Advocates Act, 1961 - The High Court has power to issue a writ to any person or Authority including any Government within its territory for enforcement of any of the rights conferred by Part-III of the Constitution of India and/or any other purpose. The writ jurisdiction is being exercised to protect the fundamental rights of the members of the Bar to appear in the Court and also the fundamental rights of the citizens of the State to get their cases decided with the assistance of the Advocates engaged by them. Therefore, the writ petition against call by the Bar to abstain from work has not become infructuous and that the writ court is bound to protect the rights of the citizens.
Advocates Act, 1961 - The strike or abstention from work impairs the administration of justice and is inconsistent with the duties of an Advocate. The Bar Association is not a Trade Union under the Trade Union Act, 1926. The Trade Union has a right to demonstrate as a mode of redress for resolving the grievances of the workers but the Advocates though are members of Bar Association but WP-8078-2018are professionals engaged by the litigants for the redressal of their grievances by intervention of the Court. By abstaining from work, the members of the Bar do not help anybody.
Advocates Act, 1961 - The members of the Bar are protectors of independence of the judiciary.
Advocates Act, 1961 - They must rise to maintain independence of judiciary by being an active participant in the administration of justice and not by withdrawing from the pious duty enjoined on them in terms of the Advocates Act, 1961.
Advocates Act, 1961 - The litigant has a right to get justice. He will get justice only if the Courts are functioning in the country but the members of the Bar cannot make the third pillar of democracy non-functional by deciding to withdraw from work. Their action is antitheses of democratic life of the country.
Advocates Act, 1961 - The High Court of Madhya Pradesh (Conditions of Practice) Rules, 2012 framed by the High Court in exercise of powers under Section 34 of the Advocates Act, 1961 do not contemplate the consequences of the members of the Bar of abstaining from work either voluntarily or in terms of resolution of the State Bar Council or the High Court or the District Bar Associations. Therefore, the High Court is directed to examine and incorporate in the said Rules, the consequences of the members of the Bar, the office bearers of the Bar Association(s) and of the State Bar Council of not appearing in the Court including the action of the debarment of such erring members and the period thereof.
[Paras 6, 8 to 23]
HIGH COURT OF MADHYA PRADESH:
JABALPUR
(Division Bench)
CORAM : Hon’ble Shri Justice Hemant Gupta, Chief Justice Hon'ble Shri Justice Vijay Kumar Shukla, Judge
(Passed on this 31st day of July, 2018)
Writ Petition No. 8078/2018
Praveen Pandey v. State of
Madhya Pradesh
Present: Petitioner in
person. Shri
Amit Seth, Government Advocate for the respondent/State. Shri
Ravindra Nath Tripathi, Advocate for the Intervener.
O R D E R
Per:
Hemant Gupta, Chief Justice:
This order be read in continuation of
the order dated 10.04.2018.
2. In the present petition the challenge
was to a call by the State Bar Council to abstain from work for one week. By a
detailed order passed on WP-8078-201810.04.2018, the Advocates in the State
were directed to resume work forthwith so that poor, needy, under-trials,
convicts and numerous other persons desirous of seeking justice from the Courts
do not suffer on account of lack of legal assistance.
3. Subsequently, on 01.05.2018, an order
was passed to examine the question as to what will be the reasonable reasons
for the District Bar Associations or the High Court Bar Associations calling
upon its members to abstain from work and if such call is given, what steps can
be taken by the statutory or non-statutory Authorities.
4. On 09.05.2018, the suggestions were
invited from the general public and the members of the Bar Associations as to
in what circumstances, Bar Association can give call to its members to abstain from
Court work and if the Bar Association gives the said call, how the situation is
required to be addressed so that fundamental rights of the Advocates to appear
before the Court are not infringed.
5. The State Bar Council has submitted
written-submissions on 19.07.2018, inter alia alleging
that the writ petition has become infructuous as
the reliefs claimed in the writ petition have already been granted. However, it
is stated that the Hon'ble Supreme Court has given a detailed and exhaustive
judgment in Ex-Capt.
