ADVOCATES’ RIGHT TO STRIKE: IN LIGHT OF EX-CAPTAIN
HARRISH UPPAL V. UNION OF INDIA & ANR.
Authored by: Shrabani Acharya* & Gaurav Ranna**
* Civil Judge on probation
** Advocate
_____________________________________________________________________________
RIGHT TO STRIKE
Strike is often regarded as the non-violent form of protest usually adopted when there is no other
option left to acquire the means of social justice. So if we go by simple understanding, this right
shall be vested with the underprivileged class of the society who have no other means to agitate
against the powerful group. This is where the dilemma arises. An advocate is considered to be
from the privileged profession and is an erudite individual and his conduct is said to have a great
impact on the society’s behavioral pattern.1 They uphold the idea of striving towards ensuring
justice for the mass.2 The responsibility of maintaining a balanced relationship between the bar
and the bench lies upon them in order to maintain and enhance their own credibility and
reputation.3 The members of the Bar Association thus have no right to boycott the courts in view
of the duties that have been vested in them which they are required to discharge in the best of the
interests of the clients.4
EFFECT OF STRIKE
The judiciary has been of the opinion that the fundamental right of an individual or a group cannot
be prioritized over the fundamental rights of the people as a whole. In the case Communist Party
of India (Marxist) v. Bharat Kumar5, the Supreme Court upheld the decision of the High Court
stating that no ‘bandh’ or strike should be enforced which interferes with the fundamental freedom
of other citizens or adding to any national loss. Keeping this decision in mind, we can figure out
1
Sanjiva Row, The Advocates Act 1961, (8th edn Butterworths (2012))
2
Leslie C. Levin, “Lawyers in Practice: Ethical Decision Making in Context” (1st edn University of Chicago Press
(2012)
3
GS Gopal sankaranarayanan, ' Disturbing Trends' The Practical Lawyer” [2010] 1(2)
4
AR Rastogi and SS Srivastava, 'Is there a right to strike?' [2015] Volume 2(Issue 6) Combat Law
5
AIR 1998 SC 184
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that if the advocates go on a strike, there can a manifold loss incurred thus causing greater impact.
There have been several petitions where the issue that was raised was whether boycott of the
courts by the lawyers be considered illegal?
In “Indian Council of Legal Aid and Advice & others Vs. Bar Council of India & another6”, it
was discussed that the members of the legal profession have a special responsibility to render “pro
bono publico” service to the needy and underprivileged. The lawyer is the one who assists the
court in speedy administration of justice and imbibes the favour of public utility. The advocates
should not involve themselves in any practice which tends to lower the image of this noble
profession in the society. The lawyers must strictly adhere to the standards laid down by the Bar
Council in order to maintain the dignity and sanctity of their profession.
In the case of “Manoj Kumar and others v. Civil Judge (Junior Division), Deoria and others”7,
"the bench observed that- “It is deeply regrettable and highly objectionable that there are
strikes in district courts in U. P. on flimsy and frivolous pretexts, and some district courts
function only for about 60 or 70 days in a year. This is a shocking State of affairs, and will no
longer be tolerated by this Court. The judiciary and Bar are both accountable to the public and
they must behave in a responsible manner so that cases are decided quickly and thus the faith
of the public in the judiciary is maintained. Surely, the public has a right to expect this from us.
We, therefore, issue a general mandamus to all the judicial officers in all district courts in U.
P. that if the lawyers go on strike, the judicial officers must, despite the strike of lawyers, sit
in court and pass orders in cases before them even in the absence of the counsel. If the lawyers
disturb the functioning of the court, the District Judge shall contact the police and the police
will give all protection to the Judges and the cases will not be adjourned merely because of
the lawyers' strike. People in this State are fed-up with lawyers' strikes and this state of affairs
must now end. The lawyers must realise that litigants, witnesses, etc., often come from distant
places at heavy expense and it is most improper that they have to go away because of strikes
by lawyers. The judiciary exists for the people and not for lawyers or Judges.”
