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LAWYERS AND STRIKES: DOES THE END JUSTIFIES THE

MEANS

Written by Aayushi Jain* & Lalit Saraf**

* 1st Year BA. LLB Student, Institute of Law, Nirma University

** 5th Year BBA. LLB Student, Institute of Law, Nirma University

INTRODUCTION

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.”1And 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.

REASONS FOR STRIKE

There had been no frivolous reasons for the strike of lawyers but the reason came up were not
relevant to the Court’s working. In recent times the reasons for strike in different states were
like because of bomb blast in Pakistan, earthquake in Nepal, amendment in constitution of Sri
Lanka, murder of any advocate, showing solidarity to other Bar Association’s advocates, for

1
http://www.legalservicesindia.com/article/article/legal-profession-in-india-2192-1.html

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supporting movements by social activists, some religious occasions ( like shraadh, agrasen
jayanti etc.), Kavi sammelan etc.

JUDICIAL STANCE

The present scenario of the Courts questions the effectiveness of justice impartation in
future.The abstinence from work was not at all justifiable as it has lowered the image of Courts
in the eyes of general public. On numerous occasions supreme court held that lawyer’s strikes
are illegal. It objects the right to speedy trial of litigants as mentioned under Article 21of the
Constitution2.

Some cases as mentioned below shows the response of supreme court on lawyers doing strike.

1. In Pandurang Dattatraya Khandekar v. Bar Council of Maharashtra Bombay &

Others [1984], itwas 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.
Counsel's paramount duty is to the client. The client is entitled to receive
disinterested, sincere and honest treatment”3

The lawyer is an elite for society and it would be against his professional
etiquettes to abstain fromhis duty towards his client on account of strike.

2. In Tahil Ram Issardas Sadarangani & Ors. v. Ramchand Issardas Sadarangani & Anr.4
[1993] Court stated that striking by the lawyers will lead to the failure of contractual
and professional duty which they owe the citizens.
3. In Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd.5 [1999] the court said 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,

2
Article 21- Right to life and personal liberty.
3
Pandurang Dattatraya Khandekar v. Bar Council of Maharashtra Bombay &Others, A.I.R. 1984 S.C. 110.
4
Tahil Ram Issardas Sadarangani & Ors. v. Ramchand Issardas Sadarangani & Anr, A.I.R. 1993 S.C. 1182.
5
Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd., (1999) 1 S.C.C. 37.

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the court can even ask the counsel to pay exemplary cost to the litigant which he
suffered due to counsel’s inconsistency with his work to ensure proper dispensation of
justice.
4. In Ramon Services Pvt. Ltd. v. Subhash Kapoor6[2000] Supreme Court held that if any
advocate claims that his right to strike must not bring any loss to him and if there is any
loss it should be borne by the litigant then such claim can’t be entertained. An advocate
holding the brief of client abstains from work on account of strike has to bear the
pecuniary cost suffered by the litigant.
5. In Ex-Capt. Harish Uppal v. Union of India7[2002] Supreme Court held that a lawyer
may refuse to engage in new cases but can’tabstain from work if he holds vakalatnama
on the ground of strike by any group of lawyers of any bar association. If he does so he
will be liable to suffer the consequences.
“… 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 armbands, 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 shouldn’t disrupt the court
proceedings.
6. In Hussain And Anr. v Union Of India the Court reiterated that strike by the law
professionals is illegal and it detracts the dignity of the legal profession and Courts and
also erodes the faith of the citizens in the judicial system of the country.

6
Ramon Services Pvt. Ltd. v. Subhash Kapoor, (2001) 1 S.C.C. 118.
7
Ex-Capt. Harish Uppal v. Union of India, A.I.R. 2003 S.C. 739.

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“Condolence references can be once in a while periodically say once in

two/three months and not frequently. The problems faced by the witnesses if
there statement is not recorded on the prescribed date on which they are
summoned and impact of delay on under trials in custody because of the
strikes is a matter of great concern. It needs attention of all the concerned
authorities the Central government /State government/ Bar associations/ Bar
Councils as well as High Court and steps must be taken to tackle this menace
so as to avoid jeopardy.8”

EFFECT ON JUDICIAL SYSTEM

Judiciary is consequent in holding our democracy together. There are many loopholes in our
judicial system like corruption, delays in judgement or disposal of cases, pending crores of
case, staff deficiency etc. and strike by the lawyers has aided to the inefficiency of the judiciary.
Judicial delay aggravates many problems for the general public.Though Supreme Court has
reiterated that strikes are illegal and has made the lawyers who abstain from the work holding
briefs of the client face the dire consequences andto compensate the loss suffered by the litigant,
yet the strikes continued on irrelevant subjects and thus it needs much more stringent steps on
the part of the Courts to extricate from this problem.

