Professional Ethics CASE

CASENOTE:
In Re: Harish Uppal Vs Union Of India

Court- In The Supreme Court Of India
Jurisdiction- Constitutional Writ Jurisdiction
Case No.- Writ Petition (Civil) 132 Of 1988
Bench- Justice G.B.Pattanaik Cji, M.B.Shah, Doraiswamy Raju, S.N.Variava,
D.M.Dharmadhikari
Respondent - Satya Mitra Garg
Petitioner – Petitioner In Person
INTRODUCTION:
Right to strike is a Fundamental Right as provided under Article 19(1)(c) of the Indian
Constitution. Under the umbrella of this Freedom Advocates also go on to strike. This
right of strike of Advocates is always in question and debated hotly. An advocate is
considered as the person who helps people to achieve justice. And this right of
advocate to go on strike usually strive general public from getting Justice. It is usually
said that Bar Association have no right to strike and boycott courts. Judiciary is the
third pillar of Democracy. And this right of strike of advocates many a times have led
to conflict between Bar and the Bench. There have been many judgements regarding
this matter and for this research paper I am going to deal with one of the landmark
judgements which is “Ex-Capt. Harish Uppal v. Union of India1”. And in between all
these conflicts only and only the Justice seekers are really suffering which we can also
find in this particular case. Though many attempts from time to time have been made
to resolve this problem but then also it exists till date. Both the Bar and the bench
share a common duty towards each other as if Bar have the duty to be courteous so as
it is the duty of the court to be courteous and listen to the problems of its members 2.
FACTS OF THE CASE
1
(2003) 2 SCC 45.
2
AR Rastogi and SS Srivastava, 'Is there a right to strike?’, 2015.
1
The petitioner (Harish Uppal) was a retired army officer. He was posted in Bangladesh during
the 1971 Liberation war. In 1972, he was court-martialed and then arrested due to allegations
of embezzlement and certain other irregularities. He was sentenced to two years of
imprisonment and was dismissed from his post. He filed a review application in Court, but to
no avail. He then filed a post-affirmation application again for which there was no reply. He
finally received a reply after 11 years. Till then, the time period of the review had expired. It
was later discovered that the documents and all the review applications had got misplaced due
to a strike by a group of advocates as a result of which there was a delay. In response to this,
he filed a writ petition in the Supreme Court to declare that the strikes by law advocates are
unlawful.
ARGUMENTS ADVANCED BY THE RESPONDENT

The learned Counsel appearing for the respondents submitted that the advocates have the right
to go on strikes, and it is up to the Bar Councils to decide whether a strike by advocates should
be done or not.
.
ARGUMENTS ADVANCED BY THE PETITIONER

The petitioner submitted that advocates are officers of the Court and should not be allowed to
use strikes as a means to blackmail or extort the Courts. He further contended that advocates
who commit contempt of Court by boycotting the Courts and going on strikes should be made
to face serious consequences like getting debarred from practicing in any Court. It was
submitted that those committees who give a call for strikes, should be punished with contempt
proceedings. Lastly, he argued that if an advocate has accepted a Vakalat on behalf of a client,
he must appear in Court. Strikes done by advocates are usually to break the agreement between
their clients and not appear in Court. So the Bar Council must frame strict rules regarding this.
2
ISSUES RAISED:
• Whether advocates in India have the right to strike or boycott the Court?
• Whether a litigant should suffer a penalty because his advocate had boycotted the Court
pursuant to a strike call made by the association of which the Advocate was a member.
JUDGEMENT OF THE COURT IN BRIEF:

The Hon’ble Supreme court have held that the Advocates have no right to go for strike and this
act is an unlawful act. But in the Judgement court also held that in the rarest of the rare situations
it can be allowed and that too court have mentioned when such situation arises. Along with all
this it was held by the court that Advocates are the officers of the court and hence, if such
officers do acts like this then it will create a hurdle in the smooth functioning of the court and
also in the way of Justice. If Court have closed the door of strike for the advocates, then they
have also opened many other doors for them to show their disagreement which is discussed
under point number 3. And those things should also be done only if it does not affect functioning
of the court.
CONCLUSION
The Landmark judgement of Ex-Captain Harish Uppal gives a rough idea about the thinking of
Supreme Court. It is well evident from the past few years that if a small incident also happen
the Bar Association calls for strike. Just in the recent past in the Union Territory of Jammu and
Kashmir the Bar Council of Jammu went on strike to show its anger for the decision of the
union government in make Jammu and Kashmir as an UT and also demanded for the restoration
of Statehood. Just like that in Karnataka also in the year 2009 the prospective first women CJI
was locked up in the High court room by the group of protesting lawyers. And from these
incidents we can find out that it is very important to control the Advocates and stop them to
call for strike.
The above incidents also suggest that we need a proper law to have a proper mechanism to
solve the grievance of these aggrieved Advocates. The advocates have the right to demand
solutions of their problems but that too have to be asked in proper sophisticated manner with
the use of proper channel. And these strikes should not be done by keeping the rights to justice
3
of their clients at stake. As it is the normal public who will be suffering the most at last and due
to these kinds of strikes the courts proceedings gets disturbed and the just delivery get delayed.
It is also a big truth that advocates are the person who are responsible for the functioning of the
court and that if they are kept in dark by the court or the authorities then they also have the
right to speak and express their concerns. The statutory provisions are inadequate to deal with
such matter and the advocates who are master in this profession have to take up their matter on
their own no matter who will suffer in this time period. And hence we require a proper law
which will not take away rights from the advocates and also not make the court functioning
suffer.

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CASENOTE:

In Re: Harish Uppal Vs Union Of India

FACTS OF THE CASE

ARGUMENTS ADVANCED BY THE RESPONDENT

ARGUMENTS ADVANCED BY THE PETITIONER

JUDGEMENT OF THE COURT IN BRIEF:

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