TMI Blog2002 (12) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... g discussion by giving TV interviews and press statements - If action is required to be taken on the grievances made by the advocates it should be immediately taken - strike by advocate/advocates would be considered interference with the administration of justice and advocate/advocates concerned may be barred from practicing before courts in a district or in the High Court - 132 of 1988 , 394 of 1993, 821 of 1990, 320 of 1993 and 406 of 2000 - - - Dated:- 17-12-2002 - G.B. Pattanaik, CJI., M.B. Shah, Doraiswamy Raju, S.N. Variava and D.M. Dharmadhikari, JJ. REPRESENTED BY : Soli J. Sorabjee, Attorney-General, Dipankar Gupta, Shanti Bhushan, Kailash Vasdev, V.R. Reddy, M.N. Krishnamani, P.P. Rao, R.K.P. Shankardass, Mahati M. Parkeday, P.S. Mishra, Amarendra Sharan, K. Subramanium, C.S. Vaidyanathan, G.L. Sanghi, Upender K. Jallali, S.S. Lehar, Gopal Subramanium, R.K. Jain, P.N. Misra and Jagdeep Dhankhar, Senior Advocates, Dr. Harish Uppal, in person, Prashant Bhushan, Vishal Gupta, Sanjeev Kapoor, Narendra Verma, S.K. Pathak, Anil Kr. Mittal, Ms. Kamini Jaiswal, A.K. Nigam, S. Bakshi, Ms. Aishwarya Rao, Sanjeev Mahajan, G.G. Upadhyay, Syed Ali Ahmad, Syed Tanweer Ahmad, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is sought that such strikes and/or calls for boycott are illegal. As the questions vitally concerned the legal profession, public notices were issued to Bar Associations and Bar Councils all over the country. Pursuant to those notices some Bar Associations and Bar Councils have filed their responses and have appeared and made submissions before us. 2. In Writ Petition (C) No. 821 of 1990, an interim order came to be passed. This Order is reported in Common Cause, A. Regd. Society v. Union of India (1995) 1 SCALE p.6. The circumstances under which it is passed and the nature of the interim order are set out in the Order. The relevant portion reads as under : 2. The Officiating Secretary, Bar Council of India, Mr. C.R. Balaram filed an affidavit on behalf of the Bar Council of India wherein he states that a National Conference of members of the Bar Council of India and State Bar Councils was held on 10-9-1994 and 11-9-1994 and a working paper was circulated on behalf of the Bar Council of India by Mr. V.C. Misra, Chairman, Bar Council of India, inter alia on the question of strike by lawyers. In that working paper a note was taken that Bar Associations had proceeded on str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 practising 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. 3. Mr. P.N. Duda, Senior Advocate representing the Bar Council of India was good enough to state that he will suggest to the Bar Council of India to incorporate Clauses (1), (2), (3) and (4) in the Bar Council of India (Conduct and Disciplinary) Rules, so that it can have statutory support should there be any violation or contravention of the aforementioned four clauses. The sugge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislation. Mr. Gupta submitted that the law was well established. He pointed out that this Court has declared that strikes are illegal. He submitted that even a call for strike is bad. He submitted that it is time that the Bar Council of India as well as various State Bar Councils monitor strikes within their jurisdiction and ensure that there are no call for strikes and/or boycotts. He submitted that in all cases where redressal can be obtained by going to a Court of law there should be no strike. 5. Mr. Nigam, on behalf of the Petitioner in Writ Petition (C) No. 406 of 2000, submitted that strike as a means for collective bargaining is recognised only in industrial disputes. He submitted that lawyers who are officers of the Court cannot use strikes as a means to blackmail the Courts or the clients. He submitted that the call for strike by lawyers is in effect a call to breach the contract which lawyers have with their clients. He submitted that it has already been declared by Courts that a strike is illegal. He submitted that it is now time that Courts cast responsibility on the Bar Councils and the Bar Associations to see that there is no strike and/or call for boycott. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nital and the Supreme Court Bar Association. Counsels for the Bar Councils and Bar Associations submitted that they were not in favour of strikes and/or call for strikes. Many of them stated that their Associations had not gone on strike at all and/or only on token strikes of not more than one day. The consensus at the Bar was that lawyers cannot and should not resort to strike in order to vent their grievances where a legal remedy was available. The consensus at the Bar was that even where a legal remedy was not available strike should be resorted to in the rarest of rare cases like when the dignity of the Court or the Bar was at stake. The consensus was that even in such cases only a token strike of one day may be resorted to. The consensus was that other methods of protests must be resorted to, viz. passing of resolutions, making representations, taking out silent processions without causing disturbance to Court work, holding dharnas or relay fast and wearing white ribbons. The consensus of the Bar was that there must be a mechanism for redressing the grievances of the lawyers. It was suggested that the Committees be set up to whom grievances can be submitted. 