Your SlideShare is downloading. ×
Lawyers Strike for Professional Ethics Class
Upcoming SlideShare
Loading in...5
×

Thanks for flagging this SlideShare!

Oops! An error has occurred.

×

Introducing the official SlideShare app

Stunning, full-screen experience for iPhone and Android

Text the download link to your phone

Standard text messaging rates apply

Lawyers Strike for Professional Ethics Class

954
views

Published on

Lawyers Strike for Professional Ethics Class

Lawyers Strike for Professional Ethics Class

Published in: Education

1 Comment
2 Likes
Statistics
Notes
No Downloads
Views
Total Views
954
On Slideshare
0
From Embeds
0
Number of Embeds
0
Actions
Shares
0
Downloads
26
Comments
1
Likes
2
Embeds 0
No embeds

Report content
Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
No notes for slide

Transcript

  • 1. LAWYER’S STRIKE – BASED UPON OPINOIN OF VARIOUS JURISTS THE `STRIKE' is a weapon of social justice for the powerless against the powerful to be used as a last resort when no other option is available. Used by the trade union movement to withhold their `labour' power to get `just' terms and by Gandhi as a non- violent protest against imperial rule, it is not a trivial pursuit to be used by the powerful to demonstrate their strength or as a weapon of blackmail or to perpetuate injustice. Even if judges are legally but not always morally right, judicial pronouncements are a useful moral prelude to introduce a public discussion on controversial matters. Over the last century and a half, High Court and Supreme Court judges have evolved various principles in relation to lawyers' strikes both by judicial administrative practice. LAWYERS’ RIGHT TO STRIKE An advocate, being a privileged and erudite person, needs to regulate his acts and conduct for they have a huge impact on the society. Members belonging to this profession become role models for the society and it is their duty to strive and secure justice for people. It is their duty to maintain a healthy relationship between the Bar and Bench in order to uphold the credibility and reputation which is associated with the profession. While lawyers are considered as harbingers and guards against an autocratic society, yet they are not allowed to gather and voice their opinion. Being of the view that their strike comes in the way of delivering justice to the already suffering litigant, the Supreme Court gave a categorical finding in 2002 holding that lawyers had no right to strike and any such strike or declaration was illegal requiring action against the errant individuals. Several Petitions raise the question whether lawyers have a right to strike and/or give a call for boycotts of Court/s. In all these Petitions a declaration is sought that such strikes and/or calls for boycott are illegal. In B.L.Wadehra v. State AIR 2000, the Court held that if on the ground of strike a lawyer abstains from appearing in court in a case in which he holds a vakalatnama from a client, he is conducting professional misconduct, a breach of contract, breach of trust and a breach of professional duty. To begin with are the principles arising out of the lawyer-client relationship. These may be stated as follows: Principle I: Lawyers are in breach of their legal, moral and professional obligations towards their client if they accept a case and fail to appear in court. Principle II: The fact that the Bar Association has called a strike prohibiting lawyers to appear in any court is not a sufficient reason for any lawyer to fail to discharge his obligation towards the client to appear in a case. Principle III: Where a lawyer has decided not to appear for a client due to a strike call, he must return the clients fees and brief with sufficient and reasonable notice to the client to enable the latter to make alternative arrangements. Principle IV: Where the lawyer has sufficient cause to believe that, because of the strike or otherwise, the client will be unable to make alternative arrangements, it is his professional duty to appear in that case despite the call for a `strike'. PIYUSH GUPTA, 3RD SEM KGK COLLEGE, MORADABAD
  • 2. LAWYER’S STRIKE – BASED UPON OPINOIN OF VARIOUS JURISTS Principle V: Where a lawyer uses his professional judgment to appear in a case during a strike call, no one can intimidate, coerce or threaten him not to do so. Principle VI: Where a lawyer ignores a strike call to appear in a case, no professional body shall take any disciplinary or punitive steps to victimise that lawyer for breaking the strike call - not even, perhaps, to issue a notice to elicit information by way of an explanation. These `principles', which arise out of the lawyer-client relationship, are to be read along with the principles protecting the public interest in the continued functioning of courts, which include: Principle VII: Courts are instituted to dispense justice; and cannot be prevented from doing so by a strike call by lawyers. Nor can judges who are members of a Bar association or lawyers' collectivity be intimidated, coerced or threatened by disciplinary action or otherwise, if they decide to hold court during a strike call. Principle VIII: In rare circumstances, where the courts may, sub silentio, feel that a strike is justified; and/or it is a symbolic one-day or short duration strike, the Courts may agree to an `arrangement' of permitting adjournments through proxy counsel appointed by the Bar. (The first part of this principle flows from the Common Cause case (1995); and, the second part from the practice of various courts, including the Supreme Court, to permit proxy counsel in some cases. It is not clear in what cases this latter indulgence of `proxy' counsel would not be permitted). Principle IX: In the event of a counsel