LEGAL ISSUE: Whether lawyers have a fundamental right to strike and boycott courts.
CASE TYPE: Public Interest Litigation (PIL) related to the functioning of the judiciary.
Case Name: District Bar Association, Dehradun through its Secretary vs. Ishwar Shandilya & Ors.
[Judgment Date]: 28 February 2020
Introduction
Date of the Judgment: 28 February 2020
Citation: [Not Provided in Source]
Judges: Justice Arun Mishra and Justice M. R. Shah
Can lawyers, who are officers of the court, disrupt court proceedings by going on strike? The Supreme Court of India recently addressed this crucial question, reaffirming that lawyers do not have a right to strike or boycott courts. This decision came in response to a Public Interest Litigation (PIL) concerning frequent strikes by lawyers in Uttarakhand, which were severely impacting the functioning of the courts and the delivery of justice. The bench comprised of Justice Arun Mishra and Justice M. R. Shah.
Case Background
The case arose from a PIL filed by Ishwar Shandilya, the first respondent, in the High Court of Uttarakhand at Nainital. The PIL highlighted that the advocates in the districts of Dehradun, Haridwar, and Udham Singh Nagar had been boycotting courts on all Saturdays for over 35 years. This continuous strike action severely obstructed access to justice for the public. The High Court noted that, according to information sent by the High Court to the Law Commission, between 2012 and 2016, advocates in Dehradun were on strike for 455 days (an average of 91 days per year) and in Haridwar for 515 days (about 103 days per year). This significant loss of working days led the High Court to issue directions to end the strikes. The District Bar Association, Dehradun, challenged this order in the Supreme Court.
Timeline:
| Date | Event |
|---|---|
| 2012-2016 | Advocates in Dehradun and Haridwar districts of Uttarakhand observed frequent strikes. |
| [Not specified in source] | Ishwar Shandilya filed a PIL in the High Court of Uttarakhand at Nainital. |
| 25 September 2019 | The High Court of Uttarakhand issued directions to end the strikes. |
| 28 February 2020 | The Supreme Court dismissed the SLP filed by the District Bar Association, Dehradun, upholding the High Court’s directions. |
Course of Proceedings
The High Court of Uttarakhand, after considering the severe impact of the strikes on the judicial system, directed the District Bar Associations of Dehradun, Haridwar, and Udham Singh Nagar to withdraw their strike calls and start attending courts on all working Saturdays. The High Court also directed all District Bar Associations in the state to refrain from abstaining from courts for condolence references or other reasons. The High Court further instructed the Bar Council of India and the Uttarakhand State Bar Council to take disciplinary action against the office bearers of the District Bar Associations for calling illegal strikes. The District Judges were directed to ensure that courts function on Saturdays, and the police were directed to provide necessary protection to ensure smooth functioning of the courts. Aggrieved by this order, the District Bar Association, Dehradun, filed a Special Leave Petition (SLP) in the Supreme Court.
Legal Framework
The petitioner argued that the right to strike/boycott courts is a fundamental right to Freedom of Speech and Expression guaranteed under Article 19(1)(a) of the Constitution of India. They also contended that Section 48 of the Advocates Act, 1961, protects any act done in good faith by lawyers, and therefore, the directions to take action against the advocates on strike were contrary to this protection.
Article 19(1)(a) of the Constitution of India states:
“All citizens shall have the right to freedom of speech and expression”.
Section 48 of the Advocates Act, 1961 states:
“No suit or other legal proceeding shall lie against any Bar Council or any committee thereof or a member of a Bar Council or any committee thereof for any act in good faith done or intended to be done in pursuance of the provisions of this Act or of any rules made thereunder.”
Arguments
The petitioner, the District Bar Association, Dehradun, argued that:
- The right to go on strike/boycott courts is a fundamental right to Freedom of Speech and Expression under Article 19(1)(a) of the Constitution of India.
