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Advocates Resorting To Strikes is Failure of Contractual and Professional Duty

The statement, A lawyer is and must ever be the High Priest at the Shrine of Justice, a Religious Metaphor, reflects the view of the Lawyers Special Role on the administration of justice as contemplated by the American Bar Association in the First National Code of Legal Ethics in the United States of America. The religious metaphor was developed in the context of viewing Courts as the Shrines of Justice, and Lawyers as the Ministers of the Courts of Justice robed in the priestly garments of Truth, Honor and Integrity. Even in a secular context, the statement still captures the essence of the role of an advocate in the mechanism of administration of justice in the society.

However, the Lawyer has a particularly onerous and multi-dimensional role to fulfil.

As expressed by Mathew, J., A Counsel has a tripartite relationship:
One with the Public, another with the Court, and the third with his Client. That is a unique feature. Other professions or callings may include one or two of these relationships but no other has the triple duty. Being the custodian of the monopolistic power statutorily granted by the nation, the lawyer is obligated to rise to the expectations of him in being a member of the society worthy of confidence of the community in him as a vehicle of social justice.

It can be said that the lawyers play the role of propounders in the justice delivery system. Having specialized in the legal field they champion the cause of victims of fundamental and legal rights; protect the civil and human rights of citizens; prevents the State from acting arbitrarily. Lawyers are social engineers and are hallowed partners in securing a world order, a cosmos without chaos and an international order where jurisprudence never dwindles into the vanishing point.

Lawyers have been prominently important part of the society and practicing law is a legal responsibility of every lawyer. Law brings appreciation for those who conserve it. The legal profession is an independent, holy and noble profession as Officers of the Court (legal professionals) have the spirit of service for the public. It has been an important limb for the administration of justice. But nowadays the apparent sad truth is that one of the finest profession is downgrading due to lack of professionalism and dedication. The materialistic approach towards what profession pays off has led to the mantle which it possesses now.

A well-organized system of judicial administration proposes a properly equipped and proficient Bar. And for having a proficient bar observation of moral values is necessary so as to preserve the basic ethos of legal profession. Major contribution in this downgrading is the official misconduct by the lawyers like going on strike. These uncongenial instances have led to severe criticisms for the legal profession coupled with lawyers being looked upon with distrust by society.

Background – Inception of the Legal Profession
The dawn of Legal Profession in our country could be seen in the Indian High Courts Act, 1861 (commonly known as the Charter Act) which authorised establishment of the High Courts under the Letters Patent and those Letters Patent empowered the High Courts to make rules for enrolment of Advocates and Attorneys who were also known as Solicitors. In the early days three Acts, namely, the Legal Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920 (17 of 1920) and the Indian Bar Councils Act, 1926 (38 of 1926) relating to Legal Practitioners were enacted.

The importance of legal profession in the Judicial Administration while dispensing justice with the aid of those who could effectively present the case of a litigant, was designed to usher in bringing the Rule of Law. The legal profession was acknowledged as the noble profession as it catered to, and contributed to lay the firm foundations of a system that dispenses fair and impartial justice. The desire of common man to receive justice was taken care of by making provisions for the presentation of a case and its redressal through persons in whom trust was reposed.

Roscoe Pound, an eminent jurist states that historically there are three ideas involved in a profession:
organization, learning, and a spirit of public service. While considering these elements essential, he states that the idea of gaining a livelihood through profession is nothing more than an incidental element. However, amongst the three elements, the most important with regards to a profession is the spirit of public service.

The ethical compunctions of the professionals are similarly exemplified in European Union Directive in which liberal professions were described as those practised on the basis of relevant professional qualifications in a personal, responsible and professionally independent capacity by those providing intellectual and conceptual services in the interest of the client and the public.

In this background, the founding fathers of Constitution of India while adopting a federal governmental system, entrusted a duty on the Judiciary to strike a balance between the functioning of the other organs of the Government while protecting the life and liberty of the citizens. With the avowed objective of conforming to the Rule of Law and dispensation of justice as contained in it, the elements of a perfect system of constituting courts on different tiers together with the system of advocates in the legal profession, who have been conferred with right to practice under the Constitution which now stands embedded in the Advocates Act, 1961 (hereinafter referred to as the Advocates Act).

Advent of the Constitution
Our Judicial system is enshrined in the Constitution of India with powers to dispense justice, including their constitution and jurisdictions, and with powers to make their own rules. The Supreme Court has been described as a Court of Record and conferred with all powers including the powers to punish for its contempt under Article 129 of the Constitution of India. The power to frame rules, subject to the provisions of any law made by Parliament and with the approval of the President, has been conferred on the Supreme Court under Article 145 of the Constitution of India. Sub-clause (a) of clause (1) of Article 145 of the Constitution of India specifically empowers the Supreme Court to frame rules regarding the persons who can practice before it.

