1

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ACCESS TO JUSTICE
[Calcutta High Court: 29th April 2013]

In one of the articles1 written on the occasion of the Centenary

celebrations of this Court in 1962, the illustrious history of the Court, its
distinguished judges and lawyers has been traced. The Article ends with the
sentence “Whether the high traditions of the past are being kept up it will be
for posterity to declare”. Fifty years have passed since that article was
published. At the end of this year’s celebrations it is time to take stock and
assess whether these high traditions have been kept up and how the Court is
viewed at present. Although both judges and lawyers have been described as
partners in the administration of justice 2, when one uses the word “Court” in
the legal context, one normally refers to the judges. But as far as the
litigating public is concerned- the Court is the lawyer. It is the lawyer with
whom the public interacts and it is the lawyer through whom the public can
access justice.I have been a part of this Court for most of these fifty years of
which about 22 years were spent as an Advocate. I can no longer practise but
I consider myself to be a kind of Advocate Emeritus and it is in that capacity
that I decided to speak today about the role of advocates in the access to
justice and how far this has been in keeping with the traditions of the past.
Access to justice is sometimes understood in the sense of the ability to
approach courts- to have recourse to the judicial system. Sometimes it means
the obtaining of qualitative justice. Such a distinction was drawn recently by

1
The Last 100 Years: D.N.Sinha as reprinted in The High Court at Calcutta: 150 Years-an Overview
2
Dr Haniraj L. Chulani v. Bar Council of Maharashtra & Goa, (1996) 3 SCC 342
 2

the Supreme Court3 4by saying that “Access to justice is… much more than
improving an individual’s access to courts, or guaranteeing representation.
It must be defined in terms of ensuring that legal and judicial outcomes are
just and equitable”. Theoretically and ideally it may be possible to say that
the distinction is without a difference because a judicial system which does
not deliver qualitative justice is not a judicial system at all. But existing
situations are far from ideal and the distinction is practically apt.
Access to justice has been variously described as “the basis of the
legal system”5, “the most basic human right”6, “vital for the rule of law”7 and
as a “fundamental right”8. The issue of access has come up before courts
generally in the context of either infrastructure- such as a larger number of
courts, more judges, more staff and so on9; or procedure- such as reasonable
filing fees, enlarging the scope of locus standi, public interest litigation and
more such measures enabling access10. The onus of ensuring this
fundamental right of access to justice is normally assumed by legislatures,
the executive and the judiciary but rarely, if ever, has it been assumed by
those who have the power and the ultimate responsibility to ensure such
access both in the qualitative and quantitative sense viz. the advocates.
In this country, traditionally, aggrieved citizens either resolved their
differences through the good offices of village elders or approached the

3
Imtiyaz Ahmad v. State of Uttar Pradesh, (2012) 2 SCC 688
4
Based on the 2004 Practice Note of the United Nations Development Programme on Access to Justice
5
College of Professional Education v. State of U.P.,(2013) 2 SCC 721, at page 15

6
P.S.R. Sadhanantham v. Arunachalam,[1980] 3 SCC 141; Tashi Delek Gaming Solutions Ltd. v. State of
Karnataka, (2006) 1 SCC 442, at page 454 :
7
Imtiaz Ahmad v. State of Uttar Pradesh, (2012) 2 SCC 688, at page 699
8
Manohar Joshi v. State of Maharashtra, (2012) 3 SCC 619, at page 711
9
See for example Brij Mohan Lal v. Union of India, (2012) 6 SCC 502, at page 556
10
See for example State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402, at page 432
 3

Kings or local Zamindars in India directly for redressal of their grievances11,

a tradition which was carried on by the Mughal Emperors in the Dewan-i-
Am.
The adversarial system where the agency of another was used to plead a
citizen’s cause was introduced in India by the British. “Early advocates” in
England “were generally persons in holy orders who rendered their services
to the weak and afflicted without charge and as an act of pity”12. It was
because of the service rendered that the profession was called honourable
and noble and not because lawyers were considered to be aristocratic by
birth. Lawyers' fees were not compensation for discharge of legal
obligations but a gratuity or an honorarium which the client bestowed as a
token of gratitude. The small bag at the back of a lawyer’s gown was where
the tokens of gratitude were put by grateful clients. The lawyers were
considered as officers of the court because they assisted the Court in the
administration of justice, and the law was an honorary occupation13. With
the growth of litigation, lawyering became a full-time occupation and most
of the lawyers came to depend upon it as the sole source of livelihood14.
The concept of advocacy as a profession as well as the standing which
lawyers had gathered over the years in England, together with expected
standards of etiquette and behaviour were imported into India along with the
adversarial system when the Supreme Courts were established by Charter
Acts and Letters Patents in Calcutta, Bombay and Madras. Fortunately for
India, high standards of rectitude, service and commitment to the cause of
justice were created by doyens of the Bar who initially graced this court
11
See Report Of A Civil Suit In Ancient India: Ordhendu Kumar Ganguly: The High Court at Calcutta:150
Years-an Overview:p 333
12
R.D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264, at page 278
13
R.D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264, at page 278
14
State of U.P. v. U.P. State Law Officers' Assn., (1994) 2 SCC 204, at page 216
 4

