# DISTRICT BAR ASSOCIATION, DEHRADUN THROUGH ITS SECRETARY v. ISHWAR SHANDILYA & ORS

- **Citation:** [2020] 7 S.C.R. 299
- **Court:** Supreme Court of India
- **Decided:** 2020-02-28
- **Bench:** Arun Mishra, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/district-bar-association-dehradun-through-its-secretary-v-ishwar-shandilya-ors-34654
- **Pages:** 25

## Headnote

Advocates - Strikes - Constitution of India - Art. 19(1)(a) -
The advocates in the entire District of Dehradun, in several districts
of Haridwar and Udham Singh Nagar district in the State of
Uttarakhand were boycotting the Courts on all Saturdays - Writ
Petition before the High Court - The High Court directed the District
Bar Associations to withdraw their call for a strike and start
attending Courts on all working Saturdays - The Uttarakhand State
Bar Council was also directed to initiate disciplinary action against
the office bearers of the aforesaid District Bar Associations - The
District Judges were also directed to submit reports to the High
Court, in case advocates do not start attending Courts, to consider
whether action should be initiated against the errant advocates
under the Contempt of Courts Act - Before the Supreme Court, it
was contended by the petitioner-District Bar Association that right
to go on strike/boycott Courts is a fundamental right to Freedom of
Speech and Expression guaranteed u/Art. 19(1)(a) of the
Constitution of India - Held: A right to Freedom of Speech cannot
be exercised at the cost of the litigants and/ or at the cost of the
Justice Delivery System as a whole - To go on strike/boycott Courts
cannot be justified under the guise of the right to freedom of Speech
and Expression u/Art. 19(1)(a) of the Constitution - Nobody has
the right to go on strike/boycott Courts - Even, such a right, if any,
cannot affect the rights of others and more particularly, the right of
Speedy Justice guaranteed u/Art. 14 & 21 of the Constitution -
Therefore, boycotting Courts on every Saturday in the entire district
of Dehradun, in several districts of Haridwar and Udham Singh
Nagar district in the State of Uttarakhand is not justifiable and as
such tantamounts to contempt of the Courts - Therefore, the High
Court is justified in issuing the impugned directions.
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SUPREME COURT REPORTS
[2020] 7 S.C.R.
Dismissing the Special Leave Petition, the Court
HELD: 1. In spite of the law laid down by this Court in the
Ex-Capt. Harish Uppal v. Union of India (2003) 2 SCC 45; Common
Cause, A Registered Society v. Union of India (2006) 9 SCC 295
and Krishnakant Tamrakar v. State of M.P. (2018) 17 SCC 27, this
Court time and again deprecated the lawyers to go on strikes,
the strikes were continued unabated. Even in the present case,
the advocates have been boycotting the courts on all Saturdays,
in the entire district of Dehradun, in several parts of the district
of Haridwar and Udham Singh Nagar district of the State of
Uttaranchal. Because of such strikes, the ultimate sufferers are
the litigants. From the data mentioned in the impugned judgment
and order, things are very shocking. Every month on 3-4
Saturdays, the advocates are on strike and abstain from working,
on one pretext or the other. If the lawyers would have worked on
those days, it would have been in the larger interest and it would
have achieved the ultimate goal of speedy justice, which is now
recognized as a fundamental right under Articles 14 and 21 of the
Constitution. It would have helped in early disposal of the criminal
trials and therefore it would have been in the interest of those
who are languishing in the jail and waiting for their trial to
conclude. When the Institution is facing a serious problem of
arrears and delay in disposal of cases, how the Institution as a
whole can afford such four days strike in a month. [Para 6.6]
[321-D-G]
2. Now, so far as the submission on behalf of the petitioner
that to go on strike/boycott courts is a fundamental right of
Freedom of Speech and Expression under Article 19(1)(a) of the
Constitution and it is a mode of peaceful representation to
express the grievances by the lawyers' community is concerned,
such a right to freedom of speech cannot be exercised at the cost
of the litigants and/or at the cost of the Justice Delivery System
as a whole. To go on strike/boycott courts cannot be justified
un

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[2020] 7 S.C.R. 299
299
DISTRICT BAR ASSOCIATION, DEHRADUN THROUGH
ITS SECRETARY
v.
ISHWAR SHANDILYA & ORS.
