. Nair, S.
Misra, Lok Nath Rath, Dr. Sushi! Balwada, Ms. A. Subhashini, Tarun Johri,
Rakesh Tikku, D.K. Sharma, Rakesh Singh, Arun K. Sinha, Rajesh Pathak,
F Ajit Kr. Sinha, K.S. Bhati, Sanjeev Kumar, Ranji Thomas, Sushi! Tekriwal,
Ms. B. Upadhyaya Naresh K. Sharma, Mukesh K. Giri, Ms. H. Wahi, Prakash
Srivatava, Nitin Bhardwaj for the appearing parites.
The Judgments of the Court were delivered by
G S.N. VARIA VA, J. I 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
H country. Pursuant to those notices some Bar Associations and Bar Councils
EX. CAPT. HARISH UPPAL v. U.O.L [S.N. VARIAVA, J.] 193
have filed their responses and have appeared and made submissions before A
us.
(2) In Writ Petition (C) No. 821 of 1990, an interim order came to be
passed. This Order is reported in (1995) I Scale p.6. The circumstances
under which it is passed and the nature of the interim order are set oufin the
Order. The relevant portion reads as under: B
"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 I 0th and I Ith September,
1994 and a working paper was circulated on behalf of the Bar Council C
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 D
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 E
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 p
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 G
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 H
194 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A 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:-
B "(!)In the rare instance where any association oflawyers
including statutory Bar Councils considers it imperative to call
upon and/or advise tnembers 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 a~pear without let, fear or hindrance or any other coercive
c 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.
D
(3) The above will not preclude other fonns of protest
by practising lawyers in court such as, for instance, wearing of
arm bands and other fonns 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
E 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
(!)above shall ensure that such decisions are implemented in the
spirit of what is stated in clauses (I) and (2) and (3) above."
F
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 (!), (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
G 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 (I) to (4) above for a period of at least six months by
making the said clauses the rule of the Court. Accordingly we make
H
EX. CAPT. HARISH UPPAL v. U.0.1. [S.N. VARIAVA, J.] 195
clauses (I) to (4) mentioned above the order of this Court and direct A
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 B
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
c
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 (I) 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 D
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 E
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;
F
(b) grievances against the Presiding Officer;
(c) grievances against Judgments of Courts;
(d) clash of interest between groups of lawyers and
G
(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 Suite Bar Councils monitor H
196 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A 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
B 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
C 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
D 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 '
E 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
F 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
G 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
H want to participate in a strike should not be coerced by other lawyers
EX. CAPT. HARISH UPPAL v. U.0.1. [S.N. VARIAVA, J.) 197
or Committee members. He submitted that such coercion amounts to A
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 B
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 C
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 ofnot more than one
day. The consensus at the Bar was that lawyers cannot and should not D
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 E
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 dhamas 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 F
suggested that the Committees be set up to whom grievances can be
submitted.
(8) It must however be mentioned that counsel on behalfof 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 G
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 H
198 SUPREME COURT REPORTS [2002) SUPP. 5 S.C.R.
A 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
B 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
c 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,
D 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
E 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.
F He submitted that the purpose should be to register a protest and not
to paralyse the system. He suggested that alternative fonns of protest
can be explored, e.g., giving press statements, TV interviews, carrying
banners and/or placards, wearing black ann-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
G 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
H police brutalities Courts and litigants should not be targeted in respect
EX. CAPT. HARISH UPPAL v. U.0.1. [S.N. VARIAVA, J.] 199
of actions for which they are in no way responsible. He agreed that A
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 Kera la High Court in
the case of Bharat Kumar K. Palicha and Anr. v. State of Kera/a and B
Ors., AIR (1997) ker 291 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 C
duties for their own benefit or for the benefit of the State or the
nation." [See (1998) I SCC 201 at 204, para 17] [emphasis added]
(JO) 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 and Ors., (1998] I SCC 201 at 202. D
(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. Choudhary v. State (Delhi Administration) reported in (I 984) I
sec 722, the High Court had directed that a criminal trial go on from E
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. F
(12) In the case of K. John Koshy and Ors., v. 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 G
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 v. Jacks Aviation Pvt. Ltd.,
reported in ( 1999) I SCC page 37, an application had been made to
the trial Court to suo moto··transfer the case to some other Court as H
200 SUPREME COURT REPORTS (2002) SUPP. 5 S.C.R.
A 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.
B Following the ratio laid down in Lt. Col. S.J. Choudhary '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,
c 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.
D 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
E 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,
i~ unprofessional as also unbecoming of the status of an advocate.
No Court is obliged to adjourn a cause because of the strike call
F
given by any association of advocates or a decision to boycott
th.e 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."
G
(14) In the case of Koluttumotiil Razak v. State of Kera/a 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.
