Do advocates have the right to strike
July 20, 2020
Table of Contents
·
Why do advocates go on strike?
·
What are the
arguments against the right to strike of advocate?
·
Courts in India against strike
·
Continuous violation of court
decisions
Introduction
The right of an advocate to strike is a topic that has been
hotly debated over decades and a positional essence of the arguments can be
gained from a report titled “Role of the Legal Profession in
Administration of Justice” by the Law Commission of India in 1988. In the
report, it was stated While on the one hand advocates aggressively demand the
right to strike on the other hand voluntary organization and judges among other
people maintain that advocates have no right to go on strike.
Why do advocates go on strike?
There are many reasons for advocates going on strike, some of
them have been mentioned here
1. When
there is some kind of conflict between advocates and investigating authority.
2. Corruption
or misbehavior of Judicial Officers.
3. Non-filling
of vacancies arising in Courts for a long period.
4. Withdrawal
of jurisdiction and conferring it to some other court.
5. Constitution
of Benches of High Courts.
6. Any law
passed by the parliament or State Legislative against the interest of the
advocates.
7.
When there is some issue of national or regional importance
which affects the public at large.
What are the arguments against the right to strike of
advocate?
Advocates are officers of the court and they have a high
standing in society but they also have some obligations and duties to ensure
the smooth functioning of the courts. They owe a duty towards their client and
court, they cannot use the strike to blackmail them. In Krishnakant Tamrakar vs State of Madhya Pradesh Supreme
Court rightly pointed out that every strike, causes non reversible damage to
the judicial system, particularly to the litigants.
At present, there are 3.3 crore cases pending in the various
courts in this country and these strikes add fuel to the fire. The Law
Commission in one of its reports statistically demonstrated how strikes add to
the number of pending cases. Between 31st December 1987 and
30th June 1988, almost all advocates in the capital were on strike.
The pending number of cases on 31st December 1987 (at the start of the strike)
in the Supreme Court of India, was 1,75,748 and this number rose to 1,85,950 by
the end of the strike on the 30th of June 1988. There was thus an increase of
10,202 in the pending number of cases in a period of six months. If this number
was compared with the previous graph of increasing in a pending number of
cases, it can be easily found that sudden rise is purely attributable to the
strike of the advocates.
Strikes by advocates infringe fundamental right of the litigants
of speedy trial. In the case of Hussainara
Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 81 the
Supreme Court of India held that the right to a speedy trial is a fundamental
right under Article 21. Moreover
strike by advocate leads to wastage of valuable time of the court and hard
earned money of tax-payers. These strikes also lower the image.
It should be noted that in most of the case where advocate goes
on strike there are various existing legal remedy available to them and even if
there is no legal remedy available, instead of paralyzing the court, advocates
may use the other methods to strike like giving interviews press statements,
wearing black or white or any color armbands, peaceful protest marches outside
and away from Court premises, etc.
Courts in India against strike
B.L. Wadhera vs State (National Capital Territory of 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
1. Bar on
strike does not give an excuse to the advocate to not discharge his activities.
2. 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.
3. If
there is a chance that the client will not be able to make alternative
arrangements then the advocates should make sure to appear in court.
4. If an
advocate(s) decides to go to court despite the strike then by any means he
cannot be intimidated to not go.
5. If an
advocate does not follow the strike then no disciplinary action can be taken
against him.
6. A
judicial officer cannot be threatened while performing his
duties.
7. In a
rare circumstance, the court may agree to give a collective adjournment if the
reason for the strike is justified and the strike is of a shorter
period.
8. If an
advocate wants to present his case even if the court has agreed for
collective adjournment, then it is the duty of the court to hear the advocate.
9. A court
shall never review a case in which ex parte decision has been given by court
due to strike by an advocate.
10.
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.
Harish Uppal vs
Union of India on 17 December, 2002
The petitioner, in this case, was an ex-army officer. In 1972
petitioner was posted in Bangladesh, where some embezzlement related accusation
was put on him and he was brought to the army court in India, where charges
against him were framed and he was court-martialed from his post and titles
along with imprisoned for 2 years.
He filed a pre-confirmation application in a civil Court to
review the matter and he received a reply from the court after a long period of
11 years, when the limitation period of the review has expired. It was later
found that documents along the application got misplaced during a violent
strike by advocates. A special petition was filed by the petitioner to declare
strikes by advocates illegal.
