Week 10 Right to Strike

Week 10
• RIGHT TO STRIKE
• Right to strike by lawyers is an oxymoronic phrase. The value of
expressing dissent is not frequently, but always, outweighed by the
values of duty which lawyers have towards the clients and the court.
• It would be fallacious to call this even a ‘debate’ owing to consistency
in approach of the Supreme Court in not attributing any such right on
the lawyers. On the contrary, Supreme Court has expressed its desire
to have regulations in place snubbing abuse of such practices.
• In this week, a preliminary literature on ‘right to strike’ by lawyers shall
be discussed. Interface of different values at play and how their mutual
interplay ensues in not having any right to strike by lawyers, shall also
be discussed.
Right to Strike Video
• https://www.youtube.com/watch?v=qJ7sl016-Hs
• https://www.youtube.com/watch?v=8r3AVUuhgcI
Those who live
by the law,
should keep
the law | The
Indian Express
Lawyers Cannot Go On Strike Or Abstain
From Judicial Works: Supreme Court
(From previous article)
• “Despite our cooperation, no concrete step has been taken to
arrest the police persons who fired at advocates, so there would
be complete, complete and complete abstinence from work
with all peaceful modes in all Delhi district courts. Our demand
was that the police officers who fired at the advocates be
arrested. The police officials opposed it. So we will continue
boycotting work," said Dhir Singh Kasana, general secretary of
the coordination committee of All District Courts Bar
Associations.” (Delhi Lawyers Strike 2019)
Right to Strike
• Compulsory Readings:
1. Common Cause Society v. Union of India AIR 2004 SC 4442
2. Sriram Panchu, ‘When Lawyers Stay Away From Courts’, (19th June,
2013), The Hindu (Could be retrieved at
http://www.thehindu.com/opinion/op-ed/when-lawyers-stay-away-from-
courts/article4827463.ece )
3. Ex-Capt. Harish Uppal v. Union of India (2003) 2 SCC 45
4. Law Comission Report 266 available at
http://lawcommissionofindia.nic.in/reports/Report266.pdf
Right to Strike- Directions- Common Cause
Society Case.
•"(1) In the rare instance where any association of lawyers including statutory Bar Councils considers
it imperative to call upon and/or advise members of the legal profession to abstain from appearing in
courts on any occasion, it must be left open to any individual member/members of that association
to be free to appear without let, fear or hindrance or any other coercive steps. (

•2) No such member who appears in court or otherwise practices his legal profession, shall be
visited with any adverse or penal consequences whatever, by any association of lawyers, and shall
not suffer any expulsion or threat of expulsion therefrom.

• (3) The above will not preclude other forms of protest by practicing lawyers in court such as, for
instance, wearing of armbands and other forms of protest which in no way interrupt or disrupt the
court proceedings or adversely affect the interest of the litigant. Any such form of protest shall not
however be derogatory to the court or to the profession.

