The Uttarakhand High Court on September 25, 2019, in the case of Ishwar Shandilya v. State of Uttarakhand and Others, has held that strikes and court boycotts by lawyers are illegal. They are in violation of the law laid down by the Supreme Court, and amounts to contempt of court.
A Division Bench comprising of Chief Justice Ramesh Ranganathan and Justice Alok Kumar Verma was hearing a PIL filed by Ishwar Shandilya against lawyers' strike on all Saturdays, for the past more than 35 years, in the region. Hearing the PIL, the Bench observed that resort to strikes is unprofessional and unbecoming of an Advocate who, having accepted a brief, cannot refuse to attend court pursuant to a call for strike or boycott.
Terming lawyer strikes illegal, the Bench warned the advocates who opt to participate in the strikes of strict disciplinary action by the State Bar Council and its Disciplinary Committees.
Strike by lawyers is not an acceptable mode of protest, irrespective of the gravity of the provocation, and the genuineness of the cause.
- Irrespective of the genuineness of the cause, strike by lawyers is not an acceptable mode of protest. Other modes of protest, which do not disturb Court proceedings or adversely affects the fundamental rights of litigants to speedy justice, can be resorted to.
- In case of a just cause, Advocates can make a representation to the District Judge or to the High Court. Protest, if any required, can be resorted to by other means such as giving press statements, TV interviews, carrying banners and/or placards out of court premises, wearing black or white or any colour armbands, peaceful protest marches outside and away from court premises, going on dharnas or relay fasts etc.
- Where the dignity, integrity and the independence of the Bar and/or the Bench is at stake, abstention from work, for not more than one day, may be resorted to.
- Even for such abstention, the President of the Bar must first consult the Chief Justice or the District Judge, and the decision of the Chief Justice or the District Judge would be final.
Advocates cannot abstain from the case merely because of a boycott call
- Participation of lawyers, in boycott of Courts, is ex-facie illegal. Even if there is a boycott call, a lawyer should boldly ignore the same.
- Unless there are compelling circumstances, and approval for a symbolic strike of one day is obtained, Advocates should not resort to strikes or abstain from Court work.
- It is unethical for an Advocate to organize and participate in strikes, or to abstain from Court, when the cause of his client is called for hearing.
- An Advocate, who abstains from Court because of a strike call, commits professional misconduct, a breach of professional duty besides a breach of trust, and is liable for the consequences.
- Boycott of Courts and strikes by Bar Associations impinge on the obligation of an Advocate towards his client and to the Court.
- Suspension of court work, after condolence references for family members of Advocates, is illegal.
Abstention from courts on account of condolence references
- Abstention of Courts, after condolence references for family members of Advocates, should not be permitted.
- Condolence references for Senior Advocates, or for Advocates practicing regularly in Courts, can be held once in a while, say once in two/three months and not frequently.
- Condolence references for Senior Advocates, or for Advocates practicing regularly in Courts, can be held once in a while, say once in two/three months and not frequently.
- Periodic reports may be called by the High Court, from all District Judges, to ascertain the number of Court working days lost because of strike/boycott of Courts or illegal condolence references. No condolence reference should be permitted except in terms of the Circular issued by the High Court dated 12.03.2019; and the said Circular should be strictly implemented.
- The High Court may call for periodic reports to ascertain whether or not such unhealthy practices of abstention from Courts, resorting to condolence references on the demise of family members of an Advocate, have been curbed by all District Judges and Subordinate Courts in the State.
Lawyers' strike amount to contempt
- Strikes are in violation of the law laid down by the Supreme Court, and amount to contempt. The office bearers of the Associations, who gave the call for the strike, cannot avoid their liability for contempt. Every resolution to go on strike, and to abstain from work, is per-se contempt.
- In case any attempt is made by any Advocate to enter the Court hall to stop Court proceedings, or in preventing other Advocates from entering Courts to argue their cases, action may be initiated by the Court, under the Contempt of Courts Act, against the erring Advocate by sending a report to the High Court.
- The High Court may punish an Advocate for contempt, and then debar him from practicing for such specified period as may be permissible in accordance with law. However, without exercising contempt jurisdiction, no punishment can be imposed by the High Court by way of disciplinary action.
Constitutional responsibility of the High Court
- It is the constitutional responsibility of the High Courts to monitor the functioning of subordinate courts to ensure timely disposal of cases.
- The High Courts must strictly monitor the aspect of strikes, and take such stringent measures as may be required in the interests of administration of justice.
