Whether lawyers have a right to strike and/or give a call for boycotts of Court/s.

Whether lawyers have a right to strike and/or give a call for boycotts of Court/s.

1. Constitution Bench of the Hon’ble Supreme Court in Ex-Capt. Harish Uppal vs Union of India & Anr. (Writ Petition (civil) 132 of 1988)DATE OF JUDGMENT: 17/12/2002 held thus:

“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 is held that lawyers holding Vakalats on behalf of their clients cannot 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. 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 is 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 is 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 is being 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. It is 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 is held that if a lawyer, holding a Vakalatnama 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. It is now hoped that with the above clarifications, there will be no strikes and/or calls for boycott. It is hoped that better sense will prevail and self restraint will be exercised”.

2. Contempt Petition (Civil)  550    of   2015 (Common Cause   vs Abhijat & Ors) is pending before the Supreme Court of India.

3. Law Commission of India has submitted its 266th report titled ‘The Advocates Act, 1961 (Regulation of Legal Profession) suggesting drastic changes in the Advocates Act, 1961 to the Government. The Law Commission of India has proposed widespread amendments in the Advocates Act, 1961 with a view to facilitate initiation of taking forward reforms in the legal profession. The Commission observed that unless there are compelling circumstances and the approval for a symbolic strike of one day is obtained from the Bar Council concerned, the advocates shall not resort to strike or abstention from the court work.

 The Law Commission has also placed before the Government The Advocates (Amendment) Bill, 2017. A new Section 35 states:

 “No association of advocates or any member of the association or any advocate, either individually or collectively, shall, give a call for boycott or abstinence from courts’ work or boycott or abstain from courts’ work or cause obstruction in any form in court’s functioning or in court premises”.

The Bill has also proposed a definition of Misconduct, which was missing in the Advocates Act.

‘misconduct’ includes-an act of an advocate whose conduct is found to be in breach of or non- observance of the standard of professional conduct or etiquette required to be observed by the advocate; or forbidden act; oran unlawful behaviour;or disgraceful and dishonourable conduct; or neglect; or not working diligently and criminal breach of trust;or any of his conduct incurring disqualification under section 24A.

In case of proved misconduct BCI can impose a fine which may extend of rupees 3 Lakhs and cost of proceedings.

 4. The Bar Council of India Chairman Manan Kumar Mishra has written to the Law Commission withdrawing the recommendations made by the BCI regarding proposed amendments to the Advocates Act. Manan Kumar Mishra in his letter to the Chairman of Law Commission of India, Justice BS Chauhan, stated that:

“A deliberation will take place with the members of the Co-ordination committee and thereafter, the recommendation will be sent. At the same time, through some news clippings, I have come to know that the Commission has made certain recommendations with regard to the Disciplinary Committee Proceedings and it has recommended that in such committee the government should nominate other people excluding members of the Bar and/or their bodies’ representatives will not be there to try their case relating to the disciplinary action against the lawyers. If there is any such proposal, I humbly request your good self to reconsider the same and strengthen the institution of legal fraternity. The outsiders’ interference in the matters of advocates may invite nationwide protests, so it is my request to consider this aspect of the matter.”