some of whom have been named with pride in The High Court at Calcutta:
150 Years-an Overview15.
Courts alone decided who could be enrolled as an advocate and who
could practise as a lawyer. The jurisdiction to enforce discipline was derived
from three distinct sources: first: from the inherent jurisdiction of a court to
regulate proceedings before it; this was distinct from the second source: viz
the contempt jurisdiction and lastly- from statute. For example in Calcutta,
the Court could and did take disciplinary action against erring advocates
under clause 10 of Letters Patent 1865 by taking one of three courses (i)
removing the offender from the roll of Advocates; (ii) suspending him from
practising; and (iii) censuring him16. Sudder or District Courts controlled the
quality of service by giving Certificates to those who were entitled to
practise. In 1861, this jurisdiction was transferred to High Courts under the
Indian High Courts Act. All that changed with the Legal Practitioners Act,
1879 followed by the Indian Bar Councils Act, 1926 for unification and
autonomy of the bar. “It was assumed that a unified Bar for the whole
country with monopoly in legal practice and autonomy in matters of
professional management would advance the cause of justice in society”17.
Bar Councils for the High Courts were set up with power to regulate the
admission of advocates, to prescribe their qualifications and to refer any case
of misconduct received by them to the High Court for inquiry and action.
The High Court could also itself refer any case for inquiry in which it had
reason to believe that an advocate had been guilty of misconduct.18 . Apart
from such control, High Courts retained the absolute discretion to refuse to
15
See The Bar Association page 91, The Bar Library Club page 106, The Incorporated Law Society,:Its
Evolution page 116
16
In the matter of an Advocate [1906] 4 CLJ 259
17
Dr Haniraj L. Chulani v. Bar Council of Maharashtra & Goa, (1996) 3 SCC 342, at page 348
18
See section 10(2) Indian Bar Councils Act, 1926; Aswini Kumar v. Arabinda Bose: AIR [1952] SC 369,
372
 5

allow even a person who was qualified according to the Bar Council Rules
to practise before it19 as well as the power to take disciplinary action in
contempt. In 1950 the Constitution of India came into force under which
Parliament was given the power to enact laws relating to persons entitled to
practise before the Supreme Court and High Courts20. In exercise of that
power Parliament enacted The Advocates Act, 1961 repealing, inter alia, the
statutory sources of the Courts authority to take disciplinary action against
advocates such as clause 10 of the Letters Patent of this Court. The statutory
jurisdiction to set and enforce the standards of professional conduct and
etiquette is now vested in the Bar Council of India and the power to take
disciplinary proceedings with Disciplinary Committees of State Bar
Councils and the Bar Council of India although the High Courts are still
empowered by section 34 of the 1961 Act to make rules laying down the
guidelines subject to which an advocate shall be permitted to practise in the
High Court and the sub-ordinate courts.21 The same power has been
conferred on the Supreme Court by Article 145 of The Constitution. Also
any person aggrieved by an order made by the disciplinary committee of the
Bar Council of India may prefer an appeal to the Supreme Court of India
under Section 38 of the Act. Within this framework are the Bar Associations
in High Courts with lawyers as their members and hierarchy of elected
officers. Each Association has rules of membership and to that extent,
control over its members. Calcutta High Court is perhaps the only High

19
Babul Chandra Mitra v. The Chief Justice and other judges of the Patna High Court: AIR [1954] SC 524
20
Entry 77 List I of the 7th Schedule to the Constitution gives the authority to Parliament to legislate on
“persons entitled to practise before the Supreme Court; Entry 78 List I of the 7th Schedule to the
Constitution gives the authority to Parliament to legislate on “persons entitled to practise before the High
Courts

