1 The prevailing situation in the courts are a real eye-opener and ironically it is one of the reasons for pendency of about 2.5 crores cases in subordinate courts. The Supreme Court had consistently been declaring that advocates do not have a right to call for strikes and held that the lawyers’ strikes are illegal and that effective steps should be taken to stop the growing tendency. In numerous cases beginning from Pandurang Dattatraya Khandekar v. Bar Council of Maharashtra, Bombay7; to Ex Capt. Harish Uppal v. Union of India8, it was held that the advocates have no right to go on strike. The Courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all Courts to go on with matters on their boards even in the absence of lawyers. In other words, Court must not be privy to strikes or calls for boycotts. It was held that if a lawyer, holding a vakalatnama of a client, abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall be in addition to damages which he might have to pay his client for loss suffered by him.
2 It is relevant to mention here that the Supreme Court, in Ex-Capt. Harish Uppal, 9 dealt extensively with strikes by advocates. The Court 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 protest marches outside and away from Court premises, going on dharnas or relay fasts etc. …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…”
3 In spite of all these, the strikes have continued unabated. The dispensation of justice must not stop for any reason. The strike by lawyers have lowered the image of the courts in the eyes of the general public. The Supreme Court has held that right to speedy justice is included in article 21 of the Constitution. In Hussainara Khatoon v. Home Secy., State of Bihar10; and in some other cases, it was held that the litigant has a right to speedy justice. The lawyers’ strike, however, result in denial of these rights to the citizens in the State.
4 Recently, the Supreme Court while disposing off the Criminal Appeal of Hussain & Anr. v. Union of India11 deprecated the practice of boycotting the Court observing that:
“One other aspect pointed out is the obstruction of Court proceedings by uncalled for strikes/abstaining of work by lawyers or frequent suspension of court work after condolence references. In view of judgment of this Court in Ex. Captain Harish Uppal versus Union of India, such suspension of work or strikes are clearly illegal and it is high time that the legal fraternity realizes its duty to the society which is the foremost. Condolence references can be once in a while periodically say once in two/three months and not frequently. Hardship faced by witnesses if their evidence is not recorded on the day they are summoned or impact of delay on under trials in custody on account of such avoidable interruptions of court proceedings is a matter of concern for any responsible body of professionals and they must take appropriate steps. In any case, this needs attention of all concerned authorities – the Central Government/State Governments/Bar Councils/Bar Associations as well as the High Courts and ways and means ought to be found out to tackle this menace. Consistent with the above judgment, the High Courts must monitor this aspect strictly and take stringent measures as may be required in the interests of administration of justice.”.
5 In Ramon Services Pvt. Ltd. v. Subhash Kapoor12, the apex Court observed that if any advocate claims that his right to strike must be without any loss to him, but the loss must only be borne by his innocent client, such a claim is repugnant to any principle of fair play and canons of ethics. Therefore, when he opts to strike or boycott the Court he must as well be prepared to bear at least the pecuniary loss suffered by the litigant client who entrusted his brief to that advocate with all confidence that his cause would be safe in the hands of that advocate.
6 The Constitution provides for an independent and efficient justice delivery system. Any delay in disposal of cases not only creates disillusionment amongst the litigants, but also undermines the capability of the system to impart justice in an effective manner. 13 The Supreme Court disapproved the conduct of the party resorting to dilatory tactics before the court seeking adjournments on one or other pretext and observed that the party acted in a manner to cause colossal insult to justice and to the concept of speedy disposal of cases14.
7 In addition to the issue of strikes, the Supreme Court has also dealt with a large number of cases of browbeating of courts by advocates for getting a favourable order. As a rule, an Advocate, as an officer of the court, cannot be adamant on any unwarranted and uncalled for issue.
8 The Supreme Court in Vishram Singh Raghubanshi v. State of Uttar Pradesh15 held:
“The Superior Courts have a duty to protect the reputation of judicial officers of subordinate courts, taking note of the growing tendency of maligning the reputation of judicial officers by unscrupulous practising advocates who either fail to secure desired orders or do not succeed in browbeating for achieving ulterior purpose. Such an issue touches upon the independence of not only the judicial officers but brings the question of protecting the reputation of the Institution as a whole.”
9 In M.B. Sanghi v. High Court of Punjab and Haryana16, it has been opined that:
“The tendency of maligning the reputation of judicial officers by disgruntled elements who fail to secure the desired order is ever on the increase and it is high time it is nipped in the bud. And, when a member of the profession resorts to such cheap gimmicks with a view to browbeating the Judge into submission, it is all the more painful. When there is a deliberate attempt to scandalise which would shake the confidence of the litigating public in the system, the damage caused is not only to the reputation of the Judge concerned but also to the fair name of the judiciary.”
10 In R.D. Saxena v. Balram Prasad Sharma17, the Supreme Court held:
“In our country, admittedly, a social duty is cast upon the legal profession to show the people beckon (sic beacon) light by their conduct and actions. The poor, uneducated and exploited mass of the people need a helping hand from the legal profession, admittedly, acknowledged as a most respectable profession. No effort should be made or allowed to be made by which a litigant could be deprived of his rights, statutory as well as constitutional, by an advocate only on account of the exalted position conferred upon him under the judicial system prevalent in the country.”
