Clinical-III Assignment (Right To Strike) by Nasir - 13

RIGHT TO STRIKE (OF LAWYERS)
Faculty of Law, Jamia Millia Islamia
REPORT
CLINICAL COURSE-III (PROFESSIONAL ETHICS,

LAWYERING AND BAR-BENCH RELATIONS)
Submitted By:
Name- NASIR ALAM
Student ID: 20162452
B.A.LL.B. (IXth Semester) (Self Finance)
Submitted to:
Office of Dean,
Faculty of Law,
Jamia Millia Islamia, New Delhi
Date of Submission- (20.11.2020)

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ACKNOWLEDGEMENT
I am using this opportunity to express my gratitude to everyone who supported me throughout

the course of this assignment. I am thankful for their aspiring guidance, invaluably constructive
criticism and friendly advice during the project work. I am sincerely grateful to them for sharing
their truthful and illuminating views on a number of issues related to the project.
I would like to thank Ms. Karishma Sheikh for giving me the opportunity to take on this
assignment, imparting valuable knowledge about the subject and paving the way towards the
completion of the assignment. I would like to thank my parents whose constant support helps me
through everything I do and who are there to appreciate what is right and rightfully criticize what
needs to be improved.
Thanking You
NASIR ALAM
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INDEX
PAGE NO.
LIST OF CASES 05-06
CHAPTER-I 07-25
INTRODUCTION
 Strike As Legal Right

 Strike As Statutory Right
 International Treaties
 Legal Interpretation To Be In Consonance With International Covenants
 Misapplication of Ex-Capt. Harish Uppal V. Union of India & Anr on 17 December,
2002 and Bharat Kumar K. Palicha and Anr. V. State Of Kerala and Ors. on 28
July, 1997
 Industrial Disputes Act, 1947
 An Advocate
 Right To Strike By Advocates
CHAPTER-II 26-34
1. LAWYER’S STRIKE
2. CONCLUSION
CHAPTER-III 35-40
SUPREME COURT JUDGEMENTS ON STRIKE
CHAPTER-IV 41-44
1. LEGALITY OF LAWYER'S STRIKE

2. HISTORICAL PERSPECTIVE OF LAWYER'S STRIKE
3. CAUSES OF LAWYERS' STRIKE
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CHAPTER-V 45-54
1. AVOIDANCE OF STRIKE BY LAWYERS

 Introduction
 Role Of Bar Council Of India
CHAPTER-VI 55-58
CONCLUSION
 Right To Strike: International Perspectives And Collective Bargaining

 Foreign Constitutional Outlook
 Solutions to the Grievances of lawyers:
BIBLIOGRAPHY 59
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LIST OF CASES
All India Bank Employees' Association V. National Industrial Tribunal
Arun Kumar Yadav V. State Of Uttar Pradesh
B. L. Wadhera V. State (N.C.T. Of Delhi)
B.R. Singh V. Union of India
Bar Council of India V. High Court of Kerala
Bharat Kumar K. Palicha V State Of Kerala
Common Causes, a Society V. Union of India,
Communist Party of India (M) V. Bharat Kumar and Others
Delhi Development Horticulture Employees' Union V. Delhi Admninistration
Delhi Transport Corpn. V. Dtc Mazdoor Congress
Dimakuchi Tea Estate V. Management Of Dimakuchi Tea Estate
Ex. Captain Harish Uppal V. Union Of India
Hussain & Anr. V. Union of India
Hussainara Khatoon V. Home Secretary, State of Bihar
John Koshy & Ors V Dr. Tarakeshwar Prasad Shaw
K. Rangarajan V. Govt. of Tamil Nadu
Life Insurance Corporation of India V. Consumer Education and Research Centre
M.B. Sanghi V. High Court of Punjab and Haryana
M/S. Chetak Construction Ltd. V. Om Prakash
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Mahabir Prasad Singh V. Jacks Aviation Pvt. Ltd
Morgan V. Fry
Noratanmal Chaurasia V M.R. Murli
Olga Tellis V. Bombay Municipal Corpn
Pandurang Dattatraya Khandekar V. Bar Council of Maharashtra, Bombay
People's Union for Democratic Rights V. Union of India
R.D. Saxena V. Balram Prasad Sharma
R.K.Anand V. Registrar, Delhi High Court
Radha Mohan Lal V. Rajasthan High Court
Ramon Services Pvt. Ltd V. Subhash Kapoor
Savitri Devi V. District Judge, Gorakhpur
Vishram Singh Raghubanshi V. State of Uttar Pradesh
Steel Tubes V. Mazdoor Sabha
Syed Gulzar Hussain V. Dewan Syed Ale Ramul Ali Khan
Syndicate Bank V. K. Umesh Nayak
Ex-Captain Harish Uppal V. Union of India & Another
Vishakha V. State of Rajasthan
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CHAPTER-I
INTRODUCTION
The Supreme Court verdict in T.K. Rangarajan V. Govt. of Tamil Nadu1 flies in the face of
higher judicial precedent, as well as India's obligations under international covenants. It also
threatens the stability of conciliatory and consultative arbitration procedures currently used to
settledisputes.
In T.K. Rangarajan V. Government of Tamil Nadu and Others, Justice M. B. Shah, speaking
for a Bench of the Supreme Court consisting of himself and Justice A. R. Lakshmanan, said,
"Now coming to the question of right to strike - in our view no such right exists with the
government employee."2
Even as early as 1961, the Supreme Court had held in Kameshwar Prasad V. State of
Bihar3 that even a very liberal interpretation of article 19 (1) (c) could not lead to the conclusion
that the trade unions have a guaranteed fundamental right to strike. In All India Bank
Employees' Association V. National Industrial Tribunal4 (the AIBE case) also it was
contended that the right to form an association guaranteed by Article 19 (1) (c) of the
Constitution, also carried with it the concomitant right to strike for otherwise the right to form
association would be rendered illusory. The Supreme Court rejected this construction of the
Constitution: "to read each guaranteed right as involving the concomitant right necessary to
achieve the object which might be supposed to underlie the grant of each of such rights, for such
a construction would, by ever expanding circles in the shape of rights concomitant to
concomitant right and so on, lead to an almost grotesque result."
It was a culmination of the ratios of the Kameshwar Prasad and the A.I.B.E. cases that
resulted in the decision in the highly contentious Rangarajan case. In reliance of these
judgments, the Apex court was correct in opining that there exists no fundamental right to strike.
1
T.N (2003 (3) KLT 86 (SC)
2
http://www.legalserviceindia.com/article/l430-Contempt-Power-of-Court
3
AIR 1971 Pat 38, 1971 CriLJ 485
4
AIR 1962 171, 1962 SCR (3) 269
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But in stating that Government employees have no "legal, moral or equitable right", the Court
has evolved a new industrial jurisprudence unsought of earlier. It is true that the judgments
mentioned above have rejected the right to strike as a fundamental right, but not as a legal, moral
or equitable right. The question of 'strike' not being a statutory or a legal right has never even
been considered in the court. Further the expression 'no moral or equitable right' was uncalled
for. A court of law is concerned with legal and constitutional issues and not with issues of
morality and equity.
The Rangarajan case simply ignores statutory provisions in the Industrial Disputes Act, 1947
and the Trade Unions Act, 1926, and an equal number of case laws lay down by larger benches
that have recognized the right to strike. It also fails to consider International Covenants that pave
the way for this right as a basic tenet of
international labor standards.
Strike As A Legal Right
The working class has indisputably earned

