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A right curtailed

Print edition : Jan 17, 2003 T+T-

The Supreme Court restricts lawyers' right to strike, citing as reason the frequent strike calls by them and the failure of the Bar Council to include self-regulation clauses in its disciplinary rules.

IN its judgment delivered on December 17 in Ex-Capt. Harish Uppal vs. Union of India & Another, the Supreme Court's five-member Constitution Bench has held that strikes by lawyers are illegal and that courts must now take a very serious view of strikes and calls for boycott.

The Bench comprising Chief Justice G.B. Pattanaik (who has since retired), Justices Doraiswamy Raju, S.N. Variava, D.M. Dharmadhikari, and M.B. Shah, (the last two have given a separate concurring judgment) ruled that only in the rarest of rare cases, where the dignity, integrity and independence of the Bar and/or the Bench are at stake, may courts ignore (turn a blind eye to) a protest abstention from work for not more than one day.

The main judgment, delivered by Justice Variava, clarified that it was for the Court to decide whether or not the issue involved the dignity or the integrity or the 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 the advocates 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," the Bench ruled.

Lawyers (barring those in the Supreme Court and in a few High Courts) struck work on December 18 in response to the call from the Bar Council of India to protest against the amendments introduced to the Legal Services Authority Act to set up Permanent Lok Adalats (people's courts) and to transfer 80 per cent of the cases from the regular courts to these adalats, whose decisions would be binding.

Ironically, the legal community seems to have missed the far-reaching import of the judgment. Eminent advocate Fali S. Nariman suggested in a newspaper article that a concerted attempt by lawyers to prevent courts from carrying out their function of administering justice a boycott of courts amounts to a deliberate and wanton negation of both the fundamental right to practice, guaranteed under the Constitution, and the statutory right, as conferred by the Advocates Act, 1961. By collectively refusing to appear in courts for clients, lawyers do disservice to both the legal profession and to the persons by whom they are engaged, he wrote.

Nariman's fears seem to have been answered by the judgment. The Bench assumes that advocates have obligations and duties to ensure the smooth functioning of the court. Observers say this generalisation is obviously applicable to any organised section of society, although the Bench does not expressly say so. Doctors, industrial workers, government servants and employees in a private organisation have similar obligations and duties to ensure the smooth functioning of the organisations they belong to.

The lawyers, the Bench noted, cannot thus disrupt court proceedings and put the interest of their clients in jeopardy. The Bench noted that even if the Bar Councils, on a complaint from a client, do not take disciplinary action against an advocate for non-appearance owing to a call for strike or boycott, the Supreme court, on an appeal, can and will. Apart from this, the Bench cited the Supreme Court's judgment in Roman Services Pvt. Ltd. vs. Subhash Kapoor (reported in (2001) 1 SCC 118), and said every court should and must mulct, with costs, advocates who hold vakalats (power of attorney) but do not attend courts in response to a strike call. Such costs would be in addition to the damages the advocates may have to pay for the loss suffered by his or her client because of his or her non-appearance. There are remedies available to a client, if he or she feels that the advocate has violated the contract by going on strike.

The right of the advocate to practice, the Bench says, envelops a lot of acts to be performed by him in discharge of his professional duties. They include consultation by his clients, giving legal opinion whenever it is sought, drafting instruments, pleadings, affidavits, or other documents, participating in any conference involving legal discussions, working in any office or firm as a legal officer, appearing for clients before an arbitrator and so on. A call for a strike and boycott of courts, it would appear, affects only one aspect of the lawyer's professional duties, that is, his appearance in court.

On the grievance that strikes interfere with administration of justice, the Bench held that courts are under no obligation to adjourn matters because lawyers are on strike. "On the contrary, it is the duty of all courts to go on with matters on their boards even in the absence of lawyers. In other words, courts must not be privy to strikes or calls for boycotts," the Bench ruled. More important, the Bench made it clear that no threat or coercion of any nature, including the threat of expulsion from the Bar Council or any lawyers' association, can be held out against an advocate who defies a strike call. With such safeguards against the misuse of the call for strike, was it necessary for the Bench to ban strikes by lawyers? The Bench felt it had no option but to ban strikes for two reasons: One, strikes were resorted to on the slightest pretence. Lawyers contended that the response should have been to limit the grounds and duration of a strike, rather than deprive the lawyers their right to strike. Merely because a demand of the lawyers is found to be not legally valid lawyers do not lose their right to pursue the demand any further, they felt.

Secondly, the Bench cited the failure of the Bar Council of India (BCI) to incorporate certain clauses for self-regulation in their disciplinary rules to ensure that the call for strikes is not abused. The Court had suggested these norms in an Interim Order (I.O.) it had issued in another related case in 1995. In that order, the Court had sought to protect the right of a lawyer not to participate in a strike, and appear in the Court during the strike, without fear of any adverse or penal consequences from those who issued the call for a strike. The Court had then made it clear that other forms of protest such as wearing of arm bands by the lawyers in the courtroom, which would not disrupt the court proceedings should not be precluded. The December 17, 2002 judgment goes far beyond the I.O., and negates the exercise of a democratic right, in a peaceful manner.

The BCI, which described the judgment as impractical, has decided to file a petition in the Supreme Court for its review.