Harish Uppal vs. Union of India and Another, (2003)
2 SCC 45 as well as in Common Cause, A Registered Society
and others vs. Union of India and others, (2006) 9 SCC 295. Therefore, there is no need for this
Court to discuss and decide the issues, which have already been settled by the
Supreme Court. It is further stated that the question: as to whether
fundamental right of an WP-8078-2018Advocate to appear before the Court is
infringed or not, is purely hypothetical and academic in nature and should be
answered only in an appropriate petition. It is also said that call for
abstaining from work is purely voluntary in nature and thus, there is no
question of violation of anyone's fundamental right when a member voluntarily
abstains from work. It is also pointed out that the Supreme Court is seized of
a matter in Writ Petition (Criminal) No.144/2018 (Deepak Kalra vs. State of
M.P. and others). It is also pointed out that the Supreme Court can travel
beyond the lis involved in the matter under Article
142 of the Constitution of India to do complete justice but no such parallel
power is available with the High Court. Therefore, the issue raised by this
Court could not be answered in the present petition.
6. In terms of order dated 09.05.2018, a
notice has been displayed on the website of this Court as also on the notice
boards of the District Courts. In
terms of the order passed, the suggestions have been received from Shri V.K.
Nagpal; District Bar Association, Shahdol; Shri Anil Tiwari, Advocate; Shri
R.N. Tripathi, Advocate; one Shri Sandeep Tiwari (through email) and also from
petitioner Shri Praveen Pandey, Advocate. The suggestions so received, in
brief, are as under:-
(i) SHRI
V.K. NAGPAL: It is
stated that a Mafia is active in M.P. State Bar Council, who are pressurizing
the judiciary on the basis of manipulated data and take resort to strike every
day. The judiciary has become a silent spectator and that the Advocates are
becoming bold every day, who are influencing the judiciary, administration and
police. Under the guise of profession, the anti-social elements are receiving patronage and on
the complaints of members of the Bar, the complainants are attacked with the
threat to their lives. It is also alleged that CCTV cameras should be installed
in the office of the Bar Council and in the judiciary complexes, so that the
suspicious activities of the Advocates can be monitored.
(ii)
DISTRICT BAR ASSOCIATION, SHAHDOL: The said Bar has made a grievance
that non-practising advocates play a vital role in disturbing the peace between
Bench and the Bar at the time of strike. Therefore, it is suggested for
verification and striking off the names of non-practising advocates and the
advocates who do not practise regularly in the courts. Such process will curb
uncalled for and illegal abstention from work. It is further suggested that
State Bar Council by virtue of its powers should not compel any advocate or
Advocates Bar Association to call for strike. The Bar has also emphasized upon
the need of enacting Advocates' Protection Act.
(iii)
SHRI ANIL TIWARI, ADVOCATE, REWA: Shri Tiwari has stated that if the
State Government or the Central Government does not act to redress the issues
of public importance, the action by the members of the Bar for abstaining from
work would be justified as the members of the Bar have no other option. But, on
local issues, the abstaining from work in the entire State and country will not
be proper as all the grievances of the public cannot be addressed by the High Court.
(iv) SHRI R.N. TRIPATHI, ADVOCATE: Shri Tripathi expressed his anguish
over the manner in which strikes are called and Advocates are compelled not to
work and the manner in which the present petition was filed. He has also
expressed his anguish in the manner in which security was provided to the
petitioner. Having said so, it is stated that right to call for the strike is a
fundamental right but it is not in derogation of other rights of the individual
and there is need for expression of thought and strike is manifestation of that
thought. Therefore,
it should not be curtailed. He has made the following suggestions:-
"6. Any decision to call for strike can
only be taken when procedure prescribed hereinbelow is followed.
7.
The Association, at whateverlevel (sic)
same must display a notice in advance, to all office bearer of bar that they
are require to meet, and take a decision, on the question posed, and this may
result in taking a decision that strike may be called.
8.
That, the meeting must be called, by
signature of President and Secretary of that Bar.
9.
