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Lawyers' abstention: Legal or illegal

Sentinel Digital DeskBy : Sentinel Digital Desk

  |  26 Aug 2015 12:00 AM GMT

By Bhaskar Dev Konwar

On 13th August 2015, the Gauhati High Court Bar Association adopted a resolution urging its members to abstain (euphemism for boycott) from the Court of the Chief Justice (Acting) K. Sreedhar Rao till his lordship’s retirement. Irrespective of the ture of grievances- real, imagiry or manufactured, did the decision of the Bar Association have the sanctity of law? Can the Bar Association act against those lawyers who defy its call and attend the Court?

In the Empire Vs. Rajni Kant Bose (ILR 1922 Cal 515), a special bench of the Calcutta High Court consisting of three Judges opined that a pleader being an officer of the Court is bound to submit to its authority and thus cannot join any action to boycott the Court or a particular Judge because of any grievance- real or alleged. This view of the Calcutta High Court was reiterated in the Tarini Mohan Brar case (AIR 1923 Cal 242). In that case, a decision to boycott the Court of the fourth subordite judge was taken in a resolution of the Bar Association. It was in consequence of the resolution that the pleaders refused to appear before the subordite Judge. The High Court deprecating the decision of the Bar Association ruled that the pleaders have duties and obligations to their clients in respect of the suits and matters entrusted to them which were pending in the Court of the learned subordite Judge.

The same view was expressed by the Punjab & Harya High Court in the Maharaj Baksh Singh (AIR 1987 P&H 213). In this case, the Punjab & Harya High Court quoting justice Holmes described the legal profession as “a calling of thinkers” and observed that the weapon of the Bar has always been reason and “reason is never of more telling effect than when expressed with dignity wrapped in humility”. A division Bench of the same High Court in the Rajender Singh Vs Union of India [1993 (2) SLR 450] questioned the legal sanction the association of lawyers have to give a call to the lawyers to go on strike. The Bench observed that fear in the lawyers of being punished by the Association if they defy the call of the Association has no legal basis and that the functioning of the Courts in the matter of administration of justice is not to be regulated or controlled by the association of Lawyers.

The Supreme Court in its judgment dated 13.11.1998 in the Mahabir Prasad Singh Vs. Jacks Aviation Pvt. Ltd. (1999) 1 SCC 37, dealt with the similar issue. In that case, the Supreme Court observed that judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by the litigants or by the counsel. The judicial process must run its even course unbridled by any boycott call of the Bar, or tactics of filibuster adopted by any member thereof. High Courts are duty bound to insulate judicial functiories within their territory from being demoralized due to such onslaughts by giving full protection to them to discharge their duties without fear. The Apex Court further observed that no court is obliged to adjourn a case because of the strike call given by any association of advocates or a decision to boycott the courts either in general or of any particular court and that it is a solemn duty of every court to proceed with the judicial business during court hours. The Supreme Court unequivocally held that no advocate or a group of them can boycott the courts or any particular court and ask the court to desist from discharging judicial functions.

The Supreme Court in its judgment dated 13.11.2000 in the Ramon Services Pvt. Ltd. Vs Subharsh Kapoor & Others, reiterated that the law laid down in the Mahabir Prasad Singh case and held that lawyer has no right to strike. The court also observed that abstaining from 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.

A joint meeting of the Chairman of various States Bar Councils and Members of the Bar Council of India was held on 28/29.09.2002, wherein various resolutions were adopted for enforcing discipline amongst lawyers. One such resolution dealt with the case of abstentions of work in Courts by the lawyers and the resolution was adopted that abstentions from work in courts should not be resorted to except in exceptiol circumstances and that even in exceptiol circumstances, the abstention should not be resorted to normally for more than one day in the first instance. It was also resolved that the decision for going on abstention will be taken by the General Body of the Bar Association by a majority of two third members present.

In Ex Captain Harish Uppal Vs. Union of India & Anr, the Constitution Bench of the Supreme Court in its judgment dated 17.12.2002 noticed the resolutions of the Bar Councils dated 28/29.09.2002 and held that it is the duty of the Bar Councils to ensure that there is no unprofessiol or unbecoming conduct and that no Bar Council can even consider giving a call for strike or a call for boycott. In case any association calls for a strike or a call for boycott, the State Bar Council concerned and on their failure, the Bar Council of India must take discipliry action against the advocates who gave a call for a strike. The court also observed that it is a duty of the advocate to wholly ignore a call for strike or boycott. The Supreme Court went on to observe that if the Bar Councils do not rise to the occasion and perform their duties by taking discipliry action on a complaint from a client against an advocate for non appearance due to reason of a call for strike or boycott, on an appeal under Section 38 of the Advocates Act, the Supreme Court can and will take an appropriate action. The Court also opined that every Court should and must mulct advocates, who hold Vakalats but still refrain from attending Courts in pursuance of a strike call, with costs and that such cost would be in addition to the damages which the advocate may have to pay for the loss suffered by his clients for reasons of his non appearance.

In the Common Cause Registered Society & Others Vs. Union of India & Others, the Supreme Court in its judgment dated 28.09.2005 reiterated the law laid down in the Harish Uppal case. In the case of Common Cause, the Supreme Court was confronted with the question as to whether the action of the Delhi High Court Bar Association and the Supreme Court Bar Association in visiting the advocates who refused to participate in the strike call, will be punitive action of suspension and the action of the Bar Council of Delhi passing a resolution which proposed to take action against lawyers who did not participate in the strike call, amounted to contempt of the earlier judgment of the Supreme Court dated 07.12.1994 in the same case. Holding that no Bar Council can even consider giving a call for strike or a call for boycott, the Supreme Court observed that the Bar Councils and even Bar Associations can never consider or take seriously any requisition calling for a meeting to consider a call for a strike or a call for boycott and that such requisition should be consigned to the waste-paper basket. It was also held that in case any association calls for a strike or a call for boycott, the State Bar Council concerned and on its failure the Bar Council of India must immediately take discipliry action against the advocates who gave a call for strike.

The Gauhati High Court Bar Association by adopting a resolution to abstain from the Court of Justice K. Sreedhar Rao for an indefinite period till its demands are made, clearly acted in violation of the resolution adopted in the joint meeting of all the State Bar Councils and the Bar Council of India dated 28/29.09.2002. The action of the Association also amounts to contempt of court for which it could be subjected to pel action. Filly, the Association has no power to take any action against any of its members who defy its call and attend the court.

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