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IN
CASE NO.:
Writ Petition (civil)

SUPREME COURT OF INDIA

132 of 1988

PETITIONER:
Ex-Capt. Harish Uppal
RESPONDENT:
Union of India & Anr.
DATE OF JUDGMENT: 17/12/2002
BENCH:
CJI, DORAISWAMY RAJU, S. N. VARIAVA, D. M. DHARMADHIKARI
JUDGMENT:
J U D G M E N T
(WITH W. P. (C) No. 394/93, W. P. (C) No.
821/90, W. P. (C) No. 320/93 and W. P.
(C) 406/2000)
S. N. VARIAVA, J.
1)
All these 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. 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 (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 10th and 11th September, 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 Association had
proceeded on strike on several occasions in the past, at
times, State-wide or Nationwide, and while the profession
does not like it as members of the profession are
themselves the losers in the process and while it is not
necessary to sit in judgment over the wider question
whether members of the profession can at all go on strike
or boycott of courts, it was felt that even if it is assumed
that such a right enures to the members of the profession,
the circumstances in which such a steps should be restored
should be clearly indicated. Referring to an earlier case
before the Delhi High Court it was stated that the Bar
Council of India had made its position clear to the effect
"(a) Bar Council of India is against resorting to strike
excepting in rarest of rare cases involving the dignity and
independence of the judiciary as well as of the Bar; and
(b) whenever strikes becomes inevitable, efforts shall be
made to keep it short and peaceful to avoid causing
hardship to the litigant public." (emphasis supplied). It
was in response to the above that a consensus emerged at
the Bar at the hearing of the matter that instead of the
Court going into the wider question whether or not the

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members of the legal profession can resort to strike or

abstain from appearing in cases in Court in which they are
engaged, the Court may see the working of the interim
arrangement and if that is found to be satisfactory it may
perhaps not be required to go into the wider question at
this stage.
Pursuant to the discussion that took place at
the last hearing on 30th November, 1994, the following
suggestions have emerged as an interim measure
consistent with the Bar Council of Indias thinking that
except in the rarest of rare cases strike should not be
resorted to and instead peaceful demonstration may be
resorted to avoid causing hardship to the litigant public.
The learned counsel suggested that to begin with the
following interim measures may be sufficient for the
present:"(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 practising lawyers in court such as, for
instance, wearing of arm bands 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) and (2) and (3) above."

3:
Mr. P. N. Duda, Sr. 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) and (3) and (4) in the Bar Council of India
(Conduct & Disciplinary) Rules, so that it can have
statutory support should there be any violation or
contravention of the aforementioned four clauses. The
suggestion that we defer the hearing and decision on the
larger question whether or not members of the profession
can abstain from work commends to us. We also agree
with the suggestion that we see the working of the
suggestions in clauses (1) to (4) above for a period of at
least six months by making the said clauses the rule of the
Court. Accordingly we make clauses (1) to (4) mentioned
above the order of this Court and direct further course of
action in terms thereof. The same will operate
prospectively.
We also suggest to the Bar Councils and

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Bar Associations that in order to clear the pitch and to

