The past few years have witnessed a rise in advocates strike work for a myriad of reasons.The last two months saw Bengal demonstrate an absolute shutdown for a month to protest against alleged excesses by the police during a clash between advocates and civic employees, Uttar Pradesh striking work demanding better working conditions and security for all lawyers following the killing of Uttar Pradesh Bar Council President Darvesh Yadav, Madhya Pradesh lawyers demanding enactment of the Advocate Protection Act in protest against the disapproval of the Bill by certain Cabinet Ministers, Orissa suspending work following grant of bail to a prime accused in a cricket betting racket, while the Punjab Haryana High Court witnessed a paralysis for one week with lawyers protesting against the setting up of a tribunal to deal with service-related matters of Haryana government employees. In April, they had struck work against an alleged attack on three lawyers at an eatery.
Such state of affairs is disconcerting. The Supreme Court of India in its landmark decision of Harish Uppal (Ex-Capt) v. Union of India had put a finality to the question of whether lawyers have a right to strikeand/or give a call for boycott of courts and concluded that lawyers have no such right, even as 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, going on dharnas or relay fasts. The judgment empowered dissenting lawyers to boldly refuse to abide by any call for strike or boycott and stated that no lawyer can be visited with any adverse consequences by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. The only exception carved out was in the rarest of rare cases where the dignity, integrity and independence of the Bar or the Bench are at stake, that the courts may ignore to a protest abstention from work for not more than one day. This exception was also clarified to state that it is only for the Court to decide whether or not the issue involves dignity or integrity or independence of the Bar/Bench and a procedure was established before Advocates decided to absent themselves from Court.
Should a civic society allow an ‘indefinite strike’ to take precedence over the fundamental rights of people? There are under trials languishing in jails and litigants who have endured years in waiting for their case to be listed, wading in despair. In a judicial system, where the obscene amount of pendency has subtly impinged on the rights of individuals, such unprecedented moves, solely to coerce a favorable administrative decision cannot be tolerated. Let’s look at the larger picture of how this institution has been reduced to its most vulnerable state. Alexander Hamilton in Federalist No. 78 stated that the Judicial Branch in the United States is the weakest. Despite, having a similar system of governance, the Indian judiciary has taken the executive hands on in the past, struck down unconstitutional provisions and ensured that the envisaged system of checks and balances is maintained. However, with recent strikes, boycotts and violent tactics, Hussainara Khatoon’s right to speedy trial has been reduced to a metaphoric statement, Article 39A, a mere rhetoric and fundamental rights a relic of the past. Law School teaches every lawyer the theory of Utlitarianism, i.e. ‘The greatest amount of good for the greatest number’. As one of the most powerful and persuasive approaches of normative ethics, an evaluation of incumbent actions of the advocates on strike, would testify to the fact that there is no ‘good’ being derived from current status quo. Rather, it is diluting the very essence of the profession, its members and the institution itself. Who is to blame in such a scenario? The majoritarian measures adopted by Bar Associations across the country cannot be allowed to coerce and threaten others to follow suit. Such anarchistic pursuits, should be repressed at their very genesis, rather than being encouraged by silent participation.
An act to boycott the Court by the pleaders of Habibganj against the arrest of Mahatama Gandhi qualified as misconduct under Section 13(b)(7) of the Legal Practitioner’s Act and the Court, even during such testing times held that such attempt by the pleaders was to impede the administration of justice amounting to deliberate failure in duty to the clients and duty towards the court. In the words of Justice Sir Ashutosh Mukherjee in Emperor v. Rajni Kanta Bose and Ors, “amongst other types of misconduct, there is none more reprehensible than such conduct as tends to impede, obstruct or prevent administration of justice or to destroy the confidence of the people in such administration and any attempt on part of the pleader to boycott the court or to obstruct administration of justice by any form of device constitutes in his opinion a ground for debar or suspension.”The Supreme Court recently, in a 4thof July, 2019 order mandated all State bar Councils to furnish on an affidavit all the data pertaining to periodic strikes and cease work which are taking place in the country at various places recognizing the same to be impermissible and contrary to the Resolutions of the Bar Council of India and judgment(s) of this court.
With a judiciary overburdened with pendency, the ultimate sufferers are the litigants. The reputation of the institution is being marred by such unabated incidents. Such actions amount to professional misconduct, breach of trust, breach of contract and a breach of professional duty.It is imperative that the fraternity self-regulates itself and adopts measures to curb such vindictive recourses, which are gradually eroding the spirit of the profession and the responsibility it owes to society. Unbridled freedom of speech and expression has been held to be unconstitutional even by the United States Supreme Court in its 1989 decision of Federal Trade Commission v. Superior Court Trial Lawyers' Assn. wherein the actions of a group of attorneys to boycott the courts was held to constitute restraint of trade. The Court observed that though the object was enactment of a favorable legislation, the boycott through which the Attorneys sought to obtain it was not protected by the Constitution’s First Amendment. As the Indian Supreme Court stated in Sanjeev Datta, In Re,“The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the Court.” The Vakalatnama, which a lawyer holds from his client constitutes the ethical, legal and moral responsibility a lawyer owes. The ‘Rules governing Advocates’ under the Advocates Act, 1961 provide that an advocate shall not withdraw from engagements once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. It also provides that an Advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client.
Senior legal luminaries of the country have opined on this issue and condescended such actions. Shri K.K. Venugopal, the incumbent Attorney General of India in his article “The Legal Profession at the Turn of the Century” opined that boycott amounts to contempt of court and advocates participating in the strike keep their clients as hostages and their interests in jeopardy. Shri H.M. Seervai, a noted distinguished jurist in his article “Lawyers' Strike and the Duty of the Supreme Court”opined 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. Shri Fali S. Nariman, in his article “Boycott — a Lawyer's Weapon”discoursed that when the lawyers boycott the courts, confidence in the administration of justice is shaken and amounts to holding justice to ransom contributing to the law's delays.
If the Courts, with all its stakeholders do not step-in to self-regulate and rectify the repercussions of such acts, the sense of foreboding might just be too real. Such actions will reduce the Bar’s resilient and courageous mandates for redressing legitimate and genuine grievances, to acts without an audience. The centralizing power of Bar Associations to make such unilateral decisions is an imminent threat to the institution and the disturbing quietus, a mere calm before the storm. The allegory in following the majority view might not be evident in its first glace but its ripple effect will surface sooner than one would realise. Redemption may not be a choice then.
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