(Special Leave Petition (Civil) No. 5440 of 2020)
FEBRUARY 28, 2020
[ARUN MISHRA AND M. R. SHAH, JJ.]
Advocates - Strikes - Constitution of India - Art. 19(1)(a) -
The advocates in the entire District of Dehradun, in several districts
of Haridwar and Udham Singh Nagar district in the State of
Uttarakhand were boycotting the Courts on all Saturdays - Writ
Petition before the High Court - The High Court directed the District
Bar Associations to withdraw their call for a strike and start
attending Courts on all working Saturdays - The Uttarakhand State
Bar Council was also directed to initiate disciplinary action against
the office bearers of the aforesaid District Bar Associations - The
District Judges were also directed to submit reports to the High
Court, in case advocates do not start attending Courts, to consider
whether action should be initiated against the errant advocates
under the Contempt of Courts Act - Before the Supreme Court, it
was contended by the petitioner-District Bar Association that right
to go on strike/boycott Courts is a fundamental right to Freedom of
Speech and Expression guaranteed u/Art. 19(1)(a) of the
Constitution of India - Held: A right to Freedom of Speech cannot
be exercised at the cost of the litigants and/ or at the cost of the
Justice Delivery System as a whole - To go on strike/boycott Courts
cannot be justified under the guise of the right to freedom of Speech
and Expression u/Art. 19(1)(a) of the Constitution - Nobody has
the right to go on strike/boycott Courts - Even, such a right, if any,
cannot affect the rights of others and more particularly, the right of
Speedy Justice guaranteed u/Art. 14 & 21 of the Constitution -
Therefore, boycotting Courts on every Saturday in the entire district
of Dehradun, in several districts of Haridwar and Udham Singh
Nagar district in the State of Uttarakhand is not justifiable and as
such tantamounts to contempt of the Courts - Therefore, the High
Court is justified in issuing the impugned directions.
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Dismissing the Special Leave Petition, the Court
HELD: 1. In spite of the law laid down by this Court in the
Ex-Capt. Harish Uppal v. Union of India (2003) 2 SCC 45; Common
Cause, A Registered Society v. Union of India (2006) 9 SCC 295
and Krishnakant Tamrakar v. State of M.P. (2018) 17 SCC 27, this
Court time and again deprecated the lawyers to go on strikes,
the strikes were continued unabated. Even in the present case,
the advocates have been boycotting the courts on all Saturdays,
in the entire district of Dehradun, in several parts of the district
of Haridwar and Udham Singh Nagar district of the State of
Uttaranchal. Because of such strikes, the ultimate sufferers are
the litigants. From the data mentioned in the impugned judgment
and order, things are very shocking. Every month on 3-4
Saturdays, the advocates are on strike and abstain from working,
on one pretext or the other. If the lawyers would have worked on
those days, it would have been in the larger interest and it would
have achieved the ultimate goal of speedy justice, which is now
recognized as a fundamental right under Articles 14 and 21 of the
Constitution. It would have helped in early disposal of the criminal
trials and therefore it would have been in the interest of those
who are languishing in the jail and waiting for their trial to
conclude. When the Institution is facing a serious problem of
arrears and delay in disposal of cases, how the Institution as a
whole can afford such four days strike in a month. [Para 6.6]
[321-D-G]
2. Now, so far as the submission on behalf of the petitioner
that to go on strike/boycott courts is a fundamental right of
Freedom of Speech and Expression under Article 19(1)(a) of the
Constitution and it is a mode of peaceful representation to
express the grievances by the lawyers' community is concerned,
such a right to freedom of speech cannot be exercised at the cost
of the litigants and/or at the cost of the Justice Delivery System
as a whole. To go on strike/boycott courts cannot be justified
under the guise of the right to freedom of speech and expression
under Article 19(1)(a) of the Constitution. Nobody has the right
to go on strike/boycott courts. Even, such a right, if any, cannot
affect the rights of others and more particularly, the right of Speedy
Justice guaranteed under Articles 14 and 21 of the Constitution.
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In any case, all the aforesaid submissions are already considered
by this Court earlier and more particularly in the decisions
referred to hereinabove. Therefore, boycotting courts on every
Saturday in the entire District of Dehradun, in several districts of
Haridwar and Udham Singh Nagar district in the State of
Uttarakhand is not justifiable at all and as such it tantamounts to
contempt of the courts, as observed by this Court in the aforesaid
decisions. Therefore, the High Court is absolutely justified in
issuing the impugned directions. This Court is in complete
agreement with the view expressed by the High Court and the
ultimate conclusion and the directions issued by the High Court.