uphold the high traditions of the profession as well as to
maintain the unity and integrity of the Bar they consider
dropping action already initiated against their members
who had appeared in Court notwithstanding strike calls
given by the Bar Council or Bar Association. Besides,
members of the legal profession should be alive to the
possibility of Judge of different Courts refusing
adjournments merely on the ground of their being a strike
call and insisting on proceeding with cases."
The above interim Order was passed in the hope that better sense
could prevail and lawyers would exercise self restraint. In spite of the
above interim directions and the statement of Mr. P. N. Duda the Bar
Council of India has not incorporated clauses (1) to (4) in the Bar
Council of India (Conduct & Disciplinary) Rules. The phenomenon of
going on strike at the slightest provocation is on the increase. Strikes
and calls for boycott have paralysed the functioning of Courts for a
number of days. It is now necessary to decide whether lawyers have a
right to strike and/or give a call for boycott of Court/s.
3)
We have heard Mr. Dipanker Gupta, learned Amicus Curie. We
have heard the Petitioner in person and Advocates for the various Writ
Petitioners. We have heard the Bar Councils and Bar Associations who
desired to be heard.
4)
Mr. Dipanker Gupta referred to various authorities of this Court
and submitted that the reasons why strikes have been called by the
Bar Associations and/or Bar Councils are :
(a)
confrontation with the police and/or the legal administration;
(b)
grievances against the Presiding Officer;
(c)
grievances against Judgments of Courts;
(d)
clash of interest between groups of lawyers and
(e)
grievances against the legislature or a 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 Petitioner in Writ Petition (C) No. 406 of
2000, submitted that strike as a mean 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. He submitted
that now the Executive Committee of any Bar Council or Bar
Association which calls for a strike or boycott should be held
responsible by the Courts. He submitted that the Courts must take
action against the Committee members for giving such calls on the
basis that they have committed contempt of court.
He submitted that
the law is that a lawyer who has accepted a Vakalat on behalf of a
client must attend Court and if he does not attend Court it would
amount to professional misconduct and also contempt of court.
He
submitted that Court should now frame rules whereby the Courts
regulate the right of lawyers to appear before the Court. He submitted
that Courts should frame rules whereby any lawyer who mis-conducts
himself and commits contempt of court by going on strike or
boycotting a Court will not be allowed to practice in that Court. He
submitted that it should now be held that even if a requisition for a
meeting to consider a strike is received, the Committee members of a
Bar Association or the Bar Council should refuse to call a meeting for

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that purpose. He submitted that no Association or Bar Councils can

have any legal or moral right to call a meeting to consider a call for an
illegal act. He submitted that this Court should now issue a
mandamus to the Bar Councils to frame rules in consonance with the
interim directions which have been passed by this Court.
6)
Mr. Prashant Bhushan, for the Petitioner in W. P. (C) No. 821 of
1990, supported Mr. Dipanker Gupta and Mr. Nigam. He further
submitted that the Court should also declare that lawyers who do not
want to participate in a strike should not be coerced by other lawyers
or Committee members. He submitted that such coercion amounts to
interference with the administration of justice and is therefore clearly
contempt of court. He submitted that this coercion need not
necessarily be by physical prevention from appearance but could also
be by a threat to withdraw facility or to terminate the membership of
the Associations. He submitted that if any such threats are given or
any such coercion is used then the Court must punish for contempt the
party so coercing.
7)
Submissions were made before us by the Bar Councils of Delhi,
U.P., Maharashtra, Goa, West Bengal, Andhra Pradesh and Tamil
Nadu. Submissions were also made before us on behalf of Bar
Associations of Madras, Kerala, Calcutta, Nainital 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 however be mentioned that counsel on behalf of U. P.
Bar Council struck a discordant note. He submitted that lawyers had a
right to go on strike or give a call for boycott. He submitted that
Courts had no power of supervision over the conduct of lawyers. He
submitted that Section 50 of the Advocates Act, 1950 repealed earlier
provisions which had permitted Courts to control rights of Advocates to
practice in Courts.
He submitted that there are many occasions when
lawyers require to go on strike or gave a call for boycott. He
submitted that this Court laying down that going on strike amounts to
misconduct is of no consequence as the Bar Councils have been vested
with the power to decide whether or not an Advocate has committed
misconduct. He submitted that this Court cannot penalise any
Advocate for misconduct as the power to discipline is now exclusively
with the Bar Councils. He submitted that it is for the Bar Councils to
decide whether strike should be resorted to or not.
9)
The learned Attorney General submitted that strike by lawyers
cannot be equated with strikes resorted to by other sections of society.
He submitted that the basic difference is that members of the legal
profession are officers of the Court. He submitted that they are
obliged by the very nature of their calling to aid and assist in the
dispensation of justice. He submitted that strike or abstention from
work impaired the administration of justice and that the same was
thus inconsistent with the calling and position of lawyers. He
submitted that abstention from work, by lawyers, may be resorted to
in the rarest of rare cases, namely, where the action protested against
is detrimental to free and fair administration of justice such as there