- Strikes are a mode of peaceful representation to express grievances by the lawyers’ community when no other forum is available.
- Section 48 of the Advocates Act, 1961, protects actions taken in good faith, and therefore, the High Court’s directions to take action against advocates on strike are contrary to this protection.
The Supreme Court’s response, based on previous judgments, was that:
- Lawyers do not have the right to strike or boycott courts.
- Such actions disrupt court proceedings and put the interests of clients in jeopardy.
- Strikes interfere with the administration of justice.
- The right to freedom of speech cannot be exercised at the cost of the litigants and/or the Justice Delivery System.
| Main Submission | Sub-Submissions |
|---|---|
| Petitioner’s Claim of Fundamental Right to Strike |
|
| Petitioner’s Claim of Protection under Section 48 of Advocates Act, 1961 |
|
| Court’s Rejection of Right to Strike |
|
Issues Framed by the Supreme Court
The Supreme Court did not explicitly frame issues in a separate section. However, the core issues addressed by the court were:
- Whether the High Court was justified in issuing directions to the Bar Associations to withdraw their call for strike and start attending Courts on all working Saturdays.
- Whether the High Court was justified in directing the Bar Council of India and the Uttarakhand State Bar Council to take action against the office bearers of the District Bar Associations for their having given a call for illegal strikes/boycott of Courts.
- Whether the right to strike/boycott courts is a fundamental right to Freedom of Speech and Expression under Article 19(1)(a) of the Constitution of India.
Treatment of the Issue by the Court:
| Issue | Court’s Decision | Reason |
|---|---|---|
| Whether the High Court was justified in issuing directions to the Bar Associations to withdraw their call for strike and start attending Courts on all working Saturdays. | Yes | The High Court was justified in issuing such directions to ensure the smooth functioning of the courts and access to justice, as strikes by lawyers disrupt court proceedings and harm the interests of the clients. |
| Whether the High Court was justified in directing the Bar Council of India and the Uttarakhand State Bar Council to take action against the office bearers of the District Bar Associations for their having given a call for illegal strikes/boycott of Courts. | Yes | The High Court was justified in issuing such directions as Bar Councils are responsible for maintaining professional conduct and preventing interference in the administration of justice. |
| Whether the right to strike/boycott courts is a fundamental right to Freedom of Speech and Expression under Article 19(1)(a) of the Constitution of India. | No | The right to freedom of speech cannot be exercised at the cost of the litigants and/or the Justice Delivery System as a whole. The right to speedy justice guaranteed under Articles 14 and 21 of the Constitution takes precedence over the right to strike. |
Authorities
The Supreme Court relied on the following authorities:
Cases
-
Ex-Capt. Harish Uppal v. Union of India (2003) 2 SCC 45 – The Supreme Court of India held that lawyers have no right to go on strike or even a token strike, and it is unprofessional for a lawyer to refuse to attend court due to a strike call.
-
Common Cause, A Registered Society v. Union of India (2006) 9 SCC 295 – The Supreme Court of India reiterated that lawyers have no right to strike and that courts are under no obligation to adjourn matters because lawyers are on strike.
-
Krishnakant Tamrakar v. State of M.P. (2018) 17 SCC 27 – The Supreme Court of India emphasized that access to speedy justice is a fundamental right and that strikes by lawyers obstruct this right.
-
Supreme Court Bar Assn. v. Union of India [(1998) 4 SCC 409] – The Supreme Court of India held that professional misconduct by an advocate may also amount to contempt of court.
-
Mahabir Prasad Singh v. Jacks Aviation (P) Ltd. , (1999) 1 SCC 37 – The Supreme Court of India held that participating in a boycott or strike is ex facie bad.
-
Ramon Services (P) Ltd. v Subhash Kapoor , (2001) 1 SCC 118 – The Supreme Court of India held that advocates would be answerable for the consequences suffered by their clients if non-appearance was solely on grounds of a strike call.
