Dear Advocates, How You Can Go On Strike When Supreme Court Has Banned It?

The author argues that it is hypocritical that advocates, who represent the elite of society & who are supposed to be the defenders of legal values, should openly flout the law by defying the verdicts of the Supreme Court. Such conduct is symptomatic of the utter lawlessness that our Society has degenerated into in all walks of life rues the author and claims that stern action ought to be taken against the perpetrators for contempt of court

Pursuant to a resolution of the Bar Council of India, advocates across the Country are on a strike yesterday and today (11th & 12th July 2012). The result is that 1.25 lakh lawyers across the Country have abstained from work and Courts have come to a grinding halt.

Let’s understand what the strike is all about and to what extent it is permitted by the law.

First, the issue: The HRD Ministry has introduced the Higher Education and Research Bill, 2011 in Parliament with the object of promoting “autonomy of higher educational institutions”. The Bill proposes to establish a “National Commission for Higher Education and Research” which will maintain “standards of higher education and research”. The Commission will be manned by prominent academicians. One of the fields of education for which “standards” will be set is the legal profession.

The Bar Council’s objections to the said Bill are detailed in the “Minutes of Meeting” dated 19.05.2012. Surprisingly, though drafted by top lawyers, the Minutes do not spell out the rationale why the Bar Council is opposed to the Bill. Instead, it is high on rhetoric. It claims that the Bill is an “attack on the Advocates’ Act” and “completely in violation of the federal structure of the nation”. It is also wildly alleged that “the HRD Ministry is trying to hand-over the entire education system to a few of its nominees”. The Bill is also attacked as being “arbitrary”, “totally impractical” and as an attempt “to spoil the tested and well established traditional norms of education system of the country“. It is also breathlessly claimed that the Bill has been “brought only at the instance of some foreign countries and help a few people and also to make the entry of Foreign Institutions and Foreign Law Firms easy”. For good measure, it is added that “the HRD Ministry was clandestinely trying to sideline and harm the advocates of the country and their elected statutory Bodies” and that “Indian culture” will be “spoilt” if foreign lawyers are allowed to practice here.

The Minutes end with the grim resolution that an “emergent” meeting must be called and “copies of the Bill must be burnt in public”. It is also stated that there will be a “Jail Bharo Abhiyan” in due course.

All in all, the Minutes make for very sad reading. I read the entire thing line by line and am still clueless on what is the grievance of the Bar Council. What I would have appreciated is an objective analysis of the Bill, what its pitfalls were and what were the suggestions of the Bar Council on how to rectify those drawbacks. Instead, what I see is some reckless posturing and mindless diatribe. The argument that allowing foreign lawyers to practice in India will “spoil Indian culture” is quite laughable to say the least.

Anyway, whatever, may be the merits or otherwise of the Bar Council’s views, they are entitled to it. However, the larger question is whether they can hold the courts and the litigants to ransom by refusing to attend court.

On this, fortunately, the law is very clear. In Harish Uppal vs. UOI (2003) 2 SCC 45, the Supreme Court lashed out at lawyers for going on strike. One can’t do better than to quote from what the judges said:

“The lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The protest, if any as required, can only be by giving press statements, T.V. 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. The 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 consequences by the Bar Association or the Bar Council and no threat or coercion of any nature including that of expulsion can be held out. 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…. 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. 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 in addition to damages which he might have to pay his client for loss suffered by him”.

This sentiment was echoed in Ramon Services Pvt. Ltd vs Subhash Kapoor where it was observed “Abstaining from the courts by the Advocates, by and large, does not only affect the persons belonging to the legal profession but also hampers the process of justice sometimes urgently needed by the consumers of justice, the litigants. Legal profession is essentially a service oriented profession. The relationship between the lawyer and his client is one of trust and confidence. With the strike by the lawyers, the process of court intended to secure justice is obstructed which is unwarranted under the provisions of the Advocates Act. Law is no trade and briefs of the litigants not merchandise”.

In Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd (1999) (1) SCC 37, the Court used stark language to drive home the point: It said “Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigants or by counsel. Judicial process must run its even course unbridled by any boycott call of the Bar, or tactics of filibuster adopted by any member thereof”.

In Ramon Services Pvt. Ltd vs Subhash Kapoor, the Court “put the profession to notice that in future the advocate would also be answerable for the consequence suffered by the party if the non-appearance was solely on the ground of a strike call”. It also pulled up the judiciary for “sympathising with the Bar during the strikes or boycotts” and warned them to “rise from the slumber” and not show any leniency to the defaulting party and award “exemplary costs” to the adversary. “Inaction will surely contribute to the erosion of ethics and values in the legal profession” warned the Court and threatened that “The defaulting courts may also be contributory to the contempt of this Court”.