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being a direct assault on the independence of the judiciary or a

provision is enacted nullifying a judgment of a Court by an executive
order or in case of supersession of judges by departure from the
settled policy and convention of seniority. He submitted that even in
cases where the action eroded the autonomy of the legal profession,
e.g. dissolution of Bar Councils and recognized Bar Associations or
packing them with government nominees a token strike of one day
may be resorted to. He submitted even in the above situations the
duration of abstention from work should be limited to a couple of hours
or at the maximum one day. He submitted that the purpose 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 arm-bands, 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 concerned authorities. 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. Paricha & Anr. V. State of Kerala & Ors. which
are reproduced below:
"No political party or organization can claim that it is entitled to
paralyse the industry and commerce in the entire State or nation and
is entitled to prevent the citizens not in sympathy with its viewpoint,
from exercising their fundamental rights or from performing their
duties for their own benefit or for the benefit of the State or the
nation." [See (1998) 1 SCC 201 at 204, para 17] [emphasis added]
10)
He pointed out that the judgment of the Kerala High Court has been
approved by this Honble Court in the case of Communist Party of India (M) v. Bharat
Kumar & Ors. (1998) 1 SCC 201 at 202.
11)
Before considering the question raised it is necessary to keep in
mind the role of lawyers in the administration of justice and also their
duties and obligations as officers of this Court. In the case of Lt. Col.
S. J. Chaudhary vs. State (Delhi Administration) reported in (1984) 1
SCC 722, the High Court had directed that a criminal trial go on from
day to day. Before this Court it was urged that the Advocates were
not willing to attend day to day as the trial was likely to be prolonged.
It was held that it is the duty of every advocate who accepts a brief in
a criminal case to attend the trial day to day. It was held that a
lawyer would be committing breach of professional duties if he fails to
so attend.
12)
In the case of K. John Koshy & Ors. vs. Dr. Tarakeshwar Prasad
Shaw reported in (1998) 8 SCC 624, one of the questions was whether
the Court should refuse to hear a matter and pass an Order when
counsel for both the sides were absent because of a strike call by the
Bar Association. This Court held that the Court could not refuse to
hear the matter as otherwise it would tantamount to Court becoming a
privy to the strike.
13)
In the case of Mahabir Prasad Singh vs. Jacks Aviation Pvt. Ltd.
reported in (1999) 1 SCC page 37, an application had been made to
the trial Court to suo moto transfer the case to some other Court as
the Bar Association had passed a resolution to boycott that Court.
It
was stated that the lawyers could not thus appear before that Court.
The trial Court rightly rejected the application. In a revision petition
the High Court stayed the proceedings before the trial Court. This
Court held that the High Court had committed grave error in

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entertaining the revision petition and passing an Order of stay.

Following the ratio laid down in Lt. Col. S.J. Chaudharys 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 respondents
counsel prevented
the Additional District Judge from
hearing his oral arguments on the stated cause that
he decided to boycott that Court for ever 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
inconvenience of the counsel but as a permanent
feature, is unprofessional as also unbecoming of the
status of an advocate. No Court is obliged to adjourn
a cause because of the strike call given by any
association of advocates or a decision to boycott the
courts either in general or any particular court. It is
the solemn duty of every court to proceed with the
judicial business during court hours. No court should
yield to pressure tactics or boycott calls or any kind of
browbeating."

14)
In the case of Koluttumottil Razak vs. State of Kerala reported in
(2000) 4 SCC 465, counsel did not appear in Court as advocates had
called for a strike. As the appellant was languishing in jail this Court
held that an adjournment would not be justified. This Court held that
it is the duty of the Court to look into the matter itself.
15)
In the case of U.P. Sales Tax Service Association vs. Taxation
Bar Association reported in (1995) 5 SCC 716, the question was
whether the High Court could issue a writ or direction prohibiting a
statutory authority from discharging quasi judicial functions i.e. direct
the State Government to withdraw all powers from it and transfer all
pending cases before the officer to any other officer and whether
advocates would be justified to go on strike as a pressure group. In
that context this Court observed as follows:
"11. It is fundamental that if rule of law is to have
any meaning and content, the authority of the court or a
statutory authority and the confidence of the public in
them should not be allowed to be shaken, diluted or
undermined.
The courts of justice and all tribunals
exercising judicial functions from the highest to the lowest
are by their constitution entrusted with functions directly
connected with the administration of justice.
It is that
expectation and confidence of all those, who have or are
likely to have business in that court or tribunal, which
should be maintained so that the court/tribunal perform all
their functions on a higher level of rectitude without fear or
favour, affection or ill-will. Casting defamatory aspersions
upon the character, ability or integrity of the judge/judicial