8. It must howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose should be to register a protest and not to paralyse the system. He suggested that alternative forms of protest can be explored, e.g., giving press statements, TV interviews, carrying banners and/or placards, wearing black armbands, peaceful protest marches outside court premises etc. He submitted that abstention from work for the redressal of a grievance should never be resorted to where other remedies for seeking redressal are available. He submitted that all attempts should be made to seek redressal from the authorities concerned. He submitted that where such redressal is not available or not forthcoming, the direction of the protest can be against that authority and should not be misdirected e.g. in cases of alleged police brutalities, Courts and litigants should not be targeted in respect of actions for which they are in no way responsible. He agreed that no force or coercion should be employed against lawyers who are not in agreement with the strike call and want to discharge their professional duties. The learned Attorney-General relied upon the following observations of a Full Bench of the Kerala High Court in the case of Bharat Kumar K. Palicha v. State of Kerala - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in entertaining the revision petition and passing an order of stay. Following the ratio laid down in Lt. Col. S.J. Chaudhary case, this Court held as follows : 15. This is not a case where the respondent was prevented by the Additional District Judge from addressing oral arguments, but the respondent s counsel prevented the Additional District Judge from hearing his oral arguments on the stated cause that he decided to boycott that Court forever as the Delhi Bar Association took such a decision. Here the counsel did not want a case to be decided by that Court. By such conduct, the counsel prevented the judicial process to have flowed on its even course. The respondent has no justification to approach the High Court as it was the respondent who contributed to such a situation. 16. If any counsel does not want to appear in a particular court, that too for justifiable reasons, professional decorum and etiquette require him to give up his engagement in that court so that the party can engage another counsel. But retaining the brief of his client and at the same time abstaining from appearing in that court, that too not on any particular day on account of some personal inconvenien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The protection to the judges/judicial officer/authority is not personal but accorded to protect the institution of the judiciary from undermining the public confidence in the efficacy of judicial process. The protection, therefore, is for fearless curial process. Any scurrilous, offensive, intimidatory or malicious attack on the judicial officer/authority beyond condonable limits, amounts to scandalising the court/tribunal amenable to not only conviction for its contempt but also liable to libel or defamation and damages personally or group libel. Maintenance of dignity of the court/judicial officer or quasi-judicial authority is, therefore, one of the cardinal principles of rule of law embedded in judicial review. Any uncalled for statement or allegation against the judicial officer/statutory authorities, casting aspersions of court s integrity or corruption would justify initiation of appropriate action for scandalising the court or tribunal or vindication of authority or majesty of the court/tribunal. The accusation of the judicial officer or authority or arbitrary and corrupt conduct undermines their authority and rudely shakes them and the public confidence in proper dispen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir exemplary conduct both in and outside the Court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practise it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible. The Delhi High Court then considered various other authorities of this Court, including some set out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ude the right to discontinue such profession or occupation but it will not include any right to abstain from appearing in Court while holding a vakalat in the case. Similarly, the exercise of the right to protest by the lawyers cannot be allowed to infract the litigant s fundamental right for speedy trial or to interfere with the administration of justice. The lawyer has a duty and obligation to cooperate with the Court in the orderly and pure administration of justice. Members of the legal profession have certain social obligations also and the practice of law has a public utility flavour. According to the Bar Council of India Rules, 1975 an Advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar or for a member of the Bar in his non- professional capacity, may still be improper for an Advocate . It is below the dignity, honour and status of the members of the noble profession of law to organize and participate in strike. It is unprofessional and unethical to do so. In view of the nob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the Commission of Inquiry and the directions being issued in this case. 18. In our view the conclusions reached are absolutely correct and the same need to be and are hereby approved. 