1.

Strike

The word "strike" has been defined under Section 2(q)  of the Industrial Disputes Act, 1947.
Strike is the act of stopping work by a body of workmen for the purpose of coercing their
employer to accede to some demands they have made upon him. Industrial Disputes Act, 1947
lays down circumstances in which strike in public utility services is prohibited. It is regarded as a
powerful weapon for collective bargaining. So this means basically a method for redressal of
common grievances.

A mean of communication--- when all method fails.

2. Fundamental right – Article 19(1)(c)

All citizens shall have right to form association or union or co-operative society.

According to the constitutional perspective, the right to strike is a fundamental consequence

conferred by part III of the constitution under the right to freedom of association Article 19 (c)
where a group of people who maintain a common interest can meet and can claim their
rights. The freedom of association under Article 19, however, is not an absolute right, but
certain reasonable restrictions are imposed on it- Public interest. Therefore, one of the
important questions that arise in the legal profession is that lawyers have the right to seek a
strike. The Supreme Court and the High Courts have made clear in their various rulings that the
lawyer’s strike is illegal and that the necessary steps must be taken to curb the growing trend.

3. Introduction

When we consider the role of lawyers in the administration of justice, we ought to remember
that the profession of law is not a mere trade or business. The term "lawyers" refers to a group
of men pursuing a learned art as a common calling in the spirit of public service. Pursuit of
learned art in the spirit of a public service is the primary purpose. In ensuring the rule of law a
most significant part is played by the lawyers.

In this view it is difficult to concede a right to boycott courts to the lawyers on the analogy of
conceding right to strike of employees. Moreover, the right to strike work in India is admittedly
not absolute. This is so in the industrial sector as well as in public service sector. The members
of the Bar Association thus have no right to boycott courts in view of the duties which they are
required to discharge. It is true that under the Constitution of India, freedom of association is
guaranteed as a fundamental right, but this right is subject to reasonable restriction in the interest
of public order or morality. The prohibition against strikes by lawyers is inbuilt in the Advocates
Act, 1961. The duties to the court and duties to the clients prescribed by Bar Council of India
go to prove that strike or boycotting of courts is antithesis to practise in the court, and is a
professional misconduct. An advocate being an officer of the court and thus bound to submit to
its authority cannot join in an action to boycott the court or a particular judge because of any
grievance - real or alleged.

An advocate does certainly undertake a duty on his client's behalf, but by accepting the brief,
he enters into a contract, express or implied, with his client. He is deemed to have taken on
himself a duty in the proper discharge of which, not only the client but the court and the public at
large have an interest.. His status is above a servant or an agent. He holds a position of trust
and even above it.

Emperor v. Rajani Kanta Bose 1922

a Special Bench of the Calcutta High Court consisting of three Judges opined that a pleader
being an officer of the court is bound to submit to its authority and thus cannot join any
action to boycott the court or a particular judge because of any grievance - real or alleged,
whether touching the court or of political or other character. The pleader accepting the
vakalatnama cannot divest himself of his duties arising from such acceptance without leave of
the court. If he desires to discharge himself from a case, he must give his client reasonable notice
of his intention. It is not difficult to realise that serious uncertainties and inconveniences might
arise in the conduct of judicial proceedings if the appointment of a pleader made in writing and
lodged in the court where the case was to be tried could be revoked without the knowledge and
sanction of the Court. If the practitioner wants to withdraw he must always give reasonable
notice of his withdrawal from the case to his client

Lt. Col. S.J. Chaudhary v. State (Delhi Admn .), (1984)

Taking the same line of arguments the Supreme Court also observed that absenting from courts
on a particular day in pursuance of a concerted movement on the part of the lawyers to boycott a
court amounts to professional misconduct9 The Supreme Court has also observed that it is the
duty of every advocate, who accepts the brief in a criminal case, to attend the trial from
day to day. Having accepted the brief, he will be committing a breach of his professional duty if
he so fails to attend.