After analyzing the whole matter, Supreme Court of
India came up with the conclusion that
1. Strike
by the advocate is unlawful.
2. A
strike will only be permitted in rarest of the rare cases where integrity,
respect, and working of the bar is at the stake.
3.
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.
Ramon Services
Pvt. Ltd vs Subhash Kapoor And Others on 14 November, 2000
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 case was posted on trial on 26.8.1998.
On the day of the trial, none of the advocates from the law firm which was
appointed by the appellant were present in the court as advocates of that firm
were engaged in the strike called by advocate association. The court listed the
matter on some other date but on that day also no advocate was present and
hence the court gave an ex parte decision against the appellant company.
Under order 7 rule 13 of the Code of Criminal Procedure appellant
approached the trial court for dismissal of the ex parte decision of the court
but the plea was dismissed by the trial court. The latter appellant approached
the high court for the dismissal of the appeal but that was also dismissed. Finally,
appellant approached the Supreme Court of India where the Supreme Court of
India held that if a strike attorney is not present and the court gives ex
parte decision then any loss occurred by the all such expenses would be paid by
the attorney or the law firm which he represents.
Bar council of India
Section 35 of
the Advocate Act gives the Bar Council of India the power
to form a disciplinary committee against an advocate if it has reason to
believe that the advocate was guilty of professional or other misconduct.
In Common Cause a Registered Society v. Union of India and
Supreme court of India very clearly stated that if any association of advocate
call for a strike, the bar council of India must take stringent action against
such association.
In the Ex-Capt. Harish Uppal v Union of India the Supreme court
of India made it clear that no Bar Association has power to call for
strike.
In a case before the Delhi High Court Bar Council of India
cleared it stance regarding strikes by advocates, bar council of India stated
that it is against strike except in the cases of rarest of rare cases
where question regarding dignity and independence of the judiciary involves
and whenever strikes becomes inevitable, all efforts should be put in the
force to keep strike short and peaceful to avoid causing hardship to the
litigant public.
In Praveen Pandey v. State of Madhya Pradesh court
held State Bar Council cannot call upon Advocates in the State to observe
a week-long protest to abstain from all judicial works and it is unlawful and
against the statutory provisions as well as contrary to the judgments of the
Supreme Court to do so.
Continuous violation of court decisions
Despite the fact that courts have given various decisions
against strikes caused by advocates but advocates have continued unabated
violations of court decisions. On 23rd March 2017 Law Commission of India released
its 266th report, mentioning various statistical data to show how strikes
by advocates have continued despite court decisions against it.
|
STATES |
DISTRICT |
NUMBER OF STRIKES DAYS BETWEEN
2012 TO 2016 |
|
UTTAR PRADESH |
MUZAFFARNAGAR |
791 days |
|
|
FAIZABAD |
689 days |
|
|
SULTANPUR |
594 days |
|
|
VARANASI |
547 days |
|
|
CHANDAULI |
529 days |
|
|
AMBEDKAR NAGAR |
511 days |
|
|
JAUNPUR |
510 days |
|
|
SAHARANPUR |
506 days |
|
TAMIL NADU |
KANCHEEPURAM |
687 days |
|
|
KANYAKUMARI |
585 days |
|
|
MADURAI |
577 days |
|
|
SIVAGANGAI |
408 days |
|
|
CUDDALORE |
461 days |
|
UTTARAKHAND |
HARIDWAR |
515 days |
|
|
DEHRADUN |
455 days |
|
RAJASTHAN |
JODHPUR |
142 days |
Conclusion
It is cent per cent right to say that litigants are invaluable
to the courts but so are the advocates, the courts cannot leave advocates in
the dark. It should make sure to take part in the solving of the dispute and
problems of the advocates. Some steps which may help in reducing the strikes of
advocates are as follows:
·
District Judge at every district headquarter may constitute an
Advocates’ Grievance Redressal Committee headed by a Judicial Officer to deal
with routine problems faced by advocates in their day to day functioning.
·
In order to avoid a clash between police and advocate, a
practice may be adopted that before the arrest of an advocate, the president of
the bar association or some senior judge at that place may be consulted.
· In a
case where the legislative wing of the state is going to enact a new law or
amendment to the existing law which may affect the legal profession then the
state may consult representatives of the legal profession and take their views
into consideration.
No comments:
Post a Comment