19. Thereafter in the case of Ramon Services Pvt. Ltd. v. Subhash Kapoor reported in (2001) 1 SCC 118, the question was 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. In answer to this question it has been held that when an advocate engaged by a party is on strike there is no obligation on the part of the Court to either wait or adjourn the case on that account. It was held that this Court has time and again set out that an advocate has no right to stall court proceedings on the ground that they have decided to go on a strike. In this case it was noted that in Mahabir Prasad s case, it has been held that strikes and boycotts are illegal. That the lawyers and the Bar understood that they could not resort to strikes is clear from the statement of Senior Counsel Shri Krishnamani which this Court recorded. The statement is as follows : 13. Shri Krishamani, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ethics. So when he opts to strike work or boycott the court he must as well be prepared to bear at least the pecuniary loss suffered by the litigant client who entrusted his brief to that advocate with all confidence that his cause would be safe in the hands of that advocate. 16. In all cases where the court is satisfied that the ex parte order (passed due to the absence of the advocate pursuant to any strike call) could be set aside on terms, the court can as well permit the party to realise the costs from the advocate concerned without driving such party to initiate another legal action against the advocate. 17. We may also observe that it is open to the court as an alternative course to permit the party (while setting aside the ex parte order or decree earlier passed in his favour) to realise the cost fixed by the court for the purpose, from the counsel of the other party whose absence caused the passing of such ex parte order, if the court is satisfied that such absence was due to that counsel boycotting the court or participating in a strike. (emphasis supplied) 20. Thus the law is already well settled. It is the duty of every Advocate who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice are protected by the law and are shielded by the law to discharge those duties, the advocates in return have duty to protect the courts. For, once conceded that lawyers are above the law and the law courts, there can be no limit to lawyers taking the law into their hands to paralyse the working of the courts. In my submission , he said that it is high time that the Supreme Court and the High Court make it clear beyond doubt that they will not tolerate any interference from anybody or authority in the daily administration of justice. For in no other way can the Supreme Court and the High Court maintain the high position and exercise the great powers conferred by the Constitution and the law to do justice without fear or favour, affection or ill-will. 22. It was expected that having known the well-settled law and having seen that repeated strikes and boycotts have shaken the confidence of the public in the legal profession and affected administration of justice, there would be self regulation. The abovementioned interim Order was passed in the hope that with self-restraint and self-regulation the lawyers would retrieve their profession from lost social respect. The hope has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fessional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that advocate by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of each case. The learned Solicitor General informed us that there have been cases where the Bar Council of India taking note of the contumacious and objectionable conduct of an advocate, had initiated disciplinary proceedings against him and even punished him for professional misconduct , on the basis of his having been found guilty of committing contempt of court. We do not entertain any doubt that the Bar Council of the State or Bar Council of India, as the case may be, when apprised of the established contumacious conduct of an advocate by the High Court or by this Court, would rise to the occasion, and take appropriate action against such an advocate. Under Article 144 of the Constitution all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court . The Bar Council which performs a public duty and is charged with the obligation to protect the dignity of the profession and maintain professional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cence or debarring him to practise as an advocate. In a case of contemptuous, contumacious, unbecoming or blameworthy conduct of an Advocate-on-Record, this Court possesses jurisdiction, under the Supreme Court Rules itself, to withdraw his privilege to practise as an Advocate-on-Record because that privilege is conferred by this Court and the power to grant the privilege includes the power to revoke or suspend it. The withdrawal of that privilege, however, does not amount to suspending or revoking his licence to practice as an advocate in other courts of tribunals. 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. This being their duty no Bar Council can even consider giving a call for strike or a call for boycott. It follows that the Bar Councils and even Bar Associations can never consider or take seriously any requisition calling for a meeting to consider a call for a strike o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 29. At the meeting it is then resolved as follows : RESOLVED to constitute Grievances Redressal Committees at the Taluk/Sub Division or Tehsil level, at the District level, High Court and Supreme Court levels as follows :- (I) (a) A committee consisting of the Hon ble Chief Justice of India or his nominee, Chairman, Bar Council of India, President, Supreme Court Bar Association, Attorney General of India. (b) At the High Court level a Committee consisting of the Hon ble Chief Justice of the State High Court or His nominee, Chairman, Bar Council of the State, President or Presidents High Court Bar