6
1995 AIR 691
7
(1997) 3 UPLBEC 1767
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LAW AS A NOBLE PROFFESSION
In Re: Sanjiv Datta And Ors. V. Unknown8 the Supreme Court has stated that the legal profession
is a solemn and serious occupation. It is a noble calling and all those who belong to it are its
honorable members. Although the entry to the profession can be had by acquiring merely the
qualification of technical competence, the honour as a professional has to be maintained by its
members by their exemplary conduct both in and outside the Court. The legal profession is
different from other professions in that what the lawyers do, affects not only an individual but
the administration of justice which is the foundation of the civilized society. It has to be
practiced with dignity, deference and devotion.
Ex-Capt. Harish Uppal V. Union of India & Another9 This case is one of the leading
pronouncements in the field of advocates’ right to resort to strike. The petitions try to quest
for the answers for the question as to whether strike by the advocates be illegal? It has been
contended in this case that usually advocates boycott the court on these particular grounds as
mentioned below:
a. Confrontation with the police and/or the legal administration;
b. Grievances against the Presiding Officer;
c. Grievances against Judgments of Courts;
d. Clash of interest between groups of lawyers and
e. Grievances against the legislature or a piece of legislation.
The case also highlighted the fact that the right of collective bargaining is available only in
cases of industrial disputes. The lawyers who are the officers of the courts have no rights to
misuse their position to blackmail either the client or the court. The call for strike by lawyers is
in effect a call to breach the contract which lawyers have with their clients.
Submissions were made before us by the Bar Councils of Delhi, U.P., Maharashtra, Goa, West
Bengal, Andhra Pradesh and Tamil Nadu. Submissions were also made before us on behalf of Bar
Associations of Madras, Kerala, Calcutta, Nainital and the Supreme Court Bar Association.
Counsels for the Bar Councils and Bar Associations submitted that they were not in favour of
strikes and/or call for strikes. Many of them stated that their Associations had not gone on strike
at all and/or only on token strikes of not more than one day. The consensus at the Bar was that
8
(1995) 3 SCC 619
9
(2003) 2 SCC 45
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lawyers cannot and should not resort to strike in order to vent their grievances where a legal
remedy was available. The consensus at the Bar was that even where a legal remedy was not
available strike should be resorted to in the rarest of rare cases like when the dignity of the court
or the Bar was at stake. The consensus was that even in such cases only a token strike of one day
may be resorted to.10 The methods of protest must be limited to:
Passing of resolutions
Making representations
Taking out silent processions without disturbing court proceedings
Holding peaceful dharnas
Relay fasts and wearing white ribbons
Strike not to paralyze the industry
The above situations the duration of abstention from work should be limited to a couple of
hours or at the maximum one day. He submitted that the purpose should be to register a protest
and not to paralyze the system.
In the case of “Bharat Kumar K. Paricha and Anr. v. State of Kerala and Ors”11 it was observed
that, "No political party or organization can claim that it is entitled to paralyze the industry and
commerce in the entire State or nation and is entitled to prevent the citizens not in sympathy with
its viewpoint, from exercising their fundamental rights or from performing their duties for
their own benefit or for the benefit of the State or the nation”
Right to strike vis-a-vis a criminal case
The lawyers have a great deal of obligations to both their client and the court in relation to
administration of justice. In the case of Lt. Col. S.J. Chaudhary v. State (Delhi
Administration)12, the High Court of Delhi had directed that the criminal trial ought to go on
a regular basis. The rights of the client should not be jeopardized at any cost. Any advocate
who accepts a criminal case is bound to attend the day to day trial without any fail. It is a
mandatory duty which must not be breached whatever be the circumstances. The breach
amounts to breach of professional duties and the can attract penalty.