21
The Calcutta High Court framed these Rules which appear in Part IV Chapter 14 of the Appellate Side
Rules. See also :Bar Council of Maharashtra v. M.V. Dabholkar, (1975) 2 SCC 702, at page 709 :
 6

Court which by reason of historical circumstances has three associations -viz

the Bar Association, the Bar Library Club and The Incorporated Law
Society. But the right to practise has been reserved to lawyers enrolled as
Advocates under the Act with the Bar Councils22.
At present therefore lawyers command a virtual monopoly in the
matter of enabling the public to approach Court- a monopoly which is
controlled by the Bar Council of India and to a lesser extent by the State Bar
Councils and Bar Associations. The law grants lawyers that monopoly based
on the assumption that lawyers perform a service to the public by assisting
in the administration of justice being professionally equipped to do so23. The
Bar Council of India has set out ethical standards of the Indian Bar to
regulate an advocate’s conduct both before the court and vis a vis clients.
Therefore the responsibility and accountability for upholding the standards
should be of the Bar Councils as well as the Bar Associations. But such
regulation or control cannot amount to an abdication of responsibility by the
individual lawyer to conduct himself or herself conscientiously. A licence to
practise is an individual right carrying with it a corresponding individual
duty and as a professional person, a lawyer’s service must in the ultimate
analysis be regulated by himself/herself and not by the profession as a
whole24. Unfortunately not only is the monopoly on occasion misused and
the responsibility to clients shirked, but lawyers have often over the years,
post the Advocates Act,1961, actually barred access of the public to justice
both in the quantitative and qualitative sense.

22
Section 33, The Advocates Act, 1961
23
See ‘The Practice of Law is a Public Utility’ — ‘The Lawyer, The Public and Professional
Responsibility’ by F. Raymond Marks et al — Chicago American Bar Foundation, 1972, p. 288-89 as
quoted in Bar Council of Maharashtra v. M.V. Dabholkar, (1975) 2 SCC 702, at page 718
24
See ibid
 7

A judge’s ability to deliver qualitative justice depends on the

arguments of counsel. As has been said assistance from the Bar “goes a long
way for the Bench to do justice”25. The judge’s reliance is based on the trust
that the counsel will conduct cases in a just and proper manner to assist the
court and not mislead it. That trust is often well-founded and courts have
readily acknowledged and recorded their appreciation of the Bar26. But
sometimes that trust is betrayed- for example when a lawyer cites a
judgment of a court which has been overruled without disclosing the fact
that it has been overruled or knowingly makes a misstatement of fact27; or if
lawyers unnecessarily delay the hearing and disposal of cases by misusing
the facility of adjournment available to the counsel. Adjournments are often
used so that interim orders once obtained continue for a long time merely on
the ground of counsel’s illness28. On occasion it has been known that a
prayer for adjournment has been sought and obtained on the ground that
counsel for a party was ill while in fact that very day the same counsel was
appearing in another Court29. Defective petitions are filed with Advocates
being mere name-lenders, without having, or taking any responsibility for
processing or conducting the case30. The filing of frivolous petitions is often
resorted to deliberately delay the hearing of a case31 and sometimes to even
extort money. In one such case which came to be considered by the
Supreme Court32 the petitioner who was a lawyer filed a petition styled as
“public interest litigation” before the Nagpur Bench of the Bombay High

25
Per Krishna Iyer, J: Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405, at page 453
26
ibid
27
State of Orissa v. Nalinikanta Muduli, (2004) 7 SCC 19, at page 22
28
Rais Ahmad v. State of U.P., (1999) 6 SCC 391, at page 394
29
Sheila Devi v. Narbada Devi, (2005) 13 SCC 432, at page 432
30
Vijay Dhanji Chaudhary v. Suhas Jayant Natawadkar, (2010) 1 SCC 166, at page 167
31
Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590
32
Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590, at page 592 :
 8

