1. This petition, brought under Article 32 of the Constitution, raise vital issues in regard to the duties and obligations of the members of the legal profession relating to the judicial system in general and the litigating public in particular and seeks the Court's intervention to arrest the harm allegedly caused to the image and dignity of the judiciary and the interest of the litigants on account of the members of the Bar proceeding on strike from time to time in different parts of the country. The petitioner contends that the lawyers constitute the intelligentsia of the country and their striking court work on one pretext or the other, sometimes on trivial matters, thereby paralysing the judicial system results in untold misery to the litigants both in terms of avoidable harassment and expenses. By striking work, contends the petitioner, lawyers fail in their professional duty to appear and conduct cases for which they are engaged and paid and thereby interfere with the course of justice. Since litigants have a fundamental right to speedy justice as observed in Hussainara Khatoon v. Home Secy., State of Bihar1 it is essential that cases must proceed when they appear on board and should not ordinarily be adjourned on account of the absence of the lawyers unless there are cogent reasons to do so. If cases get adjourned time and again due to cessation of work by lawyers it will in the end result in erosion of faith in the justice delivery system which will harm the image and dignity of the Court as well. On this refrain the petitioner has sought certain directives from this Court as enumerated in paragraph 15 of the petition. These include laying down of guidelines, standards of professional conduct and permitting non-lawyers to appear as provided by Section 32 of the Advocates Act, 196 1.
2. Besides the Union of India and the Attorney General of India,the Bar Council of India and the Bar Association of Delhi, New Delhi and the High Court of Delhi as well as the Bar Association of India are made parties to the petition. However, since the malaise of strikes is spread all over the country and is more pronounced in the subordinate courts; it was thought desirable to issue a public notice in the nature of a notice under Order 1 Rule 8, Civil Procedure Code, so that the opinion of a cross-section of the members of the profession would be available. That would also make this petition representative in character and any order made therein should be binding on all concerned. Since the Bar Association of India is already a party it would ordinarily have sufficed but Mr Nariman fairly stated that it is desirable that every Bar Association should have notice of the present proceedings before further action is taken. Of course the carriage of proceedings will have to be in the hands of a few only as will be determined by the Court hereafter.
3. In view of the above we direct a public notice in the nature of one under Order 1 Rule 8, CPC to issue intimating all concerned and in particular the Bar Associations and State Bar Councils all over the country of the pendency of the present petition. Copies of the notice will be sent to the Registrars of all High Courts to place them on their notice-boards for the information of the members of the Bar. Response, if any, to the petition should be forwarded to the Registrar (Judicial) of this Court through the President of the High Court Bar Association who will collect and collate the same and forward the same with a short synopsis of the points raised. This should be done not later than ten weeks from the date of publication of the notice in the Press. Notices may be. printed in English newspapers with circulation all over India as may be determined by the Registrar-General of this Court. The expense for the notice will be borne by the Supreme Court Registry.
4. Let the matter be called on three weeks after the period of ten weeks allowed earlier has elapsed.
5. Copies of notices may also be given to counsel who have entered appearance, if demanded.
Court Masters"
"COMMON CAUSE, A REGD SOCIETY Vs. UNION OF INDIA DATE OF JUDGMENT 07/12/1994 BENCH:
AHMADI, A.M. (C.J.) SAHAI, R.M. (J) VENKATACHALA, N.G. (J) ORDER Pursuant to this Court's order of 11th January, 1994, directing public notice to issue to the Bar Association and State Bar Councils all over the country in the nature of a notice under Order 1, Rule 8, Code of Civil Procedure, certain bodies of the Bar filed their responses. Thereafter, the matter came up before this Court on different dates, lastly, on October 27, 1994 when this Court suggested that a meeting be called to consider the various suggestions made by the Bar Associations/State Bar Councils in their responses to this Court. Accordingly Shri Shankar Das, acting as Convenor, called a meeting on 20th November, 1994 at which besides the learned Attorney General, Mr. F.S. Nariman, President, Bar Association of India, Mr. K.K. Venugopal, President, Supreme Court Bar Association, Mr. V.C. Misra Chairman, Bar Council of India and Mr. H.D. Shourie, the Petitioner herein, were invited to attend. Mr. V.C. Misra and Mr. K.K. Venugopal were not able to attend for personal reasons. As per the discussions that took place at the meeting a consensus emerged to the effect that instead of the Court going into the wider question whether members of the legal profession can resort to the extreme step of abstaining from appearing in cases in Which they are engaged and which are listed before the Court as a consequence of any strike call given by any body of members belonging to the legal profession, it would be desirable to work out an interim arrangement and see if the same operates satisfactorily.
