# EX. CAPT. HARISH UPPAL v. UNION OF INDIA AND ANR

- **Citation:** [2002] Supp. 5 S.C.R. 186
- **Court:** Supreme Court of India
- **Decided:** 2002
- **Case number:** writ petition No.821 of 1991
- **Bench:** G. B. Pattanaik Cj, M.B. Shah, Doraiswamy Raju, S.N. Variava, D.M. Dharmadhikari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ex-capt-harish-uppal-v-union-of-india-and-anr-18845
- **Pages:** 36

## Headnote

Advocates Act, 1961:
Strike or cal/for boycott of Courts by lawyers-Held: Lawyers have no
such right-Instead peaceful demonstra/ion may be resorted to-Further, cour/s
may overlook prates/ on an Issue involving dignity, integrity and independence
of the Bar and Judiciary provided ii does no/ exceed one day.
Advocate-Role of-Whether could resort to strike or call for boycott of
Courts-Held: No, since Advocate has obligations and duties to ensure smooth
functioning of Court and owes a duty to his client-Strike interferes with
administration of justice-Advocate cannot disrupl Courl proceedings.
Sections 34 and 48A-Scope of-Discussed.
Jn writ petition No.821 of 1991 an interim order was passed to the
effect that except in the rarest of rare cases strike should not be resorted
to and instead peaceful demonstration may be resorted to avoid causing
hardship to the litigant public 1(1995) I Scale p.61. It was suggested that
Bar Council of India incorporate certain clauses in the Bar Council of
India (Conduct & Disciplinary) Rules. However the Bar Council of India
did not incorporate it in the Bar Council of India (Conduct and
Disciplinary) Rules and the phenomenon of going on strikes at the slightest
provocation is on the increase. Hence the need to decide whether lawyers
have a right to strike and/or give a call for boycott of courts.
G
Amicus Curiae submitted that this Court has declared strikes illegal;
that even a call for strike is bad; that it is time that the Bar Council of
India as well as various State Bar Councils monitor str-ikes within their
jurisdiction and ensure that there are no call for strike~ and/or boycotts;
and that in all cases where redressal can be obtained by going to a Court
H of law there should be no strike.
186
·-
EX. CAPT. HARISH UPPAL v. U.0.1.
187
Petitioner in Writ Petition (C) No.406 of 2000 contended that Courts A
have declared that a strike is illegal; that lawyers who are officers of the
Court cannot use strikes as a means to blackmail courts or clients; that
the call for strike by lawyers is in effect a call to breach the contract which
lawyers have with their clients and if he does not attend Court it would
amount to professional misconduct and also contempt of Court; that B
Courts should cast responsibility on Bar Councils and Bar Associations
to see that there is no strike and/or call for boycott and should also take
action against Committee members for giving such calls on the basis that
they have committed contempt of Court; that Committee members of a
Bar Association or Council should refuse any requisition calling a meeting
to consider a strike; that it cannot have any legal or moral right to call a C
meeting to consider a call for an illegal act; that Court should frame rules
regulating the right of lawyers to appear before Court and also against
lawyers who mis-conducts himself and commits contempt of court by going
on strike; and that this Court should issue a mandamus to Bar Councils
to frame rules in consonance with the interim directions which have been
passed by this Court.
D
Petitioner in W.P. (C) No.821 of 1990 supported the aforesaid
contentions and further contended that Court should also declare that
lawyers who do not want to participate in a strike should not be coerced
by other lawyers or Committee members, which can be by physical E
prevention from appearance, by a threat to withdraw facility or to
terminate the membership of Associations and if any such threats are given
or any such coercion is used then Court must punish the party so coercing
for contempt.
The Attorney General of India and most of the Bar Councils and F
Bar Associations inter alia contended that strike by lawyers cannot be
equated with strikes resorted to by other sections of society; that strike
or abstention from work impairs the administration of justice and is
inconsistent with the calling and position of lawyers; that abstention from
work by lawyers, may be resorted to where the action protested again

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EX. CAPT. HARISH UPPAL
v.
UNION OF INDIA AND ANR.
DECEMBER I 7, 2002
(G. B. PATTANAIK CJ., M.B. SHAH, DORAISWAMY RAJU, S.N.
VARIAVA AND D.M. DHARMADHIKARI, JJ.]
Advocates Act, 1961:
Strike or cal/for boycott of Courts by lawyers-Held: Lawyers have no
such right-Instead peaceful demonstra/ion may be resorted to-Further, cour/s
may overlook prates/ on an Issue involving dignity, integrity and independence
of the Bar and Judiciary provided ii does no/ exceed one day.
Advocate-Role of-Whether could resort to strike or call for boycott of
Courts-Held: No, since Advocate has obligations and duties to ensure smooth
functioning of Court and owes a duty to his client-Strike interferes with
administration of justice-Advocate cannot disrupl Courl proceedings.
Sections 34 and 48A-Scope of-Discussed.
