LAW MANTRA THINK BEYOND OTHERS

(I.S.S.N 2321- 6417 (Online)

AVOIDANCE OF STRIKE BY LAWYERS

INTRODUCTION
A person who practises law is called a Lawyer. He is the part of the judicial system. A lawyer plays
a vital role in administration of justice. He represents his clients in the court in criminal, civil and
other cases. A lawyer acts with integrity and professionalism. He maintains his or her overarching
responsibility to ensure civil conduct.1 Advocacy is a decent and reputable profession in our
country.
Strike in layman’s language means refusal to work or to perform any activity. Strike can also be
defined as gathering of people, making a union and refusing to carry out their work. There can be
different types of strikes with different motives. Like hunger strike, general strike, culture strike,
etc. Strikes are sometimes used to force government to alter its policy. Most of the time strikes are
undertaken by the workers or labours because of payment issues or when their demands are not
fulfilled, etc. In Bharat Kumar K. Palicha v State of Kerala 2, the Kerala High Court has underlined
the difference between ‘Bundh’ and ‘hurtle or general strike’. Moreover in this case the Court has
said that ‘calling for Bundh’ is unconstitutional.
The Supreme Court in a case in 2002, held that only in case of the ‘rarest of rare cases’ where the
dignity, integrity of Bar is at stake, advocates can call for protest not more than one day. The
advocates protest for their needs and demands, meanwhile it the poor people who suffer because
of disturbance in administration of justice. In recent years the Bar Council has interpreted the term
“rarest of rare cases” in various ways and every time a new group of lawyers call for strike. Though
in many cases the Supreme Court has held that call for strike by lawyers is illegal, still there are
many cases of strike by lawyers every now and then.
One of the reasons why lawyers have called for strike is violence against the lawyers either by
individuals or by the police. Those advocates who make a living by citing India’s civil and criminal
procedure codes in court have also gone on strike. In many cases advocates have collectively
boycotted transfer of specific judges, sometimes in defence of certain judges. Other reasons like,
once a working day had fallen in the middle of an extended weekend, sometimes there not being
enough chairs for lawyers, etc.
There should be strict avoidance of strike by lawyers. The Bar Council of India, the Courts, and
other similar bodies play a vital role in a lawyer’s life. They can in some way restrict the lawyers
strike. Advocates are officers of the courts and play a vital role in the administration of justice.

Professional Conduct of Advocates


Ms. Swati Shalini, BA-LL.B (Hons), Hidayatullah National Law University, Naya Raipur, Uparwara Post,
Abhanpur, Chhattisgarh.
1
http://www.advocates.ca/assets/files/pdf/bibliography/Duty_to_Court.pdf
2
AIR 1997 Ker 291

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Rules on professional conduct and standards that an advocate is bound to maintained, are
mentioned in Chapter II, Part VI of the Bar Council of India Rules. These rules are placed in
section 49(1) (c) of the Advocates Act, 1961. Chapter II of the Bar Council of India Rules say
about the standards of professional conduct and etiquette which should be followed by an
advocate. Section 1 of the same describes the “Duty to the Court”. An advocate while presenting
his case in the court should conduct it with dignity and self-respect. Secondly, an advocate shall
maintain towards the courts a respectful attitude, bearing in mind that the dignity of the judicial
office is essential for the survival of a free community.3 An advocate should not communicate in
private to a judge with regard to any matter pending before the judge or any other judge. An
advocate should appear in court at all times only in the dress prescribed under the Bar Council of
India Rules.

The next section says about the “Duty to the Client”. In this provision the duty of a lawyer
towards his client has been mentioned. An advocate is bound to accept any brief in the Courts or
Tribunals or before any other authorities in or before which he proposes to practice at a fee
consistent with his standing at the Brand the nature of the case. Special circumstances may justify
his refusal to accept a particular brief.4 This part of the provision clearly says that an advocate
should not refuse to attend his brief unless under some justified circumstances. It is the duty of an
advocate to attend the court if he has accepted a brief. An advocate should not ordinarily
withdraw from serving a client once he has agreed to serve them. He can do so if he has a
sufficient cause and by giving reasonable and sufficient notice to the client. Moreover it also says
that an advocate should not misuse or takes advantage of the confidence reposed in him
by his client.