There exists a distinction in the conferment of powers on the High Courts. While conferring the powers on the High Courts, rules as to the persons practicing before the Court have not been provided for under the Constitution of India as compared to the Supreme Court referred to hereinabove. The power to enact a law pertaining to the right to practice before a High Court has been retained under Entry 78 of List I of the VIIth Schedule to the Constitution of India, with Parliament itself. However, the High Court, being a Court of Record and has been conferred with powers to punish for its contempt under Article 215 of the Constitution of India.

This Article has significance as it confers the power in relation to the proceedings of criminal contempt that extends to awarding a sentence of punishment in the event of a breach by an advocate vis-à-vis his professional misconduct in the Court. The power, however, to frame a law on contempt and to make provisions for the same are available with Parliament and the State Legislatures under Entry 14 of List III of Schedule VII to the Constitution of India. The expression administration of justice also occur in Entry 11-A of List III (Concurrent List).

Whenever, it comes to taking a broad view of the terminology aforesaid, the same can also include within its fold the role of advocates in the administration of justice. Entry 13 of List III, empowers Parliament as well as the State Legislatures to frame rules regarding procedure. Order 3 Rule 1 of the Code of Civil Procedure, 1908 and Section 303 of the Code of Criminal Procedure, 1973 make exhaustive provisions for representation of litigants through recognised agents and pleaders. Thus, the statute has given a legal status to the participation of an advocate in judicial proceedings.

Separate sets of rules govern engagement of advocates as empanelled lawyers on behalf of the Central Government and State Governments as well as their undertakings and such other bodies that are within their control. Thus, the presence of advocates as part of the Justice Delivery System is ingrained in our laws. With this in view Entry 26 in List III of Schedule VII was incorporated in the Constitution of India, empowering Parliament and the State Legislatures to frame laws with regard to the legal profession as well.

Era of the Advocates Act, 1961
With the passage of time, it was felt that the Judicial Administration should be changed according to the needs of the time. The First Law Commission examined and made a Report on Reforms of Judicial Administration. The All India Bar Committee also examined the matter and made its recommendations in 1953. To implement the recommendations of All India Bar Committee after taking into account the Law Commissions recommendations made in its Fourteenth Report in so far as they relate to the Bar and to legal education, the Advocates Act was enacted.

The Advocates Act, 1961 amalgamates, codifies and consolidates the law relating to the regulation of practice by advocates and the system of the legal profession. This regulatory law with the various bodies constituted under it, including the Bar Council of India and the State Bar Councils, has been controlling the legal profession for more than half a century with many amendments in the past.

The effectiveness of our judicial system and growing legal awareness amongst the masses, has seen a corresponding growth in the enrolment of advocates throughout the country compared to that existed in the pre-independence era.

The legal profession has now become one of the most sought after professions and not as a secondary profession by any means. The nature of litigation in our multi-dimensional legal system with a variety of laws and redressal mechanisms has brought forward the participation of advocates in every field of socio-economic growth and development. The advocates have now 6 become an indispensable part of our judicial system at all levels, including Courts, Tribunals, Quasi-Judicial authorities and administrative authorities as well.

Period of Aberration
The opening of new vistas in the legal profession has brought with it the inherent problems of deficiency in professionalism, ethical decline and lack of devotion. The inter-rivalry between professionalism and competition with a materialistic approach in a growing society affected by social, political and economic changes has led to the legal profession acquiring a mantle that it did not possess long before. The fraternity of advocates had in the past actively been participating on all social fronts but this dimension has now become multi-faceted.

This holistic form of participation in all walks of life, therefore, demands more responsibility and obligations requiring observance of moral and ethical values for preserving the basic ethos of this legal profession.

In recent years, the role of advocates, particularly in the dispensation of justice through courts of law, has come under sharp criticism and is being viewed as an eyesore by the public. A news item published in the Indian Express dated 09 March 2009, titled Laws for Lawyers, spoke of the crumbling regulatory structure after having witnessed a decline in the conduct of advocates; and lawyers that was unprofessional and inconvenienced by a variety of instances.

More particularly, it referred to lawyers resorting to strikes and boycotts to the detriment of the litigants. The news item refers to the Sri Krishna Commissions Interim Report that has brought out the kind of violent incident that took place in the Madras High Court. It also quoted regulations adopted abroad, particularly in the United Kingdom by passing of the Legal Services Act, 2007 with an express purpose to set up an independent Board to examine allegations of lawyers misconduct. It also refers to the systems prevalent in other democracies i.e., in the United States of America. The item concludes that the time had come to reform the Bar Councils in India and to revisit the laws regulating the professional conduct of advocates.