•(4) Office-bearers of a Bar Association (including Bar Council) responsible for taking decisions
mentioned in clause (1) above shall ensure that such decisions are implemented in the spirit of what
is stated in clauses (1), (2) and (3) above."
Right to Strike
• A lawyer's duty is to boldly ignore a call for strike or
boycott of Court/s. Lawyers have also known, at
least since Roman Services' case, that the
Advocates would be answerable for the
consequences suffered by their clients if the non-
appearance was solely on grounds of a strike call.
• It must also be remembered that an Advocate is an
officer of the Court and enjoys special status in
society. Advocates have obligations and duties to
ensure smooth functioning of the Court. They owe a
duty to their client. Strikes interfere with
administration of justice. They cannot thus disrupt
Court proceedings and put interest of their clients in
jeopardy.
Right to Strike
• . In conclusion it is held 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 facts etc. It is
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 bodily refuse
to abide by any call for strike or boycott.
Right to Strike
• Thus a Constitution Bench of this Court has held that the Bar
Councils are expected to rise to the occasion as they are
responsible to uphold the dignity of Courts and majesty of law
and to prevent interference in administration of justice. In our
view it is the duty of Bar Councils to ensure that there is no
unprofessional and/or unbecoming conduct
• Section 38 of the Advocates Act provides that even in
disciplinary matters the final Appellate Authority is the Supreme
Court. Thus even if the Bar Councils do not rise to the occasion
and perform their duties by taking disciplinary action on a
complaint from a client against an advocate for non-appearance
by reason of a call for strike or boycott, on an Appeal the
Supreme Court can and will. Apart from this, as set out in
Roman Services' case, every Court now should and must act.
Advocates who hold Vakalats but still refrain from attending
Courts in pursuance of a strike call with costs.
 Right to Strike
• In our view, in exercise of the right to protest, a lawyer
may refuse to accept new engagements and may even
refuse to appear in a case in which he had already
been engaged, if he has been duly discharged from
the case.
• But so long as a lawyer holds the vakalat for his client
and has not been duly discharged, he has no right to
abstain from appearing in Court even on the ground of
a strike called by the Bar Association or any other
body of Ex-Capt. Harish Uppal vs Union Of India & Anr
on 17 December, 2002
Right to Strike
• If he so abstains, he commits a professional misconduct, a
breach of professional duty, a breach of contract and also a
breach of trust and he will be liable to suffer all the
consequences thereof. There is no fundamental right, either
under Article 19 or under Article 21 of the Constitution,
which permits or authorises a lawyer to abstain from
appearing in Court in a case in which he holds the vakalat
for a party in that case.
• On the other hand a litigant has a fundamental right for
speedy trial of his case, because, speedy trial, as held by
the Supreme Court in Hussainara Khatoon v. Home
Secretary, State of Bihar, (1980) 1 SCC 81: (AIR 1979 SC
1360) is an integral and essential part of the fundamental
right to life and liberty enshrined in article 21 of the
Constitution. Strike by lawyers will infringe the above-
mentioned fundamental right of the litigants and such
infringement cannot be permitted
Right to Strike

• in the name of a strike or otherwise,

no lawyer has any right to obstruct or
prevent another lawyer from
discharging his professional duty of
appearing in Court. If anyone does it,
he commits a criminal offence and
interferes with the administration of
justice and commits contempt of
Court and he is liable to be
proceeded against on all these
counts
Sriram Panchu,
‘When Lawyers
Stay Away
From Courts’-
CLASS to read
and discuss.
When lawyers stay away from Courts
• https://www.thehindu.com/opinion/op-ed/when-lawyers-stay-
away-from-courts/article4827463.ece
• CLASS to read and discuss.
•
When lawyers stay away from Courts
• The issue of whether lawyers can go on strike was dealt with by the Supreme
Court in Common Cause vs Union of India (AIR 2005 SC 4442). The Court
held that:
• a ) it is unprofessional for a lawyer to strike or boycott the court,
• b) bar associations should not permit meetings calling for such strikes or
boycotts, and such requisitions should be ignored,
• c) it is the duty of the State and National Bar Councils to take action against
striking bar associations and sponsors of boycotts,
• d) the Courts must hear matters posted before them undeterred by boycotts,
and
• e) it is only in the rarest of rare cases that abstention from court is justified,
such as dignity, integrity and independence of the Bar and Bench, and that
must be decided by the judge heading the Court, and even this must be only
for one day.
When lawyers stay away from Courts
• It is deeply ironical that lawyers should close down courts when they
have a vexed issue to deal with. Courts are after all the institutions
where complaints and grievances are taken for resolution, and
lawyers are the experts to provide dispute resolution services. It says
little for the confidence of the lawyers in their system, and
themselves, when they hold courts to ransom till their demands are
met.
When lawyers stay away from Courts
• that the ordinary legal processes will not bring the police to book.
They are wrong here; one well directed suit against specific police
officers for damages will have far more threat and deterrent value
than ten strikes. All the more so since boycotts, having become so
common, are not taken seriously by those in power, and peter out
without achievement.
When lawyers stay away from Courts