In “Roman Services Pvt Ltd v Subhash Kapoor”5 the question was when a lawyer goes for a strike
call made by the association and boycotted the Court proceeding, whether his litigant should
suffer a penalty. It was held by the Court that 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 term professional misconduct of lawyers is no where defined in the Advocates Act, 1961.
Though ‘professional misconduct’ is defined as behavior outside the bounds of what is considered
acceptable or worthy of its membership by the governing body of a profession.6 Chapter V of the
Advocates act, 1961 deals with the conduct of Advocates.
In the case “Noratanmal Chaurasia v M.R. Murli” the Supreme Court held that though
misconduct has not been defined anywhere in the Advocates Act, 1961 but misconduct envisages
breach of discipline, although it would not be possible to lay down exhaustively as to what would
constitute conduct and indiscipline, which, however, is wide enough to include wrongful omission
or commission whether done or omitted to be done intentionally or unintentionally. It means,
"Improper behaviour intentional wrong doing or deliberate violation of a rule of standard or
behaviour".
In B.L.Wadhera v State7, 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.
Thus when an advocate ignores his duty or his conduct is such that it is creating nuisance to his
clients or the court, such conduct can be called as professional misconduct. When an advocate
3
Section I , Chapter II, Part VI “Bar Council of India Rules”
4
Section II , Chapter II, Part VI “Bar Council of India Rules”
5
(2001) 1 SCC 118
6
www.businessdictionary.com/definition/professional-misconduct.html
7
AIR 2000 Delhi 266

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goes for a strike call made by the association and ignores or refuses to attend his brief in such
situation his behaviour comes under professional misconduct. Moreover the scope and definition
of the term ‘misconduct’ can be understood by keeping in mind the role and responsibility of an
advocate. Professional negligence comes under an instance of misconduct.

Strike as Misconduct

Ex Capt. Harish Uppal v Union of India and Another

In Ex.Capt.HarishUppal v. Union of India and Another8 various petitions raise the question
whether lawyers have a right to strike or give a call for boycott of court or courts.

The petitioners submitted that strike as a mean for any change in the policy or system is
recognised only in industrial disputes. Lawyers are the officers of court hence they have a duty
towards the court. They cannot use strike as a tool to take advantage of the courts or the clients.
The petitioner submitted that the court must take action against the lawyers who call for strike as
they have committed contempt of court. A lawyer who has accepted a Vakalat on behalf of a client
must attend the Court and if he doesn’t do so, that would amount to professional misconduct and
contempt of court. He submitted that court should frame rules that should regulate the lawyers to
attend their cases regularly. Court should make rules that any lawyer who commits contempt of
court by going on strike or boycotting a Court will not be allowed to practice in that Court. The
clients and the Courts should not suffer for any actions for which they are not responsible. Even,
it was also mentioned that no actions should be taken against those lawyers who don’t get them
involved in the strike.

On the other hand the respondent submitted that the lawyers had a right to go on a strike or give a
call for a boycott. There are many situations where lawyers need to go for a strike. It was
submitted on behalf of the respondent that the Court cannot say it as misconduct because the Bar
Council has been vested with powers to decide whether or not an advocate has committed
misconduct. Court cannot punish an advocate for misconduct because the Bar Council has the
power to discipline.

The Court held that lawyers have no right to go on strike or give a call for boycott, not even on a
token strike. The protest, if any is required, can only be by giving press statements, TV interviews,
carrying out of court premises banners and/or placards, wearing black or white or any colour
armbands, peaceful protest marches outside and away from court premises, etc.9 No Bar Council
or Bar Association can permit calling of a meeting for purposes of considering a call for strike.
Only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or
the Bench are at issue, courts may ignore to a protest abstention from work for not more than one
day. “Further appropriate rules are required to be framed by the High Court’s under Section 34 of
the Advocates Act10 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.”11