That, meeting can also be called, by
signature of fixed number of Bars, which may be one third to discuss such
issued (sic).
10.
When meeting is called and quorum is
complete, bar may discuss the issue and take a decision. If that decision is to
call for strike, it can’t be from same day or next day of decision. But demand
on which strike is going to be called, shall be conveyed in writing, with the decision
of the bar, giving atleast three days time to the person or authority
concerned, to fulfill the demand, failing which from fixed date strike will be
called. But before sending this threat of strike to the concerned authority,
same may be placed for referendum, before the General Body of that Bar, and
after 24 hour, voting on the subject may be taken, this can be done online to
avoid unwarranted expences (sic), or may be conducted on hard copy, with
minimum expenses, and if majority of members are of the opinion that such
notice may be sent, than (sic) only notice to strike with demand may be sent to
the WP-8078-2018concerned authority, giving them minimum three days time to
fulfill the demand, and if after the given time line demand is not filled, than
(sic) strike can be called for one day."
(v) SHRI
SANDEEP TIWARI (through email):
Shri Tiwari has given an incident of threat given by an office bearer of the
Bar Association to SDM, Sohagpur during court hearing. He has also requested
the High Court to pass strict orders against responsible office bearers of the
State Bar Council and non-practising advocates having criminal tendency.
(vi)
SHRI PRAVEEN PANDEY, ADVOCATE: On the other hand, the petitioner has
suggested to constitute a committee of five members in each and every District
under the control and supervision of learned District Judge which can settle
and resolve the problems of the members of the Bar. Similarly, a committee is
suggested to be constituted each at Principal Seat of the High Court and
Gwalior and Indore Benches and that there should be an appropriate committee
under the control and administration of the Chief Justice or Administrative
Judge at the Principal Seat or at the Benches to address the problems of the members
of the Bar.
7. On 02.07.2018, the Registrar (I &
L), High Court of M.P. has placed on record copy of the information sought by
Government of India in terms of the direction of the Supreme Court in Criminal
Appeal No.470/2018 (Krishnakant
Tamrakar vs. State of M.P.) on
28.03.2018. The
information is in respect of first quarter of the year i.e. from 01.01.2018 to
31.03.2018. As per the information, 200 working hours were WP-8078-2018lost in three Benches of the High Court
whereas 8658.5 working hours were lost in the subordinate Courts. The call for
strike by the State Bar Council from 09.04.2018 to 14.04.2018 is after the said
period.
8.
The argument that the writ petition has
become infructuous
is not tenable for the reason that in
exercise of power under Article 226 of the Constitution of India, the Court can
issue any direction or order. The High Court has power to issue a writ to any
person or Authority including any Government within the territory of this Court
for enforcement of any of the rights conferred by Part-III of the Constitution
of India and/or any other purpose. The writ jurisdiction is being exercised to
protect the fundamental rights of the members of the Bar to appear in the Court
and also the fundamental rights of the citizens of the State to get their cases
decided with the assistance of the Advocates engaged by them.
9.
In Ex. Capt. Harish Uppal's case (supra), the learned Attorney General has
submitted before the Constitution Bench that strike by lawyers cannot be
equated with strikes resorted to by other sections of the society as the basic
difference is that members of legal profession are officers of the Court and
that they are obliged by the very nature of their calling to aid and assist in
the dispensation of justice. The strike or abstention from Court work impairs
the administration of justice. Thus, the same was inconsistent with the calling
and position of lawyers. It was argued that the abstention from work by the
members of the Bar may be resorted to in the rarest of rare cases where the
action protested against is detrimental to free and fair administration of
justice such as there being a direct assault on the independence of the
judiciary or a provision is enacted nullifying a WP-8078-2018judgment
of a Court by an executive order or in case of supersession of judges by
departure from the settled policy and convention of seniority. It was suggested
that a token strike of one day can be resorted to if the action eroded the
autonomy of the legal profession e.g. dissolution of Bar Councils and Bar
Associations or packing them with the government nominees, which abstention
from work can be for couple of hours or for one day. The purpose should be to
register a protest and not to paralyse the system. It was further suggested
that alternative forms of protest can be explored i.e. giving press statements,
TV interviews, carrying banners and/or placards, wearing black arm-bands, peaceful
protest marches outside court premises etc. and further that abstention from
work for the redressal of a grievance should never be resorted to where other
remedies for seeking redressal are available. The Bench held as under:-
"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 Singh's case [Mahabir
Prasad Singh v. Jacks Aviation (P) Ltd., (1999) 1 SCC 37] that if they participate in a boycott or
a strike, WP-8078-2018their action is ex-facie bad in view of the declaration
of law by this Court. A lawyer's duty is to boldly ignore a call for strike or
boycott of court/s. Lawyers have also known, at least since Roman Services' case
[Roman Services (P) Ltd. v.