-
Mahipal Singh Rana v. State of U.P. , (2016) 8 SCC 335 – The Supreme Court of India noted that the High Courts can frame rules to lay down conditions on which advocates can be permitted to practise in courts.
-
Hussainara Khatoon (1) v. State of Bihar, (1980) 1 SCC 81 – The Supreme Court of India held that the litigant has a right to speedy justice.
-
Hussain v. Union of India, (2017) 5 SCC 702 – The Supreme Court of India deprecated the practice of boycotting the Court observing that such suspension of work or strikes is clearly illegal.
Legal Provisions
-
Article 19(1)(a) of the Constitution of India – Guarantees the right to freedom of speech and expression.
-
Articles 14 and 21 of the Constitution of India – Guarantee the right to equality and the right to life and personal liberty, which includes the right to speedy justice.
-
Section 48 of the Advocates Act, 1961 – Provides protection for acts done in good faith by Bar Councils and their members.
-
Section 34 of the Advocates Act, 1961 – Empowers High Courts to frame rules regarding conditions on which an advocate can practice in courts.
-
Section 38 of the Advocates Act, 1961 – Provides that the final appellate authority in disciplinary matters is the Supreme Court.
-
Section 49 of the Advocates Act, 1961 – Empowers the Bar Council to frame rules laying down conditions subject to which an advocate shall have a right to practice.
-
Article 145 of the Constitution of India – Empowers the Supreme Court to make rules for regulating the practice and procedure of the court.
| Authority | Court | How Used |
|---|---|---|
| Ex-Capt. Harish Uppal v. Union of India (2003) 2 SCC 45 | Supreme Court of India | Followed; held that lawyers have no right to strike and it is unprofessional to refuse to attend court due to a strike call. |
| Common Cause, A Registered Society v. Union of India (2006) 9 SCC 295 | Supreme Court of India | Followed; reiterated that lawyers have no right to strike and that courts are not obligated to adjourn matters due to strikes. |
| Krishnakant Tamrakar v. State of M.P. (2018) 17 SCC 27 | Supreme Court of India | Followed; emphasized that access to speedy justice is a fundamental right and strikes obstruct this right. |
| Supreme Court Bar Assn. v. Union of India [(1998) 4 SCC 409] | Supreme Court of India | Followed; held that professional misconduct by an advocate may also amount to contempt of court. |
| Mahabir Prasad Singh v. Jacks Aviation (P) Ltd. , (1999) 1 SCC 37 | Supreme Court of India | Followed; held that participating in a boycott or strike is ex facie bad. |
| Ramon Services (P) Ltd. v Subhash Kapoor , (2001) 1 SCC 118 | Supreme Court of India | Followed; held that advocates are answerable for the consequences suffered by their clients due to strike-related non-appearance. |
| Mahipal Singh Rana v. State of U.P. , (2016) 8 SCC 335 | Supreme Court of India | Followed; noted that High Courts can frame rules for advocates’ practice in courts. |
| Hussainara Khatoon (1) v. State of Bihar, (1980) 1 SCC 81 | Supreme Court of India | Followed; held that the litigant has a right to speedy justice. |
| Hussain v. Union of India, (2017) 5 SCC 702 | Supreme Court of India | Followed; deprecated the practice of boycotting the Court observing that such suspension of work or strikes is clearly illegal. |
| Article 19(1)(a) of the Constitution of India | Constitution of India | Considered; the court held that the right to freedom of speech cannot be exercised at the cost of the litigants and/or the Justice Delivery System as a whole. |
| Articles 14 and 21 of the Constitution of India | Constitution of India | Considered; the court held that these guarantee the right to equality and the right to life and personal liberty, which includes the right to speedy justice. |
| Section 48 of the Advocates Act, 1961 | Parliament of India | Considered; the court held that this section does not protect advocates who go on strike. |
| Section 34 of the Advocates Act, 1961 | Parliament of India | Considered; the court held that this empowers High Courts to frame rules regarding conditions on which an advocate can practice in courts. |
| Section 38 of the Advocates Act, 1961 | Parliament of India | Considered; the court held that this provides that the final appellate authority in disciplinary matters is the Supreme Court. |
| Section 49 of the Advocates Act, 1961 | Parliament of India | Considered; the court held that this empowers the Bar Council to frame rules laying down conditions subject to which an advocate shall have a right to practice. |
| Article 145 of the Constitution of India | Constitution of India | Considered; the court held that this empowers the Supreme Court to make rules for regulating the practice and procedure of the court. |
Judgment
The Supreme Court dismissed the Special Leave Petition filed by the District Bar Association, Dehradun, and upheld the directions issued by the High Court of Uttarakhand.