11 In Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd. 18, the Supreme Court held that it is the solemn duty of every Court to proceed with the judicial business during court hours and no Court should yield to pressure tactics or boycott calls or any kind of browbeating. The Court held:
“At any rate, no advocate can ask the Court to avoid a case on the ground that he does not want to appear in that Court.”
12 In M/s. Chetak Construction Ltd. v. Om Prakash19, the Court deprecated the practice of making allegations against the Judges observing as under:
“Lawyers and litigants cannot be allowed to “terrorize” or “intimidate” Judges with a view to “secure” orders which they want. This is basic and fundamental and no civilised system of administration of justice can permit it.”
Similar view has been reiterated in Radha Mohan Lal v. Rajasthan High Court20.
13 In view of the observations by the Courts, in the event of a strike, a court is not obliged to become complicit in the illegality by adjourning the case for the absence of counsel, it may proceed to pass orders ex parte. Litigation work requires the representatives and authorities to systematically engage in legal proceedings at various points over sustained periods of time so as to arrive at resolution to the disputes. To use this situation of necessity to claim increased bargaining power is a wanton perversion of the aims of the justice delivery system. To forcibly prevent other advocates from appearing in their respective proceedings is even worse. The act of going on strike amounts to a violation of an advocate’s duty as an officer of the court and his duty to maintain standards of professional conduct and ethics. It also results in a violation of his agreement with the client. At the same time, it is also contempt of court and a violation of the right of speedy trial for litigants. The unacceptable actions of advocates have not shown any significant improvement despite the establishment of competent authorities to regulate the conduct of advocates. The reasons for strikes reported in case law have not been found to justify organised violence directly prejudicial to the vital function of justice delivery.
14 The unacceptable trend of making false allegations against judicial officers and humiliating them requires to be curbed, otherwise the judicial system would lose its credibility. The Bench and the Bar have to avoid unwarranted situations on trivial issues that hamper the cause of justice and are in the interest of none. “Liberty of free expression is not to be confounded or confused with license to make unfounded allegations against any institution, much less the Judiciary”21. An Advocate in a profession as well in his conduct should be diligent and conform to the requirements of the law by which an Advocate plays an important role in the preservation of justice system. Any violation of the principles of professional ethics by an Advocate is unfortunate and unacceptable. Any kind of deviance not only affects the system but corrodes the faith of the people at large22.
15 In Arun Kumar Yadav v. State of Uttar Pradesh Through District Judge23, the Supreme Court observed:
“The judicial proceeding has its own solemnity and sanctity. No one has any authority to sully the same. It is the obligation of everyone to behave with propriety when a judicial proceeding is conducted. Any kind of deviancy not only affects the system but corrodes the faith of the collective at large. Neither any counsel nor a litigant can afford to behave in this manner.”
16 The lawyer who presents the application before the court making unfounded allegations against a judicial officer, impleading him by name, though not permissible in law as explained by the Court in Savitri Devi v. District Judge, Gorakhpur24, without reasonably satisfying himself about the prima facie existence of adequate grounds, is equally responsible for contempt for scandalizing the court for the reason that he cannot be a mouthpiece of his client and cannot associate himself with his client in maligning the reputation of judicial officer merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalise the court which would shake the confidence of the litigating public in the system would cause a very serious damage to the name of the judiciary25.
17 In Re: Ajay Kumar Pandey26, the Supreme Court held:
“No one can be permitted to intimidate or terrorize judges by making scandalous unwarranted and baseless imputations against them in the discharge of their judicial functions so as to secure orders which the litigant ‘wants’… The liberty of expression cannot be treated as a licence to scandalize the court…”
18 In Bar Council of India v. High Court of Kerala27, the Supreme Court observed, “An advocate in no circumstances is expected to descend to the level of appearing to support his view in a vulgar brawl.”
19 In Re: S. Mulgaokar28, the Supreme Court observed that public interest and public justice require that whenever there is an attack on the judge, it is scurrilous, offensive, intimidatory or malicious, the law must strike a blow on him as he challenges the supremacy of law by fouling the source and stream.
20 The legal profession requires the safeguarding of moral standards. As an officer of the court, a lawyer has a duty to the court towards his profession and to the public. Since the prime duty of a lawyer is to assist the court in dispensing justice, the members of the Bar cannot behave in a manner which is doubtful, or full of scruples or which strives to thrive on litigation. Lawyers must remember that they are to assist the court in the administration of justice. If lawyers do not perform their function properly, it would be degenerative to the rule of law.
21 A suggestion has been made that at every district headquarters, the District Judge may constitute an Advocates’ Grievance Redressal Committee headed by a Judicial Officer which will deal with the day to day routine matters, as large number of issues and grievances arise in the smooth working of the advocates. In this regard, the High Court may issue a circular in exercise of its power under article 235 of the Constitution providing for redressal of grievances of the Advocates which will help in improving their efficiency.
22 In case there is some grievance against a Judicial Officer, the Bar may raise the grievance before the Chief Justice of the concerned High Court.
Source- Report No.266- The Advocates Act, 1961 (Regulation of Legal Profession)-March, 2017