the right to strike as an industrial action
after a long struggle, so much so that the
relevant industrial legislation recognizes it as their implied right. Striking work is integral to the
process of wage bargaining in an industrial economy, as classical political economy and post-
Keynesian economics demonstrated long ago in the analysis of real wage determination.
A worker has no other means of defending her/his real wage other than seeking an increased
money wage. If a capitalist does not grant such an increase, s/he can be forced to come to a
negotiating table by striking workers. This s/he can do because the earnings of the capitalist are
contingent upon the worker continuing to work. The argument is drawn from Ricardian and
Marxian classical political economy that shows how the employer's income is nothing other than
what is alienated from the worker in the process of production. When workers stop working,
capitalists stop earning. The same applies to government servants as well. When they strike
work, it is not the authorities who suffer a loss of income or disruption of their income
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generating process but the general public. Here, authorities come to a negotiating table mainly
under political pressure or in deference to public opinion.
The right to strike is organically linked with the right to collective bargaining and will continue
to remain an inalienable part of various modes of response/expression by the working people,
wherever the employer-employee relationship exists, whether recognized or not. The Apex court
failed to comprehend this dynamic of the evolution of the right to strike.
In B.R. Singh V. Union of India5, Justice Ahmadi opined that "The Trade Unions with
sufficient membership strength are able to bargain more effectively with the management than
individual workmen. The bargaining strength would be considerably reduced if it is not
permitted to demonstrate by adopting agitation methods such as 'work to rule', 'go-slow',
'absenteeism', 'sit-down strike', and 'strike'. This has been recognized by almost all democratic
countries".6
In Gujarat Steel Tubes V. Its Mazdoor Sabha7 , Justice Bhagwati opined that right to strike is
integral of collective bargaining. He further stated that this right is a process recognized by
industrial jurisprudence and supported by social justice. Gujarat Steel Tubes is a three-judge
bench decision and cannot be overruled by the division bench decision of Rangarajan. In
the Rangarajan case the court had no authority to wash out completely the legal right evolved by
judicial legislation.
Strike As A Statutory Right
The scheme of the Industrial Disputes Act, 1947 implies a right to strike in industries. A wide
interpretation of the term 'industry' by the courts includes hospitals, educational institutions,
clubs and government departments. Section 2 (q) of the Act defines 'strike'. Sections 22, 23, and
24 all recognize the right to strike. Section 24 differentiates between a 'legal strike' and an 'illegal
strike'. It defines 'illegal strikes' as those which are in contravention to the procedure of going to
strike, as laid down under Sections 22 and 23. The provision thereby implies that all strikes are
5
1989(4)SC; (1989)IILLJSC
6
legalcrystal.com
7
[1980-I L.L.J. 137], Supreme Court
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not illegal and strikes in conformity with the procedure laid down, are legally recognized.
Further, Justice Krishna Iyer had opined that "a strike could be legal or illegal and even an illegal
strike could be a justified one"8. It is thus beyond doubt that the Industrial Disputes Act, 1947
contemplates a right to strike.
The statutory provisions thus make a distinction between the legality and illegality of strike. It is
for the judiciary to examine whether it is legal or illegal. Is the total ban on strikes post-
Rangarajan not barring judicial review which itself is a basic structure of the Constitution?
The workers' right to strike is complemented by the employers' right to lock-out, thus
maintaining a balance of powers between the two. However, the Rangarajan judgment, by
prohibiting strikes in all forms but leaving the right to lock-out untouched tilts the balance of
power in favour of the employer class. Further, Sections 22, 23 and 24 of the Act imply a right
to strike for workers and a right to lock-out for the employers. In Kairbitta Estate V.
Rajmanickam9, Justice Gajendragadkar opined: "In the struggle between the capital and
labour, the weapon of strike is available to labour and is often used, as is the weapon of lock-
out available to the employer and can be used by him". The workers' right to strike is
complemented by the employers' right to lock-out, thus maintaining a balance of powers
between the two. However, the Rangarajan judgment, by prohibiting strikes in all forms but
leaving the right to lock-out untouched tilts the balance of power in favor of the employer class.
The Court, in opining that strikes 'hold the society at ransom', should have taken into account
that the number of man days lost due to strikes has gone down substantially during the last five
years. Whereas there has been a steep rise in the man days lost due to lock-outs, due to closures
and lay-offs (Annual Report of the Union Labour Ministry (2002-03). In 2001, man days lost due
to lock-outs were three times more than those due to strikes. In 2002 (January-September)
lockouts wasted four times more man days than strikes. Who is holding the production process to
ransom? Obviously not the workers the Apex court preferred to overlook the recent strike by the
business class against the value added tax and also the transport companies' strike against the
judicial directive on usage of non-polluting fuel, both of which created much more chaos and
8
The State of Bihar v. Contempt Agst. Dr.Suman Lal on 16 February, 2009
9
AIR1960, SC 839
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inconvenience to the common people. It is submitted that the court came to a conclusion without
looking at the industrial scenario in the present times. Should the apex court not consider
banning closures, lock-outs, muscle-flexing by the business class etc., which not only put people
to inconvenience but also throw the workers at risk of starvation?
Besides the Industrial Disputes Act, 1947, the Trade Unions Act, 1926 also recognizes the right
to strike. Sections 18 and 19 of the Act confer immunity upon trade unions on strike from civil
liability.
International Treaties
Article 8 (1) (d) of the International Covenant of Economic, Social and Cultural Rights
(ICESCR) provides that the States Parties to the Covenant shall undertake to ensure: "the right to
strike, provided that it is exercised in conformity with the laws of the particular country. Article
2 (1) of the Covenant provides: "Each State Party to the present Covenant undertakes to take
steps, with a view to achieving progressively the full realization of the rights recognized in the
present Covenant by all appropriate means, including particularly the adoption of legislative
measures". 10
India is a signatory to the Covenant and is therefore bound under Article 2 (1) to provide for the
right to strike as enshrined in Article 8 (1) (d), through legislative measures or by other
appropriate means. Thus, the aforesaid domestic laws are the by-products of the international
obligations and cannot be read casually as has been done in the Rangarajan case.
The blanket ban on the right to strike also transgresses the limits of the Conventions of the
International Labour Organization (ILO). Convention 87 relates to Freedom of Association and
Protection of the Right to Organize. Convention 98 refers to the Right to Organize and Collective
Bargaining. Both Conventions have been ratified by 142 and 153 nations respectively including
Australia, France, Germany, Italy, Japan, Pakistan, Sri Lanka, Pakistan and the United Kingdom.
Both the conventions, along with eight other conventions, have also been identified by the ILO's
Governing Council to be its core conventions.
10
Article 8 (1) (d) of the International Covenant of Economic, Social and Cultural Rights (ICESCR)
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Convention 154 is the Collective Bargaining Convention, 1981. The Preamble to this Convention
reaffirms the provision of the Declaration of Philadelphia recognizing "the solemn obligation of
the International Labour Organisation to further among the nations of the world programs which
will achieve the effective recognition of the right of collective bargaining". Further the
Convention is not restricted to Labor Trade Unions. Article-1 of the Convention states
"Convention shall apply to all branches of economic activity". Public employees are also not
exempted from the above. Convention 151 is the Labour Relations (Public Service) Convention,
1978. Article 9 of the Convention provides: "Public employees shall have, as other workers, the
civil and political rights which are essential for the normal exercise of freedom of association,
subject only to the obligations arising from their status and the nature of their functions".
By virtue of being a member of the ILO, India is under obligation to satisfy at least the
fundamental rights promoted by the Conventions, irrespective of it having ratified them or not.
With the Rangarajan11 verdict, the Apex court has refused to adhere to the fundamental tenets
of the ILO. Though India is not a signatory to any of the above-mentioned ILO Conventions, it
has been a member of the ILO since 1919. The ILO Declaration on Fundamental Principles and
Rights at Work states: "The International Labour Conferences, declares that all Members, even
if they have not ratified the Conventions in question, have an obligation arising from the very
fact of membership in the Organization, to respect, to promote and to realize, in good faith and
in accordance with the Constitution, the principles concerning the fundamental rights which are
the subject of those Conventions, namely: freedom of association and the effective recognition of
the right to collective bargaining".12
Therefore, by virtue of being a member of the ILO, India is under obligation to satisfy at least the
fundamental rights promoted by the Conventions, irrespective of it having ratified them or not.
Further, India is not an ordinary member of the ILO, but one of the founding members of the
Organization. After 85 years of this relationship that India has had with the Organization, our
Apex court has refused to adhere to the fundamental tenets of the ILO.
11
T.N (2003 (3) KLT 86 (SC)
12
The ILO Declaration on Fundamental Principles and Rights at Work states
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Legal Interpretation To Be In Consonance With International Covenants
Of the Directive Principles of State Policy enshrined in Part IV of the Constitution, Article 51(c)
provides that the State shall endeavor to foster respect for international law and treaty obligations
in the dealings of organized people with one another. Article 37 of Part IV reads as under:
:Application of the principles contained in this Part.- The provisions contained in this Part shall
not be enforceable by any court, but the principles therein laid down are nevertheless
fundamental in the governance of the country and it shall be the duty of the State to apply these
principles in making laws".13
A conjoint reading of Articles 51(c) and 37 implies that principles laid down in international
conventions and treaties must be respected and applied in governance of the country.
In Vishakha V. State of Rajasthan14 Justice Verma opined that any international convention
not inconsistent with the fundamental rights and in harmony with its spirit must be read into
these provisions to enlarge the meaning and content thereof, to promote the object of the
constitutional guarantee. This is implicit from Article 51(c) and the enabling power of Parliament
to enact laws for implementing the international conventions and norms by virtue of Article 253
read with Entry 14 of the Union List in Seventh Schedule of the Constitution.
In People's Union for Democratic Rights V. Union of India15 , the Court followed the
International Covenant of Civil and Political Rights (ICCPR), the International Covenant on
Economic, Social and Cultural Rights (ICESCR), the Universal Declaration of Human Rights
(UDHR) and International Labour Organization's conventions, to interpret and expand the ambit
of Article 21 of the Constitution. In Life Insurance Corporation of India V. Consumer
Education and Research Centre16 it was held that fundamental rights are subject to the
directives enshrined in Part IV of the Constitution, the UDHR, the European Convention of
Social, Economic and Cultural Rights, and other international treaties such as the Convention on
Rights to Development for Socio-Economic Justice.
13
The Constitution of India
14
AIR 1997 SC 3011
15
AIR 1982 SC 1473
16
1995 AIR 1811, 1995 SCC (5) 482
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It is thus settled that the raison d' etre of Article 51(c) is to introduce and implement various
international instruments particularly the UDHR, ICCPR and the ICESCR in the interpretation of
fundamental and legal rights. Therefore, the right to strike as contemplated by these Covenants
and by the ILO conventions is well within the ambit of constitutional (Articles 19 & 21) as well
as legal provisions (Trade Unions Act, 1926, & Industrial Disputes Act, 1947). Thus, the
decision in Rangarajan stands in disrespect to the provisions of international law.
Misapplication of Ex-Capt. Harish Uppal V. Union of India & Anr On 17 December, 2002
and Bharat Kumar K. Palicha and Anr. V. State Of Kerala and Ors. On 28 July, 1997
The Rangarajan case relies on a number of case laws dating back to the 1960s (Kameshwar
Prasad & AIBE Association). The only recent judgments that the Court relied upon -
namely, Harish Uppal and Bharat Kr. Palicha - to demonstrate that there is no right to strike
seem to have been misapplied, contrary to their letter and spirit.
In Harish Uppal the court held that advocates have no right to strike. However the court also
opined "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". The court, therefore, acknowledges that the right to strike exists and
which can be exercised if a rare situation demands so. The apex court has only tried to restrict
the right to strike of advocates with regards to the significant role they play in the administration
of justice. For all others' this sacred right holds good force.
The judgment especially recognizes the right with regard to industrial workers where it states
that advocates do not have a right to strike as "strike was a weapon used for getting justice by
downtrodden, poor persons or industrial employees who were not having any other method of
redressing their grievances".
In Communist Party of India (M) V. Bharat Kumar and others17, the apex court has held
'bandhs' to be unconstitutional. The same is relied upon in the Rangarajan case. However the
court failed to notice that the judgment does not keep a 'Bandh' and a general strike on the same
17
1997 SC
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pedestal. Where, on the one hand, a 'Bandh' is unconstitutional, a 'Hartal' or a general strike is
very much legal. The Rangarajan case suffers from an illegality insofar as it attempts to place a
blanket ban on all kinds of strikes irrespective of whether they are 'Hartals' or 'Bandhs'.
The same difference was lucidly explained in Bharat Kr. Palicha18, where Justice
Balasubramanyan opined: "Bandh" is a Hindi word meaning "closed" or "locked". The
expression therefore conveys an idea that everything is to be blocked or closed. Therefore, when
the organizers of a bandh call for a bandh, they clearly express their intention that they expect all
activities to come to a standstill on the day of the bandh.
A call for a bandh is obviously distinct and different from the call for a general strike or the call
for a hartal. The intention of the callers of the bandh is to ensure that no activity either public or
private is carried on that day. Thus, it is sought to suggest that a right to strike is a recognized
legal right and the Rangarajan case is per incursion on the above mentioned grounds.
It is indisputable that there exists a right to strike. In support of this, we put forth two hypotheses:
1) That the main object of the Industrial Disputes Act, 1947 is to promote alternative
mechanisms for dispute settlement as against strikes.
2) Strike is a 'weapon of last resort' and must be sparingly used.
INDUSTRIAL DISPUTES ACT, 1947
The Industrial Disputes Act, 1947 refrains generally the Trade Unions from going on strike. Its
focal thrust is on more efficient alternative mechanisms for dispute settlement, such as, reference
to Industrial Tribunals, compulsory adjudication, conciliation, etc. In fact the very intention
behind its enactment as illustrated in the Statement of Objects and Reasons was to overcome the
defect in the Trade Unions Act, 1926, which was, that it imposed restraints on the right to strike
but did not provide for alternative settlement of the disputes.
18
Bharat Kumar K. Palicha and Anr. V. State Of Kerala And Ors, AIR 1997 Ker 291
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The Statement further reads as under: "The power to refer disputes to Industrial Tribunals and
enforce their awards is an essential corollary to the obligation that lies on the Government to
secure conclusive determination of the disputes with a view to redressing the legitimate
grievances of the parties thereto, such obligation arising from the imposition of restraints on the
rights of strike and lock-out, which must remain inviolate, except where considerations of public
interest override such right".
Thus, the concept of alternative settlement mechanisms in industrial disputes was statutorily
ushered in the Act with a view to providing a forum and compelling parties to resort to the forum
for arbitration so as to avoid confrontation and dislocation in industry, that a developing country
like India can ill-afford. Peace and harmony in industry and uninterrupted production being the
demand of the time, it was considered wise to arm the Government with the power to compel the
parties to resort to arbitration and a necessary corollary to avoid confrontation and trial of
strength which are considered wasteful from national and public interest point of view.
Sections 4, 5, 6, 7, 7A, 7B, 9, 10 and 10A of the Industrial Disputes Act, 1947 provide
alternative measures for settlement of industrial disputes elaborately. Section 4 of the Act
provides for a diplomatic procedure which endeavors to settle a controversy by assisting parties
to reach a voluntary agreement and the ultimate decision is made by the parties themselves. The
conciliation machinery provided for in the Act, can take note of the existing as well as
apprehended disputes either on its own or on being approached by either of the parties. Since the
final decision is with the parties themselves, they cannot complain that their practical freedom
has been impaired or that they have been forced into a settlement which is unacceptable to them.
Section 6 provides for the constitution of a Court of Inquiry that enquires into the merits of the
issues and prepares a report on them that is "intended to serve as the focus of public opinion and
of pressure from Government authorities"19 . Section 10 A provides for voluntary arbitration.
Voluntary arbitration seems to be the best method for settlement of all types of industrial
disputes. The disputes can be resolved speedily and is less formal than trials. The greatest
advantage of arbitration is that there is no right of appeal, review or writ petition. Besides, it may
well reduce a company's litigation costs and its potential exposure to ruinous liability apart from
19
Industrial Disputes Act, 1947
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redeeming the workmen from frustration. Apart from these, Sections 7, 7A and 7B deal with the
constitution of adjudicatory authorities, viz., Labour Courts, Tribunals or National Tribunals,
respectively.
It is submitted that these alternative machinery for settlement of industrial disputes are proving to
be highly effective. Report of the National Commission on Labour, according to which "during
the years 1959-66, out of the total disputes handled by each year, the percentage of settlements
had varied between 57 and 83. The remaining disputes, it is reported, were settled mutually
referred to voluntary arbitration or arbitration under the Act or to adjudication or were not
pursued by the parties. During the period 1965-67, the percentage of settlements reached in Bihar
ranged from 51 to 86, in Assam from 65.5 to 92.3. In U.P., Punjab and Delhi, in the year 1966,
the percentage of disputes settled was 60, whereas in Kerala it ranged around 80 per cent. The
statistics for settlement of disputes by alternative mechanism are greater those for that by strike
where the disputes are mainly left unresolved.
The provision of such an elaborate and effective mechanism for settlement of industrial disputes,
along with a reading of the Statement of Objects and Reasons, is a definitive indication of the
fact that the statute enshrines a preference to these alternative mechanisms over strikes.
Weapon Of Last Resort
While on the one hand it has to be remembered that a strike is a legitimate and sometime
unavoidable weapon in the hands of labour, it is equally important that indiscriminate and hasty
use of this weapon should not be encouraged. It will not be right for labour to think that any kind
of demand for a 'strike' can be commenced with impunity without exhausting the reasonable
avenues for peaceful achievement of the objects. There may be cases where the demand is of
such an urgent and serious nature that it would not be reasonable to expect the labour to wait
after asking the government to make a reference. In such cases the strike, even before such a
request has been made, may very well be justified20.
Advocate – General, State of Bihar V. Madhya Pradesh Khair Industries, (1980) 3 SCC 311, 315
20
V.G. Ramachandran, Can a Judge be Indicted for Contempt against a Lawyer, AIR (J) 45, 45 (1954)
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In Syndicate Bank V. K. Umesh Nayak 21, Justice Sawant opined: "The strike, as a weapon,
was evolved by the workers as a form of direct action during their long struggle with the
employer, it is essentially a weapon of last resort being an abnormal aspect of employer-
employee relationship and involves withdrawal of labor disrupting production, services and the
running of enterprise. It is a use by the labour of their economic power to bring the employer to
meet their viewpoint over the dispute between them. The cessation or stoppage of works whether
by the employees or by the employer is detrimental to the production and economy and to the
well being of the society as a whole. It is for this reason that the industrial legislation, while not
denying for the rights of workmen to strike, has tried to regulate it along with the rights of the
employers to lockout and has also provided machinery for peaceful investigation, settlement
arbitration and adjudication of dispute between them. The strike or lockout is not be resorted to
because the concerned party has a superior bargaining power or the requisite economic muscle to
compel the other party to accept its demands. Such indiscriminate case of power is nothing but
assertion of the rule of 'might is right'".
Thus, initially, employees must resort to dispute settlement by alternative mechanisms. Only
under extreme situations when the alternative mechanisms have totally failed to provide any
amicable settlement, can they resort to a strike as a last resort.
Hence, it is true that Government employees everywhere are paid better salaries and enjoy more
privileges and amenities than other employees. The public sympathy is generally against
Government employees who go on strike. But that is no justification for the Supreme Court to
say that Government employees have no moral justification to go on strike in every
case. In Kameshwar Prasad22 the Apex court had settled that the right to strike is not a
fundamental right. But time and again the Court has also settled that the right to strike is a legal
right, one that is recognized by most democratic countries of the world. In ignoring
this, Rangarajan is a mere passionate rendering of a judge's personal views. It is said that law is
'reason without passion'. And Rangarajan fails to scintillate our reason.
Evidently, the Supreme Court was carried away by the fact that merely two lakhs Government
21
1995 AIR 319, 1994 SCC (5) 572
22
AIR 1959 Pat 187, 1958 (6) BLJR 600, (1959) ILLJ 401 Pat
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employees went on strike in the instant case and the Government machinery came to a standstill.
It seems to have also been influenced by the fact stated by senior counsel for the State
Government, K. K. Venugopal, that 90 per cent of the State's revenue in Tamil Nadu is spent on
salaries of Government servants. The court was, thus, swayed by liberal economics. It is true that
Government employees everywhere are paid better salaries and enjoy more privileges and
amenities than other employees. The public sympathy is generally against Government
employees who go on strike. But that is no justification for the Supreme Court to say that
Government employees have no moral justification to go on strike in every case.
In any event, when an action can be justified in law, there is no need to invoke morality and
equity. At the same time it is also avowed that an unrestricted right to strike is unsought for.
Therefore, it is important to pursue strengthening of alternate mechanisms for dispute settlement
on the lines of the Industrial Disputes Act, 1947. For government servants also efforts were made
to establish a Joint Management Council to act as an alternative mechanism for settlement of
disputes. It was a good attempt in this direction and needs to be revived. Only under extreme
circumstances and when these alternate mechanisms have failed to render an amicable solution,
must the right to strike be used as a weapon of last resort.
1. AN ADVOCATE
In India, the law relating to the Advocates is the Advocates Act, 1961 introduced and thought up
by Ashok Kumar Sen, the then law minister of India, which is a law passed by the Parliament
and is administered and enforced by the Bar Council of India. Under the Act, the Bar Council of
India is the supreme regulatory body to regulate the legal profession in India and also to ensure
the compliance of the laws and maintenance of professional standards by the legal profession in
the country.