Court. The Supreme Court upheld the finding of the High Court that there
was no public interest involved and in fact the advocate-petitioner was using
the process of court to blackmail the Respondents. In another case the Court
was constrained to direct the registry not to entertain any application by way
of public interest litigation by the petitioner Advocate in future33. What is
intriguing however is the absence of any action of the Bar Councils of the
State and of India in any of these or like matters against the lawyers who
impinge upon the delivery of qualitative justice by the courts.
The role of the Bar Councils and Bar Associations in impeding access
to quantitative justice is worse. They achieve this in a variety of ways. One
of the ways is through bringing the judicial system itself into disrepute. If
the public is put off from approaching the Courts because they have lost
respect or confidence for the judicial system-access to justice is prevented. If
the right of access to justice is a fundamental right, then no one has the right,
least of all a lawyer, to obstruct that right. When that lawyer holds a position
either in a Bar Association or Bar Council the action is more condemnable.
The President of the Delhi Bar Association on 26th September, 1991
probably thought that he was upholding the traditions of the Bar when he
and a large number of other lawyers stormed the various court rooms of the
Delhi High Court while the courts were in session, stood on the chairs,
tables and the dais of the Court Masters and shouted abuses at the judges
saying, " Stop the work, we will not allow the courts to function and you
should retire to your chambers". Or take the case when a senior member of
the Bar and also the Chairman of the Bar Council of India and the President
of the U.P. High Court Bar Association, Allahabad tried to browbeat,

33
Charan Lal Sahu v. Union of India, (1988) 3 SCC 255, at page 256
 9

threaten, insult and show disrespect personally to a judge of the High

Court34. If the High Officials of the Bar Councils and Bar Associations act
in this manner, it is unlikely that the members will behave otherwise. Small
wonder then that in an examination conducted last year to select the new
batch of Advocates on Record among the lawyers practising in the Supreme
Court, 420 out of 450 failed in the paper on professional ethics and
advocacy.35
In the few cases that have come up before the Supreme Court by way
of appeal under section 38 of the Advocates Act, since 1961 it is evident that
the disciplinary jurisdiction of the Bar Councils is exercised, if at all, in
connection with the conduct of advocates with their clients and not with
their conduct in Courts36. I have been unable to access any statistics of the
Bar Council of India relating to the number of complaints received by it and
how the complaints have been dealt with37. However if the figures as
reported of The Bar Council of Punjab and Haryana are representative, they
show that till June 2011 it had received 1,432 complaints against lawyers on
various charges in the past seven years but only one lawyer had been
removed till then and only 5 were suspended38. As far as the State Bar
Council for West Bengal is concerned it appears that no Disciplinary

34
Vinay Chandra Mishra, In re, (1995) 2 SCC 584, at page 613
35
Indian Express: 10th April 2013 p.6
36
See for example : A, an advocate, Re v., 1962 Supp (1) SCR 288 ; P, an Advocate, Re v., (1964) 1 SCR
697 ; L.D. Jaisinghani v. Naraindas N. Punjabi, (1976) 1 SCC 354; Ram Bharosey Agarwal v. Har Swarup
Maheshwari, (1976) 3 SCC 435; Vasudeo Kulkarni v. Surya Kant Bhatt, (1977) 2 SCC 298; Nandlal
Khodidas Barot v. Bar Council of Gujarat, 1980 Supp SCC 318; Chandra Shekhar Soni v. Bar Council of
Rajasthan, (1983) 4 SCC 255; P.D. Khandekar v. Bar Council of Maharashtra, (1984) 2 SCC 556; An
Advocate v. Bar Council of India, 1989 Supp (2) SCC 25; B.L. Samdaria v. Harak Chand Jain, 1991 Supp
(1) SCC 193; Devendra Bhai Shankar Mehta v. Rameshchandra Vithaldas Sheth, (1992) 3 SCC 473; Prem
Nath v. Kapildeo Singh, 1995 Supp (3) SCC 717; Pawan Kumar Sharma v. Gurdial Singh, (1998) 7 SCC
24
37
Subsequent to the delivery of the speech I have been sent copies of the Annual Reports of the Bar
Council of India for the years 2008-2009 to 2010-2011 which contain particular of Displinary Committee
Meetings held, cases disposed of and nature of orders passed.
38
The Indian Express: [Chandigarh] : Jun 16 2011
 10