2. The Officiating Secretary, Bar Council of India, Mr. C.R. Balaraman 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 10th and 11th September, 1994 and a working paper was circulated on behalf of Bar Council of India. 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 Associations had proceeded on strike on several occasion in the past, at times, State-wide or Nationwide, and "while the profession does not like it as members of the profession are 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 profession, the circumstances in which such a step should be resorted should be clearly indicated. Referring to an earlier case before the 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 case involving the dignity and independence of the judiciary as well as of the Bar; and (b) whenever strike become inevitable, efforts shall be made to keep it short and peaceful toavoid 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 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 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 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:
(1) In the rare instance where any association of lawyers (including statutory Bar Councils) considers it imperative to call upon and/or advise members 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 appear without let, fear or hindrance or any other coercive step.
(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 forms of protest by practising lawyers in courts such as, for instance, wearing of arm bands and other forms 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 (1) above shall ensure that such decisions are implemented in the spirit of what is stated in Clauses (1), (2) and (3) above.
3. Mr. P.N. Duda, Senior 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 (1), (2), (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 afore-mentioned 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 (1) to (4) above for a period of at least six months by making the said clauses the rule of the Court. Accordingly, we make Clauses (1) to (4) mentioned above the order of this Court and direct 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 their members who had appeared in courts notwithstanding strike calls given by the Bar Councilor Bar Association. Besides, member of the legal profession should be alive to the possibility of judge of different Courts refusing adjournments merely on the ground of there being a strike call and insisting on proceeding with case.
4. The matter will stand adjourned by six months to oversee the working of this interim order. It is hoped that it will work out satisfactorily. Liberty to mention in the event of any difficulty.
5. We are grateful to Mr. Shourie for highlighting the issue. We are grateful to the learned Attorney General and all the other learned .counsel appearing before us for then positive contribution and broad out-look to solving the vexed problem of strikes. We do hope that we will not have an occasion to recall this matter on the ground that there has been any contravention of any of the above clauses. On this optimistic note we adjourn the matter for six months."
"IN RE: 1. SHRI SANJIV DATTA, DEPUTY SECRETARY,MINISTRY OF INFORMATION AND BROADCASTING, NEW DELHI & OTHERS DATE OF JUDGMENT19/04/1995 BENCH:
SAWANT, P.B.
BENCH:
SAWANT, P.B.
JEEVAN REDDY, B.P. (J)
19. Of late, we have been coming across several instances which can only be described as unfortunate both for the legal profession and the administration of justice. It becomes, therefore, our duty to bring it to the notice of the members of the profession that it is in their hands to improve the quality of the service they render both to the litigant-public and to the courts, and to brighten their image in the society. Some members of the profession have been adopting perceptibly casual approach to the practice of the profession as is evident from their absence when the matters are called out, the filing of incomplete and inaccurate pleadings - many times even illegible and without personal check and verification, the non-payment of court fees and process fees, the failure to remove office objections, the failure to take steps to serve the parties, et al. They do not realise the seriousness of these acts and omissions. They not only amount to the contempt of the court but do positive disservice to the litigants and create embarrassing situation in the court leading to avoidable unpleasantness and delay in the disposal of matters. This augurs ill for the health of our judicial system.
20. The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by the its members by their exemplary conduct both in and outside the court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practised it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible. The casualness and indifference with which some members practise the profession are certainly not calculated to achieve that purpose or to enhance the prestige either of the profession or of the institution they are serving. If people lose confidence in the profession on account of the deviant ways of some of its members, it is not only the profession which will suffer but also the administration of justice as a whole. The present trend unless checked is likely to lead to a stage when the system will be found wrecked from within before it is wrecked from outside. It is for the members of the profession to introspect and take the corrective steps in time and also spare the courts the unpleasant duty. We say no more."
"MAHABIR PRASAD SINGH Vs. JACKS AVIATION PRIVATE LTD.