Each State has a Bar Council of its own whose function is to enroll the Advocates willing to
practice predominately within the territorial confines of that State and to perform the functions of
the Bar Council of India within the territory assigned to them. Therefore, each law degree holder
must be enrolled with a (single) State Bar Council to practice in India. However, enrollment with
any State Bar Council does not restrict the Advocate from appearing before any court in India,
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even though it is beyond the territorial jurisdiction of the State Bar Council which he is enrolled
in.
The advantage with having the State Bar Councils is that the work load of the Bar Council of
India can be divided into these various State Bar Councils and also that matters can be dealt with
locally and in an expedited manner. However, for all practical and legal purposes, the Bar
Council of India retains with it, the final power to take decisions in any and all matters related to
the legal profession on the whole or with respect to any Advocate individually, as so provided
under the Advocates Act, 1961.
The process for being entitled to practice in India is twofold. First, the applicant must be a holder
of a law degree from a recognized institution in India (or from one of the four recognized
Universities in the United Kingdom) and second, must pass the enrollment qualifications of the
Bar Council of the state where he/she seeks to be enrolled. For this purpose, the Bar Council of
India has an internal Committee whose function is to supervise and examine the various
institutions conferring law degrees and to grant recognition to these institutions once they meet
the required standards. In this manner the Bar Council of India also ensures the standard of
education required for practicing in India are met with. As regards the qualification for
enrollment with the State Bar Council, while the actual formalities may vary from one State to
another, yet predominately they ensure that the application has not been a bankrupt /criminal and
is generally fit to practice before courts of India.
Enrollment with a Bar Council also means that the law degree holder is recognized as an
Advocate and is required to maintain standards of conduct and professional demeanor at all
times, both on and off the profession. The Bar Council of India also prescribes "Rules of
Conduct" to be observed by the Advocates in the courts, while interacting with clients and even
otherwise.
All Advocates in India are at the same level and are recognized as such. Any distinction, if any,
is made only on the basis of seniority, which implies the length of practice at the Bar. As
recognition of law practice and specialization in an area of law, there is a concept of conferral of
Senior Advocate status. An Advocate may be recognized by the Judges of the High Court (in
case of an Advocate practicing before that High Court) or by the Supreme Court (in case of the
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Advocate practicing before the Supreme Court). While the conferral of Senior Advocate status
not only implies distinction and fame of the Advocate, it also requires the Senior Advocate to
follow higher standards of conduct and some distinct rules. Also, a Senior Advocate is not
allowed to interact directly with the clients. He can only take briefs from other Advocates and
argue on the basis of the details given by them. From the year 2010 onwards a mandatory rule is
made for lawyers passing out from the year 2009-10 to sit for an evaluation test named AIBE
(All India Bar Exam) for one to qualify as an advocate and practice in the courts. However to
practise Law before the Supreme Court of India, Advocates must first appear for and qualify in
the Supreme Court Advocate on Record Examination conducted by the Supreme Court.
Further, under the Constitutional structure, there is a provision for elevation of Advocates as
judges of High Courts and Supreme Court. The only requirement is the Advocate must have a
ten years standing before the High Court (/s) or before the Supreme Court to be eligible for such.
(Article 217 and 124 of the Constitution of India for High Courts and Supreme Court
respectively)
2. RIGHT TO STRIKE BY ADVOCATES
The father of the concept of "the right to work" is said to be Charles Fourier (1772-1837) a
Frenchman who declared that "Politics extol the rights of men and do not guarantee the prime
and only useful right, the right to work." This statement marks the origin and establishment of
the "right to work" as a political concept.
The right to work, as a human right, is provided for in several international documents. Though
not expressly stated, it was implicit in the two basic texts of the International Labour
Organisation (ILO), namely, the Constitution of 1919 and the Declaration of Philadelphia of
1944. The right to work is included in the Universal Declaration of Human Rights (1948) and the
International Covenant on Economic, Social and Cultural Rights (1966).
Article 1 of the ILO Employment Policy Convention, 1964 (No. 122) states: "Each member shall
declare and pursue as a major goal an active policy designed to promote full, productive and
freely chosen employment." This Convention is among those which have received the largest
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number of ratifications. Among other things this policy aims at ensuring that "there is freedom of
choice of employment".
Besides these documents, three instruments which recognize the right to work are
(i) The American Declaration of the Right and Duties of Man (1961)
(ii) The European Social Charter (1961) and
(iii) The African Charter on Human and Peoples' Rights (1981).
According to the Universal Declaration of Human Rights and the International Covenant on
Economic, Social and Cultural Rights everyone is entitled to the right to work. It can only be
guaranteed in conditions of full employment, the importance of which is acknowledged by the
Declaration of Philadelphia and the United Nations Charter.
In India with reference to "right to work", there are two decisions of the Apex Court which have
taken different views. The first decision was handed down in Delhi Transport Corpn. V. DTC
Mazdoor Congress,23 The second is the one reported in Delhi Development Horticulture
Employees' Union V. Delhi Admninistration24. In the first case, the Apex Court has held that
income is the foundation of many fundamental rights and when work is the source of income, the
right to work becomes as much fundamental. In the case of Delhi Development Horticulture
Employees' Union a two-Judge Bench has observed that this country has so far not found it
feasible to incorporate the right to livelihood as a fundamental right in the Constitution. This is
because the country has so far not attained the capacity to guarantee it, and not because it
considers it any-the-less fundamental to life. The Court found support for its view in the fact that
it has been placed in the Chapter on Directive Principles, in Article 41 which enjoins upon the
State to make effective provisions for securing right to work within the limits of its economic
capacity and development. It may be stated that the United States Supreme Court has regarded
right to work as the most precious liberty Though in Olga Tellis V. Bombay Municipal Corpn.,
the Supreme Court of India has placed reliance upon the observations made by Douglas, J. in
Baskey case, it appears from the Supreme Court's judgments that the right to work has not been
23
1991 AIR 101, 1990 SCR Supl. (1) 142
24
1992 AIR 789, 1992 SCR (1) 565
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recognized as an enforceable right. If there is no right to work, drawing the analogy of reasoning
of the Supreme Court in inferring negative rights out of positive rights, it can be said that there is
no right not to work.
The right not to work could be comprehended as right to strike. The word "strike" has been
defined under Section 2(q) of the Industrial Disputes Act, 1947. Strike is the act of stopping
work by a body of workmen for the purpose of coercing their employer to accede to some
demands they have made upon him. A perusal of various provisions of the Industrial Disputes
Act, 1947 would reveal that workers have no absolute right to go on strike. Section 22 of the
Industrial Disputes Act, 1947 lays down circumstances in which strike in public utility services
is prohibited. Under Section 23 there are restrictions imposed on workmen from going on strike
in the circumstances enumerated therein. Section 24 on the other hand lays down that a strike
shall be illegal, if it is commenced or declared in contravention of Section 22 or Section 23 or is
continued in contravention of an order made under sub-section (3) of Section 10 or sub-section
(4-A) of Section 10-A. It is regarded as a powerful weapon for collective bargaining though.
If we look into the provisions of the Advocates Act and the Legal Practitioners Act, it becomes
evident that the position of advocates is quite different from an employee. An advocate is a
person learned in the law and duly admitted to practice, which assists her/his client with advice
and pleads for him in open court. It is the professional body of lawyers - the Bar Council of India
which lays down standards of professional conduct and etiquette for advocates to safeguard the
rights, privileges and interests of advocates. A Code of Ethics for the legal profession in India
was framed as early as 1962. It details the duties of advocates. Bar Council of India has also
framed rules in exercise of its rule-making power under the Advocates Act, 1961. Chapter II of
Part VI of these "Rules Governing Advocates" prescribes standards of professional conduct and
etiquette for lawyers.
The Preamble to these Rules states the duties and obligations of lawyers in general terms. Rules I
and II of Chapter II of the rules lay down standards of professional conduct and etiquette and
duties to the client and to the Court. Rule 12 provides that an advocate shall not withdraw from
engagements once accepted, without sufficient cause and unless reasonable and sufficient notice
is given to the client. Rule 15 provides that it shall be the duty of an advocate freely to uphold
the interests of his client by all fair and honorable means without regard to any unpleasant
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consequences to himself or to any other. Rule 24 lays down that an advocate shall not do
anything whereby he abuses or takes advantage of the confidence reposed in him by his client.
The rights and privileges of an advocate carry with them the corresponding duty not to abuse
them. Thus when an advocate accepts a brief it is his bounden duty to attend to his client's
interest with due diligence and if he fails to do so, he is likely to be dealt with for neglect and is
also answerable to the client. If he is unable to attend when the case is called, he is bound to
make some other arrangements for the proper representation of his client or the brief should be
returned in good time. In short, the advocates owe a duty not only to their clients, but also to the
court and are bound to cooperate with the court in the orderly administration of justice.
It is in this background that one has to look into the problems created by lawyers' strikes. The
questions usually raised are: Can we afford lawyers' boycott of courts anymore? Whether
lawyers' boycott is justified? Who suffers the most on account of boycott?
Amongst various duties required to be discharged by the lawyers, one of the duties to the court is
that an advocate shall maintain towards the court a respectful attitude bearing in mind that the
dignity of the judicial office is essential for the survival of an independent judiciary, and thus of
constitutional Government.
The court has also a reciprocal duty to perform and should not only not be discourteous to a
lawyer but should also try to maintain respect in the eyes of his clients and the general public
with whom he has to deal in his professional capacity. Hypersensitiveness on the one side or
rudeness on the other must be avoided at all costs. Both the Bench and the Bar are the two arms
of the same machinery and unless they work harmoniously, justice cannot be properly
administered. The need for mutual understanding and respect between the Bench and the Bar
was emphasized by many a writer on the subject.
When we consider the role of lawyers in the administration of justice, we ought to remember that
the profession of law is not a mere trade or business. It is a vocation to be pursued to meet the
challenge of times. There is much more in the profession than a traditional dignified calling. In
fact the term "lawyers" refers to a group of men pursuing a learned art as a common calling in
the spirit of public service. Pursuit of learned art in the spirit of a public service is the primary
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purpose. In ensuring the rule of law a most significant part is played by the lawyers. It is said that
Judges most often shine with the reflected glory of lawyers.
In this view it is difficult to concede a right to boycott courts to the lawyers on the analogy of
conceding right to strike of employees. Moreover, the right to strike work in India is admittedly
not absolute. This is so in the industrial sector as well as in public service sector. The members
of the Bar Association thus have no right to boycott courts in view of the duties which they are
required to discharge. It is true that under the Constitution of India, freedom of association is
guaranteed as a fundamental right, but this right is subject to reasonable restriction in the interest
of public order or morality. The prohibition against strikes by lawyers is inbuilt in the Advocates
Act, 1961. The duties to the court and duties to the clients prescribed by Bar Council of India go
to prove that strike or boycotting of courts is antithesis to practice in the court, and is a
professional misconduct. An advocate being an officer of the court and thus bound to submit to
its authority cannot join in an action to boycott the court or a particular judge because of any
grievance - real or alleged
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CHAPTER-II
1. LAWYER’S STRIKE – BASED UPON OPINION OF VARIOUS JURISTS
THE `STRIKE' is a weapon of social justice for the powerless against the powerful to be used
as a last resort when no other option is available. Used by the trade union movement to withhold
their `labour' power to get `just' terms and by Gandhi as a non- violent protest against imperial
rule, it is not a trivial pursuit to be used by the powerful to demonstrate their strength or as a
weapon of blackmail or to perpetuate injustice. Even if judges are legally but not always morally
right, judicial pronouncements are a useful moral prelude to introduce a public discussion on
controversial matters. Over the last century and a half, High Court and Supreme Court judges
have evolved various principles in relation to lawyers' strikes both by judicial administrative
practice.
Lawyers’ Right To Strike
An advocate, being a privileged and erudite person, needs to regulate his acts and conduct for
they have a huge impact on the society. Members belonging to this profession become role
models for the society and it is their duty to strive and secure justice for people. It is their duty to
maintain a healthy relationship between the Bar and Bench in order to uphold the credibility and
reputation which is associated with the profession. While lawyers are considered as harbingers
and guards against an autocratic society, yet they are not allowed to gather and voice their
opinion. Being of the view that their strike comes in the way of delivering justice to the already
suffering litigant, the Supreme Court gave a categorical finding in 2002 holding that lawyers had
no right to strike and any such strike or declaration was illegal requiring action against the errant
individuals. Several 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. In B.L.Wadehra V. State25 the Court held that if on the
ground of strike a lawyer abstains from appearing in court in a case in which she/he holds a
Vakalatnama from a client, she/he is conducting professional misconduct, a breach of contract,
25
AIR 2000 Delhi 266, 85 (2000) DLT 114, 2000 (53) DRJ 450
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breach of trust and a breach of professional duty. To begin with are the principles arising out of
the lawyer-client relationship?
These may be stated as follows:
Principle I: Lawyers are in breach of their legal, moral and professional obligations towards
their client if they accept a case and fail to appear in court.
Principle II: The fact that the Bar Association has called a strike prohibiting lawyers to appear in
any court is not a sufficient reason for any lawyer to fail to discharge his obligation towards the
client to appear in a case.
Principle III: Where a lawyer has decided not to appear for a client due to a strike call, he must
return the clients fees and brief with sufficient and reasonable notice to the client to enable the
latter to make alternative arrangements.
Principle IV: Where the lawyer has sufficient cause to believe that, because of the strike or
otherwise, the client will be unable to make alternative arrangements, it is his professional duty
to appear in that case despite the call for a `strike'.
Principle V: Where a lawyer uses his professional judgment to appear in a case during a strike
call, no one can intimidate, coerce or threaten him not to do so.
Principle VI: Where a lawyer ignores a strike call to appear in a case, no professional body shall
take any disciplinary or punitive steps to victimize that lawyer for breaking the strike call - not
even, perhaps, to issue a notice to elicit information by way of an explanation. These `principles',
which arise out of the lawyer-client relationship, are to be read along with the principles
protecting the public interest in the continued functioning of courts, which include:
Principle VII: Courts are instituted to dispense justice; and cannot be prevented from doing so by
a strike call by lawyers. Nor can judges who are members of a Bar association or lawyers'
collectivity be intimidated, coerced or threatened by disciplinary action or otherwise, if they
decide to hold court during a strike call.
Principle VIII: In rare circumstances, where the courts may, sub silentio, feel that a strike is
justified; and/or it is a symbolic one-day or short duration strike, the Courts may agree to an
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`arrangement' of permitting adjournments through proxy counsel appointed by the Bar. (The first
part of this principle flows from the Common Cause case (1995); and, the second part from the
practice of various courts, including the Supreme Court, to permit proxy counsel in some cases.
It is not clear in what cases this latter indulgence of `proxy' counsel would not be permitted).
Principle IX: In the event of a counsel wishing to argue a matter, or the Court taking the view
that it is in the interest of justice to do so, the Court shall proceed to hear and decide the matter.
Principle X: The Courts will not normally review a decision in a case where lawyers did not
appear because of a strike, but where the Court decided the matter on the insistence of, and
arguments by, a party in person.
It is hypocritical that advocates, who represent the elite of society & who are supposed to be the
defenders of legal values, should openly flout the law by defying the verdicts of the Supreme
Court. Such conduct is symptomatic of the utter lawlessness that our Society has degenerated
into in all walks of life rues the author and claims that stern action ought to be taken against the
perpetrators for contempt of court In Ex-Capt. Harish Uppal V. Union of India & Anr26, the
Supreme Court lashed out at lawyers for going on strike. One can’t do better than to quote from
what the judges said: “The lawyers have no right to go on strike or give a call for boycott, not
even on a token strike. The protest, if any as required, can only be by giving press statements,
T.V. interviews, carrying out-of-Court premises banners and/or placards, wearing black or white
or any color arm bands, peaceful protest marches outside and away from Court premises; going
on Dharnas or relay fasts, etc. The lawyers holding Vakalats on behalf of their clients cannot
refuse to 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
consequences by the Bar Association or the Bar Council and 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 meeting for purposes of considering a call for strike or boycott and requisition, if
any, for such meeting must be ignored 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
26
(2003) 2 SCC 45
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for boycotts. 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 in addition to damages which
he might have to pay his client for loss suffered by him”.
This sentiment was echoed in Ramon Services Pvt. Ltd. V. Subhash Kapoor27 where it was
observed “Abstaining from the courts by the Advocates, by and large, does not only affect the
persons belonging to the legal profession but also hampers the process of justice sometimes
urgently needed by the consumers of justice, the litigants. Legal profession is essentially a
service oriented profession. The relationship between the lawyer and his client is one of trust and
confidence. With the strike by the lawyers, the process of court intended to secure justice is
obstructed which is unwarranted under the provisions of the Advocates Act. Law is no trade and
briefs of the litigants not merchandise”. Anyway, what this entire episode shows is the utter
disregard that we as a society have towards the law. Whether it is a petty thing like obeying
traffic rules or a major thing like properly discharging your income-tax obligations or even
holding judicial institutions to ransom, the common feature is the sense that you can break the
law and get away with it. And even if you are unfortunate enough to get caught, a mild slap on
the wrist is that all the punishment that you get. So, why respect the law? Most lawyers are
opposed to boycotts, and does not support stoppage of work in courts save in the extreme case of
threat to the legal profession or the independence of the judiciary. However, they prefer to keep
silent in the face of a vociferous minority who commandeer proceedings at bar association
meetings, and thus acquiescence becomes the order of the day. Judges are forced to adjourn
cases when lawyers do not appear; lawyers who wish to appear fear obstructive and even violent
behaviour from those on boycott, and can’t be expected to place themselves to risk. The judiciary
hasn’t been able to crack down on those who are responsible for these stoppages. The situation
has exacerbated over the years. If stern measures had been taken earlier, the message would have
gone out that the practice will not be tolerated. Instead, inaction sent out the opposite signal.
With each succeeding episode it becomes more difficult to apply corrective measures. Those
who benefit are the ones who call for the boycott. It demonstrates their power; after all, if you
can bring the entire system to a halt, you must be a force to reckon with. This makes for the
phenomenon of competitive boycotting. This also means that no group wants to be seen as being
27
1999 (1) SCC 37
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against the boycott. Some boycotts have nothing to do with issues of lawyers, but are aligned to
political causes. It is deeply ironical that lawyers should close down courts when they have a
vexed issue to deal with. Courts are after all the institutions where complaints and grievances are
taken for resolution, and lawyers are the experts to provide dispute resolution services. It says
little for the confidence of the lawyers in their system, and themselves, when they hold courts to
ransom till their demands are met. Two sides of the coin: Most causes for boycotts emanate from
conflict between lawyers and the police. The latter is no exemplar of angelic behavior, and the
highhandedness of the police provides enough ammunition for Newtonian reaction by lawyers.
Lawyers also allege that the police refuse to register cases even when offences are made out. On
their side, policemen complain that lawyers throw their weight around and when charged with
breaking the law, escalate the incident to a lawyer-police conflict. It must be conceded that both
sides have cause for grievance. However, this is a problem of frequent occurrence, and the
reason why lawyers rush to boycott is that they think that the ordinary legal processes will not
bring the police to book. They are wrong here; one well directed suit against specific police
officers for damages will have far more threat and deterrent value than ten strikes. All the more
so since boycotts, having become so common, are not taken seriously by those in power, and
peter out without achievement. However, to prevent such flashpoints from escalating to violence
and prolonged conflict, we would do well to set up a standing committee to handle these issues
of lawyer-police conflict, which can consist of retired judges, bar office-bearers and senior police
and government officers. The legal profession should be aware that with each boycott we bring
down further our image in the eyes of the public and our claims of being a noble profession will
ring false if we close down, periodically and without cause, the institution that protects the rule
of law and renders the service of dispute resolution to the people. Repeated boycotts by lawyers
have become a national phenomenon; perhaps it is time for the Supreme Court to enforce its
ruling. We may also observe that it is open to the court as an alternative course to permit the
party (while setting aside the ex parte order or decree earlier passed in his favour) to realize the
cost fixed by the court for the purpose, from the counsel of the other party whose absence caused
the passing of such ex parte order, if the court is satisfied that such absence was due to that
counsel boycotting the court or participating in a strike.
Thus, it is settled position that:
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1. 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.
2 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.
3. 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.
4. Courts are under an obligation to hear and decide cases brought before it and cannot adjourn
matters merely because lawyers are on strike. The law is that it is the duty and obligation of
Courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike.
5. If a resolution is passed by Bar Associations expressing want of confidence in judicial