Committee has been constituted at all for the last few years despite a number
of complaints being filed.
Another aspect of lawyers impeding access to quantitative justice is by
the recent phenomenon of lawyers refusing to accept cases because they
have pre-judged the issue of a person’s guilt. Significantly the first
paragraph in the Ethics Standards of the Bar Council of India says “it is the
duty of every advocate to whom the privilege of practising in Courts of Law
is afforded, to undertake the defence of an accused person who requires
his/her services. Any action which is designed to interfere with the
performance of this duty is an interference with the course of justice”.
Unfortunately in case after case lawyers have violated this mandate.
In 2006 when a mass grave of the skeletal remains of or of what appeared to
be children was found in Gurgaon, Haryana, perhaps on the basis of media
reports but before any forensic tests or any investigation, lawyers not only
refused to represent the suspects but severely beat up the suspects when
they were produced in court. Incidentally the investigating agency on
completion of the investigation did not find sufficient evidence to sustain
even a charge sheet against one of the suspects. More recently the Bar
Association of Coimbatore passed a resolution that no member of the
Coimbatore Bar would defend the accused policemen in a criminal case
against them. In 2011 the Supreme Court noted39 that “several Bar
Associations all over India, whether the High Court Bar Associations or the
District Court Bar Associations have passed resolutions that they will not
defend a particular person or persons in a particular criminal case.
Sometimes there are clashes between policemen and lawyers, and the Bar
Association passes a resolution that no one will defend the policemen in the
39
A.S. Mohammed Rafi v. State of Tamil Nadu, (2011) 1 SCC 688, at page 691 :
 11

criminal case in court. Similarly, sometimes the Bar Association passes a

resolution that they will not defend a person who is alleged to be a terrorist
or a person accused of a brutal or heinous crime or involved in a rape case”.
The Supreme Court held that such resolutions were against all norms of the
Constitution, the statute and professional ethics and a disgrace to the legal
community. Consequently it was declared that “all such resolutions of Bar
Associations in India are null and void and the right-minded lawyers should
ignore and defy such resolutions if they want democracy and rule of law to
be upheld in this country”. The irresponsibility of the several Bar
Associations is in stark contrast with the behaviour of individual lawyers.
When the case of Ajmal Kasab was recently argued before the Supreme
Court40 he was represented by a very senior and eminent member of the Bar
and his team of juniors41. The matter was argued for 13 weeks. At the end of
the hearing the Court directed the Maharashtra Government to pay a sum of
Rs 11 lakhs to the Senior Advocate and Rs 3.5 lakhs to the juniors as “token
remuneration for their very valuable assistance to the Court”. But the
Counsel were not willing to accept any remuneration for their services
leading the Court to record their appreciation of “the high standard of
professional ethics set” by the learned counsel for themselves42.
However the most egregious impediments to the administration of
justice created by lawyers are abstentions from work, boycotts of courts and
strikes for whatever reason. According to some43 there were no strikes by
lawyers prior to independence and that the first strike took place when CJ

40
Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1, at page 216
41
Mr Raju Ramachandran, Senior Advocate assisted by Mr Gaurav Agrawal and ‘a small team of
juniors’[ibid].
42
Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 234, at page 235
43
Yatindra Singh: A Lawyers World
 12

A.N. Ray superseded 3 of his colleagues on April 25, 1973 almost

immediately after the decision in Keshavananda Bharati44. Be that as it may
there can be no doubt that by 1994 strikes by lawyers called at the instance
of Bar Councils and Associations enforced by threats of expulsion and
violence had reached epidemic proportions45.
Public interest litigation was filed under Article 32 before the
Supreme Court seeking the Court's intervention to protect the interest of the
litigants on account of the members of the Bar proceeding on strike from
time to time in different parts of the country. Before any order was passed a
National Conference of State Bar Councils and the Bar Council of India was
held and a resolution passed that-‘(a) the 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
become inevitable, efforts shall be made to keep it short and peaceful to
avoid causing hardship to the litigant public.46’ Before the Court all the Bar
Associations, State Bar Councils and Bar Council of India consented to an
order passed on 7th December 1994 47which provided inter alia that “In the
rare instance where any association of lawyers (including statutory Bar
Councils) considers it imperative to call upon and/or advise members of the
legal profession to abstain from appearing in courts on any occasion, it
must be left open to any individual member/members of that association to
be free to appear without let, fear or hindrance or any other coercive step”.