Therefore, the present Special Leave Petition deserves to be
dismissed and is accordingly dismissed. [Para 6.7][321-G-H]
[322-A-D]
Ex-Capt. Harish Uppal v. Union of India (2003) 2 SCC
45 : [2002] 5 Suppl. SCR 186; Common Cause, A
Registered Society v. Union of India (2006) 9 SCC 295;
Krishnakant Tamrakar v. State of M.P. (2018) 17 SCC
27 : [2018] 4 SCR 1098 - relied on.
Case Law Reference
[2002] 5 Suppl. SCR 186
relied on
Para 6
(2006) 9 SCC 295
relied on
Para 6
[2018] 4 SCR 1098
relied on
Para 6
CIVIL APPELLATE JURISDICTION: Special Leave Petition
(Civil) No. 5440 of 2020.
From the Judgment and Order dated 25.09.2019 of the High Court
of Uttarakhand at Nainital in Writ Petition (PIL) No. 31 of 2016.
Mahabir Singh, Sr. Adv., Ajai Kumar Bhatia, Vijay S. Bishnoi,
Advs. for the Petitioner.
 The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 25.09.2019 passed by the High Court of Uttarakhand at
Nainital in Writ Petition (PIL) No. 31 of 2016, the District Bar Association,
DISTRICT BAR ASSOCIATION, DEHRADUN THR.
ITS SECRETARY v. ISHWAR SHANDILYA
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Dehradun, through its Secretary, has preferred the present SLP. That by
the impugned judgment and order, the High Court in the writ petition
(PIL) filed by the private respondent herein has issued the following
directions:
"The District Bar Associations of Dehradun, Haridwar and
Udham Singh Nagar shall, forthwith, withdraw their call for a
strike, and start attending Courts on all working Saturdays. All the
District Bar Associations in the State shall forthwith refrain from
abstaining from Courts because of condolence references for
family members of Advocates, or for other reasons. In case they
do not start attending Courts, as directed hereinabove, the District
Judges concerned shall submit their respective reports to the High
Court for it to consider whether action should be initiated against
the errant Advocates under the Contempt of Courts Act.
The Bar Council of India shall at the earliest, and in any
event within three months from today, take action against the
recalcitrant Bar Associations pursuant to its show-cause notice
dated 12.07.2019, and ensure that these Bar Associations desist
from continuing such strikes/boycott of Courts.
The Uttarakhand State Bar Council shall, within a period
of four weeks from today, initiate disciplinary action against the
office bearers of the aforesaid District Bar Associations for their
having given a call for illegal strikes/boycott of Courts on Saturdays
in the judgeship of Dehradun, Haridwar and Udham Singh Nagar.
The District Judges of these districts shall ensure that Courts
function on Saturdays, and sufficient cases are listed and are
disposed of by Courts, under their judgeship, on all working
Saturdays.
The Commissioner of Police/Senior Superintendent of Police,
of the concerned districts, shall, as and when requested by the
District Judge or a Judicial Officer, regarding the possibility of
Court proceedings being impeded because of strike/boycott of
Courts by Advocates, forthwith provide necessary police protection
to ensure smooth functioning of Courts, and thereby prevent any
impediment to Court proceedings because of strikes/boycott by
Bar Associations/Advocates.
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The High Court is requested to consider taking appropriate
measures to ensure functioning of Courts on Saturdays, that judicial
work is not hampered by such illegal strikes/boycott of Courts
and wholly unjustified condolence references, and that the Circular
issued by it earlier on 12.03.2019 is implemented."
2. From the impugned judgment and order passed by the High
Court, it appears that the Advocates in the entire District of Dehradun,
in several districts of Haridwar and Udham Singh Nagar district in the
State of Uttarakhand have been boycotting the Courts on all Saturdays
for the past more than 35 years. As the strikes are seriously obstructing
the access to justice to the needy litigants, respondent No. 1 was compelled
to approach the High Court by way of Writ Petition (PIL). Having noted
from the information sent by the High Court to the Law Commission
that with respect to the State of Uttarakhand for the years 2012-2016
showed that in Dehradun district, the Advocates were on strike for 455
days (on an average 91 days per year) and in Haridwar district it is 515
days (about 103 days per year), the High Court was of the opinion that
on all such working days on account of strikes and the conduct of the
Advocates in boycotting Courts, it has affected the functioning of the
Courts and it contributes to the ever-mounting pendency of the cases,
and therefore aforesaid directions have been issued by the High Court.
3. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court, the District Bar Association,
Dehradun has preferred the present SLP.
4. Shri Mahabir Singh, learned Senior Advocate appearing on
behalf of the petitioner has vehemently submitted that the High Court
has not properly appreciated and considered the fact that the right to go
on strike/boycott courts is a fundamental right to Freedom of Speech
and Expression guaranteed under Article 19(1)(a) of the Constitution of
India.
4.1 It is vehemently submitted by the learned Senior Advocate
appearing on behalf of the petitioner that the strike is a mode of peaceful
representation to express the grievances by the lawyers' community in
absence of no other forum is available.
4.2 It is further submitted by the learned Senior Advocate appearing
on behalf of the petitioner that the High Court ought to have held that the
protection conferred by Section 48 of the Advocates Act is for any act
DISTRICT BAR ASSOCIATION, DEHRADUN THR.
ITS SECRETARY v. ISHWAR SHANDILYA [M. R. SHAH, J.]
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done in good faith and therefore the directions issued by the High Court
to take action against the Advocates on strike would be contrary to the
protection conferred by Section 48 of the Advocates Act.
5. The learned Senior Advocate appearing on behalf of the
petitioner has stated at the Bar that, as such, the Bar Association has
already withdrawn the strike and/or boycotting Courts on all Saturdays,
his statement is taken on record.
6. Having heard the learned Senior Advocate appearing on behalf
of the petitioner and considering the impugned judgment and order passed
by the High Court, more particularly, the directions issued by the High
Court, which are reproduced hereinabove, we are of the firm opinion
that the High Court is absolutely justified in issuing such directions. As
such, the directions issued by the High Court are absolutely in consonance
with the decisions of this Court in the cases of Ex-Capt. Harish Uppal
v. Union of India (2003) 2 SCC 45; Common Cause, A Registered
Society v. Union of India (2006) 9 SCC 295 and Krishnakant
Tamrakar v. State of M.P. (2018) 17 SCC 27.
6.1 In the case of Ex-Capt. Harish Uppal (supra), this Court
has specifically observed and held that the lawyers have no right to go
on strike or even token strike or to give a call for strike. It is also further
observed that nor can they while holding Vakalat on behalf of clients,
abstain from appearing in courts in pursuance of a call for strike or
boycott. It is further observed by this Court that it is unprofessional as
well as unbecoming for a lawyer to refuse to attend the court even in
pursuance of a call for strike or boycott by the Bar Association or the
Bar Council. It is further observed that an Advocate is an officer of the
court and enjoys a special status in the society; Advocates have obligations
and duties to ensure the smooth functioning of the court; they owe a
duty to their clients and strikes interfere with the administration of justice.
They cannot thus disrupt court proceedings and put interest of their clients
in jeopardy.
6.2 While considering the role of the Bar Councils, it is observed
in paragraphs 25 and 26 of the aforesaid decision as under:
"25. In the case of Supreme Court Bar Assn. v. Union of
India [(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: (SCC pp. 444-46, paras 79-80)
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"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 SolicitorGeneral 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 by 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 of 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
DISTRICT BAR ASSOCIATION, DEHRADUN THR.
ITS SECRETARY v. ISHWAR SHANDILYA [M. R. SHAH, J.]
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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, 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 to appear 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 practise 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 practise as an
advocate in other courts or 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 the 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
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waste-paper basket. In case any Association calls for a strike or a call
for boycott the State Bar Council concerned 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 Ramon
Services case [(2001) 1 SCC 118 : 2001 SCC (Cri) 3 : 2001 SCC (L&S)
152] 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."