Subhash Kapoor (2001) 1 SCC 118],
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.
***
*** ***
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 selfrestraint 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."
10. That apart, the Supreme Court in Ex. Capt. Harish Uppal (supra) quoted an extract from a Constitution
Bench decision rendered in Supreme
Court Bar Association vs. Union of India, (1998) 4 SCC 409 wherein it was held that the
professional misconduct may also amount to contempt of court, and held as
under:-
"25.
................. 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 WP-8078-2018the 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."
11. Further, in Ex.Capt. Harish Uppal's case (supra), the affidavit filed on behalf of the
Bar Council of India after meeting with the State Bar Councils, delineates the
common reasons which prompt the lawyers to abstain from work. The relevant
extract of such decision as reproduced in the Judgment reads, thus:-
"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 28-9-2002 and 29-9-2002, 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.
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. Disputes between the
competing District and other Bar Associations.
(III) Issues involving dignity, integrity,
independence of the Bar and judiciary (IV) Legislation without consultation
with the Bar Councils (V) National issues and regional issues affecting the public
at large/ the insensitivity of all concerned."
The Court found that the decision of
the Bar Council of India is not enough. It was observed, thus:-
"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 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 sympathises 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.
***
*** ***
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 WP-8078-2018must 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.
***
*** ***
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 protest 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
refuse to attend courts in pursuance of 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 WP-8078-2018costs
which shall be in addition to damages which he might have to pay his client for
loss suffered by him."
(Emphasis
supplied)
12. In a separate but concurring opinion,
the Court held as under:-
"39. Further, strike was a weapon used for
getting justice by downtrodden, poor persons or industrial employees who were
not having any other method of redressing their grievances. But by any standard,
professionals belonging to a noble profession who are considered to be an
intelligent class, cannot have any justification for remaining absent from
their duty. The law laid down on the subject is succinctly referred to in the
judgment rendered by Brother Variava, J.
40. However, by merely holding strikes as illegal,
it would not be sufficient in present-day situation nor serve any purpose. The
root cause for such malady is required to be cured. It is stated that resort to
strike is because the administration is having deaf ears in listening to the
genuine grievances and even if grievances are heard appropriate actions are not
taken. To highlight, therefore, the cause call for strike is given. In our
view, whatever be the situation in other fields lawyers cannot claim or justify
to go on strike or give a call to boycott the judicial proceedings. It is
rightly pointed out by the Attorney-General that by the very nature of their
calling to aid and assist in the dispensation of justice, lawyers normally
should not resort to strike.
Further,
it had been repeatedly held that strike is an attempt to interfere with the
administration of justice.
41. It is no doubt true that the Bar should
be strong, fearless and independent and should be in a position to lead the society.
These qualities could be and should be utilized in assisting the judicial system,
if required, by exposing any person, whosoever he may be, if he is indulging in
any unethical practice. It is hoped that instead of resorting to strike, the
Bar would find out other ways and means of redressing their grievances
including passing of resolutions, making representations and taking out silent
processions, holding dharnas
or to resort to relay fast, having
discussion by giving T.V. interviews and press statements.