44
Keshavananda Bharati v. State of Kerala :AIR [1973] SC 1461

45
The Bar Council of West Bengal alone passed three resolutions on 3rd May, 6th May, 11th May and 13th
May 1994 calling upon the Advocates on its roll to cease work or to compel them not to attend Court:
Arunava Ghosh And Others vs Bar Council Of West Bengal : AIR 1996 Cal 331
46
As noted in Common Cause, A Regd. Society v. Union of India:[1995]1 SCALE 6 and Ex-Capt. Harish
Uppal v. Union of India, (2003) 2 SCC 45, at page 52
47
Common Cause, A Registered Society v. Union of India, (2006) 9 SCC 304, at page 306
 13

.Despite this Bar Associations and on occasion even the Bar Councils
continued to resort to call upon lawyers to go on boycotts and strikes and
individual lawyers felt obliged to follow such directives. Thus for example
on 15th May 1998, the Delhi Bar Association directed its members not to
appear before a particular judge because of the refusal of the judge to
transfer the case for hearing to some other court. The lawyer for the
defendant asked for an adjournment because he said that as a member of the
Bar Association he was bound by its resolution. This was refused. The
matter came up before the Supreme Court which after reiterating a lawyer’s
freedom of choice to appear said:
“If any counsel does not want to appear in a particular court, that too for
justifiable reasons, professional decorum and etiquette require him to give
up his engagement in that court so that the party can engage another
counsel”. It also said “No court is obliged to adjourn a cause because of the
strike call given by any association of advocates or a decision to boycott the
courts either in general or any particular court. It is the solemn duty of
every court to proceed with the judicial business during court hours. No
court should yield to pressure tactics or boycott calls or any kind of
browbeating”48. Both these aspects namely the absence of any right of
Advocates to strike or to boycott the courts or even boycott any particular
court without ensuring representation of clients49 as well as the courts
obligation to hear and decide cases brought before it and not shirking that
obligation on the ground that the advocates are on strike50 have been
reaffirmed time and time again after that but without any impact. The strikes
48
Mahabir Prasad Singh v. Jacks Aviation (P) Ltd., (1999) 1 SCC 37, at page 43
49
Vide U.P. Sales Tax Service Assn. v. Taxation Bar Assn.[1995] 5 SCC 716; K. John Koshy v. (Dr)
Tarakeshwar Prasad Shaw[1998] 8 SCC 624; Mahabir Prasad Singh v. Jacks Aviation[1999] 1 SCC 37 and
Koluttumottil Razak v. State of Kerala[2000] 4 SCC 465; Ramon Services (P) Ltd. v. Subhash Kapoor,
(2001) 1 SCC 118, at page 1
50
K. John Koshy v. Tarakeshwar Prasad Shaw (Dr), (1998) 8 SCC 624, at page 626
 14

and abstentions by the lawyers continued and in fact increased. In September

2002 a joint meeting of the Chairmen of various State Bar Councils and
members of the Bar Council of India was held at which it was resolved that
abstentions from work in courts should not be resorted to except in
exceptional circumstances and that 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”51. In 2003 the Supreme Court held that strikes
by lawyers were unconstitutional and illegal52 . One exception was made in
the case of “a protest on an issue involving dignity, integrity and
independence of the Bar and the judiciary, provided it does not exceed one
day”, but abstentions from work at the instance of Bar Councils and
Associations continue unabated for reasons which have nothing to do with
that exception. In the Calcutta High Court all three Bar Associations
continue to call upon members to desist from work frequently, sometimes
for consecutive days in a week. The reason most frequently given is to pay
homage to a deceased member of any one of the three Associations
irrespective of the date of death53. If the death has taken place during a
working day, an advocate wishing to pay respect to the deceased has and
should be accommodated by the court. But at times members follow the
Associations resolutions without any knowledge as to who has died or who
the deceased was. Apart from the lack of logical nexus between abstention
of work and showing respect to the deceased, it is doubtful whether the
deceased would want homage to be paid by holding litigants to ransom.
Furthermore given the fact that the membership of the Bar Association alone
51
Ex-Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45, at page 68 et seq.
52
Ex-Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45, at page 71
53
See The India Express: 2nd April 2013: Chief Justice Frowns on Advocates’ Absence
 15

is now about 600054 the possibility of frequent occasions to pay such homage
cannot be discounted leading to debarring the public from accessing justice
for several days.