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officer/authority undermines the dignity of the

court/authority and tends to create distrust in the popular
mind and impedes the confidence of the people in the
courts/tribunals which is of prime importance to the
litigants in the protection of their rights and liberties. 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 quasijudicial 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 courts
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 dispensation of justice.
It is of necessity to protect
dignity or authority of the judicial officer to maintain the
stream of justice pure and unobstructed. The judicial
officer/authority needs protection personally.
Therefore,
making wild allegations of corruption against the presiding
officer amounts to scandalising the court/statutory
authority. Imputation of motives of corruption to the
judicial officer/authority by any person or group of persons
is a serious inroad into the efficacy of judicial process and
threat to judicial independence and needs to be dealt with
the strong arm of law."
16)
It was held that the High Court did not have power to issue a
writ of direction prohibiting a statutory authority from discharging
quasi judicial functions. The question whether lawyers had a right to
strike was not gone into.
17)
In the case of B. L. Wadehra vs. State (NCT of Delhi) & Ors.
reported in AIR (2000) Delhi 266, one of the questions was whether a
direction should be issued to the lawyers to call off a strike. The Delhi
High Court noted certain observations of this Court which are worth
reproducing:
"In Indian Council of Legal Aid and Advice v. Bar
Council of India reported in (1995) 1 SCC 732 : (AIR 1995
SC 691), the Supreme Court observed thus :
"It is generally believed that members of the legal
profession have certain social obligations, e.g., to render
"pro bono publico" service to the poor and the
underprivileged. Since the duty of a lawyer is to assist the
court in the administration of justice, the practice of law
has a public utility flavour and, therefore, he must strictly
and scrupulously abide by the Code of Conduct behoving
the noble profession and must not indulge in any activity
which may tend to lower the image of the profession in
society. That is why the functions of the Bar Council
include the laying down of standards of professional
conduct and etiquette which advocates must follow to
maintain the dignity and purity of the profession."

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In Re: Sanjeev Datta, reported in (1995) 3 SCC 619 :

(1995 AIR SCW 2203) the Supreme Court has stated thus:
"20. The legal profession is a solemn and serious
occupation. It is a noble calling and all those who belong
to it are its honourable members. Although the entry to
the profession can be had by acquiring merely the
qualification of technical competence, the honour as a
professional has to be maintained by its members by their
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 above, and concluded as follows:
"30.
In the light of the above-mentioned views expressed
by the Supreme Court, lawyers have no right to strike i.e.
to abstain from appearing in Court in cases in which they
hold vakalat for the parties, even if it is in response to or
in compliance with a decision of any association or body of
lawyers. 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
lawyers. 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. Assuming that the lawyers are trying
to convey their feelings or sentiments and ideas through
the strike in exercise of their fundamental right to freedom
of speech and expression guaranteed by Article 19(1)(a) of

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the Constitution. We are of the view that the exercise of

the right under Article 19(1)(a) will come to an end when
such exercise threatens to infringe the fundamental right
of another. Such a limitation is inherent in the exercise of
the right under Article 19(1)(a). Hence the lawyers cannot
go on strike infringing the fundamental right of the
litigants for speedy trial. The right to practise any
profession or to carry on any occupation guaranteed by
Article 19(1)(g) may include 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 litigants
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 nonprofessional 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 nobility and tradition of the legal
profession, the status of the lawyer as an officer of the
court and the fiduciary character of the relationship
between a lawyer and his client and since strike interferes
with the administration of justice and infringes the
fundamental right of litigants for speedy trial of their
cases, strike by lawyers cannot be approved as an
acceptable mode of protest, irrespective of the gravity of
the provocation and the genuineness of the cause.
Lawyers should adopt other modes of protest which will
not interrupt or disrupt court proceedings or adversely
affect the interest of the litigant. Thereby lawyers can also
set an example to other sections of the society in the
matter of protest and agitations.
31.
Every Court has a solemn duty to proceed with the
judicial business during Court hours and the Court is not
obliged to adjourn a case because of a strike call. The
Court is under an obligation to hear and decide cases
brought before it and it cannot shirk that obligation on the
ground that the advocates are on strike. If the counsel
or/and the party does not appear, the necessary
consequences contemplated in law should follow. The
Court should not become privy to the strike by adjourning
the case on the ground that lawyers are on strike. Even in
the Common Cause case the Supreme Court had asked the
members of the legal profession to be alive to the
possibility of Judges refusing adjournments merely on the
ground of there being a strike call and insisting on
proceeding with the cases.
Strike infringes the litigants
fundamental right for speedy trial and the Court cannot
remain a mute spectator or throw up its hands in
helplessness on the face of such continued violation of the
fundamental right.
32.

