Right to strike by lawyers
Article 19, Constitution of India
• Right to strike is a fundamental corollary conferred by
part III of the constitution under the right to freedom of
association art 19(c) where a group of people upholding
a common interest can come together and demand of
their rights.
• Not an absolute right.
• Restrictions:
Nothing in sub clause (c) of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevent
the State from making any law imposing, in the interests of the
sovereignty and integrity of India or public order or morality,
reasonable restrictions on the exercise of the right conferred by
the said sub clause.
Question
when a lawyer goes for a strike call made by the association and
boycotted the Court proceeding, whether his litigant should suffer a
penalty?
when an advocate involves himself in strike there is no obligation on the
part of the Court to either wait or adjourn the case on that ground. It was
held that advocate has no right to boycott court proceedings on the ground
that they have decided to go on a strike.
The litigant suffering costs has a right to be compensated by his
defaulting counsel for the costs paid.
Ramon Services Pvt. Ltd vs Subhash Kapoor And Others on 14 November, 2000
Professional misconduct
• the court held that if on the ground of strike a lawyer
abstains from appearing in court then he is conducting
professional misconduct, a breach of contract, breach of
trust and breach of professional duty.
Bar Council of India
The functions of the Bar council of India shall be:
• To lay down standards of professional conduct and etiquette for advances.
• To lay down the procedure to be followed by its disciplinary committee
and the disciplinary committee of each State Bar Council
• To safeguard the rights, privileges and interest of advocates
• To promote and support law reform
• To deal with and dispose of any matter arising under this Act, which may
be referred to it by a State Bar Council.
• To exercise general supervision and control over State Bar Councils
Section 7 of Advocates Act 1961
• The BCI should ensure that lawyers should not involve in strikes and
protest.
• Supreme court held that frequent strikes by lawyers are illegal as
they obstruct access to justice. The further court also observed that
such actions amount to contempt of court and office.
• Supreme court: If any associations of advocates call for a strike,
then the State Bar Council or the Bar Council of India must take
actions against those persons who call for strike.
Instances where BCI itself had called lawyers for strikes:
Praveen Pandey v/s The State of Madhya Pradesh & Others
petitioner, a challenging the call to all the Advocates
practicing in the State by the State Bar Council to
Advocate of this abstain from Court work from 9th April,
Court 2018 to 14th April, 2018.
The demand of bar is of appointment of
High Court Judges, enactment of
Advocates' Protection Act and seating
arrangement of Advocates in the High
Court premises.
The Chairman, State Bar Council of Madhya Pradesh is said to have
addressed a Press Conference on 28th March, 2018 giving an
ultimatum to the State for fulfillment of their demands by 8th of
April, 2018 otherwise the State Bar Council will call the strike in
whole of State of Madhya Pradesh and that no Advocate will
appear before any Court.
It is contended that the State Bar Council is a statutory body and it has no
jurisdiction to call for the strike
Shri Nagrath Adv for State Bar, stated in the court that in the meeting of the office
bearers of the State Bar Council with the office bearers of all the Bar Associations at the
Principal Seat of High Court it was decided to call for voluntary abstaining from work by
the members of the Bar.
The Registrar General of this Court produced on record a Press release and an appeal
to the members of the different Bar Associations to attend the Court work issued
earlier in the day on 9.4.2018. It was circulated that by abstaining from work from
9th April, 2018 to 15th April, 2018, approximately 960 court working hours of the
High Court will be jeopardized and about 40,000 working hours (of approximately
1315 Judicial Officers) in the Subordinate Courts will be affected.
Abstaining of
work is not • Though the statement of Shri Nagrath was that abstaining
addressing the from work is voluntary but even Shri Nagrath has failed to
appear when the present writ petition was called for
issue of hearing. None of the members of the Bar appeared for
hearing though in few cases, on mention memo by the
reducing the Members of the Bar, the writ petitions were listed for
arrears but is hearing on the same day.
increasing the • Therefore, it is not a voluntary act but a call given by a
statutory body which is competent to take disciplinary
same. action against the Advocates enrolled with it and is
compelling the members of the Bar to abstain from work.