Several unpleasant incidents in the past, some of them occasional in nature, and most of them organized, have led to a severe criticism by the society and the members of the legal profession by reason of their behaviour and misconduct are now being looked upon with distrust.

The advocates conduct in Courts, behaviour with litigants and their unprofessional conduct, including the act of going on frequent strikes as a measure of protest for irrelevant issues has reached to terrifying proportions. This has resulted in the loss of opportunity to litigants to get their grievances redressed, coupled with the introduction of greater violence, both in courts and outside, in various forms.

This has even forced working advocates to absent themselves from work, a fact that has come in the notice of the Courts through its judicial pronouncements. In spite of repeated pronouncements of the Supreme Court and the High Courts declaring strikes and boycotts to be illegal, the same has continued unabated, coupled with violence and instances of misconduct. This issue has been addressed in certain instances with severe punishments, including debarment of lawyers from even practicing in Courts.

Loss of Courts Working Days: A Staggering Fact
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 is The strike by advocates or their abstinence from the Court for any justifiable reasons is shocking.

A concerted attempt by lawyers to prevent Courts from carrying out their function of administering justice — a boycott of Courts — amounts to a deliberate and wanton negation of both the fundamental right to practice, guaranteed under the Constitution, and the statutory right, as conferred by the Advocates Act, 1961. By collectively refusing to appear in Courts for clients, lawyers do disservice to both the legal profession and to the persons by whom they are engaged.

Supreme Court Judgements on Strike – Reprehensible Act
The prevailing situation in the Courts are a real eye-opener and ironically it is one of the reasons for pendency of about 2.5 Crores cases in subordinate courts.

The Supreme Court had consistently been declaring that advocates do not have a right to call for strikes and held that the lawyers strikes are illegal and that effective steps should be taken to stop the growing tendency. In numerous cases beginning from Pandurang Dattatraya Khandekar Vs Bar Council of Maharashtra, Bombay, AIR 1984 SC 110; to Ex Capt. Harish Uppal Vs Union of India, AIR 2003 SC 739; it was held that the advocates have no right to go on strike.

The 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, Court must not be privy to strikes or calls for boycotts. It was held that if a lawyer, holding a vakalatnama of a client, abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall be in addition to damages which he might have to pay his client for loss suffered by him.

In Pandurang Dattatraya Khandekar Vs Bar Council of Maharashtra Bombay & Others [A.I.R. 1984 S.C. 110], it was stated that:
An advocate stands in a loco parentis towards the litigants. Therefore, he is expected to follow norms of professional ethics and try to protect the interests of his client in relation to whom he occupies a position of trust. Counsels paramount duty is to the client. The client is entitled to receive disinterested, sincere and honest treatment

In Tahil Ram Issardas Sadarangani & Ors. Vs. Ramchand Issardas Sadarangani & Anr., [A.I.R. 1993 S.C. 1182] Court stated that strikes by the lawyers will lead to the failure of contractual and professional duty which they owe the citizens.

In Mahabir Prasad Singh Vs. Jacks Aviation Pvt. Ltd., [(1999) 1 S.C.C. 37] the Court held that judicial proceedings should not get delayed by the browbeating and the tyrannizing methodology by the advocates. It is the duty of the Courts to continue with the proceedings even if there is a call for strike or boycott from any association of advocates or bar in the court hours. No court should yield to filibuster tactics.

In appropriate cases, the court can even ask the counsel to pay exemplary cost to the litigant which he suffered due to counsels inconsistency with his work to ensure proper dispensation of justice.

The very befitting and apt observations made by the Honble R.P. Sethi, J. in R.D. Saxena Vs. Balram Prasad Sharma, AIR 2000 SC 2912 on legal profession are worth quoting. A social duty is cast upon the legal profession to show the people beckon light by their conduct and actions. No effort should be made or allowed to be made by which a litigant could be deprived of his rights, statutory as well as constitutional.

An advocate is expected at all times to conduct himself in a manner befitting his status as an officer. It is high time for the legal profession to join heads and evolve a code for themselves in addition to the mandate of the Advocates Act, rules made thereunder and the rules made by the various High Courts and the Supreme Court, for strengthening the belief of the common man in the institution of the judiciary in general and in their profession in particular.

Creation of such a faith and confidence would not only strengthen the rule of law but also result in reaching excellence in the profession. Would such a noble profession get infected by the malaise of strike? Let it have a voluntary insulation against strikes.

In Ramon Services Pvt. Ltd. Vs Subhash Kapoor, [(2001) 1 S.C.C. 118], the Apex Court observed that if any advocate claims that his/her right to strike must be without any loss to him/her, but the loss must only be borne by his/her innocent client, such a claim is repugnant to any principle of fair play and canons of ethics. Therefore, when he/she opts to strike or boycott the Court he/she must as well be prepared to bear at least the pecuniary loss suffered by the litigant client who entrusted his/her brief to that advocate with all confidence that his/her cause would be safe in the hands of that advocate.