The calls for abstentions from work by Bar Councils or Associations

can hardly be said to advance the cause of justice for which the Bar was
unified in 1926. Rather it is a show of strength and affirmation of the status
and power of the office bearers. The paradox which lies in such affirmation
is that the cost of such affirmation is the destruction of the system which
gives them that status. Contrary to the tradition that lawyers while becoming
politicians did not bring politics into the profession, Bar Councils and
Associations have since 1961 become increasingly politicized. The practise
of law is seen as a service in the commercial sense and not in the sense of
social welfare. The profession is not an industry. Because it is not, offices of
advocates have not been classified as commercial establishments or shops
and exempted from the fiscal and other repercussions that would follow if
they were55. It is unfortunately seen as such at present and like workers in an
industry, lawyers behave like political unions and go on strikes and enter
into confrontation with those that they perceive as being in ‘management’.
This idea must be and can be removed by bodies which seek to control the
profession themselves.
The process has to an extent been started at least in the Supreme Court
by excluding the members of Supreme Court Bar Association whose names
do not figure in the final list of regular practitioners from either voting at an

54
History of the Bar Association: Addendum by Bidyut Kiran Mukherjee: The High Court at Calcutta: 150
Years-an Overview: at page 104
55
M.P. Electricity Board v. Shiv Narayan, (2005) 7 SCC 283, at page 289 ; V. Sasidharan v. Peter and
Karunakar [1984] 4 SCC 230
 16

election of the office-bearers of the Association and from contesting any of

the posts for which elections would be held by the Association56.
Furthermore, accountability and transparency in disciplinary matters must be
ensured. The Disciplinary Committees’ jurisdiction like other tribunals
performs judicial functions with all the powers of a Civil Court57 and an
appeal lying ultimately to the Supreme Court from their decisions. Relevant
statistics must be made available to the public by publication on the official
website or otherwise. Third-Grievance Redressal Committees at the
taluk/sub-division or tehsil level, at the district level, High Court and
Supreme Court levels for lawyers as was resolved in 2002 by all the Bar
Councils58 should be immediately set up. Grievances of lawyers if required
to be ventilated publicly should be done in a dignified yet effective manner
by e.g. giving press statements, TV interviews, carrying banners and/or
placards, wearing black or white or any colour armbands, peaceful protest
marches outside and away from court premises, going on dharnas or relay
fasts etc. More importantly in many instances when legal remedies are
available recourse must be had to the law before adopting any extra-legal
methods59. As far as abstention from work because of the death of a member
of a Bar Association is concerned, wearing a black armband would be more
in keeping with the dignity and duty of an advocate to courts and the
litigating public. There was an old tradition of lawyers wearing special
bands called “weepers” as a sign of mourning. That tradition along with
other high traditions of this court seems to have been lost.

56
Supreme Court Bar Association v. B.D. Kaushik, (2011) 13 SCC 774, at page 805
57
Section 42 , Advocates Act, 1961
58
Ex-Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45, at page 68
59
Ex-Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45, at page 70
 17

The profession has been described as “a kind of close and exclusive

‘club’ …where members enjoy privileges and immunities denied to less
fortunate persons who are not members”. The “club” referred to is the
profession itself and not the representative bodies such as Bar Councils or
Associations. There is no need to enter the profession and there is no need
to stay, but having entered it and having elected to stay and enjoy its
amenities and privileges, its rules must be obeyed”60. The rules of the
‘profession’ require members to behave and conduct themselves in keeping
with high standards of behaviour61. But the overarching rule is that lawyers
must uphold the law. The law says that strikes and abstentions are illegal.
The lawyers are bound to follow this rule-individually and collectively. No
Bar Council or Bar Association can use any threat or coercion to stop or
hinder the fundamental right of a lawyer to practise. No lawyer has any right
to obstruct or prevent another lawyer from discharging his professional duty
to the client and the Court. If anyone does it, he commits a criminal offence
and interferes with the administration of justice and commits contempt of
court and he is liable to be proceeded against on all these counts62. In fact
most of the lawyers participate passively rather than actively in strikes.
Apart from their professional duty to their clients, every time a lawyer
abstains from work he/she is in breach of contract with the client. If after
accepting a vakalat or brief lawyers do not attend a matter when it is called
on merely because the Bar Association or any Bar Council has called upon

60
G, Senior Advocate, Re v., (1955) 1 SCR 490
61
The standard prescribed by the Bar Council of India is that “An advocate shall, at all times, comport
himself in a manner befitting the high standards of the Indian Bar and of his/her status as an officer of the
Court and a privileged member of the community, bearing in mind that what may be lawful and moral for a
person who is not a member of the Bar, or for a member of the Bar in his/her non-professional capacity
may still be improper for an advocate”.
62
B.L. Wadehra (Dr.) vs State: AIR 2000 Delhi 266
 18