wishing to argue a matter, or the Court taking the view that it is in the interest of justice to do so, the Court shall proceed to hear and decide the matter. Principle X: The Courts will not normally review a decision in a case where lawyers did not appear because of a strike, but where the Court decided the matter on the insistence of, and arguments by, a party in person. It is hypocritical that advocates, who represent the elite of society & who are supposed to be the defenders of legal values, should openly flout the law by defying the verdicts of the Supreme Court. Such conduct is symptomatic of the utter lawlessness that our Society has degenerated into in all walks of life rues the author and claims that stern action ought to be taken against the perpetrators for contempt of court In Harish Uppal vs. UOI (2003) 2 SCC 45, the Supreme Court lashed out at lawyers for going on strike. One can’t do better than to quote from what the judges said: “The lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The protest, if any as required, can only be by giving press statements, T.V. interviews, carrying out-of-Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protest marches outside and away from Court premises; going on dharnas or relay fasts, etc. The lawyers holding vakalats on behalf of their clients cannot refuse to 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 Bar Association or the Bar Council and no threat or coercion of any nature including that of expulsion can be held out. 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…. 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. If a lawyer, holding a vakalat of a client, abstains from attending Court due to a PIYUSH GUPTA, 3RD SEM KGK COLLEGE, MORADABAD
  • 3. LAWYER’S STRIKE – BASED UPON OPINOIN OF VARIOUS JURISTS 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”. This sentiment was echoed in Ramon Services Pvt. Ltd vs Subhash Kapoor where it was observed “Abstaining from the courts by the Advocates, by and large, does not only affect the persons belonging to the legal profession but also hampers the process of justice sometimes urgently needed by the consumers of justice, the litigants. Legal profession is essentially a service oriented profession. The relationship between the lawyer and his client is one of trust and confidence. With the strike by the lawyers, the process of court intended to secure justice is obstructed which is unwarranted under the provisions of the Advocates Act. Law is no trade and briefs of the litigants not merchandise”. Anyway, what this entire episode shows is the utter disregard that we as a society have towards the law. Whether it is a petty thing like obeying traffic rules or a major thing like properly discharging your income-tax obligations or even holding judicial institutions to ransom, the common feature is the sense that you can break the law and get away with it. And even if you are unfortunate enough to get caught, a mild slap on the wrist is that all the punishment that you get. So, why respect the law? Most lawyers are opposed to boycotts, and do not support stoppage of work in courts save in the extreme case of threat to the legal profession or the independence of the judiciary. However, they prefer to keep silent in the face of a vociferous minority who commandeer proceedings at bar association meetings, and thus acquiescence becomes the order of the day. Judges are forced to adjourn cases when lawyers do not appear; lawyers who wish to appear fear obstructive and even violent behaviour from those on boycott, and can’t be expected to place themselves to risk. The judiciary hasn’t been able to crack down on those who are responsible for these stoppages. The situation has exacerbated over the years. If stern measures had been taken earlier, the message would have gone out that the practice will not be tolerated. Instead, inaction sent out the opposite signal. With each succeeding episode it becomes more difficult to apply corrective measures. Those who benefit are the ones who call for the boycott. It demonstrates their power; after all, if you can bring the entire system to a halt, you must be a force to reckon with. This makes for the phenomenon of competitive boycotting. This also means that no group wants to be seen as being against the boycott. Some boycotts have nothing to do with issues of lawyers, but are aligned to political causes. 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. Two sides of the coin: Most causes for boycotts emanate from conflict between lawyers and the police. The latter is no exemplar of angelic behavior, and the highhandedness of the police provides enough ammunition for Newtonian reaction by lawyers. Lawyers also allege that the police refuse to register cases even when offences are made out. On their side, policemen complain that lawyers throw their weight around and when charged with breaking the law, escalate the incident to a lawyer-police conflict. It must be conceded that PIYUSH GUPTA, 3RD SEM KGK COLLEGE, MORADABAD