officers it would amount to scandalizing the Courts to undermine its authority and thereby the
Advocates will have committed contempt of Court In its judgment delivered on December 17,
2002, in Ex-Capt. Harish Uppal V. Union of India & Another,28 the Supreme Court’s five-
member Constitution Bench has held that strikes by lawyers are illegal and that courts must now
take a very serious view of strikes and calls for boycott.
The Bench comprising Chief Justice G.B. Pattanaik (who has since retired), Justices
Doraiswamy Raju, S.N. Variava, D.M. Dharmadhikari, and M.B. Shah, (the last two have given
a separate concurring judgment) ruled that only in the rarest of rare cases, where the dignity,
integrity and independence of the Bar and/or the Bench are at stake, may courts ignore (turn a
blind eye to) a protest abstention from work for not more than one day.
The main judgment, delivered by Justice Variava, clarified that it was for the Court to decide
whether or not the issue involved the dignity or the integrity or the 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 the 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,”
28
1973 3 SCC 319
Page | 31
The Bench felt it had no option but to ban strikes for two reasons:
One, strikes were resorted to on the slightest pretence. Lawyers contended that the response
should have been to limit the grounds and duration of a strike, rather than deprive the lawyers
their right to strike. Merely because a demand of the lawyers is found to be not legally valid
lawyers do not lose their right to pursue the demand any further, they felt.
Secondly, the Bench cited the failure of the Bar Council of India to incorporate certain clauses
for self-regulation in their disciplinary rules to ensure that the call for strikes is not abused. The
Court had suggested these norms in an Interim Order it had issued in another related case in
1995. In that order, the Court had sought to protect the right of a lawyer not to participate in a
strike, and appear in the Court during the strike, without fear of any adverse or penal
consequences from those who issued the call for a strike. The Court had then made it clear that
other forms of protest such as wearing of arm bands by the lawyers in the courtroom, which
would not disrupt the court proceedings, should not be precluded. The December 17, 2002
judgment goes far beyond the Interim Order, and negates the exercise of a democratic right, in a
peaceful manner. The Bar Council of India, which described the judgment as impractical, had
filed a petition in the Supreme Court for its review. But, the Supreme Court in its judgment on
September 30, 2005, reiterated that lawyers do not have a right to go on a strike or give a call for
boycott. The Court further asked the Bar Council of India to take immediate action against
advocates who give a call for strike. Thus, from the decision of the Supreme Court, it is clear that
Articles 19(1) (g) and 21 of the Constitution of India do not include a fundamental right to
boycott the work or go on strike. As opined by Dr. H. M. Seervai, in his article titled “Lawyers’
Strike and Duty of the Supreme Court”, lawyers ought to know that at least as long as lawful
redress is available to aggrieved lawyers, there is no jurisdiction for lawyers to join on illegal
conspiracy to commit a gross criminal contempt of Court thereby striking at the heart of liberty
conferred on every person by the Constitution of India. To go on strike, amounts to interference
from anybody or any authority in the daily administration of justice.
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Lawyers strike after the incident of Tis Hazari Court Complex, 2019
Several people were injured as lawyers and police personnel clashed over a parking dispute at
the Tis Hazari Court complex in New Delhi on 2nd of November, 2019. While a police car was
set ablaze in the violence, sending a column of thick smoke into the city's already hazy sky, at
least 20 more vehicles were vandalised.
Police said 20 cops and eight lawyers were injured in the clashes. A journalist belonging to a
prominent news agency was also assaulted by irate protesters. Among the vehicles damaged
were 12 motorcycles, eight prison vans and a police vehicle.
According to police, the violence was sparked off around 2 pm when some officers on duty
objected to a lawyer parking his car in front of the lockup at the Tis Hazari court complex. The
car, they said, was hindering the movement of vehicles bringing undertrials to the lockup.
"Soon, a large number of advocates crowded at the lockup. CCTV footage clearly shows that
lawyers forcefully entered the lockup and began manhandling the police officers on duty," a
statement issued by the Delhi Police read.
Police claimed that when senior district officers asked the lawyers to leave, they stormed the
lockup and set some vehicles parked outside on fire. "In order to ensure the safety of under trials,
we fired in the air. The circumstances in which one of the lawyers suffered a bullet injury are
being investigated," the officials stated, adding that the undertrials were later shifted to Tihar
Jail.
After this incident the lawyers went on strike for around 2 weeks and no court work was
happening as of their total strike. Hence the strike was called off by the lawyers as there were no
negotiations demands were accepted by both the police and the lawyers.
Conclusion
The right to strike is not fundamental and absolute right in India in any special and common law,
whether any undertaking is industry or not. This is a conditional right only available after certain
Page | 33
pre-condition are fulfilled. If the constitution makers had intended to confer on the citizen as a
fundamental right the right to go on strike, they would have expressly said so. On the basis of the
assumption that the right to go on strike has not expressly been conferred under the Article 19(1)
(c) of the Constitution it can be said that the right to strike is a relative right which can be
exercised with due regard to the rights of others. Neither the common law nor the fourteenth
Amendment to the federal constitution confers an absolute right to strike.
In conclusion it is held that lawyers have no right to go on strike or give a call for boycott, not
even on a token strike. The protest, if any is required, can only be by giving press statements, TV
interviews, carrying out of Court premises banners and/or placards, wearing black or white or
any colour arm bands, peaceful protect-marches outside and away from Court premises, going on
dharnas or relay fasts etc. It is held that lawyers holding Vakalatnama on behalf of their clients
could 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
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 Vakalatnama 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.
Page | 34
CHAPTER-III
SUPREME COURT JUDGEMENTS ON STRIKE
The prevailing situation in the courts is a real eye-opener and ironically it is one of the reasons
for pendency of about 2.5 cores cases in subordinate courts. The Supreme Court had consistently
been declaring that advocates do not have a right to call for strikes and held that the lawyers’
strikes are illegal and that effective steps should be taken to stop the growing tendency.
In numerous cases beginning from Pandurang Dattatraya Khandekar V. Bar Council of