Jn writ petition No.821 of 1991 an interim order was passed to the
effect that except in the rarest of rare cases strike should not be resorted
to and instead peaceful demonstration may be resorted to avoid causing
hardship to the litigant public 1(1995) I Scale p.61. It was suggested that
Bar Council of India incorporate certain clauses in the Bar Council of
India (Conduct & Disciplinary) Rules. However the Bar Council of India
did not incorporate it in the Bar Council of India (Conduct and
Disciplinary) Rules and the phenomenon of going on strikes at the slightest
provocation is on the increase. Hence the need to decide whether lawyers
have a right to strike and/or give a call for boycott of courts.
G
Amicus Curiae submitted that this Court has declared strikes illegal;
that even a call for strike is bad; that it is time that the Bar Council of
India as well as various State Bar Councils monitor str-ikes within their
jurisdiction and ensure that there are no call for strike~ and/or boycotts;
and that in all cases where redressal can be obtained by going to a Court
H of law there should be no strike.
186
·-
EX. CAPT. HARISH UPPAL v. U.0.1.
187
Petitioner in Writ Petition (C) No.406 of 2000 contended that Courts A
have declared that a strike is illegal; that lawyers who are officers of the
Court cannot use strikes as a means to blackmail courts or clients; that
the call for strike by lawyers is in effect a call to breach the contract which
lawyers have with their clients and if he does not attend Court it would
amount to professional misconduct and also contempt of Court; that B
Courts should cast responsibility on Bar Councils and Bar Associations
to see that there is no strike and/or call for boycott and should also take
action against Committee members for giving such calls on the basis that
they have committed contempt of Court; that Committee members of a
Bar Association or Council should refuse any requisition calling a meeting
to consider a strike; that it cannot have any legal or moral right to call a C
meeting to consider a call for an illegal act; that Court should frame rules
regulating the right of lawyers to appear before Court and also against
lawyers who mis-conducts himself and commits contempt of court by going
on strike; and that this Court should issue a mandamus to Bar Councils
to frame rules in consonance with the interim directions which have been
passed by this Court.
D
Petitioner in W.P. (C) No.821 of 1990 supported the aforesaid
contentions and further contended that Court should also declare that
lawyers who do not want to participate in a strike should not be coerced
by other lawyers or Committee members, which can be by physical E
prevention from appearance, by a threat to withdraw facility or to
terminate the membership of Associations and if any such threats are given
or any such coercion is used then Court must punish the party so coercing
for contempt.
The Attorney General of India and most of the Bar Councils and F
Bar Associations inter alia contended that strike by lawyers cannot be
equated with strikes resorted to by other sections of society; that strike
or abstention from work impairs the administration of justice and is
inconsistent with the calling and position of lawyers; that abstention from
work by lawyers, may be resorted to where the action protested against
is detrimental to free and fair administration of justice; that cases where G
the action eroded the autonomy of the legal profession, token strike for
one day may be resorted to; that alternative forms of protest can be
explored; that abstention from work for the redressal of a grievance should
never be resorted to where other remedies for seeking redressal are
available; that ail attempts should be made to seek redressal from the H
188
SUPREME COURT REPORTS (2002] SUPP. 5 S.C.R.
A concerned authorities; that where such redressal is not available or not
forthcoming, the direction of the protest can be against that authority and
should not be misdirected; that no force or coercion should be employed
against lawyers who are not in agreement with the "strike call" and want
to discharge their professional duties; that they were not in favour of
B strikes and/or call for strikes; that their Associations had not gone on strike
at all and/or only on token strikes of not more than one day; that consensus
at the Bar was that lawyers cannot and should not resort to strike in order
to vent their grievances where a legal remedy was available; that even
where a legal remedy was not available strike should be resorted to when
the dignity of the Court or the Bar was at stake that also only a token
C strike for one day; that other methods of protests must be resorted to,
viz. passing of resolutions, making representations, taking out silent
processions without causing disturbance to Court work, holding dharnas
or relay fast and wearing white ribbons; and that there must be
Committees for redressing grievances of lawyers.
D
Bar Council of U.P. contended that lawyers have a right to go on
strike or give a call for boycott; that Courts have no power of supervision
over the conduct of lawyers by virtue of Section 50 of Advocates Act, 1950;
that this Court laying down that going on strike amounts to misconduct
is of no consequence as the Bar Councils have been vested with the power
E to decide whether or not an Advocate has committed misconduct and this
Court cannot penalise any Advocate for the same; and that it is for the
F
Bar Councils to decide whether strike should be resorted to or not.