them to abstain from work, they are liable to be sued for damages63 or made
to pay costs of their client64.
Judges for their part must take some responsibility for this sorry state
of affairs. They must like true sentinels on the ‘qui vive’ keep open the
portals of justice by invoking their inherent powers to control proceedings in
their courts65 and utilizing their powers to commit for contempt. It cannot be
disputed that in regard to matters of contempt, the members of a Bar
Association do not occupy any privileged or higher position than ordinary
citizens66. The Supreme Court and the High Courts have the jurisdiction to
prevent a contemner advocate from appearing before them till he/she purges
himself/herself of the contempt67. Further if an advocate impedes justice the
Courts must “bar the malefactor from appearing before the courts for an
appropriate period of time”68. On the other hand more often than not when
lawyers abstain from work, courts agree to adjourn cases or rise either
because they sympathise with the lawyers or due to their helplessness to
proceed without the aid of counsel. But the court is under an obligation to
hear and decide cases brought before it and is required to function as such
during court hours. A judge cannot shirk that obligation and rise early for
reasons not connected with judicial functions or on the ground that the
advocates are on strike or have decided to abstain from work69. Otherwise it
would be “tantamount to [Courts] becoming a privy to the strike” or

63
M. Veerappa v. Evelyn Sequeira, (1988) 1 SCC 556, at page 571; Ex-Capt. Harish Uppal v. Union of
India, (2003) 2 SCC 45, at page 64
64
Ex-Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45, at page 72
65
In re Sant Ram v., (1960) 3 SCR 499; Ex-Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45, at page
72
66
Brahma Prakash Sharma v. State of U.P., 1953 SCR 1169
67
Rule 11, Ch.IV Part IV Appellate Side Rules of the High Court at Calcutta; Supreme Court Bar Assn. v.
Union of India, (1998) 4 SCC 409
68
R.K. Anand v. Registrar, Delhi High Court, (2009) 8 SCC 106, at page 187
69
K. John Koshy v. Tarakeshwar Prasad Shaw (Dr), (1998) 8 SCC 624, at page 626
 19

abstention from work70 and “the defaulting courts may also be contributory
to the contempt of [the] Court”71.
It has been prophetically said that “The present trend unless checked
is likely to lead to a stage when the system will be found wrecked from
within before it is wrecked from outside”72. It is for the members of the
profession and the judiciary to introspect and take the corrective steps in
time. I have spoken elsewhere of the role of the judiciary73 in ensuring
qualitative and quantitative justice to litigants.
Since I have limited myself today to the role of lawyers let me
conclude by saying: that although there are a great many distinguished and
honourable advocates today who try to uphold the high standards of the Bar,
there are vocal packs who are tarnishing the reputation of the Bar and who,
unfortunately, are seen as the face of the profession. Lawyers must return to
the idea that they can command the respect that the profession had in the
past only if they accept individual responsibility for their conduct. Swami
Vivekananda, whose 150th birth centenary celebrations have also just
concluded, correctly emphasized: “We are born as individuals and have to
work out our own destiny by our individual power”. In other words it is the
individual lawyer who has to decide whether he/she is rendering a valuable
service to society and behave accordingly or whether he/she will allow the
present state of affairs to continue. If the public’s access to qualitative or
quantitative justice continues to be denied and obstructed by the misconduct
of lawyers, or by abstentions, boycotts and strikes, the public will lose
confidence in the legal system and people will then look for short cuts or

70
Ex-Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45, at page 64
71
Ramon Services (P) Ltd. v. Subhash Kapoor, (2001) 1 SCC 118, at page 133
72
Sanjiv Datta, Dy. Secy., Ministry of Information & Broadcasting, In re, (1995) 3 SCC 619, at page 634
73
An Independent Judiciary:The Fifth V.M.Tarkunde Memorial Lecture: 10th November 2011
 20

take the law into their own hands74. In one of Shakespeare’s plays75 one of
the characters suggested “The first thing we do, let’s kill all the lawyers”.
Let us hope it does not come to that. Speaking for myself, I also sincerely
hope that today’s talk does not give reason to call for yet another strike.

===========================================
NB: Subsequent to the delivery of the speech I have been sent copies of
the Annual Reports of the Bar Council of India for the years 2008-2009
to 2010-2011 which contain particular of Disciplinary Committee
Meetings held, cases disposed of and nature of orders passed. The last
year records a total of 994 cases being posted of which 283 were
disposed of and 182 dismissed.

74
See Imtiyaz Ahmad v. State of Uttar Pradesh, (2012) 2 SCC 688, at page 699
75
King Henry VI-Part II, Act IV Scene II