H
EX. CAPT. HARISH UPPAL v. U.0.1. [S.N. VARIAVA, J.] 201
(15) In the case of U.P. Sales Tax Service Associalion v. Taxalion A
Bar Association, reported in [ 19951_ 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 oftker to any other officer and whether
advocates would be justified to go on strike as a pressure group. In B
that context this Court observed as follows:
"I I. 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 C
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 D
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
l'r integrity of the judge/judicial officer/authority undermines the
dignity ofthe court/authority and tends to create distrust in the
popular mind and impedes the confidence of the people in the E
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, F
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 G
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 H
202 SUPREME COURT REPORTS (2002] SUPP. 5 S.C.R.
A 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
B 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
c 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
D quasi judicial functions. The question whether lawyers had a right to
strike was not gone into.
(17) In the case of B.l. Wadehra v. State (NCT of Delhi) and 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
E 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] I SCC 732: AIR(1995) SC 691, the Supreme
Court observed thus : .
F
"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 justic~, the practice of
law has a public utility flavour and, therefore, he must strictly and
G scrupulously abide by the Code of Conduct behaving 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."
H
EX. CAPT. HARISH UPPAL v. U.0.1. [S.N. VARIAVA, J.] 203
In Re: Sanjeev Datta, reported in [1995] 3 SCC 619 : (1995 AIR A
SCW 2203) the S4preme Court has stated thus:
"40. 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 B
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 C
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 D
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." E
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 abovecmentioned views expressed by ihe
Supreme Court, lawyers have 'no right to strike i.e. to abstain from F
appearing in Court in cases in which th~y 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, G
if he has been· duly discharged from the case. But so long as a lawyer
holds the vakalat foi- his client and has not been duly discharged, he
has no right to ab.stain from appearing in Court even on the ground
of a strike called by the Bar Associiition 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 H
204 SUPREME COURT REPORTS [2002) SUPP. 5 S.C.R.
A 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
B Court in Hussainara Khatoon v. Home Secretary, State of Bihar,
[1980] I 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
c 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
D 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( I )(g) may include the right to discontinue
E 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
F 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 C0urt, a privileged member of the
community and a gentleman, bearing in mind that what may be lawful
G
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
H view of the nobility and tradition of the legal profession, the status
EX. CAPT. HARISH UPPAL v. U.0.1. [S.N. VARIAVA, J.) 205
of the lawyer as an officer of the court and the fiduciary character of A
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 B
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 C
during Court hours and the Court is not oblig~d 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 D
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 E
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
F
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 G
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 dir~ctions being
issued in this case." ·
H
206 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A (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 v. Subhash
Kapoor, reported in [200 I] I SCC 118, the ciuestion was whether a litigant
should suffer a penalty because his advocate had boycotted the Court pursuant
B 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
C the ground that they have decided to go on a strike. In th is 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:
D "13. Shri Krishnamani, 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
E 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 direded the concerned advocate to pay the half the
amount of the cost imposed on his client. The observations in this behalf are
as follows:
F
"15. Therefore, we permit the appellant to realise half of the said
amount of Rs. 5000 from the firm of advocates Mis B.C. Das Gupta
& Co. or from any one of its partners. Initially we thought that the
appellant could be pennitted to realise the whole amount from the
said firm of advocates. However, we are inclined to save the firm
G 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 party1 if the non-
appearance was solely on the ground of a strike call. It is unjust and
H
...
EX. CAPT. HARISH UPPAL v. U.0.1. [S.N. VARIAVA, J.) 207
inequitable to cause the party alone to suffer for the 'self-imposed A
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 B
c-0urt has power to perm it the party to realise the costs from the
advocate concerned. However, such direction can be passed only
after affording an opportunity to the advocate. lfhe 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 C
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 D
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 E
call) could be set aside on terms, the court can as well permit the
party to realise the costs from the advo~ate 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 F
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
i:ourt or participating in a strike." (emphasis supplied)
G
(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 H
208 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A 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
B Associations expressing want of confidence in judicial officers it would amount
to scandalising the Courts to undenn ine 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.
C 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
D 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:-
E "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
F 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.
G "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 j'lstice. For in no other way can the Supreme Court
and the High Court maintain the high position and exercise the great
H powers conferred by the Constitution and the law to do justice without
EX. CAPT. HARISH UPPAL v. U.0.L [S.N. VARIAVA,J.) 209
fear or favour, affection or ill-will." A
(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 selfrestraint and self regulation the lawyers would retrieve B
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 pretence strikes and/or boycott calls are
resorted to. The judicial system is being held to ransom. Administration of C
1
'
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 D
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 E
may be separate bodies but all Advocates .who afe 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. F
(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 cond.itions subject to which an Advocate shall be permitted to
practice in the Hig,h Court and Courts subordinate thereto. It has been held G
that the power unde-r 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.
