Lawyers are striking work and boycotting courts frequently these days,
mostly alleging injustice to one of their colleagues. At first, the
boycotts were limited to the cities in which the injustice allegedly
occurred, but now, lawyers all over the state are boycotting the courts
about an incident that took place in Bengaluru. The day may not be far
off when there will be nationwide strikes when a lawyer in manhandles by
someone.
Lawyers' strikes are not only paralyzing our judicial system,
but also, many a time paralyzing every day life by blocking roads and
other essential services. Many people are interested in knowing what the
laws and the courts say about such strikes.
All lawyers in India are bound by the Advocates Act, 1961. Under
Sec. 49(1)(c) of the this Act, the Bar Council of India has framed
rules governing the conduct of advocates. Various High Courts and the
Supreme Court have repeatedly interpreted these rules to completely ban
strikes by advocates. In one judgment ((2003) 2 SCC 45), the Supreme
Court said that the lawyers can ventilate their grievances by giving
press statements, TV interviews, carrying banners or placards, wearing
black bands, holding peaceful protest marches, dharnas or relay fasts,
etc. (all these outside the court premises), but not by striking work
and abstaining from courts. In another judgment ((1999) 1 SCC 37), the
Supreme Court held that if any lawyer does not want to appear in a
particular court, he should return the briefs of his clients so that
they can engage another lawyer. But retaining the brief of his client
and at the same time abstaining from appearing in a court is
unprofessional as unbecoming of the status of an advocate.
Lawyers have often argued that they have a right to strike as
guaranteed by Article 19 of the Constitution (Freedom of Speech). But
the courts have held that a litigant has a fundamental right for a
speedy trial of his case as guaranteed by Article 21 (Protection of Life
and Personal Liberty) of the Constitution. A strike by lawyers will
infringe this fundamental right of the litigants and such infringement
cannot be permitted. The exercise of the right under Article 19 comes to
an end when such exercise threatens the fundamental right of another,
the courts have said.
Since the litigant has a fundamental right to a speedy trial, it
automatically follows that the courts are bound to conduct hearings and
pass orders even when lawyers for both sides are absent because of a
strike. In a judgment ((1998) 8 SCC 624), the Supreme Court has held
that courts should conduct hearings in such a situation as otherwise it
would amount to the courts participating in the strike. It is not known
how many courts follow this order of the Supreme Court.
The Supreme Court has also ruled against enforcing Bandhs or
Rasta Rokos during a strike. In a judgment (AIR 1998 SC 184), it has
said that the fundamental rights of the people as a whole cannot be
subservient to the claim of fundamental right of a section of the
people. Therefore, there cannot be any right to call a Bandh which
interferes with the fundamental freedoms of other citizens.
If a lawyer who works for a fee does not appear at the hearing
because of a strike or a boycott, he or she can be prosecuted in a
consumer forum for deficiency of service, according to a judgment of the
National Consumer Grievances Redressal Commission (II (2002) CPJ 118
(NC)). In this judgment, the National Commission has also ordered that
the Consumer Fora should not give adjournments for lawyer strikes.
In its order, the National Commission observed, "Strike is a
virus which should not be allowed to infect the Fora constituted under
the Consumer Protection Act. It should never be ground for adjournment
in a Forum that the lawyers are on strike....We have to guard ourselves
against the pernicious practice of strike by lawyers spreading to the
Fora under the Act. Nonappearance of a lawyer in a court or tribunal or
any Authority after being engaged and having charged his fee could
itself be deficiency on his part. There is already a public criticism
that Fora under the Act are fast becoming Civil Courts where
adjournments are granted as matter of course. This should not be
permitted, otherwise the purpose of the Act will be lost. State
Commissions should ensure that no adjournment is granted on the ground
of strike by lawyers. If the lawyers do not appear before the District
Forum or State Commission, it can decide the matter on the basis of the
record, if it so chooses. A request for adjournment on the ground of
strike by lawyers is not justifiable ground for adjourning the matter."
V.Mahesha, Mysore Grahakara Parishat