Disposing of the writ petitions, the Court
HELD: (Per Variava J. for himself. CJ/, and Doraiswamy Raju J):
I.I. An Advocate is an officer of the Court and enjoys special status
in society. Advocates have obligations and duties to ensu.re smooth
functioning of the Court and owe a duty to their client. Strikes interfere
with administration of justice. Lawyers cannot thus disrupt Court
G proceedings and put interest of their clients in jeopardy. 1208-C, DI
1.2. Lawyers have no right to go on strike or give a call for boycott,
not even on a token strike. 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
H protest marches outside and away from Court premises, going on dharnas
EX. CAPT. HARISH UPPAL v. U.0.1
189
or relay fasts etc. Lawyers ho_lding Vaka lats on behalf of their client cannot A
refuse to attend Courts in pursuance to a call for strike or boycott. They
must boldly refuse to abide by any call for strike or boycott. No lawyer
can be visited with any adverse consequences by Association or Council.
No threat or coercion of any nature including that of expulsion can be
held out. No Bar Council or Bar Association can permit calling of a B
meeting for purposes of considering a call for strike or boycott and
requisition, if any, for such meeting must be ignored. Only in cases where
the dignity, integrity and independence of the Bar and/or the Bench are
at stake, Courts may ignore to a protest abstention from work for not more
than one day. [218-H; 219-A, B, q
1.3. It is clarified that it will be for Court to decide whether or not c
the issue involves dignity or integrity or in.dependence of Bar and/or Bench.
Therefore, in such cases the President of Bar must first consult Chief
Justice or District Judge before Advocates decide to absent themselves
from Court. Their decision would be final and the Bar has to abide by it.
Courts are under no obligation to adjourn matters because lawyers are D
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. Further, if a lawyer,
holding a Vakalat ofa client, abstains from attending Court due to a strike
call, he shall be personally liable to pay costs which shall be in addition E
to damages which he might have to pay his client for loss suffered by him.
1219-C, D, El
B.L. Wadehra v. State (NCT) of Delhi and Ors., AIR (2000) Delhi 266,
approved.
Bharal Kumar K. Palicha and Anr. v. Stale of Kera/a and Ors., AIR
(1997) Ker 291; Communist Party of India (M) v. Bharat Kumar and Ors.,
119981 I SCC 201 at 202; Lt. Col. S.J. Chaudhary v. S1a1e (Delhi
Administration) 1198411 SCC 722; K. John Koshy and Ors. v. Dr. Tarakeshwar
Prasad Shaw, [19981 8 SCC 624; Mahabir Prasad Singh v. Jach
0
Aviation
F
Pvt. lid., 1199911 sec 37; Koluttumottil Razak v. Slate of Kera/a, 120001 4 . G
sec 465; U.P. Sales Tax Service Association v. Taxation Bar A;sociation
1199515 SCC 716; Roman Sen•ices Pvt. Ltd. v •.. Subhash Kapoor, 1200111
SCC 118; Abhay Prakash Sahay La/an v. High Courl of Judicalure at Patna,
AIR (1998) Patna 75 and Supreme Courl Bar Associalion v. Union of India
[19981 4 SCc'409, -referred to.
H
190
SUPREME COURT REPORTS (2002] SUPP. 5 S.C.R.
A
2. The contentions of Bar Councils of U.P. are rejected since none
B
of the functions of the Bar Council of India mentioned under Section 7 of
the Advocates Act authorize paralysing of the working of Courts in any
manner. On the contrary, Bar Council of India is enjoined with the duty
of laying down standards of professional conduct and etiquette for
Advocates. This would mean that the Bar Council of India ensures that
Advocates do not behave in unprofessional and unbecoming manner.
Section 48A gives a right to Bar Council of India to give directions to State
Bar Councils. The Bar Associations may be separate bodies but all
Advocates who are members of such Association are under disciplinary
jurisdiction of the Bar Councils and thus the Bar Councils can always
C control their conduct. (209-C, D, El
3. Courts are not powerless or helpless. Section 38 of the Advocates
Act provides that even in disciplinary matters the final Appellate Author~ty
is the Suprem!! Court. Thus even if the Bar Councils do not rise to the
occasion and perform their duties by taking disciplinary action on a
D 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. (212-B, Cl
E
4. The administration of justice and the reputation of the legal,
profession is at stake. It is the duty and obligation of Bar Council of India
to now incorporate clauses as suggested in the interim order in their
disciplinary rules which they failed to do. 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
p for such exercise. Authority cannot refuse to act at its will or pleasure. If
such omission continues, particularly when there is an apparent threat to
the administration of justice and fundamental rights of the litigating
public, Courts will always have authority to compel or enforce the exercise
of the power by the statutory authority. Courts would then be compelled
to issue directions as are necessary to compel the authority to do what it
G should have done.on its own. (215-C, D, El
H
Per Shah J. (for himself and Dharmadhikari, J. (Supplementing):
1.1. 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
EX. CAPT. HARISH UPPAL v. U.0.1.
191
utilized in assisting the judicial system, if required, by exposing any person, A
whosoever he may be, if he is indulging in any unethical practice. It is
hoped that instead of resorting to strike, Bar would find out other ways
and means redressing their grievances including peaceful demonstrations.