Either in the name of a strike or otherwise, no

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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.
33.
In the light of the above discussion we are of the
view that the present strike by lawyers is illegal and
unethical. Whatever might have been the compelling
circumstances earlier, now there is absolutely no
justification for the continuance of the strike in view of the
appointment 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 Roman Services Pvt. Ltd. vs. 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 Prasads case (supra), 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
statement of Senior Counsel Shri. Krishnamani which this Court
recorded.
The statement is as follows:
"13. Shri Krishamani, however, made the present position
as unambiguously clear in the following words:
"Today, if a lawyer participates in a Bar
Associations boycott of a particular court that is ex
facie bad in view of the clear declaration of law by
this Honble Court.
Now, even if there is boycott
call, a lawyer can boldly ignore the same in view of
the ruling of this Honble Court in Mahabir Prasad
Singh (1999) 1 SCC 37."
This Court thereafter directed the concerned advocate to pay the half
the amount of the cost imposed on his client. The observations in this
behalf are as follows:
"15. Therefore, we permit the appellant to realise
half of the said amount of Rs. 5000 from the firm of
advocates M/s B.C. Das Gupta & Co. or from any one of its
partners. Initially we thought that the appellant could be
permitted to realise the whole amount from the said firm
of advocates. However, we are inclined to save the firm
from bearing the costs partially since the Supreme Court is
adopting such a measure for the first time and the counsel
would not have been conscious of such a consequence
befalling them. Nonetheless we put the profession to
notice that in future the advocate would also be
answerable for the consequence suffered by the party if
the non-appearance was solely on the ground of a strike
call.
It is unjust and inequitable to cause the party alone
to suffer for the self-imposed dereliction of his advocate.
We may further add that the litigant who suffers entirely
on account of his advocates non-appearance in court, has

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also the remedy to sue the advocate for damages but that
remedy would remain unaffected by the course adopted in
this case. Even so, in situations like this, when the court
mulcts the party with costs for the failure of his advocate
to appear, we make it clear that the same court has power
to permit the party to realise the costs from the advocate
concerned. However, such direction can be passed only
after affording an opportunity to the advocate.
If he has
any justifiable cause the court can certainly absolve him
from such a liability. But the advocate cannot get
absolved merely on the ground that he did not attend the
court as he or his association was on a strike.
If any
advocate claims that his right to strike must be without
any loss to him but the loss must only be for his innocent
client such a claim is repugnant to any principle of fair play
and canons 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 has accepted a brief to attend trial, even though it may
go on day to day and for a prolonged period.
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. It is settled law
that 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.
It is
settled law that 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. It is also settled law that if a resolution
is passed by Bar Associations expressing want of confidence in judicial
officers it would amount to scandalising the Courts to undermine its
authority and thereby the Advocates will have committed contempt of
Court. Lawyers have known, at least since Mahabir Singhs case
(supra) that if they participate in a boycott or a strike, their action is
ex-facie bad in view of the declaration of law by this Court. A lawyers
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.
21)
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.