H
210 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A (25) _In the case of Supreme Court Bar Association v. Union of India,
reported in [1998] 4 sec 409, it has been held thatprofessillmal 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,
B 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
c note of the contumacious and objectionable conduct of an advocate,
had initiated disciplinary proceedings against hiin 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,
D 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
E 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
F 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
G by _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 administratiqn
justice. Learned counsel for the parties present before us do not dispute
H and rightly so that whenever a court of record records its findings
EX. CAPT. HARJSH UPPAL v. U.0.1. [S.N. VARIAVA,.l.] 211
about the conduct of an advocate while finding him guilty of A
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· 1aw·
with a view to maintain the dignity of the courts and to uphold the
majesty of law and professional standards and etiquette. Nothing is B
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 conc~rned,
this Court might consider invoking its powers under Section 38 of the C
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 Coµrt 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 D
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 Comi possesses jurisdiction, E
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." F
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 G
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 requisition~ should be consigned to the
place where they belong viz. the waste paper basket. In case any Association H
212 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A 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
B 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
C 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
D 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
E 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,
F 2002, have been annexed. The minutes set out that some of the causes which
result in lawyers abstaining from work are:
I. LOCAL ISSUES
I. Disputes between lawyer I lawyers and the police and other
authorities
G
2. Issues regarding corruption I 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.
H 4. Absence of infrastructure in courts.
EX. CAPT. HARISH UPP AL v. U.O.I. [S.N. VARIAVA, J.) 213
II. ISSUES RELATING TO ONE SECTION OF THE BAR AND A
ANOTHER SECTION
I. 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. B
(Ill) ISSUES INVOLVING DIGNITY, INTEGRITY,
INDEPENDENCE OF THE BAR AND JUDICIARY.
(IV) LEGISLATION WITHOUT CONSULTATION WITH THE BAR
COUNCILS. C
(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:
D
"RESOLVED to constitute Grievances Redressal Committees at the
Taluk/Sub Division or Tehsil level, at the District level, High Court
and Supreme Court levels as follows: -
(!)(a) A committee consisting of the Hon'ble Chief Justice of India
or his nominee, Chairman, Bar Council of India, President, Supreme E
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 Comt or His nominee, Chairman, Bar
Council of the State, President or Presidents High Court Bar
Association, Advocate General, Member, Bar Council of India from F
the State.
(C)At the District level, DistrictJudge, President or Presidents of the
District Bar Association, District Government Pleader, Member of
the Bar Counci I from the District, if any, and if there are more than
one, then senior out of the two. G
(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 H
214 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A 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.
B (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
c 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
D
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.
E (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
nonnally 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.
F
(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.
(Vil) It is resolved further that in case the Bar Associations deviate
G 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
H concerned will infonn the State Bar Council.
EX. CAPT. HARISH UPPAL v. U.0.1. [S.N. VARIAVA, J.] 215
The Bar Council of India resolves that this resolution will be A
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 B
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 C
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 D
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 E
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 F
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 G
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:
H
216 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A (!) 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
B 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
C 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
D 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
E 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
F 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
G such a demand cannot be pursued any further.
(33) The only exception to the general rule set o~t 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 C~urts must now take a
very serious view of strikes and calls for boycott. However, as stated above,
H lawyers are part and parcel of the system of administration of justice. A
EX. CAPT. HARISH UPPAL v. U.0.1. [S.N. VARIAVA, J.] 217
protest on an issue involving dignity, integrity and independence of the Bar A
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 B
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 C
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 D
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 profession'll 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 E
other documents, he can participate in any conference involving legal
discussions, he can work in any offi~e 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 F
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 G
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 H
218 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A such a regulation concerning the orderly conduct of c6urt 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 di'spensation of justice
according to law is operated by the Court. Proceedings .inside the Courts are
B always expected to be held in a dignified and orderly manner. The very sight
of an advocate, who is guilty of contempt of Court Qr of unbecoming or
unprofessional conduct, standing in the court would erqde 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 Comts. The power to frame
I
such rules should not be confused with the right to pr~ctise law. While the
C Bar Council can exercise control over the latter, the Cdurts 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 a1ld 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
' .