Indian judiciary has 2.5 crorescases pending and the strike causes wastage of valuable time of
the court and contributes to the judicial inefficiency. Even after the strikes are over it takes an
ample amount of time for the system to realign itself. If the lawyers continue to resort to strikes,
considering todays’ situation it will completely crush the edifice of our judicial system. Strikes
have already affected many states, the figures of strikes in Subordinate Courts in 2011-2016
are alarmingly high and Uttar Pradesh is at worst. In Uttar Pradesh District Court on average
worked for 150 days a year while the working days were 265 a year, in Tamil Nadu High Court
reported it’s 220 days a year, a day’s strike by lawyers has affected 47000 pending cases in
Karnataka on March,31 and even the responses received from High Court of Madhya Pradesh
and Odissa were not satisfactory.

8
Hussain And Anr. v Union Of India,

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Law Commission of India Report

In the 266th report of law commission of India, it suggestedcomprehensive amendments in The

Advocates Act, 1961 to the government and recommendeddrastic changes in working of the
regulatory bodies.The Commission also submitted a draft of Advocate (Amendment) Bill,
2017.

It mentioned some point related to lawyers’ strike. It observed that this action is against the
moral obligations of lawyer towards his profession. Lawyers are the officer of the Court and it
is the prime duty of the lawyers to assist the court in dispensing justice in the most efficient
manner. If the lawyers don’t perform their duty in a requisite manner, it would lead to the
retrogression of the rule of law.

“It also suggested that at every district headquarters, the District Judge may constitute an
Advocates’ Grievance Redressal Committee headed by a Judicial Officer which will deal with
the day to day routine matters, as large number of issues and grievances arise in the smooth
working of the advocates. In this regard, the High Court may issue a circular in exercise of its
power under Article 235 of the Constitution providing for redressal of grievances of the
Advocates which will help in improving their efficiency.In case there is some grievance against
a Judicial Officer, the Bar may raise the grievance before the Chief Justice of the concerned
High Court.”9

In the draft of The Advocates (Amendment) bill, 2017 the commission recommended following
amendments in The Advocates Act, 1961.

1) Insertion of clauses in sub section 3 of Section 35

a. Imposition of fine (upto 3 lakhs) and the cost of proceedings.
b. Award compensation (upto 5 lakh) to the person aggrieved by the misconduct of
advocate.
c. Impose cost (upto 2 lakhs) on complaints if found vexatious, false or frivolous and
if the advocate concerned is not cooperating in the
disciplinary proceedings under the Act.

9
Draft of The Advocate (Amendmernt) Bill, 2017.

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2) Insertion of new section 35A after section 35 of the Advocates Act, namely “35A.
Prohibition on the boycotts or abstention from court’s work.
3) Insertion of new section 45A after section 45 of the Advocates Act, for claiming of
compensation in certain cases-
a. If any person suffers loss due to the misconduct of the advocate or for his participation
in the strike othen, such person may make a claim for compensation against the
advocate in the appropriate forum established under any law for the time being in
force.
b. The non-payment of fees, either in full or part, by a person to his advocate, shall not
be a defence available for the advocate against whom such claim for compensation is
made.

CONCLUSION

Since strikes and boycotts are prohibited by the judgement of Supreme Court in Ex-Captain
Harish Uppal’s case and now the Law Commission has also recommended that it should not
be resorted to and be declared illegal and therefore it should be deemed as misconduct.
Eventually the ultimate sufferers are litigants and the system as a whole. But there are instances
where the independence of judiciary is itself at stake, then in such cases a token strike of a day
can be observed just to show that there is a large scale resentment against a particular action.
For example the recent event of Justice Jayant Patel being superseded and been transferred to
Allahabad High court from Karnataka High court, it was a clear case of executive and political
interference in the judicial work. Such instances strike at the independence of judiciary and
therefore token strikes of one day can be resorted to.

Constitution of India provides for an independent judiciary for the efficient administration of
justice.Roscoe Pound, an eminent jurist states that “historically,there are three ideas involved
in a profession: organization,learning, and a spirit of public service.”10 The most important of
these three elements is public service . Legal profession also requires adherence to its norms
and devotion towards the society. It is the prime duty of a lawyer to answer the call for public

Roscoe Pound, “What is a Profession - The Rise of the Legal Profession in Antiquity”, 19
10

Notre Dame L. Rev. 203 (1944), at p. 204.

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service on time. Going on strike brings disgrace not only to their profession but to the justice
delivering system as whole. 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.11Justice delayed is justice denied. It infringes the right to speedy trial of
litigant which is not admissable on the part of law care taker. One who secure law should ensure
law.

11
Syed Gulzar Hussain v. Dewan Syed Ale Ramul Ali Khan, (2014) 10 S.CC 825.

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