10
Ibid. Para 7
11
AIR 1997 Ker 291
12
1984 AIR 618,
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Refusal to hear the matter not available
In the case of ‘K. John Koshy and Ors. v. Dr. Tarakeshwar Prasad Shaw 13the question that was
raised was whether the court could refuse to hear a matter and pass ex-parte order because the
counsel were absent due to an ongoing strike of the respective Bar Council. This Court held that
the Court could not refuse to hear the matter as otherwise it would tantamount to Court becoming
a privy to the strike.
Reason if justifiable, the counsel to give notice in advance
In the case of Mahabir Prasad Singh vs. Jacks Aviation Pvt. Ltd.14 an appeal to transfer the case
suo moto was made before the trial court as the Bar Association had resolved to boycott that court.
This appeal was rejected and it was said that,
1. 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.
2. But retaining the brief of his client and at the same time abstaining from appearing in
that court, that too not on any particular day on account of some personal inconvenience
of the counsel but as a permanent feature, is unprofessional as also unbecoming of the
status of an advocate.
3. 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.
Roman Services Pvt. Ltd. vs. Subhash Kapoor15. In this case the question was whether a litigant
should suffer a penalty because his advocate had boycotted the Court pursuant to a strike call
made by the Association of which the advocate was a member. In answer to this question it has
been held that when an advocate engaged by a party is on strike there is no obligation on the part
of the Court to either wait or adjourn the case on that account. It was held that this Court has
time and again set out that an advocate has no right to stall court proceedings on the ground that
they have decided to go on a strike.
13
(1998) 8 SCC 624
14
(1999) 1 SCC 37
15
(2001) 1 SCC 118
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Both the Bench and the Bar are the two inextricable wings of the judicial forum and therefore
the aforesaid mutual respect is the sine qua non for the efficient functioning of the solemn work
carried on in courts of law. It must also be remembered that an Advocate is an officer of the Court
and enjoys special status in society. Advocates have obligations and duties to ensure smooth
functioning of the Court. They owe a duty to their client. Strikes interfere with administration of
justice.
B.L. Wadehra (Dr.) vs State (Nct Of Delhi) & Ors16
While deciding the case of Ex-Capt Harish Uppal, the judges of the bench of Supreme Court
have widely discussed the decision of this case of the year 2000. This case is important from the
view point that whether particular set of directions should be issued to the advocates in relation
to their right to go on a strike.
The Supreme Court was of the opinion that if the lawyers want to abstain from their practice with
a view to go on a strike, they can do the same by not taking up any future cases. The cases of which
they already hold the vakalatnama , they have no right to refrain themselves from appearing those
cases. Such absence must lead to:
Breach of Professional duty
Breach of contract
Breach of trust
Speedy trial is an integral and essential part of the fundamental right to life
In Hussainara Khatoon v. Home Secretary, State of Bihar17, it was held that speedy trial is an
integral and essential part of the fundamental right to life and liberty enshrined in article 21 of the
Constitution. Strike by lawyers will infringe the above-mentioned fundamental right of the litigants
and such infringement cannot be permitted. Assuming that the lawyers are trying to convey their
feelings or sentiments and ideas through the strike in exercise of their fundamental right to freedom
of speech and expression guaranteed by Article 19(1) (a) of the Constitution. The right to practice
any profession or to carry on any occupation guaranteed by Article 19(1)(g) may include the right
16
AIR (2000) Delhi 266
17
(AIR 1979 SC 1360)
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to discontinue such profession or occupation but it will not include any right to abstain from
appearing in Court while holding a vakalatnama in the case.
Decision: The judges also considered the fact that the judiciary is overburdened with cases. It was
concluded that the advocates cannot go on a strike without any valid notification or reason. 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.
CASES AFTER EX-CAPT. HARISH UPPAL WHICH HAVE DISCUSSED RIGHT TO
STRIKE
Common Cause A Registered Society v. Union of India and Others18
After referring to Harish Uppal, it has been reiterated that in case any Association calls for a
strike or a call for boycott, the concerned State Bar Council and on their failure, the Bar Council
of India must immediately take action against the person who calls for strike or call for boycott.