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They cannot thus disrupt Court proceedings and put interest of their
clients in jeopardy. In the words of Mr. H. M. Seervai, a distinguished
jurist:"Lawyers ought to know that at least as long as lawful
redress is available to aggrieved lawyers, there is no
justification for lawyers to join in an illegal conspiracy to
commit a gross, criminal contempt of court, thereby
striking at the heart of the liberty conferred on every
person by our Constitution. Strike is an attempt to
interfere with the administration of justice. The principle is
that those who have duties to discharge in a court of
justice 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 above
mentioned 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 not fructified.
Unfortunately
strikes and boycott calls are becoming a frequent spectacle. Strikes,
boycott calls and even unruly and unbecoming conduct are becoming a
frequent spectacle. On the slightest pretense strikes and/or boycott
calls are resorted to. The judicial system is being held to ransom.
Administration of law and justice is threatened. The rule of law is
undermined.
23)
It is held that submissions made on behalf of Bar Councils of U.
P. merely need to be stated to be rejected.
The submissions based on
Advocates Act are also without merit. Section 7 of the Advocates Act
provides for the functions of the Bar Council of India. None of the
functions mentioned therein authorise paralising of the working of
Courts in any manner. On the contrary, Bar Council of India is
enjoined with the duty of laying down standards of professional
conduct and etiquette for advocates.
This would mean that the Bar
Council of India ensures that Advocates do not behave in
unprofessional and unbecoming manner. Section 48A gives a right to
Bar Council of India to give directions to State Bar Councils. The Bar
Associations may be separate bodies but all Advocates who are
members of such Association are under disciplinary jurisdiction of the
Bar Councils and thus the Bar Councils can always control their
conduct. Further even in respect of disciplinary jurisdiction the final
appellate authority is, by virtue of Section 38, the Supreme Court.
24)
In the case of Abhay Prakash Sahay Lalan v. High Court of
Judicature at Patna reported in AIR 1998 Patna 75, it has been held
that Section 34(1) of the Advocates Act empowers High Courts to
frame rules laying down conditions subject to which an Advocate shall
be permitted to practice in the High Court and Courts subordinate
thereto. It has been held that the power under Section 34 of the
Advocates Act is similar to the power under Article 145 of the
Constitution of India. It is held that other Sections of the Advocates
Act cannot be read in a manner which would render Section 34
ineffective.

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25)
In the case of Supreme Court Bar Association v. Union of India
reported in (1998) 4 SCC 409, it has been held that professional
misconduct may also amount to Contempt of Court (para 21). It has
further been held as follows:
"79. An advocate who is found guilty of contempt of court
may also, as already noticed, be guilty of professional
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 standards and etiquette is also obliged to act
"in aid of the Supreme Court". It must, whenever facts
warrant, rise to the occasion and discharge its duties
uninfluenced by the position of the contemner advocate.
It must act in accordance with the prescribed procedure,
whenever its attention is drawn by this court to the
contumacious and unbecoming conduct of an advocate
which has the tendency to interfere with due
administration of justice. It is possible for the High Courts
also to draw the attention of the Bar Council of the State
to a case of professional misconduct of a contemner
advocate to enable the State Bar Council to proceed in the
manner prescribed b the Act and the Rules framed
thereunder.
There is no justification to assume that the
Bar Councils would not rise to the occasion, as they are
equally responsible to uphold the dignity of the courts and
the majesty of law and prevent any interference in the
administration justice. Learned counsel for the parties
present before us do not dispute and rightly so that
whenever a court of record records its findings about the
conduct of an advocate while finding him guilty of
committing contempt of court and desires or refers the
matter to be considered by the Bar Council concerned,
appropriate action should be initiated by the Bar Council
concerned in accordance with law with a view to maintain
the dignity of the courts and to uphold the majesty of law
and professional standards and etiquette. Nothing is more
destructive of public confidence in the administration of
justice than incivility, rudeness or disrespectful conduct on
the part of a counsel towards the court or disregard by the
court of the privileges of the Bar. In case the Bar council,
even after receiving "reference" from the Court, fails to
take action against the advocate concerned, this Court
might consider invoking its powers under Section 38 of the
Act by sending for the record of the proceedings from the
Bar Council and passing appropriate orders. Of course, the
appellate powers under Section 38 would be available to
this Court only and not to the High Courts. We, however,

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hope that such a situation would not arise.

