The Clash of TITANS !!!

In Ex-Capt. Harish Uppal versus Union of India and Anr., The Hon’ble Supreme Court had observed 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 arm bands, peaceful protect marches outside and away from Court premises, going on dharnas or relay fasts etc. It was held that lawyers holding Vakalats on behalf of their clients cannot not 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. Furthermore, it was observed 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.   It was held that 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.  It was also held that 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. It was even clarified that it will be for the Court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench.  Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before Advocate decide to absent themselves from Court.  The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. The Apex court further held that 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. It was held that 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 addition to damages which he might have to pay his client for loss suffered by him. (Para 35) Copy of Judgement: Ex-Capt. Harish Uppal versus Union of India and Anr.

On March 28th, 2018, The Hon’ble Supreme Court in the matter of  Krishnakant Tamrakar vs. The State of Madhya Pradesh (Copy of Judgement: Judgement 28-Mar-2018) observed that

Frequent strikes by advocates cause obstruction to the access of justice. It went on to state that each strike causes irreversible damage to the judicial system, particularly to the consumers of justice by denying them access to justice. It further added that Tax Payers’ money is lost on account of loss judicial and public time. It was also stated that nobody is accountable for such loss and harassment (Para 42)

Strike or abstaining from court is unprofessional. Even though more than 15 years have passed after the judgment in Ex-Capt. Harish Uppal versus Union of India and Anr.was rendered, the said judgment was repeatedly flouted and no remedial measures have been adopted.  (Para 45)

An Advocate can be debarred from appearing in Court even if the disciplinary jurisdiction for misconduct is vested with the Bar Councils . (Para 46)

Since the strikes are in violation of law laid down by this Court, the same amount to contempt and at least the office bearers of the associations who give call for the strikes cannot disown their liability for contempt. Every resolution to go on strike and abstain from work is per se contempt. Even if proceedings are not initiated individually against such contemnors by the court concerned or by the Bar Council concerned for the misconduct, it is necessary to provide for some mechanism to enforce the law laid down by this Court, pending a legislation to remedy the situation.  (Para 50)

The office bearers of the Bar Association/Bar Council who passed the resolution for strike or abstaining from work, are liable to be restrained from appearing before any court for a specified period or until such time as they purge themselves of contempt to the satisfaction of the Chief Justice of the concerned High Court based on an appropriate undertaking/conditions. They may also be liable to be removed from the position of office bearers of the Bar Association forthwith until the Chief Justice of the concerned High Court so permits on an appropriate undertaking being filed by them. This may be in addition to any other action that may be taken for the said illegal acts of obstructing access to justice. (Para 51)

In retaliation to the above stated judgement the Bar Council Of India passed a joint resolution (Copy of Resolution Resolution 5th September 2018) :

The Bar Council of India held a joint meeting with the representatives of all State Bar Councils and representatives of High Court Bar Association of Delhi, District Bar Associations of Delhi, and NCR on 1st September to further discuss and deliberate about the detailed future course/course of action in matters relating to the issue of the courts trying to throttle the democratic rights of Advocates going on strikes even against genuine injustice and wrongdoings, and matters relating to attempts to usurp the rights of Lawyers representative.

One of the agendas in this meeting was:

“To consider the judgment dated 28.03.2018 passed by Hon’ble Supreme Court of India in the Criminal Appeal No.470/2018 arising out of SLP (Crl.) No.9399/2017 titled as Kishnakant Tamraku Vs. The State of Madhya Pradesh. By the said judgment, the Hon’ble Apex Court has restrained the Bar Associations/Bar Councils to give a call for strike/boycott/abstention/s of the Court in any event. The Judgment is a direct attack on the fundamental rights of the Lawyers. The meeting is being held to consider the line of action in this regard.”

Among other things, it was resolved in the meeting that:

  • Every Bar Association of the country should meet on 17thSeptember 2018 at their respective headquarters and there should be an awareness drive amongst the legal fraternity. Therein they will be made acquainted with the judgment of the Supreme Court in the Criminal Appeal No.470/2018 arising out of SLP (Crl.) No.9399/2017 titled as Kishnakant Tamraku Vs. The State of Madhya Pradesh., the inactions of the Government and of the fact that in order to shut mouth of the leaders of the lawyers in order to directly or indirectly help the Government in passing the anti-lawyers legislatures such judgement was passed.
  • All BarAssociations/Advocates Associations, will hold the meeting of the general body, Therein they would discuss threadbare, what is the purport, what is the consequences of the judgment wherein not only the leader of the Bar rather every member of the Bar is going to be
  • Awareness drive on 17thSeptember 2018 be started, thereafter a resolution be passed that the democratic rights of Advocates cannot be throttled in any manner and the same will be handed over to the local Member of Parliament, local Collectors, District Judges and the State Bar Council will go to and meet and handover the same to the Chief Minister and to the Government.
  • After the joint meeting of 1stSeptember, 2018, upon reaching the Headquarters and Heads of the Institutions i.e. concerned State Bar Council Heads concerned State Bar Council office bearers will hold a press conference and the resolution taken on 1st September, 2018 be highlighted in the press media and electronic
  • There will be a nationwide agitation. There will be two steering committees, one will be a21 members Central Steering Committee and other a 15 State Member State Steering Committee. The State Bar Council in consultations with the member Bar Council of India, will form 15 Members steering committee of concerned State Bar Council to steer the agitation. The Committee will also include some Office bearer of some Bar Association.
  • The Central Steering Committee will include the members of Delhi Bar Council,NCR, Bar Associations Co-ordination Committees and will try to include most of the representatives of the State Bar Council. This committee will be constituted within one week.
  • A nationwide demonstration at/ from SupremeCourt to Parliament to be held.
  • The nationwide demonstration shall be held after Durga Puja in the month ofOctober, 2018.
  • For the benefit of the Advocates fraternity, anAdvocates Protection Act should be passed at the Central level and it should include provisions for Advocate’s Welfare.

The outcome of this tussle is yet to be seen, but all we can hope for is that whatever be the outcome, it is in the interest of all.

-Tushar Kaushik

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