4. Reason for denying lawyers right to strike+ Justice delayed is justice denied (Article
21= Speedy trial)

The fundamental duty of Judiciary is to serve people who are seeking justice for themselves
and in order to do so its very important that every branch of it must coordinate and cooperate
with each other. Any de􀃕ciency in the system would lead to the violation of the fundamental
right to speedy trial guaranteed by article 21 of the constitution. Therefore the call for a
strike by lawyers has an adverse e􀃠ect in the functioning of the judiciary. The frequent protest
and strikes interfere with the administration of justice that leads to delay in the trial of cases and
ultimately resulting in the pendency of cases. From time to time the supreme court in its various
judgments had resorted the right to strike by lawyers and directed the litigants to work e􀃞ciently
for justice without any failures.
If we look into the provisions of the Advocates Act and the Legal Practitioners Act, it becomes
evident that the position of advocates is quite different from an employee. An advocate is a
person learned in the law and duly admitted to practice, who assists his client with advice and
pleads for him in open court. It is the professional body of lawyers - the Bar Council of India
which lays down standards of professional conduct and etiquette for advocates to safeguard the
rights, privileges and interests of advocates. It details the duties of advocates. Bar Council of
India has also framed rules in exercise of its rule-making power under the Advocates Act, 1961.
Chapter II of Part VI of these "Rules Governing Advocates" prescribe standards of professional
conduct and etiquette for lawyers.

The Preamble to these Rules states the duties and obligations of lawyers in general terms. Rules I
and II of Chapter II of the rules lay down standards of professional conduct and etiquette and
duties to the client and to the Court. Rule 12 provides that an advocate shall not withdraw
from engagements once accepted, without sufficient cause and unless reasonable and sufficient
notice is given to the client. Rule 15 provides that it shall be the duty of an advocate freely to
uphold the interests of his client by all fair and honourable means without regard to any
unpleasant consequences to himself or to any other. Rule 24 lays down that an advocate shall
not do anything whereby he abuses or takes advantage of the confidence reposed in him by
his client. The rights and privileges of an advocate carry with them the corresponding duty not to
abuse them. Thus when an advocate accepts a brief it is his bounden duty to attend to his client's
interest with due diligence and if he fails to do so, he is likely to be dealt with for neglect and is
also answerable to the client. If he is unable to attend when the case is called, he is bound to
make some other arrangements for the proper representation of his client or the brief should be
returned in good time. In short, the advocates owe a duty not only to their clients, but also to the
court and are bound to cooperate with the court in the orderly administration of justice.

Cases

Harish Uppal (ex- capt.) v. UOI 2003

See Facts and argument advanced from Notes

 Strike by the advocate is unlawful.

 A strike will only be permitted in rarest of the rare cases where integrity, respect, and
working of the bar is at the stake.
 A Silent dissatisfaction can be shown or an interview to the press and media can be
given, till the time it doesn’t hamper the working of the court.

B. L. Wadhera v. State (NCT Delhi)

In this case, Delhi High court held that if an advocate holds vakalatnama for a case and he
abstains from appearing before the court then he commits professional misconduct.Supreme
Court, in this case, gave some principle that needs to be followed

 If an advocate goes on strike, then they are supposed to return the client fees with
sufficient notice so that an alternative arrangement could be made by the client.
  If there is a chance that the client will not be able to make alternative arrangements
thenthe advocates should make sure to appear in court.
 If an advocate(s) decides to go to court despite the strike then by any means he cannot be
intimidated to not go.
 If an advocate does not follow the strike then no disciplinary action can be taken against
him.
 A court shall never review a case in which ex parte decision has been given by court due
to strike by an advocate.
 If an advocate accepts a case and fails to appear before the court, he commits professional
misconduct, a breach of contract, a breach of trust and a breach of professional duty.

Mahabir Prasad Singh v. Jack Aviation (P) Ltd. 1999

An application had been made to the trial court to suo motu transfer the case to some other court
as the Bar Association had passed a resolution to boycott that court. It was stated that the lawyers
could not thus appear before that court. The trial court rightly rejected the application.

