Judges: G.B. Pattanaik, C.J., Doraiswamy Raju, S.N. Variava, D.M. Dharmadhikari and M.B. Shah, JJ.

Facts:

A 'National Conference' of members of the Bar Council of India and State Bar Councils was held on 10th and 11th September, 1994 and a working paper was circulated on behalf of the Bar Council of India 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 themselves the losers in the process', the circumstances in which such a steps should be restored should be clearly indicated. For said purpose and to determine the right of lawyers to strike, matter reached to present court.

Interim order passed suggesting guidelines to conduct protest but the same were not implemented. Hence, the matter reached before present court.

Issues:

I. Whether lawyers have a right to strike and/or give a call for boycotts of Court/s

Contention :

Amicus Curiae

I. This Court has declared that strikes are illegal.Even a call for strike is bad. It is time that the Bar Council of India as well as various State Bar Councils monitors strikes within their jurisdiction and ensures that there are no calls for strikes and/or boycotts. In all cases where redressal can be obtained by going to a Court of law there should be no strike.

Petitioner in Writ Petition (C) No. 406 of 2000

I. Strike as a mean for collective bargaining is recognised only in industrial disputes. Lawyers who are officers of the Court cannot use strikes as a means to blackmail the Courts or the clients. The call for strike by lawyers is in effect a call to breach the contract which lawyers have with their clients.

II. It has already been declared by Courts that a strike is illegal. 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. 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. The Courts must take action against the Committee members for giving such calls on the basis that they have committed contempt of court.

III. 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. The Court should now frame rules whereby the Courts regulate the right of lawyers to appear before the Court. 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.

Petitioner in W.P. (C) No. 821 of 1990

I. The Court should declare that lawyers who do not want to participate in a strike should not be coerced by other lawyers or Committee members. Such coercion amounts to interference with the administration of justice and is therefore clearly contempt of court. 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. If any such threats are given or any such coercion is used then the Court must punish for contempt the party so coercing.

Counsels for the Bar Councils and Bar Associations

I. They were not in favour of strikes and/or call for strikes. 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 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. 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 dharnas 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 suggested that the Committees be set up to whom grievances can be submitted.

Attorney General

I. Strike by lawyers cannot be equated with strikes resorted to by other sections of society. The basic difference is that members of the legal profession are officers of the Court. They are obliged by the very nature of their calling to aid and assists in the dispensation of justice.

II. Strike or abstention from work impaired the administration of justice and that the same was thus inconsistent with the calling and position of lawyers. Abstention from work, by lawyers, may be resorted to in the rarest of rare cases, 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. Even in cases where the action eroded the 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. In the above situations the duration of abstention from work should be limited to a couple of hours or at the maximum one day.

III. The purpose should be to register a protest and not to paralyse the system. He suggested that alternative forms of protest can be explored, e.g., giving press statements, TV interviews, carrying banners and/or placards, wearing black arm-bands, peaceful protest marches outside court premises etc.

Analysis:

I. 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 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 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. 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.

II. Lawyers have known 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. A lawyer's duty is to boldly ignore a call for strike or boycott of Court/s. Lawyers have also known 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.

III. 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. They cannot thus disrupt Court proceedings and put interest of their clients in jeopardy.

IV. 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 interim Order was passed by this court in the hope that with self restraint and self regulation the lawyers would retrieve 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 pretense strikes and/or boycott calls are resorted to. The judicial system is being held to ransom. Administration of law and justice is threatened. The rule of law is undermined.

V. However, the 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 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. 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 pay for the loss suffered by his client by reason of his non-appearance.

VI. It must immediately be mentioned that one understands and sympathizes with the Bar wanting to vent their grievances. But there are other methods e.g. giving press statements, TV Interviews, carrying out of court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protest marches outside and from Court premises, going on dharnas or relay facts 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 time that self restraint be exercised.

VII. Thus, strikes are illegal and Courts must now take a very serious view of strikes and calls for boycott. However, lawyers being part and parcel of the system of administration of justice, a protest on an issue involving dignity, integrity and independence of the Bar and judiciary, provided it does not exceed one day, may be overlooked by Courts, who may turn a blind eye for that one day.

M.B. Shah, J. (concurrent)

I. 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 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.

II. 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 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.

III. 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 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.

Conclusion:

I. Lawyers have no right to go on strike or give a call for boycott, not even on a token strike.

II. The protest, if any is required, can only be by giving press statements, TV interviews carrying out of the Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protect marches outside and away from Court premises, going on dharnas or relay facts etc.

III. 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 consequence by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out.

IV. No Bar 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.

V. Only in the rarest of rare cases where the dignity, integrity and Independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for 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.

VI. 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.

VII. If a lawyer, holding a Vakalat of a client, abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall be addition to damages which he might have to pay his client for loss suffered by him.

Important Precedents:

I. Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd., MANU/SC/0706/1998

II. Roman Services Pvt. Ltd. v. Subhash Kapoor, MANU/SC/3014/2000