Association, Advocate General, Member, Bar Council of India from the State. (c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on etc. (VII) It is resolved further that in case the Bar Associations deviate from the above resolutions and proceed on cessation of work in spite of or without the decision of the concerned Grievances Redressal Committee except in the case of emergency the Bar Council of the State will take such action as it may deem fit and proper, the discretion being left to the Bar Council of the State concerned as to enforcement of such decisions and in the case of an emergency the Bar Association concerned will inform the State Bar Council. The Bar Council of India resolves that this resolution will be implemented strictly and the Bar Associations and the individual members of the Bar Associations should take all steps to comply with the same and avoid cessation of the work except in the manner and to the extent indicated above. 30. Whilst we appreciate the efforts made, in view of the endemic situation prevailing in the country, in our view, the above resolutions are not enough. It was expected that the Bar Council of India would have incorporated clauses as those suggested in the interim Order of this Court in their disciplinary rules. This they have failed to do even now. What is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned about such things but there can be no justification to paralyse administration of justice. In such cases representations can and should be made. It will be for the appropriate authority to consider those representations. We are sure that a representation by the Bar will always be seriously considered. However, the ultimate decision in such matters has to be that of the concerned authority. Beyond making representations no illegal method can be adopted. At the most, provided it is permissible or feasible to do so, recourse can be had by way of legal remedy. So far as problems concerning Courts are concerned we see no harm in setting up Grievance Redressal Committees as suggested. However, it must be clear that the purpose of such Committees would only be to set up a forum where grievance can be ventilated. It must be clearly understood that recommendations or suggestions of such Committees can never be binding. The deliberations and/or suggestions and/or recommendations of such Committees will necessarily have to be placed before the appropriate authority viz. the Chief Justice or the District Judge concerned. The final decision can only be of the Chief Justice concerned or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, from appearing before the Courts. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of Bar Councils. It would be concerning the dignity and orderly functioning of the Courts. The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for clients before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts done by an advocate during his practice. He may even file Vakalat on behalf of client even though his appearance inside the court is not permitted. Conduct in Court is a matter concerning the Court and hence the Bar Council cannot claim that what should happen inside the Court could also be regulated by them in exercise of their disciplinary powers. The right to practise, no doubt, is the genus of which the right to app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act clearly show that there is no absolute right to an Advocate to appear in a Court. An Advocate appears in a Court subject to such conditions as are laid down by the Court. It must be remembered that Section 30 has not been brought into force and this also shows that there is no absolute right to appear in a Court. Even if Section 30 were to be brought into force control of proceedings in Court will always remain with the Court. Thus even then the right to appear in Court will be subject to complying with conditions laid down by Courts just as practice outside Courts would be subject to conditions laid down by Bar Council of India. There is thus no conflict or clash between other provisions of the Advocates Act on the one hand and Section 34 or Article 145 of the Constitution of India on the other. 35. 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, go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an any justice. Sufferer is the society-public at large. 38. On occasions the result is - violence or excess use of force by the administration. Mostly the target is to damage public properties. 39. Further, strike was a weapon used for getting justice by downtrodden, poor persons or industrial employees who were not having any other method of redressing their grievances. But by any standard, professionals belonging to a noble profession who are considered to be an intelligent class, cannot have any justification for remaining absent from their duty. The law laid down on the subject is succinctly referred to in the judgment rendered by Brother Variava, J. 40. However, by merely holding strikes as illegal, it would not be sufficient in the present-day situation nor serve any purpose. The root cause for such malady is required to be cured. It is stated that resort to strike is because the administration is having deaf ears in listening to the genuine grievances and even if grievances are heard appropriate actions are not taken. To highlight therefore, the cause call for strike is given. In our view, whatever be the situation in other fields lawyers cannot claim or justify to go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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