The Constitution provides for an independent and efficient justice delivery system. Any delay in disposal of cases not only creates disillusionment amongst the litigants, but also undermines the capability of the system to impart justice in an effective manner, observed Supreme Court in Syed Gulzar Hussain v. Dewan Syed Ale Ramul Ali Khan, (2014) 10 SCC 825.

It is relevant to mention here that the Supreme Court, in Ex Capt. Harish Uppal Vs Union of India, [AIR 2003 SC 739] dealt extensively with strikes by advocates.

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 arm bands, peaceful protest marches outside and away from Court premises, going on dharnas or relay fasts etc. …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…

There is no fundamental right either in Article 19 or Article 21 supporting strike or abstinence from work by lawyers but the litigant has the right to speedy trial implicit under Article 21 of the Constitution. Court also stated that lawyers should adopt different ways to protest if there is a genuine cause and it shouldnt disrupt the court proceedings.

In spite of all these, the strikes have continued unabated. The dispensation of justice must not stop for any reason. The strike by lawyers have lowered the image of the Courts in the eyes of the general public. The Supreme Court has held that right to speedy justice is included in Article 21 of the Constitution of India.

In Hussainara Khatoon Vs Home Secy., State of Bihar, AIR 1979 SC 1360; and in some other cases, it was held that the litigant has a right to speedy justice. The lawyers strike, however, result in denial of these rights to the citizens in the State.

Recently, the Supreme Court while disposing of the Criminal Appeal of Hussain & Anr. v. Union of India, Criminal Appeal No. 509 of 2017 decided on 9th March 2017 deprecated the practice of boycotting the Court observing that:
One other aspect pointed out is the obstruction of Court proceedings by uncalled for strikes/abstaining of work by lawyers or frequent suspension of court work after condolence references.

In view of judgment of this Court in Ex. Captain Harish Uppal versus Union of India, such suspension of work or strikes are clearly illegal and it is high time that the legal fraternity realizes its duty to the society which is the foremost. Condolence references can be once in a while periodically say once in two/three months and not frequently. Hardship faced by witnesses if their evidence is not recorded on the day they are summoned or impact of delay on under trials in custody on account of such avoidable interruptions of court proceedings is a matter of concern for any responsible body of professionals and they must take appropriate steps.

In any case, this needs attention of all concerned authorities – the Central Government/State Governments/Bar Councils/Bar Associations as well as the High Courts and ways and means ought to be found out to tackle this menace. Consistent with the above judgment, the High Courts must monitor this aspect strictly and take stringent measures as may be required in the interests of administration of justice.

The Supreme Court disapproved the conduct of the party resorting to dilatory tactics before the Court seeking adjournments on one or other pretext and observed that the party acted in a manner to cause colossal insult to justice and to the concept of speedy disposal of cases as laid down in Gayathri Vs M. Girish, [(2016) 14 SCC 142].

In view of the observations by the Courts, in the event of a strike, a Court is not obliged to become complicit in the illegality by adjourning the case for the absence of counsel, it may proceed to pass orders ex parte. Litigation work requires the representatives and authorities to systematically engage in legal proceedings at various points over sustained periods of time so as to arrive at resolution to the disputes. To use this situation of necessity to claim increased bargaining power is a wanton perversion of the aims of the justice delivery system. To forcibly prevent other advocates from appearing in their respective proceedings is even worse.

The act of going on strike amounts to a violation of an advocates duty as an officer of the court and his duty to maintain standards of professional conduct and ethics. It also results in a violation of his agreement with the client. At the same time, it is also contempt of court and a violation of the right of speedy trial for litigants. The unacceptable actions of advocates have not shown any significant improvement despite the establishment of competent authorities to regulate the conduct of advocates.

The reasons for strikes reported in case law have not been found to justify organised violence directly prejudicial to the vital function of justice delivery.

From the above discussion on the decision of the Supreme Court, it is clear that Articles 19(1)(g) and 21 of the Constitution of India do not include a fundamental right to boycott the work or go on strike.

In the opinion of an eminent jurist Dr. H. M. Seervai, in his article Lawyers Strike and Duty of the Supreme Court, lawyers ought to know that at least as long as lawful redress is available to aggrieved lawyers, there is no jurisdiction for lawyers to join on illegal conspiracy to commit a gross criminal contempt of Court thereby striking at the heart of liberty conferred on every person by the Constitution of India. To go on strike amounts to interference from anybody or authority in the daily administration of justice.

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu
Email: [email protected], [email protected]

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