The legal system holds the responsibility of maintaining, creating, changing and even eliminating any nuisance in the laws prevailing in the system of the country to maintain peace and harmony. But sometimes this system comes to a halt when people at a position of responsibility in the legal system stands against any hindrances in an unlawful manner or in a manner which is not apt for them as a strike. The word strike is usually associated with people at the workplace like labourers, employees, employers and not for the professionals of the legal system. The focus of this article lies upon the strike called upon various occasions by the respected lawyers/ advocates of the country varying from District Courts, all the way to the High Courts and Supreme Courts. The Constitutional validity of the strikes of this nature is discussed. The Law Commission of India has already discussed this issue in their report in order to maintain the equilibrium in the country’s legal system.
What is Strike?
Under normal dictionary terms, the strike is referred to refuse to work or refuse to continue to work as a result of a dispute with an employer in relation to pay scale, job loss, working conditions, etc.[1] In general sense, a strike is a powerful weapon used by unions or other associations or workers to overcome their claims or grievances by employers or industry executives. Put another way, it is the stopping of work caused by the mass refusal in response to grievances. Workers put pressure on employers by refusing to work until they meet their demands. Strikes can be fruitful for workers’ well-being, or they can cause economic loss to the country.[2]
In the legal field, in India, the word strike is defined under the Industrial Disputes Act, 1947. Section 2(q) of the act states strike as, “a cessation of work by a body of persons employed in any industry acting in combination or a concerted refusal, or a refusal under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment.”
Lawyers’ Strike- an unprofessional conduct
According to the constitutional perspective, the right to strike is a fundamental consequence conferred by part III of the constitution under the right to freedom of association Article 19 (c) where a group of people who maintain a common interest can meet and can claim their rights. The freedom of association under Article 19, however, is not an absolute right, but certain reasonable restrictions are imposed on it. Therefore, one of the important questions that arise in the legal profession is that lawyers have the right to seek a strike. The Supreme Court and the High Courts have made clear in their various rulings that the lawyer’s strike is illegal and that the necessary steps must be taken to curb the growing trend.
The fundamental duty of the judiciary is to serve people who seek themselves for justice and to be able to do this, it is very important that every branch of its co-ordinate and work together. Any deficiency in the system would lead to a violation of the fundamental right to a speedy trial guaranteed by Article 21 of the Constitution. Therefore, the call to strike by advocates has a negative effect on the functioning of the judiciary. The frequent protests and strikes hamper the administration of justice, leading to delays in trial and ultimately to the pendency of cases. From time to time, the Supreme Court used its right to strike by lawyers in its various rulings and instructed the litigants to work effectively for justice without any failures.
Ex-Capt. Harish Uppal v Union of India and Another[3]
In this matter, the court held that lawyers do have the right to go on for a strike or can call a boycott. The court said that the lawyers can show their protest via means of TV interviews, giving statements to the presscarry banners and / or posters out of court, wear black or white or any bracelets, peaceful protest marches outside and outside the premises, etc.
Hussain v Union of India[4]
In this matter, the Hon’ble Court both strikes by the lawyers and suspension of the court are illegal and now its time for legal fraternity to realize that it is the duty of the lawyers and the court to function for the society which should be kept at utmost importance.[5]
BCI role
The BCI- Bar Council of India has laid down rules regarding professional etiquettes and conduct in Part IV of Chapter II of the BCI Rules. Under this, the advocates are bound by the rules to perform duties towards the court and client.[6] Time and again the courts have asked BCI to ensure that there is no involvement in the strike, protest from lawyers as they have such right to strike.[7] No Bar Council or Bar Association may call a meeting to consider a strike or boycott and requisition call. Only in the rare cases where the dignity, integrity, and independence of the Bar and/or the Bank are at issue, the courts may not ignore a protest abstention from work for more than one day.
The Supreme Court ruled that regular strikes by lawyers are illegal because it impedes access to justice. The Court also noted that such action amounts to contempt of court and office.[8] If any associations of advocates call for a strike, the Council of State or the Bar Council of India must take action against persons calling for the strike.[9]“The decision of the State Bar Council calling upon the Advocates in the State to observe a week-long protest and to abstain from all judicial works and Court proceedings is illegal, unconstitutional and against the statutory provisions as well as contrary to the judgments of the Supreme Court.”[10]
Conclusion
In a nutshell, strikes by advocates fall outside the scope of Article 19 of the Constitution. There are certain professions that need to be dealt with as they have had a motto to serve society at large, and the legal profession is one of them that must work to give justice to people without delay. The landmark case of Ex – Capt. Harish declared the strikes by advocates illegal, and only in rare cases, which is the rarest, can advocates for strikes as stated by the Supreme Court in the judgment. The lawyers have the right to demand solutions to their grievances, but not at the expense of their client’s right that had to suffer as a result of such strikes leading to the delay in the process of getting people right.
Edited by Pushpamrita Roy
Approved & Published – Sakshi Raje
References
[1]Cambridge Dictionary
[2]https://blog.ipleaders.in/right-to-strike-under-industrial-dispute-act-1947/
[3](2003) 2 SCC 45
[4] Criminal Appeal No. 509 of 2017 (Arising out of Special Leave Petition (Crl.) No. 4437 of 2016)
[5]http://www.legalserviceindia.com/legal/article-582-strikes-by-advocates-in-india.html
[6]Section I, Chapter II, Part VI “Bar Council of India Rules.”
[7]Ex-Capt. Harish Uppal v Union of India and Another, (2003) 2 SCC 45
[8]KrishnakantTamrakar v State of Madhya Pradesh, AIR 2018 SC 3635.
[9]Common Cause a Registered Society v. Union of India and Others, AIR 2005 SC 4442
[10]Praveen Pandey v. State of Madhya Pradesh and others, Writ Petition No. 8078 of 2018