Ramon Services (P) Ltd. V. Subhash kapoor 2001

A suit was filed against the appellant company, a tenant in a building on Barakhamba
Road,Delhi for the eviction of the company from the building. The issue was framed and the
casewas posted on trial on 26.8.1998. On the day of the trial, none of the advocates from the
lawfirm which was appointed by the appellant were present in the court as advocates of that
firmwere engaged in the strike called by advocate association. The court listed the matter on
someother date but on that day also no advocate was present and hence the court gave an ex
partedecision against the appellant company.

Finally, appellant approached the Supreme Court of India where the SupremeCourt of India held
that if a strike attorney is not present and the court gives ex parte decisionthen any loss occurred
by the all such expenses would be paid by the attorney or the law firmwhich he represents. It was
held by the Court that when an advocate involves himself in strike there is no obligation on the
part of the Court to either wait or adjourn the case on that ground. It was held that advocate has
no right to boycott court proceedings on the ground that they have decided to go on a strike.

Krishnakant Tamrakar v S. O. MP

Every strike, irreversible damage is su􀃠ered by the judicial system, particularly consumers of
justice. They are denied access to justice. Taxpayers money is lost on account of judicial and
public time being lost. Nobody is accountable for such loss and harassment. Every strike, causes
non reversible damage to the judicial system, particularly to the litigants.

Hussain v Union of India

The court had clearly stated that the lawyers strike and suspension of the court is illegal and it is
high time that legal fraternity realizes its duty to the society which is foremost. Hardships faced
by witnesses if their evidence is not recorded on the day they are summoned or impact of delay
on under trials on account of avoidable interruptions of court proceedings is a matter of concern
for any responsible body of professionals and they must take appropriate steps. This needs the
attention of all concerned authorities and ways and means ought to be found to tackle this
menace Judicial services and legal services are missions for serving society. The mission is not
achieved if the litigant who is waiting in the queue does not get his turn for a long time.

5. Strike by lawyer as Professional Misconduct

 Vakalatnama----A contract--- A breach of it is prof misconduct.

Supreme Court Bar Association v. UOI 1998

It has been held that professional misconduct may also amount to contempt of court.

B. L. Wadhera v. State (NCT Delhi)

In this case, Delhi High court held that if an advocate holds vakalatnama for a case and he
abstains from appearing before the court then he commits professional misconduct.

Section 35 of the Advocate Act gives the Bar Council of India the power to form adisciplinary
committee against an advocate if it has reason to believe that the advocate wasguilty of
professional or other misconduct.
Common Cause a Registered Society v.Union of India
Supreme court of India very clearly stated that if any association ofadvocate call for a strike, the
bar council of India must take stringent action against suchassociation.

Praveen Pandey v. State of Madhya Pradesh

court held State Bar Council cannot callupon Advocates in the State to observe a week-long
protest to abstain from all judicial worksand it is unlawful and against the statutory provisions as
well as contrary to the judgments ofthe Supreme Court to do so.

6. Solutions to the Grievances of lawyers:

The ban imposed on strikes by lawyers is justi􀃕ed as consequences of strikes were corroding the
roots of the judiciary. However, it is also important to safeguard the interest of the advocates, so
that the functioning of the legal system should be balanced. Section 7 clause (d) of the
advocate's act 1961explains the functions of Bar Council of India to safeguard the rights,
privileges, and interest of advocates therefore abiding by the rules grievances of lawyers must
be heard and further steps should be taken to tackle their issues that they are facing.
In 266th report of law commission of India a suggestion has been made that at every
district headquarters, the District Judge may constitute an Advocates’ Grievance
Redressal Committee headed by a Judicial O􀃞cer which will deal with the day to day
routine matters, a 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 an exercise of its power under
article 235 of the Constitution providing for redressal of grievances of the Advocates which will
help in improving their e􀃞ciency. In case there is some grievance against a Judicial O􀃞cer, the
Bar may raise the grievance before the Chief Justice of the concerned High Court.