Maharashtra, Bombay29; to Ex Capt. Harish Uppal V. Union of India, it was held that the
advocates have no right to go on strike. The 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, Court must not be privy to strikes
or calls for boycotts. It was held that if a lawyer, holding a Vakalatnama of a client, abstains
from attending Court due to a strike 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. It is
relevant to mention here that the Supreme Court, in Ex-Capt. Harish Uppal, dealt extensively
with strikes by advocates. The Court held: “… those 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 color arm bands, peaceful protest marches outside and away from
Court premises, going on dharnas or relay fasts etc. …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…”
In spite of all these, the strikes have continued unabated. The dispensation of justice must not
stop for any reason. The strike by lawyers has lowered the image of the courts in the eyes of the
general public. The Supreme Court has held that right to speedy justice is included in article 21
of the Constitution. a litigant has a fundamental right of speedy trial of his case, because, speedy
trial, as held by the Supreme Court in Hussainara Khatoon V. Home Secretary, State of
29
AIR 1984 SC 110 a, 1983 (2) SCALE 495, (1984) 2 SCC 556, 1984 1 SCR 414
Page | 35
Bihar30, is an integral part of the fundamental right to life and liberty enshrined in Article 21 of
the Constitution. Strike by lawyers will infringe the above mentioned fundamental right of the
litigants and such infringement cannot be permitted. Assuming that the lawyers are trying to
convey their feelings of sentiments and ideas through the strike in exercise of their fundamental
right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. It is
crystal clear that the exercise of the right under Article 19(1)(a) will come to an end when such
exercise threatens to infringe the fundamental right of another. Such a limitation is inherent in
the exercise of the right under Article 19(1)(a). Hence, the lawyers cannot go on strike infringing
the fundamental right of the litigants for speedy trial. The right to practice any profession or to
carry on any occupation guaranteed by Article 19(l)(g) may include the right to discontinue such
profession or occupation but it will not include any right to abstain from appearing in court while
holding a Vakalat in the case. Similarly, the exercise of the right to protest by the lawyers cannot
be allowed to infract the litigant's fundamental right for speedy trial or to interfere with the
administration of justice. Recently, Supreme Court while disposing of the Criminal Appeal of
Hussain & Anr. V. Union of India31 deprecated the practice of boycotting the Court observing
that: “One other aspect pointed out is the obstruction of Court proceedings by uncalled for
strikes/abstaining of work by lawyers or frequent suspension of court work after condolence
references. In view of judgment of this Court in Ex. Captain Harish Uppal V. Union of India,
such suspension of work or strikes is clearly illegal and it is high time that the legal fraternity
realizes its duty to the society which is the foremost. Condolence references can be once in a
while periodically say once in two/three months and not frequently. Hardship faced by witnesses
if their evidence is not recorded on the day they are summoned or impact of delay on under trials
in custody on account of such avoidable interruptions of court proceedings is a matter of concern
for any responsible body of professionals and they must take appropriate steps. In any case, this
needs attention of all concerned authorities – the Central Government/State Governments/Bar
Councils/Bar Associations as well as the High Courts and ways and means ought to be found out
to tackle this menace. Consistent with the above judgment, the High Courts must monitor this
aspect strictly and take stringent measures as may be required in the interests of administration of
justice.”
30
1979 AIR 1369, 1979 SCR (3) 532
31
(2017) 5 SCC 702
Page | 36
In Ramon Services Pvt. Ltd. V. Subhash Kapoor32, the apex Court observed that if any
advocate claims that his right to strike must be without any loss to him, but the loss must only be
borne by his innocent client, such a claim is repugnant to any principle of fair play and canons of
ethics. Therefore, when he opts to strike or boycott the Court he must as well be prepared to bear
at least the pecuniary loss suffered by the litigant client who entrusted his brief to that advocate
with all confidence that his cause would be safe in the hands of that advocate. The Constitution
provides for an independent and efficient justice delivery system. Any delay in disposal of cases
not only creates disillusionment amongst the litigants, but also undermines the capability of the
system to impart justice in an effective manner. The Supreme Court disapproved the conduct of
the party resorting to dilatory tactics before the court seeking adjournments on one or other
pretext and observed that the party acted in a manner to cause colossal insult to justice and to the
concept of speedy disposal of cases. In addition to the issue of strikes, the Supreme Court has
also dealt with a large number of cases of browbeating of courts by advocates for getting a
favorable order. As a rule, Syed Gulzar Hussain V. Dewan Syed Ale Ramul Ali Khan33,
Gayathri V. M. Girish,34. Advocate, as an officer of the court, cannot be adamant on any
unwarranted and uncalled for issue.
The Supreme Court in Vishram Singh Raghubanshi V. State of Uttar Pradesh35held: “The
Superior Courts have a duty to protect the reputation of judicial officers of subordinate courts,
taking note of the growing tendency of maligning the reputation of judicial officers by
unscrupulous practising advocates who either fail to secure desired orders or do not succeed in
browbeating for achieving ulterior purpose. Such an issue touches upon the independence of not
only the judicial officers but brings the question of protecting the reputation of the Institution as
a whole.”
In M.B. Sanghi V. High Court of Punjab and Haryana36, it has been opined that: “The
tendency of maligning the reputation of judicial officers by disgruntled elements who fail to
secure the desired order is ever on the increase and it is high time it is nipped in the bud. And,
32
AIR 14 November, 2000
33
(2014) 10 SCC 825
34
(2016) 14 SCC 142
35
AIR 2011 SC 2275
36
AIR 1991 SC 1834
Page | 37
when a member of the profession resorts to such cheap gimmicks with a view to browbeating the
Judge into submission, it is all the more painful. When there is a deliberate attempt to scandalize
which would shake the confidence of the litigating public in the system, the damage caused is
not only to the reputation of the Judge concerned but also to the fair name of the judiciary.”
In R.D. Saxena V. Balram Prasad Sharma 37, the Supreme Court held: “In our country,
admittedly, a social duty is cast upon the legal profession to show the people beckon (sic beacon)
light by their conduct and actions. The poor, uneducated and exploited mass of the people need a
helping hand from the legal profession, admittedly, acknowledged as a most respectable
profession. No effort should be made or allowed to be made by which a litigant could be
deprived of his rights, statutory as well as constitutional, by an advocate only on account of the
exalted position conferred upon him under the judicial system prevalent in the country.”
In Mahabir Prasad Singh V. Jacks Aviation Pvt. Ltd.38, the Supreme Court held that it is the
solemn duty of every Court to proceed with the judicial business during court hours and no Court
should yield to pressure tactics or boycott calls or any kind of browbeating. The Court held: “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.”
In M/s. Chetak Construction Ltd. V. Om Prakash39, the Court deprecated the practice of
making allegations against the Judges observing as under: “Lawyers and litigants cannot be
allowed to “terrorize” or “intimidate” Judges with a view to “secure” orders which they want.
This is basic and fundamental and no civilized system of administration of justice can permit it.”
Similar view has been reiterated in Radha Mohan Lal V. Rajasthan High Court40. In view of
the observations by the Courts, in the event of a strike, a court is not obliged to become complicit
in the illegality by adjourning the case for the absence of counsel, it may proceed to pass orders
ex parte. Litigation work requires the representatives and authorities to systematically engage in
legal proceedings at various points over sustained periods of time so as to arrive at resolution to
the disputes. To use this situation of necessity to claim increased bargaining power is a wanton
37
AIR 2000 SC 2912
38
AIR 1999 SC 287
39
AIR 1998 SC 1855
40
AIR 2003 SC 1467
Page | 38
perversion of the aims of the justice delivery system. To forcibly prevent other advocates from
appearing in their respective proceedings is even worse. The act of going on strike amounts to a
violation of an advocate’s duty as an officer of the court and his duty to maintain standards of
professional conduct and ethics. It also results in a violation of his agreement with the client. At
the same time, it is also contempt of court and a violation of the right of speedy trial for litigants.
The unacceptable actions of advocates have not shown any significant improvement despite the
establishment of competent authorities to regulate the conduct of advocates. The reasons for
strikes reported in case law have not been found to justify organised violence directly prejudicial
to the vital function of justice delivery. The unacceptable trend of making false allegations
against judicial officers and humiliating them requires to be curbed; otherwise the judicial
system would lose its credibility. The Bench and the Bar have to avoid unwarranted situations on
trivial issues that hamper the cause of justice and are in the interest of none. “Liberty of free
expression is not to be confounded or confused with license to make unfounded allegations
against any institution, much less the Judiciary”.
An Advocate in a profession as well in his conduct should be diligent and conform to the
requirements of the law by which an Advocate plays an important role in the preservation of
justice system. Any violation of the principles of professional ethics by an Advocate is
unfortunate and unacceptable. Any kind of deviance not only affects the system but corrodes the
faith of the people at large.
In Arun Kumar Yadav V. State of Uttar Pradesh41 Through District Judge, the Supreme
Court observed: “The judicial proceeding has its own solemnity and sanctity. No one has any
authority to sully the same. It is the obligation of everyone to behave with propriety when a
judicial proceeding is conducted. Any kind of deviancy not only affects the system but corrodes
the faith of the collective at large. Neither any counsel nor a litigant can afford to behave in this
manner.”
The lawyer who presents the application before the court making unfounded allegations against a
judicial officer, impleading her/him by name, though not permissible in law as explained by the
41
(2013) 14 SCC 127
Page | 39
Court in Savitri Devi V. District Judge, Gorakhpur42, without reasonably satisfying himself
about the prima facie existence of adequate grounds, is equally responsible for contempt for
scandalizing the court for the reason that he cannot be a mouthpiece of his client and cannot
associate himself with his client in maligning the reputation of judicial officer merely because his
client failed to secure the desired order from the said officer. A deliberate attempt to scandalize
the court which would shake the confidence of the litigating public in the system would cause a
very serious damage to the name of the judiciary43.
In Re: Ajay Kumar Pandey44, the Supreme Court held: “No one can be permitted to intimidate
or terrorize judges by making scandalous unwarranted and baseless imputations against them in
the discharge of their judicial functions so as to secure orders which the litigant ‘wants’…The
liberty of expression cannot be treated as a license to scandalize the court...”
In Bar Council of India V. High Court of Kerala 45, the Supreme Court observed, “An
advocate in no circumstances is expected to descend to the level of appearing to support his view
in a vulgar brawl.”
In Re: S. Mulgaokar46, the Supreme Court observed that public interest and public justice
require that whenever there is an attack on the judge, it is scurrilous, offensive, intimidatory or
malicious, the law must strike a blow on him as he challenges the supremacy of law by fouling
the source and stream.
The legal profession requires the safeguarding of moral standards. As an officer of the court, a
lawyer has a duty to the court towards his profession and to the public.
42
AIR 1999 SC 976
43
M.Y. Shareef V. Hon’ble Judges of Nagpur High Court AIR 1955 SC 19; Shamsher Singh Bedi V. High Court of
Punjab & Haryana AIR 1995 SC 1974; Tushar D. Bhatt V. State of Gujarat (2009) 11 SCC 678 and R.K.Anand V.
Registrar, Delhi High Court (2009) 8 SCC 106
44
AIR 1998 SC 3299
45
AIR 2004 SC 2227
46
AIR 1978 SC 727
Page | 40
CHAPTER - IV
LEGALITY OF LAWYER'S STRIKE
Lawyers occupy a specially privileged position in society and that thrusts great responsibilities
on lawyers. At the same time it gives them immense opportunities to mould the life and thought
of the nation. The researcher finds that with the passage of time, the lawyers have changed. The
lawyers who fought for social causes and took pride in fighting challenges to constitutionalism
and broader principles of democracy and democratic values in India are fast becoming a rare
species. The legal profession is one of the oldest professions. It has its traditions of love and
service to the country. Its contribution to national leadership and the freedom struggle ha s been
significant. People have high hopes from legal profession. Lawyers are expected to be not only
learned people but a highly responsible, upright and dignified section of the society.
Today, however, the situation is otherwise. Resorting to strikes by the lawyers is not altogether a
new phenomenon. Not a single day passes without a strike by professionals in some part of the
country or the other. Lawyers boycotting the courts on one ground or the other, ha s become a
common phenomenon. No doubt protests are essential in a democratic country like India, but it
should not be on flimsy grounds.
HISTORICAL PERSPECTIVE OF LAWYER'S STRIKE
Lawyers have a long history of supporting and helping in organisation of society. The concept of
boycott ha s its origin in Satyagraha philosophy. Mahatma Gandhi, father of the nation, adopted
it as purification of the soul and for achieving the political independence of India. Boycott is a
form of Satyagraha. It is adopted by a group or a person to remind another person or a society or
institution or even a Nation that injustice is being done and it may be redressed, n^ During the
struggle for independence Gandhi Ji gave a call to boycott the British rule and many lawyers
plunged into by giving u p their lucrative practice and joined the freedom movement. A galaxy
of stalwart of lawyers such as Mahatma Gandhi, Moti Lai Nehru, C. R. Das, Rajendra Prasad, Pt.
Jawaharlal Nehru, Sardar Patel, Lala Lajpat Rai, Sir Feroz Shah Mehta, Madan Mohan Malviya
and so on resorted to strike a number of times, sometimes on the arrest of senior national leaders,
Page | 41
sometimes on other popular causes and thereby contributed their might to the national cause 47.''
These lawyers always come to the forefront whenever it ha s appeared that justice ha s been
murdered. The legal profession and individual members participating in such strikes did earn a
series of adverse court judgments in a number of cases that came before different High Courts
during the British Raj. They were convicted of professional misconduct in almost all the cases.
But at the same time the legal profession, which did not enjoy a very high esteem and respect in
the Indian society started becoming dear to the masses. Its honor, respect, esteem and status
touched new heights in the eyes of public with their openly coming out to join the national
freedom struggle. Apart from the calls given during the freedom struggle to boycott all
institutions of the British, including courts, boycott of courts were unheard of48.
In 1973, Mrs. Indira Gandhi's Government superseded three senior judges of the Supreme Court
and appointed Justice Ray as Chief Justice. In most parts of India the bar abstained from work
for one day. Protest is essential to a democracy. Like other forms of protest, the right to strike
places pressure on those in power to recognize dissent and respond to just demands. In the year
1986, the lawyers of Allahabad High Court went on a long strike for about 50 days because of
differences within the bar as to whether a bench of High Court should be established in Western
Uttar Pradesh, and if so, where. No one was allowed to enter the court premises. The court
offices remained closed throughout the strike period. Litigants were not even allowed to seek
relief from judges at their residences. The largest, so far, was the strike by Delhi Lawyers in the
case, which is popularly known as Kiran Bedi's case. The agitation took 99 days wherein the
issue remained personalized i.e. the suspension of Kiran Bedi. By this strike the backlog of
arrears of pending cases in Delhi Courts increased by over 10,202 cases. Even today, the
common masses resort to lawyers in case of legal crisis.
CAUSES OF LAWYERS' STRIKE
Strike is a method that had been resorted to by our freedom fighters to fulfill their demands and
fight the war of liberty. But the strike by lawyers can be said to shackle the liberty and the right
of the people to receive justice. The opinions are many and many jurists’ as well legal experts
47
R.K. Mahajan, "Boycott of Courts by Lawyers - Legitimacy and Alternatives," Supreme Court Journal, 1989
(Journal Section), VoL 1, p. 1
48
Ibid; see also Sunil Deshta and Kiran Deshta, Practical Advocacy of Law 156 (2006)
Page | 42
have given their respective perspective on the matter. Undoubtedly lawyer's strike remains one of
the most contentious and debatable topic in legal arena for which there can be number of causes,
for example : boycott of courts took place over arrest of lawyers by the police; proposal of
repeating the anticipatory bail provisions; misbehavior of the police with the lawyers; shifting of
High Court bench from one place to another; shifting of venue of the courts; protests against
transfer of judges; ill-treatment of a member of the profession by the executive; irregular