  • 4. LAWYER’S STRIKE – BASED UPON OPINOIN OF VARIOUS JURISTS both sides have cause for grievance. However, this is a problem of frequent occurrence, and the reason why lawyers rush to boycott is that they think 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. However, to prevent such flashpoints from escalating to violence and prolonged conflict, we would do well to set up a standing committee to handle these issues of lawyer-police conflict, which can consist of retired judges, bar office-bearers and senior police and government officers. 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. Repeated boycotts by lawyers have become a national phenomenon; perhaps it is time for the Supreme Court to enforce its ruling. 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 realize 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.” Thus, it is settled position that: 1. It is the duty of every advocate who has accepted a brief to attend trial, even though it may go on day to day and for a prolonged period. 2. It is also settled law that a lawyer who has accepted a brief cannot refuse to attend Court because a boycott call is given by the Bar Association. 3. It is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend Court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council. 4. Courts are under an obligation to hear and decide cases brought before it and cannot adjourn matters merely because lawyers are on strike. The law is that it is the duty and obligation of Courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike. 5. If a resolution is passed by Bar Associations expressing want of confidence in judicial officers it would amount to scandalizing the Courts to undermine its authority and thereby the Advocates will have committed contempt of Court In its judgment delivered on December 17, 2002, in Ex-Capt. Harish Uppal vs. Union of India & Another, the Supreme Court’s five-member Constitution Bench has held that strikes by lawyers are illegal and that courts must now take a very serious view of strikes and calls for boycott. The Bench comprising Chief Justice G.B. Pattanaik (who has since retired), Justices Doraiswamy Raju, S.N. Variava, D.M. Dharmadhikari, and M.B. Shah, (the last two have given a separate concurring judgment) ruled that only in the rarest of rare cases, where the dignity, integrity and independence of the Bar and/or the Bench are at stake, may courts ignore (turn a blind eye to) a protest abstention from work for not more than one day. PIYUSH GUPTA, 3RD SEM KGK COLLEGE, MORADABAD
  • 5. LAWYER’S STRIKE – BASED UPON OPINOIN OF VARIOUS JURISTS The main judgment, delivered by Justice Variava, clarified that it was for the Court to decide whether or not the issue involved the dignity or the integrity or the 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 the advocates 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,” the Bench ruled The Bench felt it had no option but to ban strikes for two reasons: One, strikes were resorted to on the slightest pretence. Lawyers contended that the response should have been to limit the grounds and duration of a strike, rather than deprive the lawyers their right to strike. Merely because a demand of the lawyers is found to be not legally valid lawyers do not lose their right to pursue the demand any further, they felt. Secondly, the Bench cited the failure of the Bar Council of India to incorporate certain clauses for self-regulation in their disciplinary rules to ensure that the call for strikes is not abused. The Court had suggested these norms in an Interim Order it had issued in another related case in 1995. In that order, the Court had sought to protect the right of a lawyer not to participate in a strike, and appear in the Court during the strike, without fear of any adverse or penal consequences from those who issued the call for a strike. The Court had then made it clear that other forms of protest such as wearing of arm bands by the lawyers in the courtroom, which would not disrupt the court proceedings, should not be precluded. The December 17, 2002 judgment goes far beyond the Interim Order, and negates the exercise of a democratic right, in a peaceful manner. The Bar Council of India, which described the judgment as impractical, had filed a petition in the Supreme Court for its review. But, the Supreme Court in its judgment on September 30, 2005, reiterated that lawyers do not have a right to go on a strike or give a call for boycott. The Court further asked the Bar Council of India to take immediate action against advocates who give a call for strike. Thus, from the decision of the Supreme Court, it is clear that Articles 19(1)(g) and 21 of the Constitution of India do not include a fundamental right to boycott the work or go on strike. As opined by Dr. H. M. Seervai, in his article titled “Lawyers’ Strike and Duty of the Supreme Court”, lawyers ought to know that at least as long as lawful redress is available to aggrieved lawyers, there is no jurisdiction for lawyers to join on illegal conspiracy to commit a gross criminal contempt of Court thereby striking at the heart of liberty conferred on every person by the Constitution of India. To go on strike, amounts to interference from anybody or any authority in the daily administration of justice. CONCLUSION The right to strike is not fundamental and absolute right in India in any special and common law, whether any undertaking is industry or not. This is a conditional right only available after certain pre-condition are fulfilled. If the constitution makers had intended to confer on the citizen as a fundamental right the right to go on strike, they would have expressly said so. On the basis of the assumption that the right to go on strike has not expressly been conferred under the Article 19(1)(c) of the Constitution it can be said that the right to strike is a relative right which can be exercised with due regard to the rights of others. Neither the common law nor the fourteenth Amendment to the federal constitution confers an absolute right to strike. PIYUSH GUPTA, 3RD SEM KGK COLLEGE, MORADABAD
  • 6. LAWYER’S STRIKE – BASED UPON OPINOIN OF VARIOUS JURISTS 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 Vakalatnama 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. 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 Advocates 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. PIYUSH GUPTA, 3RD SEM KGK COLLEGE, MORADABAD