80. In a given case it may be possible, for this Court
or the High Court, to prevent the contemner advocate
before it till he purges himself of the contempt but that is
much different from suspending or revoking his licence 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 practice as an Advocate-onRecord 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 or a call for boycott.
Such requisitions should be consigned to the place where they belong
viz. the waste paper basket. In case any Association calls for a strike
or a call for boycott the concerned State Bar Council and on their
failure the Bar Council of India must immediately take disciplinary
action against the Advocates who give a call for strike and if the
Committee Members permit calling of a meeting for such purpose
against the Committee Members. Further it is the duty of every
Advocate to boldly ignore a call for strike or boycott.
26)
It must also be noted that Courts are not powerless or helpless.
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 mulct
Advocates who hold Vakalats but still refrain from attending Courts in
pursuance of a strike call with costs.
Such costs would be in addition
to the damages which the Advocate may have to pay for the loss
suffered by his client by reason of his non-appearance.
27)
During hearing nobody, except on behalf of U. P. Bar Council,
could deny that the above legal position was well settled.
On behalf
of Bar Council of India a request was made not to sign judgment as a
meeting had been called to formulate guidelines through consensual
process. We had therefore deferred delivery of Judgment.
28)
The Bar Council of India has since filed an affidavit wherein
extracts of a Joint meeting of the Chairman of various State Bar
Councils and members of the Bar Council of India, held on 28th and
29th September, 2002, have been annexed.
The minutes set out that
some of the causes which result in lawyers abstaining from work are:
I. LOCAL ISSUES
1.
Disputes between lawyer / lawyers and the police and
other authorities

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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.

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.
between the competing District and other Bar
Associations.

Disputes

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 Committes 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 Honble Chief Justice of India or
his nomineee, 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 Honble
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)At the District level, District Judge, President or Presidents of the
District Bar Association, District Government Pleader, Member of the
Bar Council from the District, if any, and if there are more than one,
then senior out of the two.
(d) At taluka/Tehsil/Sub Divn, Senior most Judge,
President or Presidents of the Bar Association, Government
Pleader, representative of the State Bar Council, if any.
II)Another reason for abstention at the District and Taluka
level is arrest of an advocate or advocates by police in
matters in which the arrest is not justified. Practice may
be adopted that before arrest of an advocate or advocates,
President, Bar Association, the District Judge or the Senior
most Judge at the place be consulted. This will avoid
many instances or abstentions from court.
III) IT IS FURTHER RESOLVED that in the past abstention
of work by Advocates for more than a day was due to
inaction of the authorities to solve the problems that the
advocates placed.

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(IV)IT IS FURTHER RESOLVED that in all cases of

legislation affecting the legal profession which includes
enactment of new laws or amendments of existing laws,
matters relating to jurisdiction and creation of Tribunal the
Government both Central and State should initiate the
consultative process with the Representatives of the
profession and take into consideration the views of the Bar
and give utmost weight to the same and the State
Government should instruct their officers to react
positively to the issues involving the profession when they
are raised and take all steps to avoid confrontation and
inaction and in such an event of indifference, confrontation
etc. to initiate appropriate disciplinary action against the
erring officials and including but not limited to transfer.
V) The Councils are of the view that abstentions of work in
courts should not be resorted to except in exceptional
circumstances. Even in exceptional circumstances, the
abstention should not be resorted to normally for more
than one day in the first instance. The decision for going
on abstention will be taken by the General Body of the Bar
Association by a majority of two-thirds members present.
VI) It is further resolved that in all issues as far as possible
legal and constitutional methods should be pursued such
as representation to authorities, holding demonstrations
and mobilising public opinion etc.
VII) It is resolved further that in case the Bar Associations
deviate from the above resolutions and proceed on
cessation of work inspite 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 at stake is the administration of justice and the
reputation of the legal profession. It is the duty and obligation of the
Bar Council of India to now incorporate clauses as suggested in the
interim Order. No body or authority, statutory or not, vested with
powers can abstain from exercising the powers when an occasion
warranting such exercise arises. Every power vested in a public
authority is coupled with a duty to exercise it, when a situation calls
for such exercise.
The authority cannot refuse to act at its will or
pleasure. It must be remembered that if such omission continues,
particularly when there is an apparent threat to the administration of
justice and fundamental rights of citizens, i.e. the litigating public,
Courts will always have authority to compel or enforce the exercise of
the power by the statutory authority. The Courts would then be