appointment of judges; involvement of certain High Court Judge s in recruitment scan and so on.
Mr. Dipankar the learned Amicus Curie, in Supreme Court submitted that the reasons why
strikes have been called by the Bar Associations and/or Bar Councils are:
(a) Confrontation with the police and/o r the legal administration;
(b) Grievances against the Presiding Officer,
(c) Grievances against judgment of courts;
(d) Clash of interest between groups of lawyers and
(e) Grievances against the legislature or legislation.
Besides this, the extracts of the joint meeting of the Chairpersons of various State Bar Councils
and members of the Bar Council of India, held on 28 th and 29th September, 2002 have set out
some of the causes which result in lawyers abstaining from work are as follows:
(A) Local Issues
(i) Disputes between lawyer/Lawyers and the police and other authorities.
(ii) Issues regarding corruption, misbehavior of judicial officers and other authorities.
(iii) Non filling of vacancies arising in courts or non appointment of judicial officers for a long
period,
(iv) Absence of infrastructure in courts.
(B) Issues relating to one section of the bar and another section:
Page | 43
(i) Withdrawal of jurisdiction and conferring it to other courts (both pecuniary and territorial)
(ii) Constitution of Benches of High Courts. Disputes between the competing District and other
Bar Associations.
(C) Issues involving dignity, integrity, independence of the Bar and Judiciary.
(D) Legislation without consultation with the Bar Councils
(E) National issues and regional issues affecting the public at large.
On July 25, 2003 thousands of litigants had to return home without their cases heard at Delhi
High Court as their lawyers abstained from Courts in protest against enhancement of the
pecuniary jurisdiction of High Court from Rs. 5 lakhs to Rs. 20 lakhs. The call for abstaining
from courts was given by the Delhi High Court bar Association in protest against the Union
Government's July 16, notification enhancing the pecuniary jurisdiction of the High Court.
Following the increase in the pecuniary jurisdiction, thousands of civil cases of the value of up to
Rs. 20 lakhs will now had to be transferred to three lower courts - Tis hazari, Patiala House and
Karkardooma. Further, the lawyers have protested against the Delhi Government's move of
setting up for Permanent Lok Adalats in the capital, the Bar Associations at Patiala House, and
Tis Hazari announced one day strike, The Vice-President (Civil, Delhi Bar Association has said
that the provision of the Lok Adalats are being grossly misused by Magistrate to get an extra
unit. The fact is that the cases that go to the Lok Adalat can be compounded and decided by the
Magistrate Courts themselves. The government is not trying to strengthen the system that is best
suited in the country. An impression is being given that cases are being sent to Lok Adalats as
the present system delays dispensation of justice 49.
49
Hindu, July 26, 2003 at p. 4 , Hindustan Times, August 6, 2003 (New Delhi ed.) 229
Page | 44
CHAPTER- V
AVOIDANCE OF STRIKE BY LAWYERS
INTRODUCTION
A person who practices law is called a Lawyer. She/He is the part of the judicial system. A
lawyer plays a vital role in administration of justice. He represents his clients in the court in
criminal, civil and other cases. A lawyer acts with integrity and professionalism. He maintains
his or her overarching responsibility to ensure civil conduct.50 Advocacy is a decent and
reputable profession in our country. Strike in layman’s language means refusal to work or to
perform any activity. Strike can also be defined as gathering of people, making a union and
refusing to carry out their work. There can be different types of strikes with different motives.
Like hunger strike, general strike, culture strike, etc. Strikes are sometimes used to force
government to alter its policy. Most of the time strikes are undertaken by the workers or labors
because of payment issues or when their demands are not fulfilled, etc. In Bharat Kumar K.
Palicha V. State of Kerala51, the Kerala High Court has underlined the difference between
‘Bandh’ and ‘hurtle or general strike’. Moreover in this case the Court has said that ‘calling for
Bandh’ is unconstitutional. The Supreme Court in a case in 2002, held that only in case of the
‘rarest of rare cases’ where the dignity, integrity of Bar is at stake, advocates can call for protest
not more than one day. The advocates protest for their needs and demands, meanwhile it the poor
people who suffer because of disturbance in administration of justice. In recent years the Bar
Council has interpreted the term “rarest of rare cases” in various ways and every time a new
group of lawyers call for strike. Though in many cases the Supreme Court has held that call for
strike by lawyers is illegal, still there are many cases of strike by lawyers every now and then.
One of the reasons why lawyers have called for strike is violence against the lawyers either by
individuals or by the police. Those advocates who make a living by citing India’s civil and
criminal procedure codes in court have also gone on strike. In many cases advocates have
collectively boycotted transfer of specific judges, sometimes in defense of certain judges. Other
reasons like, once a working day had fallen in the middle of an extended weekend, sometimes
50
http://www.advocates.ca/assets
51
AIR 1997 Ker 291 Volume 3
Page | 45
there not being enough chairs for lawyers, etc. There should be strict avoidance of strike by
lawyers. The Bar Council of India, the Courts, and other similar bodies play a vital role in a
lawyer’s life. They can in some way restrict the lawyers strike. Advocates are officers of the
courts and play a vital role in the administration of justice. Professional Conduct of Advocates on
professional conduct and standards that an advocate is bound to maintained, are mentioned in
Chapter II, Part VI of the Bar Council of India Rules. These rules are placed in section 49(1) (c)
of the Advocates Act, 1961.
Chapter II of Bar Council of India Rules says about the standards of professional conduct and
etiquette which should be followed by an advocate. Section 1 of the same describes the “Duty to
the Court”. An advocate while presenting his case in the court should conduct it with dignity and
self-respect. Secondly, an advocate shall maintain towards the courts a respectful attitude,
bearing in mind that the dignity of the judicial office is essential for the survival of a free
community52. An advocate should not communicate in private to a judge with regard to any
matter pending before the judge or any other judge. An advocate should appear in court at all
times only in the dress prescribed under the Bar Council of India Rules. The next section says
about the “Duty to the Client”. In this provision the duty of a lawyer towards his client has been
mentioned. An advocate is bound to accept any brief in the Courts or Tribunals or before any
other authorities in or before which he proposes to practice at a fee consistent with his standing
at the Brand the nature of the case. Special circumstances may justify his refusal to accept a
particular brief53. This part of the provision clearly says that an advocate should not refuse to
attend his brief unless under some justified circumstances. It is the duty of an advocate to attend
the court if he has accepted a brief. An advocate should not ordinarily withdraw from serving a
client once he has agreed to serve them. He can do so if he has a sufficient cause and by giving
reasonable and sufficient notice to the client. Moreover it also says that an advocate should not
misuse or takes advantage of the confidence reposed in him by his client. In “Roman Services
Pvt Ltd V. Subhash Kapoor”54 the question was when a lawyer goes for a strike call made by
the association and boycotted the Court proceeding, whether his litigant should suffer a penalty.
It was held by the Court that when an advocate involves himself in strike there is no obligation
52
Section I , Chapter II, Part VI “Bar Council of India Rules”
53
Section II , Chapter II, Part VI “Bar Council of India Rules”
54
(2001) 1 SCC 118
Page | 46
on the part of the Court to either wait or adjourn the case on that ground. It was held that
advocate has no right to boycott court proceedings on the ground that they have decided to go on
a strike. The term professional misconduct of lawyers is no where defined in the Advocates Act,
1961. Though ‘professional misconduct’ is defined as behavior outside the bounds of what is
considered acceptable or worthy of its membership by the governing body of a profession55.
Chapter V of the Advocates act, 1961 deals with the conduct of Advocates. In the case
“Noratanmal Chaurasia V. M.R. Murli” the Supreme Court held that though misconduct has
not been defined anywhere in the Advocates Act, 1961 but misconduct envisages breach of
discipline, although it would not be possible to lay down exhaustively as to what would
constitute conduct and indiscipline, which, however, is wide enough to include wrongful
omission or commission whether done or omitted to be done intentionally or unintentionally. It
means, "Improper behaviour intentional wrong doing or deliberate violation of a rule of standard
or behaviour".
In B.L.Wadhera V. State, the court held that if on the ground of strike a lawyer abstains from
appearing in court then he is conducting professional misconduct, a breach of contract, breach of
trust and breach of professional duty. Thus when an advocate ignores his duty or his conduct is
such that it is creating nuisance to his clients or the court, such conduct can be called as
professional misconduct. When an advocate goes for a strike call made by the association and
ignores or refuses to attend his brief in such situation her/his behavior comes under professional
misconduct. Moreover the scope and definition of the term ‘misconduct’ can be understood by
keeping in mind the role and responsibility of an advocate. Professional negligence comes under
an instance of misconduct. Strike as Misconduct Ex Capt. Harish Uppal v Union of India and
Another In Ex.Capt.HarishUppal v. Union of India and Another56 various petitions raise the
question whether lawyers have a right to strike or give a call for boycott of court or courts. The
petitioners submitted that strike as a mean for any change in the policy or system is recognized
only in industrial disputes. Lawyers are the officers of court hence they have a duty towards the
court. They cannot use strike as a tool to take advantage of the courts or the clients.
55
www.businessdictionary.com/definition/professional-misconduct. AIR 2000 Delhi 266
56
(2003) 2 SCC 45
Page | 47
The petitioner submitted that the court must take action against the lawyers who call for strike as
they have committed contempt of court. A lawyer who has accepted a Vakalat on behalf of a
client must attend the Court and if he doesn’t do so, that would amount to professional
misconduct and contempt of court. He submitted that court should frame rules that should
regulate the lawyers to attend their cases regularly. Court should make rules that any lawyer who
commits contempt of court by going on strike or boycotting a Court will not be allowed to
practice in that Court. The clients and the Courts should not suffer for any actions for which they
are not responsible. Even, it was also mentioned that no actions should be taken against those
lawyers who don’t get them involved in the strike. On the other hand the respondent submitted
that the lawyers had a right to go on a strike or give a call for a boycott. There are many
situations where lawyers need to go for a strike. It was submitted on behalf of the respondent that
the Court cannot say it as misconduct because the Bar Council has been vested with powers to
decide whether or not an advocate has committed misconduct. Court cannot punish an advocate
for misconduct because the Bar Council has the power to discipline. The Court 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
protest marches outside and away from court premises, etc.57
No Bar Council or Bar Association can permit calling of a meeting for purposes of considering a
call for strike. Only in the rarest of rare cases where the dignity, integrity and independence of
the Bar and/or the Bench are at issue, courts may ignore to a protest abstention from work for not
more than one day. “Further appropriate rules are required to be framed by the High Court’s
under Section 34 of the Advocates Act58 by making it clear that strike by advocate/advocates
would be considered interference with administration of justice and concerned
advocate/advocates may be barred from practicing before Courts in a district or in the High
Court.”59
57
Ex Capt. Harish Uppal v Union of India and Another, (2003) 2 SCC 45
58
1961
59
Ex Capt. Harish Uppal v Union of India and Another, (2003) 2 SCC 45 Volume 3 Issue 9
Page | 48
Role of Bar Council of India
The Bar Council of India is a statutory body. Section 4 of the Advocates Act 60 has mentioned
about the establishment of Bar Council of India. It regulates legal practice and legal education in
India. It was created under Advocate Act, 1961, by the Parliament. The Bar Council of India is a
statutory body that regulates and represents the Indian bar. 61 It also sets standards for legal
education and grants recognition to Universities whose degree in law will serve as a qualification
for students to enroll themselves as advocates upon graduation. Section 7of the Advocates Act,
1961 lays down the functions of Bar Council of India. Like to promote and support law reform,
to deal with and dispose of any matter which may be referred by a State Bar Council, to Manage
and invest funds of the Bar Council, to lay down procedure to be followed by disciplinary
committees, etc. The function of Bar Council of India is to lay down standards of professional
conduct and etiquette for lawyers. 62The Bar Council of India should ensure that lawyers should
not involve in strike and other protest during court hours. Though in many circumstances the bar
Council itself initiates such protest. The Supreme Court in a case in 2002 held that lawyers have
no right to strike and such strike and declaration is illegal. The lawyers are the part of the judicial
system. The Bar Council of India should take stern actions against those lawyers who call for
strike or give a call for boycott of a court. Either the State Bar council should ensure it or the Bar
Council of India should ensure it. The Bar Council should see that there is smooth functioning of
the judicial body. In Common Cause a Registered Society v. Union of India and Others63In this
case it was held that, if any associations of advocates call for a strike, then the State Bar council
or the Bar Council of India must take actions against those persons who call for strike. Therefore,
the Bar Councils and the Bar Association can never accept any Association calling for a meeting
to consider a call for a strike or boycott. The Bar Council has a duty towards the court. The Bar
council id represented by the lawyers, hence it is the lawyers’ duty towards the court which
matters.
Even the Bar Council of India has certain rules inSection1, Chapter II, Part VI of The Bar
Council of India Rules, 1975; the duties of an advocate towards the court have been mentioned.
60
1961
61
Legal_practice_laws_in_India
62
Section 7(b) Advocates Act, 1961
63
AIR 2005 SC 4442
Page | 49
The Bar Council should ensure such disciplinary acts of the advocates. Moreover in
Ex.Capt.HarishUppal V. Union of India and Another64, the contention raised in this case was
whether lawyers have a right to strike or give a call for boycott of courts. It was held that call of
a strike by lawyers or call for boycott is illegal. It was 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 protest marches outside and
away from court premises, etc.
No Bar Council or Bar Association can permit calling of a meeting for purposes of considering a
call for strike. Only in the rarest of rare cases where the dignity, integrity and independence of
the Bar and/or the Bench are at issue, courts may ignore to a protest abstention from work for not
more than one day. Moreover the court will decide whether the issue involves dignity, integrity,
etc. It is the duty of all courts to go on with matters even in the absence of lawyers. The Bar
Council of India should make strict rules and regulations in regard to strikes by lawyers. The Bar
Council of India and state Bar Councils should issue rules, stating a Volume 3 Issue 9 code of
conduct for advocates, which should also include banning of advocates strike, or boycotting
court proceedings. Role of Court or the Judiciary a lawyer shall use tactics that are legal, honest
and respectful of courts and tribunals. 65
The Judiciary of India administers common law system of legal jurisdiction. The Judiciary has
several functions to perform. Such as protection of laws, protection of people from violence, to
safeguards the fundamental rights of both the citizens and non-citizens. The judiciary also
involves itself in making of new laws. It has advisory functions, administrative functions, etc.
The Judiciary of India is also the guardian of the Constitution. Judiciary is an integral part of a
Democratic Government. The Judiciary has the power of judicial review. It also involves itself in
judicial activism.
In many judgments Judiciary has advanced its disagreement regarding strike by lawyers. In many
cases, it has held that strike by lawyers is illegal. The protest, if any is required, can only be by
giving press statements, TV interviews, carrying out of court premises banners and/or placards,
64
(2003) 2 SCC 45
65
http://www.advocates.ca/assets/files/pdf/bibliography/Duty_to_Court
Page | 50
wearing black or white or any colour armbands, peaceful protest marches outside and away from
court premises, or relay fasts etc.66
Although the advocates can protest only in the ‘rarest of rare cases’ where the dignity, integrity
and independence of the Bar, the Bench are at issue, for not more than one day. In K. John
Koshy & Ors V. Dr.Tarakeshwar Prasad Shaw67,one of the question was whether the court
should refuse to hear the matter and pass an order when counsel for both the sides were absent
because of a strike by the Bar Association. The Court held that the court could not refuse to hear
or avoid a case as it would indicate that the court is also a part of the strike and is supporting it.
Article 21 of the Constitution says ‘Right to life and liberty’ conferred on every citizens of the
country. There are many rights which are included under this article. Such as right to livelihood,