Role Of Bar Council of India

8
(2003) 2 SCC 45
9
Ex Capt. Harish Uppal v Union of India and Another, (2003) 2 SCC 45
10
1961
11
Ex Capt. Harish Uppal v Union of India and Another, (2003) 2 SCC 45

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The Bar Council of India is a statutory body. Section 4 of the Advocates Act 12 has mentioned
about the establishment of Bar Council of India. It regulates legal practice and legal education in
India. It was created under Advocate Act, 1961, by the Parliament. The Bar Council of India is
a statutory body that regulates and represents the Indian bar.13 It also sets standards for legal
education and grants recognition to Universities whose degree in law will serve as a qualification
for students to enrol themselves as advocates upon graduation. 141516 Section 7of the Advocates
Act, 1961 lays down the functions of Bar Council of India. Like to promote and support law
reform, to deal with and dispose of any matter which may be referred by a State Bar Council, to
Manage and invest funds of the Bar Council, to lay down procedure to be followed by disciplinary
committees, etc.

The function of Bar Council of India is to lay down standards of professional conduct and
etiquette for lawyers.17 The Bar Council of India should ensure that lawyers should not involve in
strike and other protest during court hours. Though in many circumstances the bar Council itself
initiates such protest. The Supreme Court in a case in 2002 held that lawyers have no right to
strike and such strike and declaration is illegal. The lawyers are the part of the judicial system. The
Bar Council of India should take stern actions against those lawyers who call for strike or give a
call for boycott of a court. Either the State Bar council should ensure it or the Bar Council of
India should ensure it. The Bar Council should see that there is smooth functioning of the judicial
body.

In Common Cause a Registered Society v. Union of India and Others18In this case it was held
that, 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. 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. The Bar Council has a duty towards the court. The Bar council id
represented by the lawyers, hence it is the lawyers’ duty towards the court which matters. Even the
Bar Council of India has certain rules inSection1, Chapter II, Part VI of The Bar Council of India
Rules, 1975; the duties of an advocate towards the court have been mentioned. The Bar Council
should ensure such disciplinary acts of the advocates.

Moreover in Ex.Capt.HarishUppal v. Union of India and Another19, the contention raised in this
case was whether lawyers have a right to strike or give a call for boycott of courts. It was held that
call of a strike by lawyers or call for boycott is illegal. It was held that lawyers have no right to go
on strike or give a call for boycott, not even on a token strike. The protest, if any is required, can
only be by giving press statements, TV interviews, carrying out of court premises banners and/or
placards, wearing black or white or any colour armbands, peaceful protest marches outside and
away from court premises, etc. No Bar Council or Bar Association can permit calling of a meeting
for purposes of considering a call for strike. Only in the rarest of rare cases where the dignity,
integrity and independence of the Bar and/or the Bench are at issue, courts may ignore to a
protest abstention from work for not more than one day. Moreover the court will decide whether
the issue involves dignity, integrity, etc. It is the duty of all courts to go on with matters even in the
absence of lawyers. The Bar Council of India should make strict rules and regulations in regard to
strikes by lawyers. The Bar Council of India and state Bar Councils should issue rules, stating a

12
1961
13
https://en.wikipedia.org/wiki/Legal_practice_laws_in_India
14
"About the Bar Council of India". Bar Council of India. Retrieved 3 May 2014.
15
"The Indian Legal Profession" (PDF). President and Fellows of Harvard College. Retrieved June 4, 2014.
16
"Advocates Act, 1961" (PDF). Parliament of India. 1961. Retrieved 3 May 2014.
17
Section 7(b) Advocates Act, 1961
18
AIR 2005 SC 4442
19
(2003) 2 SCC 45

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code of conduct for advocates, which should also include banning of advocates strike, or
boycotting court proceedings.