[220-E, F)
1.2. It is true that Advocates are part and parcel of judicial system B
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 Bar Council of India of seeing that
there are no further strike any more. Bar Council of India in its resolution C
has also stated that the resolution passed by it would be implemented
strictly and hence, Bar Associations and the individual members of 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. [221-B, C)
1.3. All the Bar Associations in the country shall implement the
Resolution dated 29th September, 2002 passed by Bar Council of India
and High Courts would frame necessary rules under Section 34 of
Advocates Act, so that appropriate action can be taken against defaulting
advocates. [221-E)
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 132 of
1988.
(Under Article 32 of the Constitution of India.)
WITH
W.P. (C) Nos. 320, 394/93, 821/90 and 406 of 2000.
Soli J. Sorabjee, Attornery General, Dipanker Gupta, Shanti Bhushan,
Kailash Vasudev, V.R. Reddy, M.N. Krishnamani, P.P. Rao, R.K.P.
D
E
F
Shankardass, Mahati M. Parkeday. P.S. Mishra and Amarendra Sharan.
G
K. Subrarnaniurn. C.S. Vaidyanathan, G.L. Sanghi, Upender K. Jallali,
S.S. tehar, Gopal Subramanium, R.K. Jain, P.N. Mishra, Jagdeep Dhankhar,
Dr. Harish Uppal-in-Person, Prashant Bhushan, Vishal Gupta, Sanjeev Kapoor.
Narendra Verma, S.K. Pathak, Anil Kumar Mittal, Ms. Kamini Jaiswal, A.K.
Nigam, S. Bakshi, Ms. Aishwarya Rao, Vishal Gupta, Sanjeev Mahajan, G.G. H
192
SUPREME COURT REPORTS (2002] SUPP. 5 S.C.R.
A Upadhya, Syed Ali Ahmed, Syed Tan.weer Ahmad, Ms. Artia Upadhyay,
R.D. Upadhyay, Ms. Binu Tamta, S.N.Terdol, Sanjeev Sachdeva, D.V. Subba
Rao, Adish Aggarwala, N. Karvendan, Mrs. Setia Vaidialingam, G. Balaji,
Ashok Kr. Pandey, A. Mariarputham, Anurag D. Mathur, Mrs. Aruna Mathur,
K.R. Sasiprabhu, Ranjan Mukherjee, Ramesh Babu M.R. Robson Paul, V.K.
Sidharthan, S~ Chandra Shekhar', Tathagat Harshwardhan, Mrs. S. Reddy, Dr.
B J.P. Singh, C.D. Singh, Amit Kumar, S.A. Khan, A.A. Tiwary, Ashok Arora,
Ms. Sumita Rao, C.V.S. Rao, K.M.K. Nair, Rishi Agarwal, Manu Krishnan,
Alok K. Agarwal, E.C. Agrawala, Mahesh Agarwal, Ashwini Kumar, K.C.
Kaushik, Ms. Bina Gupta, Ms. Rakhi Ray, Mr. Vanita Bhargava, Raj Kumar
Gupta, Sheo Kr. Gupta, A.N. Baradiyar, S.K. Kulkarni, Gireesh Kumar,
C Anukur S. Kulkarni, Ms. Sangeeta Kumar, S. Guru Krishna Kumar, S.S.H.
Rizvi, D.N. Mishra. P.S. Narasimha, A. Bhattacharya, P. Sridhar, Sakesh
Kumar, S.K. Aganihtri, A.K. Srivastava, Prakash Kumar Singh, U.U. Lalit,
S.S. Shinde, Raghupathy V.N. Ms. Manmeet Arora, Angad Narula, T.V.
Ratnam, K. Subba Rao, Rajendra Singhvi, Ashok K. Singh, S.L. Singh, J.S.
Bhasin, H.A. Raichura, S.H. Raichura, A.V. Palli, Rajnesh Jaswal, Mrs. Rekha
D Palli, Aruneshwar Gupta, M.N. Shroft, Pravir Chaudhary, Ms. B.
Vijayalakshmi Menon, M. Veerappa, Ms. S. Janani, Ms. Aruna Gupta, Ashwani
Bhardwaj, Abhishek Atrey, S.P. Sharma, Krishnammihi Swami, Mrs. Sarla
Chandra, S.R. Setia, Raj Kumar Mehta, M.P. Shorawala, C.L. Sahu, B.V.
Desai, Bijan Kumar Ghosh, Goodwill Indeevar, Sanjay Parikh, J.S. Atri,
E K.K. Rai, Radha Shyam Jena, Sushi! Kumar Jain, S.K. Kulkarni. M.G. Kumar,
A.K. Kulkarni Adv, for Surya Kant, K. Ram Kumar, A.S. Bhasme, H.K. Puri,
R.K. Virmani, V.B. Joshi, Sandeep S. Tiwari, Ravi Kini, Ms. Leela Pujari,
P.O. Sharma, Arun K. Sinha, Rakesh Singh Rajiv Mehta, K.M.K. Nair, S.