This was reiterated in B.L. Wadehra vs. State AIR 2000 Delhi 266 where it was held “ .. so long as a lawyer holds the vakalat for his client and has not been duly discharged, he has no right to abstain from appearing in Court even on the ground of a strike called by the Bar Association or any other body of lawyers. If he so abstains, he commits a professional misconduct, a breach of professional duty, a breach of contract and also a breach of trust and he will be liable to suffer all the consequences thereof. There is no fundamental right, either under Article 19 or under Article 21 of the Constitution, which permits or authorises a lawyer to abstain from appearing in Court in a case in which he holds the vakalat for a party in that case. On the other hand a litigant has a fundamental right for speedy trial of his case ..”.

In U.P. Sales Tax Service vs. Taxation Bar Association 1996 AIR 98, the Court rued that “It has ben a frequent spectacle in the recent past to witness that advocates strikes work and boycott the courts at the slightest provocation overlooking the harm caused to the judicial system in general and the litigant public in particular and to themselves in the estimate of the general public. An advocate is an officer of the court and enjoys a special status in the society“.

Ikm Investors Services Ltd. vs Kiranpal Kapoor was an unfortunate case which shows how the adverse consequences of an irresponsible lawyer’s actions have to be borne by the unfortunate client. The Petitioner’s s. 138 complaint was dismissed because the lawyer did not appear as he was on “strike”. An appeal against that order was dismissed by the High Court by stating that the Court could not be a party to the strike call and was duty bound to proceed with the matter. The Court held that the “non-appearance of the advocate in the court on the date when case is fixed, on the pretext or ground of strike amounts to breach of faith and trust reposed in the advocate by the client, who engaged him and paid his fees”. The consoling factor was that it was observed that the litigant could recover the loss from the concerned advocate. Of course, whether any advocate would own up the responsibility and compensate the poor litigant’s loss is another matter altogether.

Interestingly, even the Income-tax Appellate Tribunal made the assessee suffer the consequences for the non-appearance of his advocate owing to a “boycott” call by the Jabalpur Tax Bar Association. It dismissed the appeal and refused to recall the order (see (2007) 111 TTJ Jab 149)

Faced with the piquant situation of defiance of the law versus defiance of the Bar Council’s dictate, I understand that several State Bar Associations, including the powerful Bombay Bar Association chose not to take any stand in the matter and left it to their members to do as they please. However, this also is not defensible. When you know something is not right, can you just bury your head in the sand and ignore it?

However, some lawyers were brave enough to listen to their conscience and showed a great sense of responsibility. The Times of India quoted eminent senior advocate S G Aney as stating that there was “no reason for the strike” and that it was “pointless and childish”. However, the other lawyers who mutely stayed home and did not attend courts cannot claim this distinction.

Even in the past, several right thinking advocates have come out in the open to protest the strike calls. K.K. Venugopal, senior advocate, wrote in the article “The Legal Profession at the Turn of the Century” [(1989) 1 NLSJ 121], that a boycott amounts to contempt of court and the advocates participating in the strike keep their clients as hostages and their interests in jeopardy. P.P.Rao, senior advocate, wrote in his article “Strike by Professionals” (Indian Advocate, Vol. XXIII 1991 (Part I) that a strike amounted to professional misconduct. H.M. Seervai, a noted distinguished jurist, wrote in his article “Lawyers Strike and the Duty of the Supreme Court” (Indian Advocate [Vol. XXIII 1991 (Part I)], that lawyers ought to know that at least as long as lawful redress is available to aggrieved lawyers, there is no justification for lawyers to join in an illegal conspiracy to commit a gross, criminal contempt of court, thereby striking at the heart of the liberty conferred on every person by our Constitution. Fali Nariman, wrote in his article “Boycott – a lawyer’s weapon” (Indian Advocate [Vol. XVIII 1978 Nos. 1 & 2]) that when the lawyers boycott the courts, confidence in the administration of justice is shaken.

So, if the question is asked whether the Bar Council of India violated the law by giving a strike call in its resolution dated 19.05.2012, the answer would definitely have to be in the affirmative. There can be no question about it because in Harish Uppal vs. UOI it was held “No Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition”. I have scoured the law reports and cannot find one circumstance that would justify the strike call. The next question is what will be the consequence of this illegality. The answer simply is “Nothing”. Nothing will happen. If at all the matter travels to Court, the judges will write another long judgement “condemning” the strike call. But beyond that, who cares.

Anyway, what this entire episode shows is the utter disregard that we as a society have towards the law. Whether it is a petty thing like obeying traffic rules or a major thing like properly discharging your income-tax obligations or even holding judicial institutions to ransom, the common feature is the sense that you can break the law and get away with it. And even if you are unfortunate enough to get caught, a mild slap on the wrist is that all the punishment that you get. So, why respect the law?

Vellalapatti Swaminathan Iyer
Hyderabad (tax2.me)