42. At present it is admitted that
judiciary is overburdened with pending litigation. If strikes are resorted to
on one or the other ground, litigants would suffer as cases would not be
decided for years WP-8078-2018to come. Therefore, some concrete joint action is
required to be taken by the Bench and the Bar to see that there are no strikes
any more.
***
*** ***
44. It is true that advocates are part
and parcel of judicial system as such they are the foundation of
justice-delivery system. It is their responsibility of seeing that
justice-delivery system works smoothly. Therefore,
it is for each and every Bar association to be vigilant in implementing the
resolution passed by the Bar Council of India of seeing that there are no
further strikes any more. The Bar Council of India in its resolution has also
stated that the resolution passed by it would be implemented strictly and
hence, the Bar Associations and the individual members of the Bar Associations would
take all steps to comply with the same and avoid cessation of the work except
in the manner and to the extent indicated in the resolution."
13. In the judgment reported as T.K. Rangarajan vs. Government of T.N.
and others, (2003) 6 SCC 581,
the Supreme Court held that employees have no fundamental rights to resort to
strike and that there is no statutory provision empowering the employees to go
on strike. It was held that there is no moral or equitable justification to go
on strike. The relevant extract from the said judgment reads as under:-
"(A) There is no fundamental
right to go on strike
12. Law on this subject is well settled
and it has been repeatedly held by this Court that the employees have no
fundamental right to resort to strike. In Kameshwar Prasad v. State of Bihar [AIR 1962 SC 1166] this Court
(Constitution Bench) held that the rule insofar as it prohibited strikes was
valid since
there is no fundamental right to resort to strike.
***
*** ***
14. In Ex-Capt. Harish Uppal v. Union of India [(2003) 2 SCC
45], the Court (Constitution Bench) held
that lawyers have no right to go on strike or give a call for boycott and they
cannot even go on a token strike. The Court has specifically observed that for
just or unjust cause, strike cannot be justified in the present-day situation.
Take WP-8078-2018strike in any field, it can be easily realised that the weapon
does more harm than any justice. Sufferer is the society — the public at large.
15. In Communist Party of India (M) v. Bharat Kumar [(1998)
1 SCC 201], a three-Judge
Bench of this Court approved the Full Bench decision of the Kerala High Court [Bharat Kumar K. Palicha v. State
of Kerala, AIR 1997 Ker 291] by
holding thus: (SCC p. 202, para 3) "There cannot be any doubt that the
fundamental rights of the people as a whole cannot be subservient to the claim
of fundamental right of an individual or only a section of the people. It is on
the basis of this distinction that the High Court has rightly concluded that
there cannot be any right to call or enforce a "bandh" which
interferes with the exercise of the fundamental freedoms of other citizens, in
addition to causing national loss in many ways. We may also add that the
reasoning given by the High Court, particularly those in paragraphs 12, 13 and
17 for the ultimate conclusion and directions in paragraph 18 is correct with
which we are in agreement."
16. The relevant paragraph 17 of the
Kerala High Court judgment reads as under:—
"17. No political party or
organisation 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. Such a claim would be unreasonable and could not be
accepted as a legitimate exercise of a fundamental right by a political party
or those comprising it."
(B) There is no legal/statutory right to go on
strike
17.
There is no statutory provision
empowering the employees to go on strike.
***
*** ***
(C)
There is no moral or equitable justification to go on strike
19. Apart from statutory rights,
government employees cannot claim that they can take the society at ransom by
going on strike. Even if there is injustice to some extent, as presumed by such
employees, in a democratic welfare State, they have to resort to the machinery provided
under different statutory provisions for redressal of their grievances. Strike
as a weapon is mostly misused which results in chaos and total
maladministration. Strike affects the society as a whole and particularly when
two lakh employees go on strike en masse, the entire administration comes to a
grinding halt. In the case of strike by a teacher, the entire educational
system suffers; many students are prevented from appearing in their exams which
ultimately affect their whole career. In case of strike by doctors, innocent
patients suffer; in case of strike by employees of transport services, entire
movement of the society comes to a standstill: business is adversely affected
and number of persons find it difficult to attend to their work, to move from
one place to another or one city to another. On occasions, public properties
are destroyed or damaged and finally this creates bitterness among public
against those who are on strike."