Misra, Lok Nath Rath, Dr. Sushi! Balwada, Ms. A. Subhashini, Tarun Johri,
Rakesh Tikku, D.K. Sharma, Rakesh Singh, Arun K. Sinha, Rajesh Pathak,
F Ajit Kr. Sinha, K.S. Bhati, Sanjeev Kumar, Ranji Thomas, Sushi! Tekriwal,
Ms. B. Upadhyaya Naresh K. Sharma, Mukesh K. Giri, Ms. H. Wahi, Prakash
Srivatava, Nitin Bhardwaj for the appearing parites.
The Judgments of the Court were delivered by
G
S.N. V ARIA VA, J. I All these Petitions raise the question whether
lawyers have a right to strike and/or give a call for boycotts of Court/s. In
all these Petitions a declaration is sought that such strikes and/or calls for
boycott are illegal. As the questions vitally concerned the legal profession,
public notices were issued to Bar Associations and Bar Councils all over the
H country. Pursuant to those notices some Bar Associations and Bar Councils
EX. CAPT. HARISH UPPAL v. U.O.L [S.N. VARIAVA, J.]
193
have filed their responses and have appeared and made submissions before A
us.
(2) In Writ Petition (C) No. 821 of 1990, an interim order came to be
passed. This Order is reported in (1995) I Scale p.6. The circumstances
under which it is passed and the nature of the interim order are set oufin the
Order. The relevant portion reads as under:
B
"2. The Officiating Secretary, Bar Council of India, Mr. C. R. Balaram
filed an affidavit on behalf of the Bar Council of India wherein he
states that a 'National Conference' of members of the Bar Council of
India and State Bar Councils was held on I 0th and I Ith September,
1994 and a working paper was circulated on behalf of the Bar Council C
of India by Mr. V. C. Misra, Chairman, Bar Council of India, inter
alia on the question of strike by lawyers. In that working paper a note
was taken that Bar Association had proceeded on strike on several
occasions in the past, at times, State-wide or Nationwide, and 'while
the profession does not like it as members of the profession are D
themselves the losers in the process' and while it is not necessary to
sit in judgment over the wider question whether members of the
profession can at all go on· strike or boycott of courts, it was felt that
even if it is assumed that such a right enures to the members of the
profession, the circumstances in which such a steps should be restored
should be clearly indicated. Referring to an earlier case before the E
Delhi High Court it was stated that the Bar Council of India had
made its position clear to the effect :'(a) Bar Council of India is
against resorting to strike excepting in rarest of rare cases involving
the dignity and independence of the judiciary as well as of the Bar;
and (b) whenever strikes becomes inevitable, efforts shall be made to p
keep it short and peaceful 'to avoid causing hardship to the litigant
public." (emphasis supplied). It was in response to the above that a
consensus emerged at the Bar at the hearing of the matter that instead
of the Court going into the wider question whether or not the members
of the legal profession can resort to strike or abstain from appearing
in cases in Court in which they are engaged, the Court may see the G
working of the interim arrangement and if that is found to be
satisfactory it may perhaps not be required to go into the wider question
at this stage. Pursuant to the discussion that took place at the last
hearing on 30th November, 1994, the following suggestions have
emerged as an interim measure consistent with the Bar Council of H
194
SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A
India's thinking that except in the rarest of rare cases strike should
not be resorted to and instead peaceful demonstration may be resorted
to avoid causing hardship to the litigant public. The learned counsel
suggested that to begin with the following interim measures may be
sufficient for the present:-
B
c
D
E
F
G
H
"(!)In the rare instance where any association oflawyers
including statutory Bar Councils considers it imperative to call
upon and/or advise tnembers of the legal profession to abstain
from appearing in courts on any occasion, it must be left open
to any individual member/members of that association to be free
to a~pear without let, fear or hindrance or any other coercive
steps.
(2) No such member who appears in court or otherwise
practices his legal profession, shall be visited with any adverse
or penal consequences whatever, by any association of lawyers,
and shall not suffer any expulsion or threat of expulsion therefrom.
(3) The above will not preclude other fonns of protest
by practising lawyers in court such as, for instance, wearing of
arm bands and other fonns of protest which in no way interrupt
or disrupt the court proceedings or adversely affect the interest
of the litigant. Any such form of protest shall not however be
derogatory to the court or to the profession.
(4) Office-bearers of a Bar Association (including Bar
Council) responsible for taking decisions mentioned in clause
(!)above shall ensure that such decisions are implemented in the
spirit of what is stated in clauses (I) and (2) and (3) above."
3: Mr. P. N. Duda, Sr. Advocate representing the Bar Council of
India was good enough to state that he will suggest to the Bar Council
of India to incorporate Clauses (!), (2) and (3) and (4) in the Bar
Council of India (Conduct & Disciplinary) Rules, so that it can have
statutory support should there be any violation or contravention of
the aforementioned four clauses. The suggestion that we defer the
hearing and decision on the larger question whether or not members
of the profession can abstain from work commends to us. We also
agree with the suggestion that we see the working of the suggestions
in clauses (I) to ( 4) above for a period of at least six months by
making the said clauses the rule of the Court. Accordingly we make
EX. CAPT. HARISH UPPAL v. U.0.1. [S.N. VARIAVA, J.]