DATE OF JUDGMENT: 13/11/1998 BENCH:
S.SAGHIR AHMAD, K.T. THOMAS,JJ.
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, is 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 the 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.
17. A three-Judge Bench of this Court has reminded members of the legal profession in Lt. Col. S.J. Chaudhary vs. State (Delhi Administration) (1984 1 SCC 722) that it is the duty of every advocate who accepts brief to attend the trial and such duty cannot be over stressed. It was further reminded that "having accepted the brief, he will be committing a breach of his professional duty, if he so fails to attend."
" A lawyer is under obligation to do nothing that shall detract from the dignity of the Court, of which he is himself a sworn officer and assistant. He should at all times pay deferential respect to the Judge, and scrupulously observe the decorum of the courtroom."
18. Of course, it is not a unilateral affair. There is a reciprocal duty for the court also to be courteous to the members of the Bar and to make every endeavour for maintaining and protecting the respect which members of the Bar are entitled to have from their clients as well as from the litigant public. Both the Bench and the Bar are the two inextricable wings of the judicial forum and therefore the aforesaid mutual respect is sine qua non for the efficient functioning of the solemn work carried on in courts of law. But that does not mean that any advocate or group of them can boycott the courts or any particular court and ask the court to desist from discharging judicial functions. At any rate, no advocate can ask the court to avoid a case on the ground that he does not want to appear in that court."
"Ramon Services Pvt. Ltd vs Subhash Kapoor And Others (Paragraphs 14, 19 to 29) Decided on 14 November, 2000 Paragraphs 14 & 29 are extracted hereinunder:
14. Though we appreciate the stand of the senior counsel that an advocate would hereinafter venture to ignore the boycott call, I am unable to agree with the learned Senior Counsel that the courts had earlier sympathized with the Bar and agreed to adjourn cases during the strikes or boycotts. If any court had adjourned cases during such periods it was not due to any sympathy for the strikes or boycotts, but due to helplessness in certain cases to do otherwise without the aid of a counsel. Nor do we concede to the contention that this Court declared the legal position only when Mahabir Prasad Singh was decided that strikes or boycotts are illegal. We have cited (Supra) the earlier decisions rendered by this Court in tune with the same stand.
29. In the light of the consistent views of the judiciary regarding the strike by the advocates, no leniency can be shown to the defaulting party, and if the circumstances warrant, to put such party back in the position as it existed before the strike. In that event, the adversary is entitled to be paid exemplary costs. The litigant suffering costs has a right to be compensated by his defaulting counsel for the costs paid. In appropriate cases the court itself can pass effective orders, for dispensation of justice with the object of inspiring confidence of the common man in the effectiveness of judicial system. In the instant case respondent has to be held entitled to the payment of costs, consequent upon the setting aside of the ex-parte order passed in his favour."
"Harish Uppal (Ex-Captain) v. Union of India and Anr.
DATE OF JUDGMENT: 17 December 2002 BENCH: G.B. Pattanaik, C.J., M.B. Shah, Doraiswamy Raju,S.N. Variava, and D.M. Dharmadhikari, JJ.
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 the Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protect marches outside and away from Court premises, going on dharnas or relay facts etc. It is held that lawyers holding Vakalats on behalf of their clients cannot not attend Courts in pursuance to 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 consequence by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. it is held that only in the rarest of rare cases where the dignity, integrity and Independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. It is being clarified that it will be for the Court to decide whether or not the issue involves dignity or integrity or Independence of the Bar and/or the Bench. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before Advocate decide to absent themselves from Court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that Courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all Courts to go on with matters on their boards even in the absence of lawyers. In other words, Courts must not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a Vakalat of a client, abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall be addition to damages which he might have to pay his client for loss suffered by him."
Having perused the aforesaid judgments, we are of the considered opinion that an indulgence be granted keeping in view the urgency pressed by the respondent no. 6 who is present in person.
Either the petitioner in person or through her counsel shall be obliged to attend the court on the date fixed or else this court will proceed to take appropriate steps for the disposal of the matter. The respondent no. 6 shall also inform the court about any decision being taken by the learned Commissioner in the pending case before it.
A copy of the order shall be uploaded and the office is directed to inform Mr. U.C. Vishwakarma and Sri Shikhar Anand, Advocates about this order.
List on 23.2.2016.
Order Date :- 16.2.2016 sahu