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Adv. Manoj Laxman Shirsat vs. Bar Council of India (Bombay High Court)

DATE: March 30, 2017 (Date of pronouncement)
DATE: March 31, 2017 (Date of publication)
AY: -
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Strike by Advocates: Giving a call to protest when the Bill is still at a draft stage is premature. Wisdom has to prevail on the Advocates in the light of the law laid down in Harish Uppal AIR 2003 SC 739. The law laid down by the Supreme Court is binding on the Advocates as well under Article 141 of the Constitution. The lawyers' community has to appreciate their responsibility in discharging the duties of their profession

Two Public Interest Litigations (PIL) were filed by Advocates seeking relief against the resolution dated 26th March 2017 passed by the Bar Council of India pursuant to which the Bar Council of India requested the Secretaries of the State Bar Councils to abstain from Court work on 31st March 2017. The Petition also challenged an appeal made by the Bar Council of Maharashtra and Goa dated 27th March 2017. The petitioners referred to the popular judgment of the Apex Court in the case of Capt. Harish Uppal v. Union of India, AIR 2003 SC 739. According to the petitioners, a stage has not yet come, where the community of lawyers are required to protest, since the suggestions made by the Law Commission against which the Bar Council of India has a grievance, has to pass through several stages before it becomes an enactment or a statute. They also indicate the procedure to be followed before the suggestions made by the Law Commission become law. It was further submitted that even after the proposed suggestions become a law, the same can be challenged in the Court of law and the Court of law can always intervene and quash the amendment to the Act if it does not stand the test of law. In other words, according to them, it is a premature for the Bar Councils to give a call for abstaining from work and abstaining from work also amounts to strike which cannot be approved in the light of several judgments of the Apex Court and this High Court. HELD by the High Court:

(i) At this stage, we are not deciding correctness or otherwise of the so-called suggestions which are still in the process of becoming part of the statute. As already stated above, certain process and procedure is required to be undergone before the said proposed amendment is to be implemented. It is submitted that the suggestions made by the Bar Council of India were not considered and, therefore, they are aggrieved by the suggestions now made by the Law Commission. There is still scope for considering the grievances or objections raised to the suggestions which may become part of the draft of the Bill, because the Cabinet approval to the draft of the Bill has to be followed by the Standing Committee approval. Then only the Bill can be introduced in any of the Houses. At that stage, there is scope for a debate on the issue before it gets approval on the floor of the Houses. At that point of time, any suggestions/ objections could be raised to the draft of the bill which has to be considered by the Parliamentary Standing Committee and thereafter the Bill can be reintroduced, if any modifications are suggested. If the bill fails to get approval of the House having regard to the grievances of the stakeholders, then the suggestions or the proposal will never see the light of the day. Above procedure has to be followed before the suggestions made could be implemented.

(ii) If one has to understand the implication or consequences of abstaining from work in general terms, the strike would mean abstaining from work apart form other meanings. It is nothing but demonstration of protest against the suggestions or resolution denying in line with the demand. It can also mean temporary stoppage of activities in protest against any act or a condition imposed. Petitioners’ counsel also rely upon the order dated 5th December 2016 passed in Contempt Petition (C) No.19/2016 in Writ Petition (C) No.132/1988 (Prem Prakash Panigrahi v. Md.Shabbir Ahmed and others) on the file of the Apex Court so also the judgment of the Division Bench of this Court dated 27th October 2014 passed in PIL No.75/2014 (Adv.Manoj Laxman Shirsat v. Bar Council of Maharashtra and Goa). The observations in the case of Capt. Harish Uppal v. Union of India (supra) indicate that the proceedings inside the Court are always expected to be held which commands confidence of the public in the efficacy of the institution of the Courts. In the said decision, the Apex Court has also referred to the duties, obligations, responsibilities and the divine work of the community of the lawyers while discharging their professional duties. One has to remember fundamental rights of the litigant. Advocate is an Officer of the Court and plays an important role in the administration of justice. Lawyer must remember nobility and tradition of the legal profession. One cannot forget the past history of this country where lawyers community played a great role, be it political or social revolution. They contributed a great deal even by sacrificing their lives for the sake of the country during freedom struggle. They understand the problems of the litigants as well as the proceedings in the Court better than any one else in the system of dispensation of justice. The lawyers have a significant role to play, in the mechanism of dispensation of justice. The lawyers in performance of their professional obligations, are pillars of strength and hope for the society. We are confident of the wisdom of the lawyers as professionals. In the light of various judgments of the Apex Court and this Court, we hope that wisdom would prevail on the lawyers, so far as the present call to abstain from work is taken by the respondents. It is needless to say that everyone including the community of lawyers have to abide by the directions of the Apex Court in terms of Article 141 of the Constitution. In that view of the matter, we hope that the lawyers community would appreciate their responsibility in discharging the duties of their profession.

2 comments on “Adv. Manoj Laxman Shirsat vs. Bar Council of India (Bombay High Court)
  1. J.P.Gupta says:

    What is wrong in lawyers being proactive and protest the proposed provision in the amending Act. It is the duty of the government to listen to the party aggrieved by its proposed action.

  2. fact is when a issue is on a bill stage, on that issue if u have any serious rpt serious ‘objections’ as a community, when that bill is passed by parliament, naturally some ‘strike ‘ meaning (abstaining from work normally from the employer) is tenable; here as advocate, your services seeking person is the ‘client’ not the parliament or the court, when so how on what kind of position you may as advocate rush to so called strike it only means the advocacy seem ‘trivialising’ the very word ‘strike’, as such; so in fact your client as also court can move damages for failing to perform your assigned duties , if we take ‘Law of Tort’ into account, you need to explain how Tort law is not applicable on bar council as also advocates participating in the strike – especially the advocates had matter on 31/3/2017, not, on others, for it can be assumed they have not resorted to any illegal strike, if instigated might fall in the firing range under lw of Tort is it not?

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