195
clauses (I) to (4) mentioned above the order of this Court and direct A
further course of action in terms thereof. The same will operate
prospectively. We also suggest to the Bar Councils and Bar
Associations that in order to clear the pitch and to uphold the high
traditions of the profession as well as to maintain the unity and integrity
of the Bar they consider dropping action already initiated against B
their members who had appeared in Court notwithstanding. strike
calls given by the Bar Council or Bar Association. Besides, members
of the legal profession should be alive to the possibility of Judge of
different Courts refusing adjournments merely on the ground of their
being a strike call and insisting on proceeding with cases."
The above. interim Order was passed in the hope that better sense could
prevail and lawyers would exercise self restraint. In spite of the above interim
directions and the statement of Mr .. P. N. Duda the Bar Council of India has
c
not incorporated clauses (I) to (4) in the Bar Council of India (Conduct &
Disciplinary) Rules. The phenomenon of going on strike at the slightest
provocation is on the increase. Strikes and calls for boycott have paralysed D
the functioning of Courts for a number of days. It is now necessary to decide
whether lawyers have a right to strike .and/or give a call for boycott of Court/
s. 3) We have heard Mr. Dipanker Gupta, learned Amicus Curie. We have
heard the Petitioner in person and Advocates for the various Writ Petitioners.
We have heard the Bar Councils and Bar Associations who desired to be E
heard.
(4) Mr. Dipanker Gupta referred to various authorities of this Court
and submitted that the reasons why strikes have been called by the
Bar Associations and/or Bar Councils are :
(a) confrontation with the police and/or the legal administration;
(b) grievances against the Presiding Officer;
( c) grievances against Judgments of Courts;
( d) clash of interest between groups of lawyers and
( e) grievances against the legislature or a legislation.
Mr. Gupta submitted that the law was well established. He pointed
out that this Court has declared that strikes are illegal. He submitted
that even a call for strike is bad. He submitted that it is time that the
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strikes within their jurisdiction and ensure that there are no call for
strikes and/or boycotts. He submitted that in all cases where redressal
can be obtained by going to a Court of law there should be no strike.
(5) Mr. Nigam, on behalf of Petitioner in Writ Petition (C) No. 406
of 2000, submitted that strike as a mean for collective bargaining is
B
recognised only in industrial disputes. He submitted that lawyers who
are officers of the Court cannot use strikes as a means to blackmail
the Courts or the clients. He submitted that the call for strike by
lawyers is in effect a call to breach the contract which lawyers have
with their clients. He submitted that it has already been declared by
C
Courts that a strike is illegal. He submitted that it is now time that
Courts cast responsibility on the Bar Councils and the Bar Associations
to see that there is no strike and/or call for boycott. He submitted that
now the Executive Committee of any Bar Council or Bar Association
which calls for a strike or boycott should be held responsible by the
Courts. He submitted that the Courts must take action against the
D
Committee members for giving such calls on the basis that they have
committed contempt of court. He submitted that the law is that a
lawyer who has accepted a Vakalat on behalf of a client must attend
Court and if he does not attend Court it would amount to professional
misconduct and also contempt of court. He submitted that Court should
E
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now frame rules whereby the Courts regulate the right of lawyers to
appear before the Court. He submitted that Courts should frame rules
whereby any lawyer who mis-conducts himself and commits contempt
of court by going on strike or boycotting a Court will not be allowed
to practice in that Court. He submitted that it should now be held that
even if a requisition for a meeting to consider a strike is received, the
Committee members of a Bar Association or the Bar Council should
refuse to call a meeting for that purpose. He submitted that no
Association or Bar Councils can have any legal or moral right to call
a meeting to consider a call for an illegal act. He submitted that this
Court should now issue a mandamus to the Bar Councils to frame
G
rules in consonance with the interim directions which have been passed
by this Court.
(6) Mr. Prashant Bhushan, for the Petitioner in W. P. (C) No. 821 of
1990, supported Mr. Dipanker Gupta and Mr. Nigam. He further
submitted that the Court should also declare that lawyers who do.not
H
want to participate in a strike should not be coerced by other lawyers
>·
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EX. CAPT. HARISH UPP AL v. U.0.1. [S.N. VARIAVA, J.)
197
or Committee members. He submitted that such coercion amounts to A
interference with the administration of justice and is therefore clearly
contempt of court. He submitted that this coercion need not necessarily
be by physical prevention from appearance but could also be by a
threat to withdraw facility or to terminate the membership of the
Associations. He submitted that if any such threats are given or any B
such coercion is used then the Court must punish for contempt the
party so coercing.