right to education, etc. One of such right is right to speedy trial.
The Supreme Court in “Hussainara Khatoon V. Home Secretary, State of Bihar, has decided
that the right to speedy trial is a fundamental right to under right to life and liberty. When
lawyers call for strike, there is disturbance in the proceedings of court which sometimes also
results in delay of the trial. Due to this there is infringement of fundamental rights of the people
under article 21. Although the lawyers have exercised their fundamental right under Article 19,
‘freedom of speech and expression’ but such exercise will come to an end if it infringes the
fundamental right of another. This was the decision in Dr.B.L.Wadehra V. State (NCT of
Delhi) and others. In this case it was held ... the lawyers have no right to strike. Right to speedy
trial is a fundamental right of every citizen under Article 21 that is Right to life and liberty.
Strike by lawyers interferes with the administration of justice that is delay of trial which means
infringement of the fundamental rights of the citizens. The Bar Council of India Rules, 1975
have been cited in the said judgment. The lawyers are the member of the system. They have a
duty to cooperate with court in administration of justice. Every court has a duty to proceed with
the court proceedings during the court hour. The court is not obliged to postpone a case because
of a strike call. The court is bound to hear and decide the cases which are brought before it. The
court cannot avoid it on the ground that the advocates are on strike.
66
Ex. Capt.Harish Uppal V. Union Of India and Another, (2003) 2 SCC 45
67
(1998) 8 SCC 624
Page | 51
Moreover in Mahabir Prasad Singh V. Jacks Aviation Pvt. Ltd68 it has been held that no
court is obliged to adjourn a case because of the strike call given by associations of advocates or
a decision to boycott the courts. It is the duty of the court to proceed with the court proceedings
during the court hours. It further held that it is the duty of every advocate who accepts a case to
attend the trial.
In R.K.Anand V. Registrar, Delhi High Court69, the Supreme Court held that every High
Court should have rules framed under Section 34 of the Advocates Act, 1961, in order to meet
possibilities of call f strike or boycott of courts. Even though in the absence of any rules, the
High Court has the power to take action against those protests. The High Court is not powerless
or helpless, if no rules are framed, it can take actions anytime. From this judgment it is very clear
that High Courts have powers to take action against those advocates who participate in protest to
boycott the court. The High Court should take necessary action at times when strikes are being
called by the lawyers. Constitution of a Separate Body In recent years there were so many cases
of lawyers strike on different issues. These strikes disturb the quick justice-giving system.
Lawyers have certain duties towards the court. Lawyers carry a responsibility to carry out their
client’s case. A client’s entire life is dependent on a lawyer’s work. If a lawyer ignores the brief
or causes any act which is disturbing the client’s case then the layer is acting against the norms
of his duty. Judiciary is the only body in which the people are dependent upon to seek justice.
When lawyers are on strike justice is delayed. Every person has a right to justice. India is a
democratic country. Although Supreme Court had decided in 2002 case that strike by lawyers is
illegal, still, group of lawyers call for strike on various issues. Call for strike by lawyers should
be the last option for the lawyers. “Justice delayed is justice denied”. Keeping in mind all these
circumstances, it will be wise to set up a body which will look after the matters of the lawyers.
Other than the Bar Council, there must be some separate body, a mixture of both judicial and
non-judicial members who can discuss the problems of lawyers. A separate body can be set up to
deal with the lawyers cases. The lawyers can put forward their queries, issues, problems to them.
That body will only work for the welfare of the lawyers. The body should consist of members of
judicial officers. If there is any issue regarding any political or administrative matter,
associations of advocates can discuss it with the body. The body will not be entirely judiciary in
68
(1999) 1 SCC 37
69
(2009) 8 SCC 106
Page | 52
its taste, it should be little different. It should have both judicial and no judicial members. In that
way the problems of advocates can be solved in a better way. The body should lay down certain
rules and regulations which the lawyers should follow. The body should also make strict laws
and should forbid strike by lawyers. There should be a regular meeting to keep a check on
lawyer’s conduct. The body should make its own decision. It should be set up both in Central
level as well as in State level. Its working should not be purely independent of the Advocate Act,
1961. When necessary the body should refer to the Advocates Act. If a deadlock is created
among the members of the body, the matter should go to the Supreme Court for further solution
or any other mechanism should be followed as prescribed by the members of the body. However
this can be used as a mechanism in settling the disputes but then the lawyers under certain
circumstances should be allowed to call for strike.
Principles Arise Out of the Lawyer-Client Relationship
 Lawyers are in breach of their legal, moral and professional obligations towards their client if
they accept a case and fail to appear in court.
 The reason that Bar Association has called a strike prohibiting lawyers to appear in any court is
not an appropriate reason for any lawyer to fail to discharge his duty towards the client and the
court.
 Where a lawyer has decided not to appear for a client due to a strike call, he must return the
clients fees and brief with reasonable notice to the client so that he can arrange some alternative
arrangements.
 If a lawyer decides to attain the case during a strike call, no one can intimidate, coerce or
threaten him.
 When the lawyer gets the information that due to strike his client will be unable to arrange
other alternatives, then it is the professional duty of the lawyer to appear in the case despite the
call for a strike.
 If a lawyer ignores a strike call, no professional body should take any actions against him
Page | 53
 Courts have the duty to deliver justice. They must not be prevented from doing so by a strike
call by lawyers. Even the judges who are members of the Bar Council should not be intimidated,
coerced or threatened by disciplinary actions or otherwise.
 In rare circumstances when the courts may feel that a strike is justified, the Court may agree to
an arrangement of permitting adjournment through proxy counsel in some cases. However it
should be in rare of the rarest cases as pointed out by the court in “Ex Capt Harris case”. 70
 In the event of a counsel wishing to argue a matter, or the Court taking the view that it is in the
interest of the justice to do so, the Court shall proceed to hear and decide the matter. Conclusion
Right to strike is not an absolute right but a conditional right.
Under Article 19 of the Constitution of India every person has freedom of speech and expression.
However the ambit of Article 19 should be read with certain limitation. When it comes to
“strike” it is a wider form of expression to express demands and needs. Lawyers can call for
strike in rare of the rarest cases as pointed out by the supreme court of India in Ex Capt Harris
Case. In industrial disputes also the workers can call strike only in certain cases and following
certain conditions. There should be some mechanisms which should be followed to settle the
disputes of lawyers. The Bar Council and the Courts play a vital role in a lawyer’s life. They
should actively decide upon the matters of the lawyers and prohibit them to call for strike.
However there can be other mechanism too, like setting up of a separate body or a group
discussion etc. The lawyers should not go for strike as it disturbs the entire justice system. They
should understand it and cooperate with the system. Moreover the system should also cooperate
with them. The clients should not suffer because of any such activities.
70
(2003) 2 SCC 45
Page | 54
CHAPTER-VI
CONCLUSION
Right To Strike: International Perspectives And Collective Bargaining
The rights of the workers to negotiate and collective bargain are won after a struggle for three
centuries right from the beginning of the industrial revolution in 1765. ILO (International Labor
Organization) guarantees these rights and many other labor rights with the help of international
conventions. India is a founding member of the ILO and it is naturally expected that it doesn't
violate the international labour standards. The two most important conventions in relation to
right to strike are convention no. 87 (Freedom of Association and Protection of the Right to
Organize Convention, 1948) and 98 (Right to Organize and Collective Bargaining Convention,
1949). Even though the convention does not refer to the right of strike, the ILO committee on
experts has been regarding it as an essential part of the basic right to organize.
In the opinion of the ILO committee of experts so long as a suitable and effective alternate
remedy for dealing with the demands of the employees is made available there would be no
objection to the right of strike being restricted. The scheme of the joint consultative Machinery
which is at present functioning for dealing with the grievances of the Central government covers
mainly class III and class IV employees of the central government. The scope of national and
departmental council set up under the scheme includes all matters relating to conditions of
service and work, welfare of the employees and improvement of efficiency.
The convention No. 87 had been ratified by 144 countries and the convention No. 98 had been
ratified by 154 countries. India has ratified neither of these two conventions. The main reason for
our not ratifying these two Conventions is the inability of the Government to promote
unionisation of the Government servants in a highly politicized trade union system of the
country. Freedom of expression, Freedom of association and functional democracy are
guaranteed by our constitution. The Government has promoted and implemented the principles
and rights envisaged under these two Conventions in India and the workers are exercising these
rights in a free and democratic society. Our Constitution guarantees job security, social security
and fair working conditions and fair wages to the Government servants. They have also been
Page | 55
provided with alternative grievance redressed mechanisms like Joint Consultative Machinery,
Central Administrative Tribunal etc. Even though, these conventions were not ratified, the
requirement was not felt prior to the Supreme Court judgment banning the right to strike.
The principal objects of the Industrial Disputes Act 1947, as analyzed by the Supreme Court in
the case of Workmen of Dimakuchi Tea estate V. Management of Dimakuchi Tea Estate
(1) Promotion of measures for securing amity and good relations between the employer and the
workmen.
(2) Relief to workmen in the matter of lay off, retrenchment and closure of an undertaking.
(3) Collective bargaining.
Foreign Constitutional Outlook
Strike, means 'concerned stoppage of work by workers done with a view to improving their
wages or conditions, or giving vent to a grievance or making a protest about something or the
other, or supporting or sympathizing with other workers in such endeavor' . The right to strike
has acquired an implied authorization from the Universal Declaration of Human Rights (1948).
Articles 23,24 and 25 of the declarations assert every one's right to work, right to just and
favorable remuneration and right to form and join trade unions and also the right to rest, leisure,
leave etc. and the right for fair living conditions with necessary social benefits.
The English Courts have already recognized this right as a justifiable right. Lord Denning in
Morgan V. Fry stated that strike is labor's ultimate weapon and in the course of hundred years it
has emerged as the inherent right of every worker. It is an element which is of the very essence
of the principle of collective bargaining. Right from the industrial revolution the reasonable right
of the workers to strike work is recognized in various countries. Article 32 of the constitution of
Rwanda lays down that:
"The right to strike shall be exercised within the laws by which it is regulated. It may not infringe
upon the freedom to work". Article 42 of the constitution of Ethiopia provides the right to strike
to the workers and also enjoins the state to provide such right, subject to any restrictions, even to
the government employees. Article 34 of the constitution of Angola guarantees right to strike and
Page | 56
prohibit lockouts. Brazil, the developing Latin American country also guarantees the right to
strike under Article 9 of the constitution. Capitalist countries like Japan under Article 28 and
South Korea under Article 33 of their respective constitutions provide the right to strike.
Solutions to the Grievances of lawyers:
The ban imposed on strikes by lawyers is justified as consequences of strikes were corroding the
roots of the judiciary. However, it is also important to safeguard the interest of the advocates, so
that the functioning of the legal system should be balanced. Section 7 clause (d) of the advocate's
act 1961explains the functions of Bar Council of India to safeguard the rights, privileges, and
interest of advocates therefore abiding by the rules grievances of lawyers must be heard and
further steps should be taken to tackle their issues that they are facing.
In 266th report of law commission of India a suggestion has been made that at every district
headquarters, the District Judge may constitute an Advocates’ Grievance Redressed Committee
headed by a Judicial Officer which will deal with the day to day routine matters, a large number
of issues and grievances arise in the smooth working of the advocates. In this regard, the High
Court may issue a circular in an exercise of its power under article 235 of the Constitution
providing for redressed of grievances of the Advocates which will help in improving their
efficiency. In case there is some grievance against a Judicial Officer, the Bar may raise the
grievance before the Chief Justice of the concerned High Court.
Take these suggestions into consideration. Taking these suggestions into consideration the
grievances of advocates can be construed to a greater extent that will ultimately help in curbing
the menace of strikes by lawyers.
In a nutshell, strikes by lawyers are beyond the scope of art 19 of the constitution. There are the
certain profession that should be treated alike as they had a motto to serve the society at large
and legal profession is one of them that needs to work towards providing justice to people
without any delay. The land mark judgment of Ex-Capt. Harish, case had declared the strikes
by advocates as illegal and only in rare of rarest case lawyers can call for strikes as pointed by
the Supreme Court in the judgment. The lawyers have the right to demand solutions of their
Page | 57
grievances but not at the cost of their client’s right who had to suffer because of such strikes that
lead to the delay in the procedure of giving justice to people.
Unless the strike is banned within the meaning of Sec 22 (1) of the Industrial Disputes act, the
same cannot be termed as illegal attracting Sec 24 of the Act.
Section 22(1) provides that no person employed in public utility service shall go on strike in
breach of contract:
(a) Without giving to the employer notice of the strike within six weeks before striking; or
(b) Within fourteen days of giving such notice; or
(c) Before the expiry of the date of strike specified in any such notice as afore said; or
(d) During the pendency of any conciliation proceeding before a conciliation officer and seven
days after the conclusion of such proceedings.
This legislation makes a point clear that the courts presumed the right to strike as a legally
justifiable right. The point in which the courts were traditionally interfered was with the legality
of the 'strike' and not the right to strike. For a worker the right to strike is fundamental as it is
intertwined with very source of livelihood. It is expedient on the judiciary, at least the apex
judiciary to recognize this right for the working class to survive in a mixed economy. Even
though there is no express statement in our constitutional law incorporating in it the doctrine of
separation of powers, in the interpretation of the Constitution, this Court has broadly adopted the
said doctrine in Indira Nehru Gandhi V. Shri Raj Narain and others. Even though by virtue
of its powers by interpretation of law the court in an indirect way is making law, it should be
stated that there are well recognized limitations on the power of the court making inroads into the
legitimate domain of the legislature. If the legislature exceeds its power, this Court steps in. If
the executive exceeds its power, then also this Court steps in. If this Court exceeds its power,
what can people do? Should they be driven to seek an amendment of the law on every such
occasion? The only proper solution is the observance of restraint by this Court in its
pronouncements so that they do not go beyond its own legitimate sphere. It is expedient on this
court to recognize the right to strike in this context to provide the legitimate locus for the
workers.
Page | 58
Bibliography
Primary source
➢ The Constitution of India
➢Industrial Disputes Act 1947
➢ The Advocates Act, 1961
Websites Referred
➢ http://www.scconline.com
➢ http://indiankanoon.org
➢ www.legalserviceindia.com
➢ https://www.manupatrafast.com
Web Links Refereed
 https://www.ndtv.com/india-news/clash-between-police-lawyers-at-delhis-tis-hazari-
court-cars-set-on-fire-2126298
 https://blog.ipleaders.in/do-advocates-right-strike/
 http://lawtimesjournal.in/can-lawyers-go-on-strike/
 https://www.hindustantimes.com/india-news/lawyers-cannot-go-on-strikes-under-the-
guise-of-freedom-of-speech-rules-sc/story-eMH4mMgxhcd1PI7t4a7KbJ.html
 https://www.deccanherald.com/opinion/in-perspective/are-lawyers-right-to-strike-work-
796551.html
 https://www.ebc-india.com/lawyer/articles/95v5a3.htm
 https://www.hindustantimes.com/india-news/lawyers-cannot-go-on-strikes-under-the-
guise-of-freedom-of-speech-rules-sc/story-eMH4mMgxhcd1PI7t4a7KbJ.html
 https://advocatespedia.com/Strike_Against_Anti_%E2%80%93Strike_Bill_In_Light_Of_
266th_Report_Of_The_Law_Commission
Page | 59