- The High Court is duty bound to insulate judicial functionaries within their territory from being demoralised, because of onslaughts by Advocates resorting to strikes/boycotts, by giving them full protection in discharging their duties without fear.
- The High Court can also draw the attention of the State Bar Council to a case of professional misconduct of a contemnor advocate to enable it to proceed in the manner prescribed by the 1961 Act and the Rules.
- The High Court, on the administrative side, may consider monitoring listing of cases in subordinate Courts on Saturdays, and the disposal of cases on that day, which would show whether or not that particular Court in the district is effectively functioning on Saturdays.
Responsibilities of State Bar Councils
- The general superintendence, of the ethics and etiquette of the members of the profession, is the responsibility of the State Bar Council created under the 1961 Act, and a statutory duty is imposed on it to ensure that the rules laid down by the Bar Council of India, in this regard, are upheld and not violated.
- The State Bar Council is duty bound to enforce discipline among its members, and to take disciplinary action for acts of misconduct by the concerned Advocates. As calls for strikes/boycott of Courts amounts to misconduct, any such call, given by the Bar Associations, would require the State Bar Council to initiate disciplinary action against the office bearers of such a Bar Association who, by giving such a call, have instigated and encouraged other Advocates to follow suit.
- One of the principal functions of the State Bar Council is to receive complaints against advocates, and if it has reasons to believe that any advocate has been guilty of professional or other misconduct, it shall then refer the case for disposal to its Disciplinary Committee.
- The State Bar Council's role in this regard is first to receive complaints, second, in forming the reasonable belief of guilt of professional or other misconduct, and finally in making a reference of the case to its Disciplinary Committee.
- The Bar Council of a State, which initiates disciplinary proceedings, may also of its own motion, if it has reason to believe that any Advocate has been guilty of professional or other misconduct, refer the case for disposal to its Disciplinary Committee.
- The State Bar Council is obligated, with a view to maintain discipline, to complete the disciplinary proceedings, initiated against the errant Advocates; and, if the Advocate concerned is found guilty of having indulged in, or in calling upon others to go on, strike/boycott of Courts, to impose appropriate punishment upon them within a reasonable time frame of around three months.
- The State Bar Council also has the power to take action against the Bar Associations under the Advocates Welfare Fund Act, 2001, and to de-recognize errant Bar Associations.
- Section 7(1) of the 1961 Act obligates the Bar Council of India to lay down standards of professional conduct and etiquette for Advocates, and to exercise general supervision and control over the State Bar Council.
- Besides its duty to supervise and control the working of the State Bar Council, the Bar Council of India is required to exercise discipline and control over members of the profession.
- When it is made aware that the concerned State Bar Council has not taken action against Advocates, who have gone on strikes, prompt action should be taken by the Bar Council of India both against the State Bar Council and the concerned Advocates.
- In its Resolution dated 29.09.2002, the Bar Council of India has held that abstention of work in Courts should not be resorted to, except in exceptional circumstances; and, even in such exceptional circumstances, abstention should, normally, not be resorted to for more than one day.
- The said Resolution also provides that, as far as possible, legal and constitutional methods should be pursued such as representation to the authorities, holding demonstrations and mobilizing public opinion etc.
- It also provides that, in case the Bar Associations deviate from the said resolution dated 29.09.2002 and proceed with cessation of work, except in the case of emergency, the Bar Council of the State should take necessary action.
Bar Associations should not indulge in strikes
- Bar Associations, at the district/taluk level, are formed not only to safeguard the rights and privileges of its members, but also to ensure that its Advocate members do not resort to strikes/boycott of Courts. If, instead of curbing such unhealthy and illegal practices, the Bar Associations themselves indulge in such illegal and unwarranted acts of boycott of Courts/strikes, action should be taken against them.
- Bar Associations should not indulge in strikes, as Courts are meant for delivery of justice, the doors of which cannot be shut to litigants whose life, liberty and property are in danger.
- The resolution of the Bar Council of India dated 29.09.2002 should be strictly implemented by all the Bar Associations of the State, including the High Court Advocates Association and all District Bar Associations, and individual members of the Bar Associations; and, in compliance therewith, abstinence from appearing in Court should be avoided.
- The Bar Council of India is yet to take action against these errant Bar Associations for resorting to uncalled for strikes/boycott of Courts on Saturdays, and in resorting to needless and illegal condolence references.