14.
In Common Cause's
case (supra), the question was: whether the punitive
action of suspension against the members of the Bar, who refused to participate
in the strike call is proper. Considering the judgment in Ex. Capt.
Harish Uppal's case (supra), the Court discharged the contempt notices.
15. The Supreme Court in Krishnakant Tamrakar’s case (supra) directed the Ministry of Law and
Justice to present quarterly report in respect of loss caused due to strike or
decision to abstain from work. Such information supplied by this Court for the
first quarter of this year shows that approximately 9000 hours of the Court
work were lost on account of the decisions of the Bar Associations from time to
time in the first quarter of the year. The Supreme Court held as under:-
“Reforms
in the legal profession - remedying uncalled for strikes.
43. We may also deal with another important
aspect of speedy justice. It
is well known that at some places there are frequent strikes, seriously
obstructing access to justice. Even cases of persons languishing in custody are
delayed on that account. By every strike, irreversible damage is
suffered by the judicial system, particularly consumers of justice. They are
denied access to justice. Tax payers’ money is lost on account of judicial and
public time being lost. Nobody
is accountable for such loss and harassment.
44. Dr. Ambedkar in his famous speech on
25th November, 1949 had warned: “The first thing in my judgement we must do is
to hold fast to constitutional methods of achieving our social and economic
objectives. It means we must abandon the bloody methods of revolution. It means
that we must abandon the method of civil disobedience, non-cooperation and satyagraha.
When there was no way left for constitutional methods for achieving economic
and social objectives, there was a great deal of justification for
unconstitutional methods. But where constitutional methods are open, there can
be no justification for these unconstitutional methods. These
methods are nothing but the Grammar of Anarchy and the sooner they are abandoned,
the better for us.”
45. The above warning of the Constitution
maker needs to be adhered to at least by the legal fraternity. The Bar has the
tradition of placing their professional duty of assisting the access to justice
above every other consideration. How is the situation to be tackled. Competent authorities
may take a final call.
***
*** ***
51. Since the strikes are in violation of
law laid down by this Court, the same amount to contempt and at least the
office bearers of the associations who give call for the strikes cannot disown
their liability for contempt. Every resolution to go on strike and abstain from
work is per se contempt. Even if proceedings are not initiated individually against
such contemnors by the court concerned or by the Bar Council concerned for the
misconduct, it is necessary to provide for some mechanism to enforce the law
laid down by this Court, pending a legislation to remedy the situation.
52. Accordingly, we consider it necessary,
with a view to enforce fundamental right of speedy access to justice under
Articles 14 and 21 and law laid by this Court, to direct the Ministry of Law
and Justice to present at least a quarterly report on strikes/abstaining from
work, loss WP-8078-2018caused and action proposed. The matter can thereafter be
considered in its contempt or inherent jurisdiction of this Court. The Court
may, having regard to the fact situation, hold that the office bearers of the Bar
Association/Bar Council who passed the resolution for strike or abstaining from
work, are liable to be restrained from appearing before any court for a
specified period or until such time as they purge themselves of contempt to the
satisfaction of the Chief Justice of the concerned High Court based on an
appropriate undertaking/ conditions. They may also be liable to be removed from
the position of office bearers of the Bar Association forthwith until the Chief
Justice of the concerned High Court so permits on an appropriate undertaking
being filed by them. This may be in addition to any other action that may be
taken for the said illegal acts of obstructing access to justice. The matter
may also be considered by this Court on receipt of a report from the High
Courts in this regard. This does not debar report/petition from any other
source even before the end of a quarter, if situation so warrants.”
16. In Ex. Capt. Harish Uppal's case (supra), the Court delineated steps to be
taken before the call for abstaining from work is to be given. It was held that
a protest on an issue involving dignity, integrity and independence of the Bar
and Judiciary, can be taken provided it does not exceed one day. But, such
decision has to be taken by the court as to whether or not the issue involves
dignity or integrity or independence of the Bar and/or the Bench. Therefore, it
was directed that 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 will
have to be abided by the Bar. Still the State Bar Council as well as the Bar Associations
has not cared to follow the directions of the Supreme Court or to give respect
to said decision though they are duty bound to follow the law laid down by the
highest court of the country.