Role of Court or the Judiciary

A lawyer shall use tactics that are legal, honest and respectful of courts and tribunals. 20 The
Judiciary of India administers common law system of legal jurisdiction. The Judiciary has several
functions to perform. Such as protection of laws, protection of people from violence, to
safeguards the fundamental rights of both the citizens and non-citizens. The judiciary also involve
itself in making of new laws. It has advisory functions, administrative functions, etc. The Judiciary
of India is also the guardian of the Constitution. Judiciary is an integral part of a Democratic
Government. The Judiciary has the power of judicial review. It also involves itself in judicial
activism.
In many judgements Judiciary has advanced its disagreement regarding strike by lawyers. In many
cases, it has held that strike by lawyers is illegal. The protest, if any is required, can only be by
giving press statements, TV interviews, carrying out of court premises banners and/or placards,
wearing black or white or any colour armbands, peaceful protest marches outside and away from
court premises, or relay fasts etc.21 Although the lawyers can protest only in the ‘rarest of rare
cases’ where the dignity, integrity and independence of the Bar and/or the Bench are at issue, for
not more than one day.
In K. John Koshy &Ors v Dr.Tarakeshwar Prasad Shaw22 ,one of the question was whether the
court should refuse to hear the matter and pass an order when counsel for both the sides were
absent because of a strike by the Bar Association. The Court held that the court could not refuse
to hear or avoid a case as it would indicate that the court is also a part of the strike and is
supporting it.

Article 21 of the Constitution says ‘Right to life and liberty’ conferred on every citizens of the
country. There are many rights which are included under this article. Such as right to livelihood,
right to education, etc. One of such right is right to speedy trial. The Supreme Court in
“Hussainara Khatoon v Home Secretary, State of Bihar, has decided that the right to speedy trial is
a fundamental right to under right to life and liberty. When lawyers call for strike, there is
disturbance in the proceedings of court which sometimes also results in delay of the trial. Due to
this there is infringement of fundamental rights of the people under article 21. Although the
lawyers have exercised their fundamental right under Article 19, ‘freedom of speech and
expression’ but such exercise will come to an end if it infringes the fundamental right of another.
This was the decision in Dr.B.L.Wadehra v. State (NCT of Delhi) and others. In this case it was
held ... the lawyers have no right to strike. Right to speedy trial is a fundamental right of every
citizen under Article 21 that is Right to life and liberty. Strike by lawyers interferes with the
administration of justice that is delay of trial which, means infringement of the fundamental rights
of the citizens. The Bar Council of India Rules, 1975 have been cited in the said judgment. The
lawyers are the member of the system. They have a duty to cooperate with court in administration
of justice.

Every court has a duty to proceed with the court proceedings during the court hour. The court is
not obliged to postpone a case because of a strike call. The court is bound to hear and decide the
cases which are brought before it. The court cannot avoid it on the ground that the advocates are

20
http://www.advocates.ca/assets/files/pdf/bibliography/Duty_to_Court.pdf
21
Ex.Capt.HarishUppal v. Union Of India and Another, (2003) 2 SCC 45
22
(1998) 8 SCC 624

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on strike. Moreover in Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd23 it has been held that no
court is obliged to adjourn a case because of the strike call given by associations of advocates or a
decision to boycott the courts. It is the duty of the court to proceed with the court proceedings
during the court hours. It further held that it is the duty of every advocate who accepts a case to
attend the trial.

In R.K.Anand v. Registrar, Delhi High Court24, the Supreme Court held that every High Court
should have rules framed under Section 34 of the Advocates Act, 1961, in order to meet
possibilities of call f strike or boycott of courts. Even though in the absence of any rules, the High
Court has the power to take action against those protests. The High Court is not powerless or
helpless, if no rules are framed, it can take actions anytime. From this judgement it is very clear
that High Courts have powers to take action against those advocates who participate in protest to
boycott the court. The High Court should take necessary action at times when strikes are being
called by the lawyers.

