Utt HC | ‘Law is no trade, and briefs of litigants no merchandise’ Strikes by Advocates held to be illegal and in violation of professional ethics

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and Alok Kumar Verma, J. contemplated a very serious issue and delivered an important Judgment related to strikes and boycott of Courts by the Advocates in the High Court.

The instant petition was filed against the illegal strikes and abstention from work by the members of Bar on various occasion which caused disruption and delay in the process of dispensation of justice. The petitioner sought mandamus against the Bar Council of Uttarakhand to take appropriate steps to ensure strict compliance with the Constitution Bench judgment of the Supreme Court in Harish Uppal v. Union of India, (2003) 2 SCC 45, further direction to frame Rules in compliance of the said judgment were also sought.

The petitioner had an ongoing case which was directed by the Supreme Court to be decided within nine months but due to strikes and boycott the case was not disposed of until thirty-six months. The petitioner contended that the unnecessary strikes were obstructing access to justice to needy litigant’s even cases of persons languishing in jail and judicial custody are delayed on that account. It was further contended that such strikes caused irreversible damage to judicial system. The contention of the petitioner was based on the information furnished to him under Right to Information Act. The petitioner submitted that the Law Commission in its 266th Report, after analyzing the data on loss of working days on account of strikes, opined that the conduct of advocates, in boycotting Courts, affected the functioning of Courts, and contributed to the ever-mounting pendency of cases.

The Court noted that the Advocates since last three decades were boycotting Courts on all Saturdays throughout the year. It was highlighted that the genesis of this particular form of protest was traceable to Western UP. from where Uttaranchal was formed. The boycott on Saturday since decades was in light of demand to establish a Bench in that particular region.

On the contrary the Secretary, Bar Council of Uttarakhand, stated that no writ petition would lie seeking a prayer for legislation; the petitioner cannot seek execution of the judgment of the Supreme Court by way of a writ petition; and the petitioner had pleaded his personal cause/interest in the writ petition which disentitled him from invoking the public interest litigation jurisdiction of this Court. It was further stated that the Bar Council had issued a show-cause notice to all District Bar Associations of the State of Uttarakhand, and called upon all of them to show cause why they should not be  de-recognized / dissolved for acting contrary to the directions of the  Supreme Court in  Harish Uppal, and for acting contrary to the resolution  of the Bar Council of India restrained advocates from calling for strikes; and to show cause why disciplinary proceedings should not be initiated against the office-bearers and leaders of the Bar , and why they should not be disqualified from contesting any election in future. The State had contended that the petitioner had a personal reason to file the instant petition and not through public interest. And as petitioner’s personal grievance was against a particular Bar Association, it can only be agitated before the competent authority, and not against all Bar Associations; and since no relief was sought against the answering respondent, they are deleted from the array of respondents.

The Court discussed several issues:

  1. Maintainability of instant Writ Petition: the Court in this regard held that the cause and suffering was personal but since it had resulted into unnecessary delay, the cause has espoused is also in larger public interest, since the endeavor of the petitioner was to ensure the District Courts function on Saturdays and there is no illegal strikes.
  2. Obligation of Advocates towards Courts and legal profession: another issue discussed by the Court, as the counsel for the petitioner submitted that as strikes by lawyers were illegal, necessary steps should be taken to curb the growing tendency. Court held that, “It is unethical for members of the noble profession of law to organize and participate in strikes or to abstain from Court when the cause of his client is called for hearing.” Court further held that the Judges had turned a blind eye to such abstention since it also suited them not to have a working Saturday. Court opined that An Advocate was bound to conduct himself in a manner befitting the high and honorable profession to whose privileges he has so long been admitted.
  3. Do Strikes amount to misconduct: The counsel for the petitioner submitted that there was no definition of misconduct but the Courts had interpreted deliberate abstention from work as the worst form of misconduct. The Court held that, Strikes were misconduct and State Bar Council had statutory obligation to act against such practices. Further, the Court stated that, Advocates cannot abstain from the case merely because of a boycott call. It was held that the Advocates were bound by the duty to appear in all the cases they were engaged.
  4. Obligation of Bar Council of India: the petitioner submitted that BCI had failed to perform its statutory functions to lay down standard of professional conduct and etiquette for advocates. To which the Court had held that BCI had failed to ensure that the resolution passed by it adhered to it had also failed to take action against the errant Bar Associations for restoring uncalled strikes of Courts on Saturdays. It was observed that no actions were taken and BCI was directed to regulate the functions as soon as possible.

Hence the Court relied on the Judgment in Harish Uppal and held that Strikes were illegal and Courts must take a very serious view of the call outs and strikes. It was opined that, “ Legal and judicial services are missions for serving society, which cannot be  achieved if a litigant, who is waiting in the queue, does not get his turn for a  long time.” Court also directed that the Rules should be made under the Advocates Act, under Section 34, further the Court held that, “Though we may not be justified in issuing a mandamus to the High Court to frame rules under Section 34 of the 1961 Act to prohibit  strikes, as no mandamus can be issued to the Rule making authority to make  Rules, the need to prevent administration of justice from being subverted by  avoidable strikes and boycotts, would require the High Court to bestow its  serious consideration to the need to make rules to prevent Court work from being hampered by such illegal and unwarranted acts.

High Court would examine this matter at the earliest. A set of guidelines were forwarded to the State Bar Council, the State and other relevant parties, the Judgment was also summarized in a way that all the guidelines were clear and understandable. Hence, the petition was allowed.[Ishwar Shandilya v. State of Uttarakhand, 2019 SCC OnLine Utt 976, decided on 25-09-2019]

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