17. The Advocates are officers of the
Court. Their duty is to aid and assist in dispensation of justice. The strike
or abstention from work impairs the administration of justice and is
inconsistent with the duties of an Advocate. The Bar Association is not a Trade
Union under the Trade Union Act, 1926. The Trade Union has a right to
demonstrate as a mode of redress for resolving the grievances of the workers
but the Advocates though are members of Bar Association but are professionals
engaged by the sufferers for redressal of their grievances by intervention of
the Court. By
abstaining from work, the members of the Bar do not help anybody. The
members of the Bar are protectors of independence of the judiciary. They
must rise to maintain independence of judiciary by being an active participant
in the administration of justice and not by withdrawing from the pious duty enjoined
on them in terms of the Advocates Act, 1961.
18. The litigant has a right to get
justice. He will get justice only if the Courts are functioning in the country
but the members of the Bar cannot make the third pillar of democracy
non-functional by deciding to withdraw from work. Their action is antitheses of
democratic life of the country.
19. Even though the Supreme Court has held
that strikes are illegal and the members of the Bar cannot resort to strike but
the strikes are still common. Within the jurisdiction of this Court almost 9000
working hours have been lost on account of decision of the members of the Bar
to abstain from work in three months. The situation will be alarming if yearly
figures are tabulated. The judgment of the Supreme Court in the case of Ex. Capt. Harish
Uppal (supra) has not
deterred the State Bar Council or the Bar Associations at the State and the
District level to abstain from work. Though the Supreme Court has said that a
protest or an issue involving dignity, integrity and independence of the Bar
and Judiciary can be overlooked if it does not exceed one day. It has been
further said that such call to abstain from work would be in the rarest of rare
cases and that it will be for the Court to decide whether or not the issue
involves dignity or independence of the Bar and/or the Bench. Therefore, it was
ordered that the President of the Bar must first consult the Chief Justice or
the District Judge before the Advocates decide to absent themselves from Court
work. The
decision of the Chief Justice or the District Judge will be final, to be followed
by the Bar. But, such solemn hope has never been followed. Rather,
after decision is taken by the State Bar Council or by the Bar Association(s),
the Court is informed of the decision.
20. In these circumstances, the question
is: how to address the menace of frequent calls of strike or of abstaining from
Court work by the Bar Association(s) and or State Bar Council. There are
different options available; one is to proceed with the decision of the cases
listed for hearing. If the case is decided in the absence of an Advocate or it
is dismissed in default, in either case, the litigant who may not be aware of the
call of the strike, suffers. Such process, in fact, is not conducive to administration
of justice as it leads to applications for recall of the orders passed and
further burdens the docket of court. The second option is that the contempt proceedings
be initiated against the office bearers and/or the members who abstain from
work but initiation of contempt proceedings is also not a suitable option
inasmuch as, by the time contempt proceedings could be decided, the mischief of
abstaining from work would be done. Still further, the initiation of contempt
proceedings against the members of the Bar is not a practical solution as large
number of Advocates cannot be possibly proceeded against in contempt
proceedings. Therefore, the third option is to oust the office bearers from
managing the affairs of the Bar Association(s) or the State Bar Council so that
the members of the Bar are not prohibited from appearing in the courts. By prohibiting
the members of the Bar, not only the fundamental rights of the Advocates are
defeated but also the fundamental right of the citizens to have decision on
merits from the Courts of Law gets defeated.