(7) Submissions were made before us by the Bar Councils of Delhi,
U.P., Maharashtra, Goa, West Bengal, Andhra Pradesh and Tamil
Nadu. Submissions were also made before us on behalf of Bar C
Associations of Madras, Kerala, Calcutta, Nainital and the Supreme
Court Bar Association. Counsels for the Bar Councils and Bar
Associations submitted that they were not in favour of strikes and/or
call for strikes. Many of them stated that their Associations had not
gone on strike at all and/or only on token strikes ofnot more than one
day. The consensus at the Bar was that lawyers cannot and should not D
resort to strike in order to vent their grievances where a legal remedy
was available. The consensus at the Bar was that even where a legal
remedy was not available strike should be resorted to in the rarest of
rare cases like when the dignity of the Court or the Bar was at stake.
The consensus was that even in such cases only a token strike of one E
day may be resorted to. The consensus was that other methods of
protests must be resorted to, viz. passing of resolutions, making
representations, taking out silent processions without causing
disturbance to Court work, holding dhamas or relay fast and wearing
white ribbons. The consensus of the Bar was that there must be a
mechanism for redressing the grievances of the lawyers. It was F
suggested that the Committees be set up to whom grievances can be
submitted.
(8) It must however be mentioned that counsel on behalfof U. P. Bar
Council struck a discordant note. He submitted that lawyers had a
right to go on strike or give a call for boycott. He submitted that G
Courts had no power of supervision over the conduct of lawyers. He
submitted that Section 50 of the Advocates Act, 1950 repealed earlier
provisions which had permitted Courts to control rights of Advocates
to practice in Courts. He submitted that there are many occasions
when lawyers require to go on strike or gave a call for boycott. He H
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submitted that this Court laying down that going on strike amounts
to misconduct is of no consequence as the Bar Councils have been
vested with the power to decide whether or not an Advocate has
committed misconduct. He submitted that this Court cannot penalise
any Advocate for misconduct as the power to discipline is now
exclusively with the Bar Councils. He submitted that it is for the Bar
Councils to decide whether strike· should be resorted to or not.
(9) The learned Attorney General submitted that strike by lawyers
cannot be equated with strikes resorted to by other sections of society.
He submitted that the basic difference is that members of the legal
profession are officers of the Court. He submitted that they are obliged
by the very nature of their calling to aid and assist in the dispensation
of justice. He submitted that strike or abstention from work impaired
the administration of justice and that the same was thus inconsistent
with the calling and position of lawyers. He submitted that abstention
from work, by lawyers, may be resorted to in the rarest of rare cases,
namely, where the action protested against is detrimental to free and
fair administration of justice such as there being a direct assault on
the independence of the judiciary or a provision is enacted nullifying
a judgment of a Court by an executive order or in case of supersession
of judges by departure from the settled policy and convention of
seniority. He submitted that even in cases where the action eroded the
autonomy of the legal profession, e.g. dissolution of Bar Councils
and recognized Bar Associations or packing them with government
nominees a token strike of one day may be resorted to. He submitted
even in the above situations the duration of abstention from work
should be limited to a couple of hours or at the maximum one day.
He submitted that the purpose should be to register a protest and not
to paralyse the system. He suggested that alternative fonns of protest
can be explored, e.g., giving press statements, TV interviews, carrying
banners and/or placards, wearing black ann-bands, peaceful protest
. marches outside court premises etc. He submitted that abstention from
work for the redressal of a grievance should never be resorted to
where other remedies for seeking redressal are available. He submitted
that all attempts should be made to seek redressal from the concerned
authorities. He submitted that where such redressal is not available or
not forthcoming, the direction of the· protest can be against that
authority and should not be misdirected, e.g., in cases of alleged
police brutalities Courts and litigants should not be targeted in respect
EX. CAPT. HARISH UPP AL v. U.0.1. [S.N. VARIAVA, J.]
199
of actions for which they are in no way responsible. He agreed that A
no force or coercion should be employed against lawyers who are not
in agreement with the "strike call" and want to discharge their
professional duties. The learned Attorney General relied upon the
following observations. of a Full Bench of the Kera la High Court in
the case of Bharat Kumar K. Palicha and Anr. v. State of Kera/a and B
Ors., AIR (1997) ker 291 which are reproduced below:
"No. political party or organization can claim that it is entitled to
paralyse the industry and commerce in the entire State or nation and
is entitled to prevent the citizens not in sympathy with its viewpoint,
from exercising their fundamental rights or from performing their C
duties for their own benefit or for the benefit of the State or the
nation." [See (1998) I SCC 201 at 204, para 17] [emphasis added]
(JO) He pointed out that the judgment of the Kerala High Court has
been approved by this Hon'ble Court in the case of Communist Party
of India (M) v. Bharat Kumar and Ors., (1998] I SCC 201 at 202. D
(11) Before considering the question raised it is necessary to keep in
mind the role of lawyers in the administration of justice and also their
duties and obligations as officers of this Court. In the case of Lt. Col.
