Right to Strike in Legal Profession

Course:
Professional Ethics and Professional Accounting System
(LAW 550)
Right to Strike:
 Strike is a situation where a group of people upholding a common interest can come
together and demand of their rights.

 Right to strike is corollary of fundamental right to Freedom of Association under Art.

19(c) of the Indian Constitution.

 Freedom of Association under Art. 19 is not an absolute right. Certain reasonable

restrictions are imposed on it.

 The important question that arises:

Do lawyers have the right to call for a strike?

Right to Strike in Legal Profession in India
 The word “right” associated with strikes by lawyers in India is oxymoronic. The
public value of “administration of justice” and the parallel liberty of “access to
justice” are agreed to be quintessential aspects of the Indian legal system.
(Source: Sushant Chandra & Nityash Solanki, “Legal Aid in India: Retuning Philosophical Chords”, 2(2) BRICS Law Journal, pp.68–85, 2015)

 A lawyer is obligated to always “fearlessly uphold the interest of his client” under
the preamble to the BCI Rules on Professional Standards and Etiquette. The spirit
is given due place under clause 15 of the rules, which provides:

“It shall be the duty of an advocate fearlessly to uphold the interests of his client by
all fair and honorable means without regard to any unpleasant consequences to
himself or any other”
Right to Strike in Legal Profession in India (Contd…)

 When legal principle, statutory duty and constitutional right all speak in
one voice against the strike by lawyers, then why do lawyers go on strike?

 If they do, then, what sanctions are imposed on them for resorting to such
an illegal practice?

 There have been instances where planned and coordinated strikes have
been conducted by lawyers including the recent incidents of Delhi and
Patna.
(Source: Sushant Chandra, “Indian Regulations on Ethics and their Impact on Court Case Backlogs”, 4(1)
BRICS Law Journal, 2017)
Regulation of Advocates’ Strike by in India
 Regulation of Advocates’ Strike by BCI:
 Advocates are bound to maintain rules on professional conduct and etiquettes which has been laid
down in chapter II part IV of the bar council of India Rules. Under this section, the advocates are abide
by the certain duties towards the court and their client.
 The Bar Council of India has been conferred power to lay standards of professional conduct
and etiquettes of advocates. The BCI should ensure that lawyers should not involve in strikes
and protest. However, there are instances where BCI itself had called lawyers for strikes.

 Regulation of Advocates’ Strike by Courts:

 The Supreme Court and High courts in its various verdicts had made it clear that lawyer’s strike is
illegal and necessary steps should be taken to curb the growing tendency.
 In the landmark judgment of Ex-Capt. Harish Uppal v. Union of India and Another (2003) 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 color armbands, peaceful protest marches outside and away from court
premises, etc.
Regulation of Advocates’ Strike by Courts (Contd…)
• In Common Cause a Registered Society v. Union of India and Others (2005) in 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.

• In Hussain and Anr. V. Union of India (2017) the court said “Hardships faced by witnesses if their
evidence is not recorded on the day they are summoned or impact of delay on under trials on account of
avoidable interruptions of court proceedings is a matter of concern for any responsible body of
professionals and they must take appropriate steps. This needs the attention of all concerned authorities
and ways and means ought to be found to tackle this menace…Judicial services and legal services are
missions for serving society. The mission is not achieved if the litigant who is waiting in the queue does
not get his turn for a long time.”

• In Krishnakant Tamrakar v. State of Madhya Pradesh (2018) court stated that “By every strike,
irreversible damage is suffered by the judicial system, particularly consumers of justice. They are
denied access to justice. Taxpayers’ money is lost on account of judicial and public time being lost.
Nobody is accountable for such loss and harassment”
• (Source: http://www.legalserviceindia.com/legal/article-582-strikes-by-advocates-in-india.html)
Recommendations and Suggestions of Law Commission
 The ban imposed on strikes by lawyers by courts and under in law 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.
• The Advocate’s Act, 1961 safeguards 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 suggestion has been made that at every district headquarters,
the District Judge may constitute an Advocates’ Grievance Redressal 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 redressal 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.
• 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.
• (Source: http://www.legalserviceindia.com/legal/article-582-strikes-by-advocates-in-india.html)
The Draft of the Advocates (Amendment) Bill, 2017

 The Commission recommended following amendments in the Advocates Act, 1961.

1) Insertion of clauses in sub section 3 of Section 35

a. Imposition of fine upto 3 lakhs and the cost of proceedings.

b. Award compensation upto 5 lakh to the person aggrieved by the misconduct of

advocate.

c. Impose cost upto 2 lakhs on complaints if found vexatious, false or frivolous

and if the advocate concerned is not cooperating in the disciplinary proceedings under
the Act.
 The Commission recommended following amendments in the Advocates Act, 1961.

2) Insertion of new section 35A after section 35 of the Advocates Act, namely “35A.
Prohibition on the boycotts or abstention from court’s work”.

3) Insertion of new section 45A after section 45 of the Advocates Act, for claiming of
compensation in certain cases-

a. If any person suffers loss due to the misconduct of the advocate or for his
participation in the strike othen, such person may make a claim for compensation against the
advocate in the appropriate forum established under any law for the time being in force.

b. The non-payment of fees, either in full or part, by a person to his advocate, shall not
be a defence available for the advocate against whom such claim for compensation is made.
Thank You !