Therefore, the Bar Councils and the Bar Association can never accept any Association calling
for a meeting to consider a call for a strike or boycott.
R.K.Anand vs Registrar19
The Delhi High Court lamenting on the declining professional standards of lawyers, the
Hon'ble Supreme Court stated that ideally, every High Court should have rules framed under
Section 34 of the Advocates Act in order to meet eventualities such as boycott of courts, but
even in the absence of the rules, the High Court cannot be held to be helpless against such threats.
In a matter as fundamental and grave as preserving the purity of judicial proceedings, the High
Court would be free to exercise the powers vested in it under the Act notwithstanding the fact
that rules prescribing the manner of exercise of power have not been framed.
18
AIR 2005 SC 4442
19
(2009) 8 SCC 106
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O.P.Sharma and Others v. High Court of Punjab and Haryana20
An advocate's duty is as important as that of a Judge. Advocates have a large responsibility
towards the society. A client's relationship with his/her advocate is underlined by utmost trust.
An advocate is expected to act with utmost sincerity and respect. In all professional functions, an
advocate should be diligent and his conduct should also be diligent and should conform to the
requirements of the law by which an advocate plays a vital role in the preservation of society
and justice system.
Vishwanath Swami v. Bar Council of India21
A writ petition was filed under Article 226 of the Indian Constitution to frame rules as directed
in the case of Haris Uppal. It was disposed with a direction to implement the said amendments as
mentioned in the case. The rules are to be drafted with an immediate effect.
CONCLUSION
In our Country rule of law prevails and it is a basic structure of the Constitution of the Country,
therefore disputes are required to be resolved through adjudication by a competent, Impartial, non-
arbitrary and non-discretionary manner in the court instead of Strike by the Lawyers. Hence Strike
by lawyers is negation of the basic structure. It is obvious that strike or boycott by lawyers or
absence of lawyers from the court in the name of one issue or the other has resulted in adding to the
already existing back breaking burden. The one way to sort out this problem is to take public opinion
and make understand this problem to local fraternity. Though such attempts were attempted to solve
this problem but then also it exists and day by day, it is getting out of control as lawyers go on strike
all over the country on even smallest provocations.
However, it is not only the actions or duty of lawyers to be courteous, there is a reciprocal duty
for the court also to be courteous to the members of the Bar and to make every endeavor for
maintaining and protecting the respect which members of the Bar are entitle to have from their
clients as well as from the litigant public. Both the Bench and the Bar are two limps of the
20
AIR 2011 SC 2101
21
W.P.No.8155/2012 (GM-RES-PIL)
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Judiciary and therefore the aforesaid mutual respect is necessary for the efficient functioning of
the system of Court. And it also does not conclude that any advocate or a group of lawyers can
boycott the courts or any particular court and ask the court to desist from discharging judicial
functions.
The lawyers must realize that litigants, witnesses, etc., often come from distant places at heavy
expense and it is improper that they have to go away because of strikes by lawyers. The
Judiciary exists for the people not for the lawyers or Judges. The lawyers, who hold the
arguments of the clients when they resolve to delay the disposal of their cases or allow their case
to be dismissed for default, betray not only the trust of their respective clients but also the faith,
confidence and hope which courts repose in the legal profession.
The problem through highlighted from various quarters has not so far been tackled in a big way
by the lawyers themselves who are master of their profession. The statutory provisions
available have not been found to be adequate to meet the situation. Further direction and
guidance issued by the Supreme Court and the Bar Councils have produced no better results.
Obviously if the problem persists and is not tackled in right earnest, it will further add to the
problem of arrears. In our sincere attempt to ensure that the pendency of the old cases is
liquidated to some extent and the arrears cut down, we would suggest that if an Advocate
appearing for a party is absent without reasonable cause, the Presiding Officer should make a
note of it and proceed to dispose of the case.
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