• One can understand if the State Bar Council has to request
the Courts to work extra to address the problem of arrears
or the members of the Bar decide not to seek adjournments
and to avoid repetitive arguments so that the disposal could
be much better.
• for a declaration that the respondents have
no jurisdiction or power to call upon
Courts/Tribunal/Authorities or the Advocates
to cease work or to boycot any Court or to
resort to strike so that normal works of the
Courts are disrupted, and the Advocates are
Petitioner prevented from practising profession of law;
Prayer • for a further direction upon the respondents
to forebear from interfering with or
suspending or prohibiting the Advocates from
(sic) performing their professional work by
calling upon them to cease work and for issue
of a writ in the nature of prohibition
prohibiting the respondents.
How far the Bar Council can go?
• how far the Bar Council can go in the matter of taking any action or
doing anything which is considered necessary for protection and
safeguard the interest the rights and privileges of the Advocates.
• takes away the statutory or constitutional right of an Advocate even
though may be temporarily?
• Such power to the Bar Council, which apart from being statutory body
is also an authority within the meaning of Art. 12 of the Constitution,
cannot be unbriddled and uncontrolled, but like all state actions must
be free from arbitrariness, must be reasonable.
• In the name of safeguarding the rights, privileges and interests of the
Advocates on its roll the Bar Council cannot certainly do something which
will take away, even though temporarily, the statutory and the
constitutional right of an Advocate to practise, except under the provisions
of Section 35 of the Advocates Act.
• 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 even in pursuance of a
call for strike or boycott by the Bar Association or the Bar Council.
Strike is an attempt to interfere with the 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
Ex-Capt. •The protest, if any is required, can only be
Harish Uppal by giving press statements, TV interviews,
vs Union Of carrying out of Court premises banners
India & Anr and/or placards, wearing black or white or
any colour arm bands, peaceful protect
on 17 marches outside and away from Court
December, premises, going on dharnas or relay fasts
2002 etc. It is held that lawyers holding Vakalats
on behalf of their clients cannot refuse to
attend Courts in pursuance of a call for
strike or boycott. All lawyers must boldly
refuse to abide by any call for strike or
boycott.
• 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.
• Mr. Prashant Bhushan, for the Petitioner further submitted that the
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.
• The court 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 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 Courts
subordinate thereto. Many Courts have framed rules in this behalf.
Such a rule would be valid and binding on all.
Common Cause 'A Registered Society, Etc vs Union Of India & Ors., Etc on 28
September, 2005
• whether the action of the Bar Associations, i.e., the Delhi High Court Bar Association and the Supreme Court Bar
Association, in visiting the Advocates, who refused to participate in the strike call, with punitive action of suspension and
the action of the Bar Council of Delhi passing a resolution which inter alia proposes to take against lawyers who did not
participate in the strike call, amounts to contempt.
Punishment
the office bearers of the Bar Association/Bar Council who passed the resolution for
strike or abstaining from work, are liable to be restrained from appearing before any
court for a specified period or until such time as they purge themselves of contempt
to the satisfaction of the Chief Justice of the concerned High Court based on an
appropriate undertaking/ conditions.
They may also be liable to be removed from the position of office bearers of the Bar
Association forthwith until the Chief Justice of the concerned High Court so permits
on an appropriate undertaking being filed by them. This may be in addition to any
other action that may be taken for the said illegal acts of obstructing access to
justice.
Current situation
• The Bar Council of India (BCI) has directed the Uttar
Pradesh Bar Council to not abstain from court as part of
its protest against the killing of a lawyer inside the
District Court Complex in Shahjahanpur.
• https://www.business-standard.com/article/current-affairs/called-a-
meeting-to-frame-rules-on-strikes-by-lawyers-bar-council-to-sc-
121082700465_1.html
The strike or abstention from work impairs the administration of
justice and is inconsistent with the duties of an Advocate. The Bar
Association is not a Trade Union under the Trade Union Act, 1926.
The Trade Union has a right to demonstrate as a mode of redress for
resolving the grievances of the workers but the Advocates though
are members of Bar Association but are professionals engaged by
the litigants for the redressal of their grievances by intervention of
the Court. By abstaining from work, the members of the Bar do not
help anybody.
Praveen Pandey Vs. The State of Madhya Pradesh and
others