21. Section 34 of the Advocates Act, 1961
empowers the High Court to make Rules laying down the conditions subject to
which an advocate shall be permitted to practise in the High Court and the
courts subordinate thereto. In exercise of such powers, the High Court has
framed the High Court of Madhya Pradesh (Conditions of Practice) Rules, 2012
which are published in M.P. Gazette (Extraordinary) on 7.6.2012 but such Rules
do not contemplate the consequences of the members of the Bar of abstaining from
work either voluntarily or in terms of resolution of the State Bar Council or
the High Court or the District Bar Associations. Therefore, we deem it
appropriate to direct the High Court to prescribe in such Rules that the
members of the Bar, who abstain from work shall stand debarred from appearing
in Courts and the conditions thereof.
22.
The State Bar Council is a statutory
Authority created to enrol and impart discipline in the members enrolled with
it. If such Authority fails to discharge its role as warranted under the law
then severe action is warranted against the Disciplinary Authority itself.
23. Therefore, in these circumstances, to
give effect to the mandate of the decision of the Supreme Court in Ex. Capt. Harish Uppal's case (supra), we pass the following directions so
that the functioning of courts is conducted smoothly in discharge of its duties
of administration of justice:
(A) IF
THE CALL FOR ABSTAINING FROM WORK IS GIVEN BY THE STATE BAR COUNCIL - A
STATUTORY BODY CONSTITUTED UNDER THE ADVOCATES ACT, 1961 :
(i) If the State Bar Council gives
call to the Members/Advocates enrolled with it to abstain from the Court work,
without the consent of the Chief Justice even for a day, the office bearers of
the State Bar Council will be debarred to appear before any court for one month
or till such time the office bearers direct resumption of court work;
(ii) if
the decision is taken to strike or to abstain from work within one year of an
earlier decision, leading to debarment of the office bearers to appear in
Court, then the State Bar Council itself shall stand suspended from the day of
call of strike or decision to abstain from work by whatever name called. Such suspension
shall be initially for a period of one month or till such time, the decision is
recalled;
(iii) during the abovesaid period, the affairs of the State Bar Council
shall be conducted by the Advocate General as an exofficio member of the Bar
Council in terms of Section 3 of the Advocates Act; and
(iv) any further call for strike or
abstaining from work shall entail supersession of the State Bar Council. The
Advocate General shall manage the affairs of the State Bar Council and to conduct
the elections of the State Bar Council within six months. In such elections,
the defaulting members of the State Bar Council, as per the above directions,
shall not be eligible to contest the election for a period of three years.
(B)
IF THE CALL FOR ABSTAINING FROM
WORK IS GIVEN BY THE HIGH COURT BAR ASSOCIATION(S) OR DISTRICT COURT BAR
ASSOCIATION(S) :
(i) If
the call for abstaining from work is given by any High Court Bar Association or
District Court Bar Association, the State Bar Council shall intervene and
forthwith declare such strike as illegal unless such strike has been resorted
to in consultation with the Chief Justice and/or the District Judge, as the
case may be;
(ii) as a consequence of declaring the action of the Bar Association(s)
as illegal, the State Bar Council shall appoint an ad hoc committee to manage the affairs of such
Bar Association(s) for a period of one month superseding the elected office
bearers. The elected office bearers shall not be permitted to appear before any
court for a period of one month. If the Bar Association resolves to resume work
so as to not to resort to strike or from abstaining from work, the elected
office bearers of the Bar Association shall resume their office;
(iii) if the office bearers of the Bar
Association again call for strike or to abstain from work, the State Bar
Council shall conduct fresh elections to such Bar Association, in which, all
office bearers of the Bar Association shall not be eligible to contest the
election for a period of three years either of Bar Associations or the State
Bar council; and
(iv) if the State Bar Council fails to act in terms of the
above directions, the members of the State Bar Council shall be deemed to have
vacated their office and the fresh elections will be conducted in the manner
mentioned in clause A(iv) above.
(C)
The High Court is directed to examine and incorporate in the High Court of
Madhya Pradesh (Conditions of Practice) Rules, 2012, the consequences of the
members of the Bar, the office bearers of the Bar Association(s) and/or the State
Bar Council of not appearing in the Court including the action of the debarment
of such erring members and the period thereof. Necessary direction should be
carried out within a period of three months.
The
writ petition stands disposed
of.