6.3 In the aforesaid decision, this Court took note of the resolution
dated 29.09.2002 passed by the Bar Council of India, by which it was
resolved, inter alia, to constitute the Grievance Redressel Committees
at the Taluk/Sub-Division or Tehsil levels, at the District level, High Court
and Supreme Court levels. Thereafter, this Court further observed that
merely holding strikes as illegal would not be sufficient in the presentdays situation nor would it serve any purpose. Some concrete joint action
is required to be taken by the Bench and the Bar to see that there are no
strikes any more. That, thereafter, this Court directed that (a) all the Bar
Associations in the country shall implement the resolution dated
29.09.2002 passed by the Bar Council of India, and (b) under Section 34
of the Advocates Act, the High Courts would frame necessary rules so
that appropriate actions can be taken against defaulting advocate/
advocates.
6.4 Despite the law laid down by this Court in the aforesaid
decisions and even the concern expressed by this Court against the strikes
by the lawyers, things did not improve and again the issue of lawyers
going on strikes came to be considered in the case of Common Cause,
DISTRICT BAR ASSOCIATION, DEHRADUN THR.
ITS SECRETARY v. ISHWAR SHANDILYA [M. R. SHAH, J.]
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A Registered Society (supra) and this Court in paragraph 4 of that
judgment, held as under:
"4. The Constitution Bench has, in Ex Capt. Harish Uppal
case [(2003) 2 SCC 45] culled out the law in the following terms:
(SCC pp. 64 & 71-74, paras 20-21 & 34-36)
"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
them 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 case [Mahabir Prasad Singh v. Jacks Aviation (P) Ltd.,
(1999) 1 SCC 37] 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 lawyer's duty is to boldly ignore a call for strike or
boycott of court(s). Lawyers have also known, at least since
Ramon Services case [Ramon Services (P) Ltd. v Subhash
Kapoor, (2001) 1 SCC 118 : 2001 SCC (Cri) 3 : 2001 SCC (L&S)
152] , 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 clients. Strikes interfere with
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administration of justice. They cannot thus disrupt court
proceedings and put interest of their clients in jeopardy.
***
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 practise 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 the Bar Councils. It would be concerning the dignity
and orderly functioning of the courts. The right of the advocate to
practise envelops 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 a 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 practise, 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
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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 its majesty 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 practise 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 practise in courts. Article 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
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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 armbands, 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 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 advocates
decide to absent themselves from court. The decision of the Chief
Justice or the District Judge would be final and have to be abided
by the Bar. It is held that courts are under no obligation to adjourn
matters because lawyers are on strike. On the contrary, it is the
duty of all courts to go on with matters on their boards even in the
absence of lawyers. In other words, courts must not be privy to
strikes or calls for boycotts. It is held that if a lawyer, holding a
vakalat of a client, abstains from attending court due to a strike
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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.
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 of accordingly."
The Court also dealt with the role of Bar Councils on the following
terms: (SCC pp. 66-68, paras 25-26)
"25. In the case of Supreme Court Bar Assn. v. Union of
India [(1998) 4 SCC 409 : AIR 1998 SC 1895 : 1998 AIR SCW
1706] it has been held that professional misconduct may also
amount to contempt of court (para 21). It has further been held as
follows: (SCC pp. 444-46, paras 79-80)
'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 contemnor advocate. It must act in accordance with the
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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 contemnor advocate to enable the State Bar Council to proceed
in the manner prescribed by 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 of 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, 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 contemnor advocate to appear 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 practise as an Advocate-onRecord because that privilege is conferred by this Court and the
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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 practise as an
advocate in other courts or 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 the 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 State Bar Council concerned and on its 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 Ramon
Services case [Ramon Services (P) Ltd. v. Subhash Kapoor, (2001) 1
SCC 118 : 2001 SCC (Cri) 3 : 2001 SCC (L&S) 152] 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."
Apart from reiterating the above law, we do not propose to take
any further action. The contempt notices stand discharged."
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6.5 While considering the issue of delay/speedy disposal, in case
of Krishnakant Tamrakar (supra), this Court had the occasion to
consider how uncalled for frequent strikes obstructs the access to justice
and what steps are required to remedy the situation. In the aforesaid
decision, it is observed by this Court that access to speedy justice is a
part of the fundamental rights under Articles 14 and 21 of the Constitution
of India. This Court was of the opinion that one of the reasons/root
cause for delay is uncalled for strikes by the lawyers. In the aforesaid
decision, this Court also took note of 266th Law Commission Report, in
which there was a reference to the strikes by the lawyers in the Dehradun
and Haridwar districts itself. In the aforesaid decision, this Court also
took note of the recommendations made by the Law Commission.