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RIGHT TO STRIKE (OF LAWYERS)

Faculty of Law, Jamia Millia Islamia

RIGHT TO STRIKE (OF LAWYERS)

CLINICAL COURSE-III (PROFESSIONAL ETHICS,

Name- NASIR ALAM

Student ID: 20162452

B.A.LL.B. (IXth Semester) (Self Finance)

Jamia Millia Islamia, New Delhi

Date of Submission- (20.11.2020)

I am using this opportunity to express my gratitude to everyone who supported me throughout

LIST OF CASES 05-06

 Strike As Legal Right

1. LEGALITY OF LAWYER'S STRIKE

1. AVOIDANCE OF STRIKE BY LAWYERS

 Right To Strike: International Perspectives And Collective Bargaining

All India Bank Employees' Association V. National Industrial Tribunal

Arun Kumar Yadav V. State Of Uttar Pradesh

B. L. Wadhera V. State (N.C.T. Of Delhi)

B.R. Singh V. Union of India

Bar Council of India V. High Court of Kerala

Bharat Kumar K. Palicha V State Of Kerala

Common Causes, a Society V. Union of India,

Communist Party of India (M) V. Bharat Kumar and Others

Delhi Development Horticulture Employees' Union V. Delhi Admninistration

Delhi Transport Corpn. V. Dtc Mazdoor Congress

Dimakuchi Tea Estate V. Management Of Dimakuchi Tea Estate

Ex. Captain Harish Uppal V. Union Of India

Hussain & Anr. V. Union of India

Hussainara Khatoon V. Home Secretary, State of Bihar

John Koshy & Ors V Dr. Tarakeshwar Prasad Shaw

K. Rangarajan V. Govt. of Tamil Nadu

Life Insurance Corporation of India V. Consumer Education and Research Centre

M.B. Sanghi V. High Court of Punjab and Haryana

M/S. Chetak Construction Ltd. V. Om Prakash

Mahabir Prasad Singh V. Jacks Aviation Pvt. Ltd

Noratanmal Chaurasia V M.R. Murli

Olga Tellis V. Bombay Municipal Corpn

Pandurang Dattatraya Khandekar V. Bar Council of Maharashtra, Bombay

People's Union for Democratic Rights V. Union of India

R.D. Saxena V. Balram Prasad Sharma

R.K.Anand V. Registrar, Delhi High Court

Radha Mohan Lal V. Rajasthan High Court

Ramon Services Pvt. Ltd V. Subhash Kapoor

Savitri Devi V. District Judge, Gorakhpur

Vishram Singh Raghubanshi V. State of Uttar Pradesh

Steel Tubes V. Mazdoor Sabha

Syed Gulzar Hussain V. Dewan Syed Ale Ramul Ali Khan

Syndicate Bank V. K. Umesh Nayak

Ex-Captain Harish Uppal V. Union of India & Another

Vishakha V. State of Rajasthan

Strike As A Legal Right

The working class has indisputably earned

Strike As A Statutory Right

Legal Interpretation To Be In Consonance With International Covenants

2) Strike is a 'weapon of last resort' and must be sparingly used.

INDUSTRIAL DISPUTES ACT, 1947

Weapon Of Last Resort

2. RIGHT TO STRIKE BY ADVOCATES