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compelled to issue directions as are necessary to compel the authority

to do what it should have done on its own.
31)
It must immediately be mentioned that one understands and
sympathisises with the Bar wanting to vent their grievances. But as
has been pointed out there are other methods e.g. giving press
statements, TV 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. More importantly in many
instances legal remedies are always available. A lawyer being part
and parcel of the legal system is instrumental in upholding the rule of
law. A person casts with the legal and moral obligation of upholding
law can hardly be heard to say that he will take law in his own hands.
It is therefore time that self restraint be exercised.
32)
Now let us consider whether any of the reasons set out in the
affidavit of Bar Council of India justify a strike or call for boycott. The
reasons given are:
1) Local Issues: A dispute between a lawyer/lawyers and police
or other authorities can never be a reason for going on even a token
strike. It can never justify giving a call for boycott. In such cases an
adequate legal remedy is available and it must be resorted to. The
other reasons given under the item "Local Issues" and even items (IV)
and (V) are all matters which are exclusive within the domain of
Courts and/or Legislatures.
Of course the Bar may be concerned
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 Committee will necessarily have to be placed
before the appropriate authority viz. the concerned Chief Justice or the
District Judge. The final decision can only be of the concerned Chief
Justice or the concerned District Judge. Such final decision, whatever
it be, would then have to be accepted by all and no question then
arises of any further agitation. Lawyers must also accept the fact that
one cannot have everything to be the way that one wants it to be.
Realities of life are such that, in certain situations, after one has made
all legal efforts to cure what one perceives as an ill, one has to accept
the situation. So far as legislation, national and regional issues are
concerned, the Bar always has recourse to legal remedies. Either the
demand of the Bar on such issues is legally valid or it is not. If it is
legally valid, of all the persons in society, the Bar is most competent
and capable of getting it enforced in a Court of law. If the demand is
not legally valid and cannot be enforced in a Court of law or is not
upheld by a Court of law, then such a demand cannot be pursued any
further.
33)
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.

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34)
One last thing which must be mentioned is that the right of
appearance in Courts is still within the control and jurisdiction of
Courts. Section 30 of the Advocates Act has not been brought into
force and rightly so.
Control of conduct in Court can only be within
the domain of Courts. Thus Article 145 of the Constitution of India
gives to the Supreme Court and Section 34 of the Advocates Act gives
to the High Court power to frame rules including rules regarding
condition on which a person (including an Advocate) can practice in
the Supreme Court and/or in the High Court and Courts subordinate
thereto. Many Courts have framed rules in this behalf. Such a rule
would be valid and binding on all. Let the Bar take note that unless
self restraint is exercised, Courts may now have to consider framing
specific rules debarring Advocates, guilty of contempt and/or
unprofessional or unbecoming conduct, 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
practice, no doubt, is the genus of which the right to appear and
conduct cases in the Court may be a specie. 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. On the contrary it will be
their duty to see that such a rule is strictly abided by.
Courts of law
are structured in such a design as to evoke respect and reverence to
the majesty of law and justice. The machinery for dispensation of
justice according to law is operated by the Court. Proceedings inside
the Courts are always expected to be held in a dignified and orderly
manner. The very sight of an advocate, who is guilty of contempt of
Court or of unbecoming or unprofessional conduct, standing in the
court would erode the dignity of the Court and even corrode the
majesty of it besides impairing the confidence of the public in the
efficacy of the institution of the Courts. The power to frame such rules
should not be confused with the right to practise law. While the Bar
Council can exercise control over the latter, the Courts are in control of
the former. This distinction is clearly brought out by the difference in
language in Section 49 of the Advocates Act on the one hand and
Article 145 of the Constitution of India and Section 34(1) of the
Advocates Act on the other. Section 49 merely empowers the Bar
Council to frame rules laying down conditions subject to which an
Advocate shall have a right to practice i.e. do all the other acts set out
above. However, Article 145 of the Constitution of India empowers
the Supreme Court to make rules for regulating this practice and
procedure of the Court including inter-alia rules as to persons
practising before this Court. Similarly Section 34 of the Advocates Act
empowers High Courts to frame rules, inter-alia to lay down conditions
on which an Advocate shall be permitted to practice in Courts. Article

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145 of the Constitution of India and Section 34 of the Advocates 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, 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. 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 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.
36)
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. The Petitions stand
disposed off accordingly.
...CJI.

.J.
(DORAISWAMY RAJU)

.J.
(S. N. VARIAVA)

.J.
(D. M. DHARMADHIKARI)
New Delhi,
December 17, 2002.

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