S. J. Choudhary v. State (Delhi Administration) reported in (I 984) I
sec 722, the High Court had directed that a criminal trial go on from E
day to day. Before this Court it was urged that the Advocates were
not willing to attend day to day as the trial was likely to be prolonged.
It was held that it is the duty of every advocate who accepts a brief
in a criminal case to attend the trial day to day. It was held that a
lawyer would be committing breach of professional duties if he fails
. to so attend.
F
(12) In the case of K. John Koshy and Ors., v. Dr. Tarakeshwar
Prasad Shaw, reported in [ 1998] 8 SCC 624, one of the questions
was whether the Court should refuse to hear a matter and pass an
Order when counsel for both the sides were absent because of a strike
call by the Bar Association. This Court held that the Court could not G
refuse to hear the matter as otherwise it would tantamount to Court
becoming a privy to the strike.
(13) In the case of Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd.,
reported in ( 1999) I SCC page 3 7, an application had been made to
the trial Court to suo moto··transfer the case to some other Court as H
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the Bar Association had passed a resolution to boycott that Court. It
was stated that the lawyers could not thus appear before that Court.
The trial Court rightly rejected the application. In a revision petition
the High Court stayed the proceedings before the trial Court. This
Court held that the High Court had committed grave error in
entertaining the revision petition and passing an Order of stay.
Following the ratio laid down in Lt. Col. S.J. Choudhary 's case, this
Court held as follows:
"15. This is not a case where the respondent was prevented by
the Additional District Judge from addressing oral arguments,
but the respondent's counsel prevented the Additional District
Judge from hearing his oral arguments on the stated cause that
he decided to boycott that Court for ever as the· Delhi Bar
Association took such a decision. Here the counsel did not want
a case to be decided by that Court. By such conduct, the counsel
prevented the judicial process to have flowed on its even course.
The respondent has no justification to approach the High Court
as it was the respondent who contributed to such a situation.
16. If any counsel does not want to appear in a particular court,
that too for justifiable reasons, professional decorum and etiquette
require him to give up his engagement in that court so that the
party can engage another counsel. But retaining the brief of his
client and at the same time abstaining from appearing in that
court, that too not on any particular day on account of some
personal inconvenience of the counsel but as a permanent feature,
i~ unprofessional as also unbecoming of the status of an advocate.
No Court is obliged to adjourn a cause because of the strike call
given by any association of advocates or a decision to boycott
th.e courts either in general or any particular court. It is the solemn
duty of every court to proceed with the judicial business during
court hours. No court should yield to pressure tactics or boycott
calls or any kind of browbeating."
(14) In the case of Koluttumotiil Razak v. State of Kera/a reported in
[2000] 4 SCC 465, counsel did not appear in Court as advocates had
called for a strike. As the appellant was languishing in jail this Court
held that an adjournment would not be justified. This Court held that
it is the duty of the Court to look into the matter itself.
EX. CAPT. HARISH UPPAL v. U.0.1. [S.N. VARIAVA, J.]
201
(15) In the case of U.P. Sales Tax Service Associalion v. Taxalion A
Bar Association, reported in [ 19951_ 5 SCC 716, the question was
whether the High Court could issue a writ or direction prohibiting a
statutory authority from discharging quasi judicial functions i.e. direct
the State Government to withdraw all powers from it and transfer all
pending cases before the oftker to any other officer and whether
advocates would be justified to go on strike as a pressure group. In B
that context this Court observed as follows:
"I I. It is fundamental that if rule of law is to have any
meaning and content, the authority of the court or a statutory
authority and the confidence of the.public in them should not be
allowed to be shaken, diluted or undermined. The courts of justice C
and all tribunals exercising judicial functions from the highest to
the lowest are by their constitution entrusted with functions
directly connected with the administration of justice. It is that
expectation and confidence of all those, who have or are likely
to have business in that court or tribunal, which should be D
maintained so that the court/tribunal perform all their functions
on a higher level of rectitude without fear or favour, affection or
ill-will. Casting defamatory aspersions upon the character, ability
l'r integrity of the judge/judicial officer/authority undermines the
dignity ofthe court/authority and tends to create distrust in the
popular mind and impedes the confidence of the people in the E
courts/tribunals which is of prime importance to the litigants in
the protection of their rights and liberties. The protection to the
judges/judicial officer/authority is not personal but accorded to
protect the institution of the judiciary from undermining the public
confidence in the efficacy of judicial process. The protection, F
therefore, is for fearless curial process. Any scurrilous, offensive,
intimidatory or malicious attack on the judicial officer/authority
beyond condonable limits, amounts to scandalising the court/
tribunal amenable to not only conviction for its contempt but
also liable to libel or defamation and damages personally or
group libel. Maintenance of dignity of the court/judicial officer G
or quasi-judicial authority is, therefore, one of the cardinal
principles of rule of law embedded in judicial review. Any
uncalled for statement or allegation against the judicial officer/
statutory authorities, casting aspersions of court's integrity or
corruption would justify initiation of appropriate action for H
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