D conditions subject to which an Advocate shall have a ri~ht to practice i.e. do
all the other acts set out above. However, Article 145 <)f 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 Comt. Similarly Section 34 of the Advocates Act empowers High
Courts to frame rules, inter-alia to lay down conditions on which an Advocate
E shall be pe1mitted to practice in Courts. Article 145 qf 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
1
a Court subject to such conditions as are laid down by the Court. It must be
remembered that Section 30 has not been brought int~ force and this also
shows that there is no absolute right to appear in a Court. Even if Section 30
F were to be brought into force control of proceedings in Court wi II always
remain with the Court. Thus even then the right to appear in Court will be
subject to complying with conditions laid down by qourts just as practice
outside Cou11s would be subject to conditions laid down by Bar Council of
India. There is thus no conflict or clash between other I
provisions of the
G 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. IThe protest, if any is
required, can only be by giving press statements, TV in.terviews, carrying out
H of Court premises banners and/or placards, wearing ~lack or white or any
EX. CAPT. HARISH UPPAL v. U.0.1. [SHAH, J.] 219
colour arm bands, peaceful protest marches outside and away from Court A
premises, going on dharnas or relay fasts etc. It is held that lawyers holding
Vakalats on behalf of their clients cannot refuse to 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 B
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,
Com1s may ignore (turn a blind eye) to a protest abstention from work for C
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 D
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 E
shall be personally liable to pay costs which shall be agdition 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. F
SHAH, J. We fully agree with what has been stated and discussed by
brother Variava, J. However, we would like to add as under:
For just or unjust cause, strike cannot be justified in the present day
situation. Take strike in any field, it can be easily realised that that weapon G
does more hann. than any justice. Sufferer is the society - public at large.
On occasions result is - violence or excess use of force by the
administration. Mostly the target is to damage public prope1ties.
Further, strike was a weapon used for getting justice by downtrodden, H
220 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A poor persons or industrial employees who were not having any other method
of redressing their grievances. But by any standard, professionals belonging
to noble profession who are considered to be an intelligent class, cannot have
any justification for remaining absent from their duty. The law laid down on
the subject is succinctly referred to in the judgment rendered by brother
Variava, J.
B
However, by merely holding strikes as illegal, it would not be sufficient
in present-day situation nor serve any purpose. The root cause for such malady
is required to be cured. It is stated that resort to strike is because the
administration is having deaf ears in listening to the genuine grievances and
C even if grievances are heard appropriate actions are not taken. To highlight,
therefore, the cause call for strike is given. In our view whatever be the
situation in other fields lawyers cannot claim or justify to go on strike or give
a call to boycott the judicial proceedings. It is rightly pointed out by Attorney
General that by the very nature of their calling to aid and assist in the
dispensation of justice, lawyers normally should not resort to strike. Further,
D it had been repeatedly held that strike is an attempt to interfere with the
administration of justice.
It is no doubt true that the Bar should be strong, fearless and independent
and should be in a position to lead the society. These qualities could be and
should be utilized in assisting the judicial system, if required, by exposing
E any person, whosoever he may be, if he is indulging in any unethical practice .
•
It is hoped that instead of resorting to strike, the Bar would find out other
ways and means of redressing their grievances including passing ofresolutions,
making representations and taking out silent processions, holding dharnas or
to resort to relay fast, having discussion by giving T.V. interviews and press
F statements.
At present it is admitted that judiciary is over-burdened with pending
litigation. If strikes are resorted to on one or the other ground, litigants would
suffer as cases would not be decided for years to come. Therefore, some
concrete joint action is required to be taken by the Bench and the Bar to see
G that there are no strikes any more.
For this purpose, in our view, the suggestion made by the Bar Co1J11cil
of India in its resolution dated 29th September, 2002, requires to be seriously
considered and implemented by each Bar Association. Grievances Redressal
Committees at Taluka level, district level, High Court level and Supreme
H Court level should be established so that grievances of the advocates at all
EX. CAPT. HARISH UPP AL v. U.0.1. [SHAH, J.] 221
levels could be resolved. If action is required to be taken on the grievances A
made by the advocates it should be immediately taken. If grievances are
found not to be genuine then it should be made clear so that there may not
be any further misunderstanding.
It is true that advocates are part and parcel of judicial system as such
they are the foundation of Justice- Delivery System. It is their responsibility B
of seeing that justice delivery system works smoothly. Therefore, it is for
each and every Bar association to be vigilant in implementing the resolution
passed by the Bar Council of India of seeing that there are no further strike
any more .The Bar Council of India in its resolution has also stated that the
resolution passed by it would be implemented strictly and hence, the Bar C
associations and the individual members of the Bar associations would take
all steps to comply with the same and avoid cessation of the work except in
the manner and to the extent indicated in the resolution.
Further appropriate rules are required to be framed by the High Courts
under Section 34 of the Advocates Act by making it clear that strike by D
advocate/advocates would be considered interference with administration of
justice and concerned advocate/advocates may be barred from practising before
Courts in a district or in the High Court.
Hence, it is directed that (a) all the Bar Associations in the country
shall implement the resolution dated 29th September, 2002 passed by the Bar E
Council.of India, and (b) under Section 34 of the Advocates Act, the High
Courts would frame necessary rules so that appropriate action can be taken
against defaulting advocate/advocates.
N.J. Petitions disposed of.
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