• The legal profession should be aware that

with each boycott we bring down further our
image in the eyes of the public, and our
claims of being a noble profession will ring
false if we close down, periodically and
without cause, the institution that protects
the rule of law and renders the service of
dispute resolution to the people.
3. Ex-Capt. Harish Uppal v. Union of India
(2003) 2 SCC 45
• . LOCAL ISSUES (raised by Bar Association re strikes)
• 1. Disputes between lawyer / lawyers and the police and other
authorities
• 2. Issues regarding corruption / misbehaviour of Judicial Officers
and other authorities.
• 3. Non filling of vacancies arising in Courts or non appointment of
Judicial Officers for a long period.
• 4. Absence of infrastructure in courts.
Ex-Capt. Harish Uppal v. Union of India (2003)
2 SCC 45
• II. ISSUES RELATING TO ONE SECTION OF THE BAR AND ANOTHER
SECTION
• 1. Withdrawal of jurisdiction and conferring it to other courts (both
pecuniary and territorial).
• 2. Constitution of Benches of High Courts. Disputes between the
competing District and other Bar Associations.
• III) ISSUES INVOLVING DIGNITY, INTEGRITY, INDEPENDENCE OF THE
BAR AND JUDICIARY.
• IV) LEGISLATION WITHOUT CONSULTATION WITH THE BAR COUNCILS.
• V) NATIONAL ISSUES AND REGIONAL ISSUES AFFECTING THE PUBLIC
AT LARGE/THE INSENSITIVITY OF ALL CONCERNED.
Ex-Capt. Harish Uppal v. Union of India (2003) 2 SCC 45

• The only exception to the general rule set

out above appears to be item (III). We
accept that in such cases a strong
protest must be lodged. We remain of the
view that strikes are illegal and that
Courts must now take a very serious view
of strikes and calls for boycott. However,
as stated above, lawyers are part and
parcel of the system of administration of
justice. A protest on an issue involving
dignity, integrity and independence of the
Bar and judiciary, provided it does not
exceed one day, may be overlooked by
Courts, who may turn a blind eye for that
one day.
Ex-Capt. Harish Uppal v.
Union of India (2003) 2 SCC
45
• But the right to appear and conduct cases in
the Court is a matter on which the Court must
and does have major supervisory and
controlling power. Hence Courts cannot be
and are not divested of control or supervision
of conduct in Court merely because it may
involve the right of an advocate. A rule can
stipulate that a person who has committed
contempt of Court or has behaved
unprofessionally and in an unbecoming
manner will not have the right to continue to
appear and plead and conduct cases in
Courts. The Bar Councils cannot overrule
such a regulation concerning the orderly
conduct of Court proceedings.
 Ex-Capt. Harish Uppal v. Union of India
(2003) 2 SCC 45
• In conclusion it is held 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 is 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. 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
Ex-Capt. Harish Uppal v. Union of India (2003)
2 SCC 45
• . It is 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
Law Commission of India- Advocates Act-
Report 266
• CHAPTER-VIII Supreme Court Judgements on Strike(pp 15-23) –
Reprehensible act.
• The Supreme Court had consistently been declaring that advocates do not
have a right to call for strikes and held that the lawyers’ strikes are illegal and
that effective steps should be taken to stop the growing tendency;
• The 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, Court must not
be privy to strikes or calls for boycotts. It was 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 in addition to
damages which he might have to pay his client for loss suffered by him.
Law Commission of India Report

The Supreme Court has held that right to speedy justice is included in article 21 of the
Constitution. In Hussainara Khatoon v. Home Secy., State of Bihar10; and in some other
cases, it was held that the litigant has a right to speedy justice. The lawyers’ strike,
however, result in denial of these rights to the citizens in the State.

if any advocate claims that his right to strike must be without any loss to him, but the loss
must only be borne by his innocent client, such a claim is repugnant to any principle of
fair play and canons of ethics. Therefore, when he opts to strike or boycott the Court he
must as well be prepared to bear at least the pecuniary loss suffered by the litigant client
Law Commission of India Report

The act of going on strike amounts to a

violation of an advocate’s duty as an
In view of the observations by the
officer of the court and his duty to
Courts, in the event of a strike, a court
maintain standards of professional
is not obliged to become complicit in
conduct and ethics. It also results in a
the illegality by adjourning the case for
violation of his agreement with the
the absence of counsel, it may
client. At the same time, it is also
proceed to pass orders ex parte
contempt of court and a violation of
the right of speedy trial for litigants.
Law Commission of
India Report
• The unacceptable trend of making false
allegations against judicial officers and humiliating
them requires to be curbed, otherwise the judicial
system would lose its credibility;
• 8.20 The legal profession requires the safeguarding
of moral standards. As an officer of the court, a
lawyer has a duty to the court towards his
profession and to the public. Since the prime duty
of a lawyer is to assist the court in dispensing
justice, the members of the Bar cannot behave in a
manner which is doubtful, or full of scruples or
which strives to thrive on litigation. Lawyers must
remember that they are to assist the court in the
administration of justice. If lawyers do not perform
their function properly, it would be degenerative to
the rule of law.