Constitution of a Separate Body

In recent years there were so many cases of lawyers strike on different issues. These strikes disturb
the quick justice-giving system. Lawyers have certain duties towards the court. Lawyers carry a
responsibility to carry out their client’s case. A client’s entire life is dependent on a lawyer’s work.
If a lawyer ignores the brief or causes any act which is disturbing the client’s case then the layer is
acting against the norms of his duty. Judiciary is the only body in which the people are dependent
upon to seek justice. When lawyers are on strike justice is delayed. Every person has a right to
justice. India is a democratic country. Although Supreme Court had decided in 2002 case that
strike by lawyers is illegal, still, group of lawyers call for strike on various issues. Call for strike by
lawyers should be the last option for the lawyers. “Justice delayed is justice denied”. Keeping in
mind all these circumstances, it will be wise to set up a body which will look after the matters of
the lawyers. Other than the Bar Council, there must be some separate body, a mixture of both
judicial and non-judicial members who can discuss the problems of lawyers.

A separate body can be set up to deal with the lawyers cases. The lawyers can put forward their
queries, issues, problems to them. That body will only work for the welfare of the lawyers. The
body should consist of members of judicial officers. If there is any issue regarding any political or
administrative matter, associations of advocates can discuss it with the body. The body will not be
entirely judiciary in its taste, it should be little different. It should have both judicial and non-
judicial members. In that way the problems of advocates can be solved in a better way. The body
should lay down certain rules and regulations which the lawyers should follow. The body should
also make strict laws and should forbid strike by lawyers.

There should be a regular meeting to keep a check on lawyer’s conduct. The body should make its
own decision. It should be set up both in Central level as well as in State level. Its working should
not be purely independent of the Advocate Act, 1961. When necessary the body should refer to
the Advocates Act. If a deadlock is created among the members of the body, the matter should go
to the Supreme Court for further solution or any other mechanism should be followed as
prescribed by the members of the body. However this can be used as a mechanism in settling the
disputes but then the lawyers under certain circumstances should be allowed to call for strike.

Principles Arise Out of the Lawyer-Client Relationship

23
(1999) 1 SCC 37
24
(2009) 8 SCC 106

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  Lawyers are in breach of their legal, moral and professional obligations towards their client
if they accept a case and fail to appear in court.
 The reason that Bar Association has called a strike prohibiting lawyers to appear in any
court is not an appropriate reason for any lawyer to fail to discharge his duty towards the
client and the court.
 Where a lawyer has decided not to appear for a client due to a strike call, he must return
the clients fees and brief with reasonable notice to the client so that he can arrange some
alternative arrangements.
 If a lawyer decides to attain the case during a strike call, no one can intimidate, coerce or
threaten him.
 When the lawyer gets the information that due to strike his client will be unable to arrange
other alternatives, then it is the professional duty of the lawyer to appear in the case
despite the call for a strike.
 If a lawyer ignores a strike call, no professional body should take any actions against him
 Courts have the duty to deliver justice. They must not be prevented from doing so by a
strike call by lawyers. Even the judges who are members of the Bar Council should not be
intimidated, coerced or threatened by disciplinary actions or otherwise.
 In rare circumstances when the courts may feel that a strike is justified, the Court may
agree to an arrangement of permitting adjournment through proxy counsel in some cases.
However it should be in rare of the rarest cases as pointed out by the court in “Ex Capt
Harris case”25.
 In the event of a counsel wishing to argue a matter, or the Court taking the view that it is
in the interest of the justice to do so, the Court shall proceed to hear and decide the
matter.

Conclusion
Right to strike is not an absolute right but a conditional right. Under Article 19 of the
Constitution of India every person has freedom of speech and expression. However the
ambit of Article 19 should be read with certain limitation. When it comes to “strike” it is a
wider form of expression to express demands and needs. Lawyers can call for strike in rare
of the rarest cases as pointed out by the supreme court of India in Ex Capt Harris Case.
In industrial disputes also the workers can call strike only in certain cases and following
certain conditions.
There should be some mechanisms which should be followed to settle the disputes of
lawyers. The Bar Council and the Courts play a vital role in a lawyer’s life. They should
actively decide upon the matters of the lawyers and prohibit them to call for strike.
However there can be other mechanism too, like setting up of a separate body or a group
discussion etc. The lawyers should not go for strike as it disturbs the entire justice system.
They should understand it and cooperate with the system. Moreover the system should
also cooperate with them. The clients should not suffer because of any such activities.

25
(2003) 2 SCC 45

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