| Submission by Parties | How Treated by the Court |
|---|---|
| The right to go on strike/boycott courts is a fundamental right to Freedom of Speech and Expression under Article 19(1)(a) of the Constitution. | Rejected. The Court held that the right to freedom of speech cannot be exercised at the cost of the litigants and the Justice Delivery System. |
| Strikes are a mode of peaceful representation to express grievances by the lawyers’ community. | Rejected. The Court reiterated that lawyers have no right to strike or boycott courts. |
| Section 48 of the Advocates Act protects any act done in good faith, and therefore, the directions to take action against the advocates on strike were contrary to this protection. | Rejected. The Court held that this section does not protect advocates who go on strike. |
| Authority | How Viewed by the Court |
|---|---|
| Ex-Capt. Harish Uppal v. Union of India (2003) 2 SCC 45 | The Court followed this judgment, reiterating that lawyers have no right to strike or even a token strike and that it is unprofessional for a lawyer to refuse to attend court due to a strike call. |
| Common Cause, A Registered Society v. Union of India (2006) 9 SCC 295 | The Court followed this judgment, reiterating that lawyers have no right to strike and that courts are under no obligation to adjourn matters because lawyers are on strike. |
| Krishnakant Tamrakar v. State of M.P. (2018) 17 SCC 27 | The Court followed this judgment, emphasizing that access to speedy justice is a fundamental right and that strikes by lawyers obstruct this right. |
| Supreme Court Bar Assn. v. Union of India [(1998) 4 SCC 409] | The Court followed this judgment, holding that professional misconduct by an advocate may also amount to contempt of court. |
| Mahabir Prasad Singh v. Jacks Aviation (P) Ltd. , (1999) 1 SCC 37 | The Court followed this judgment, holding that participating in a boycott or strike is ex facie bad. |
| Ramon Services (P) Ltd. v Subhash Kapoor , (2001) 1 SCC 118 | The Court followed this judgment, holding that advocates are answerable for the consequences suffered by their clients due to strike-related non-appearance. |
| Mahipal Singh Rana v. State of U.P. , (2016) 8 SCC 335 | The Court followed this judgment, noting that High Courts can frame rules for advocates’ practice in courts. |
| Hussainara Khatoon (1) v. State of Bihar, (1980) 1 SCC 81 | The Court followed this judgment, holding that the litigant has a right to speedy justice. |
| Hussain v. Union of India, (2017) 5 SCC 702 | The Court followed this judgment, deprecating the practice of boycotting the Court observing that such suspension of work or strikes is clearly illegal. |
What weighed in the mind of the Court?
The Supreme Court’s decision was heavily influenced by the need to ensure the smooth functioning of the judiciary and the fundamental right of citizens to speedy justice. The Court emphasized the following points:
- The repeated strikes by lawyers severely disrupt court proceedings and contribute to the ever-mounting pendency of cases.
- The right to speedy justice, which is a part of the fundamental rights under Articles 14 and 21 of the Constitution, is being violated due to frequent strikes.
- Lawyers, as officers of the court, have a duty to ensure the smooth functioning of the court and cannot disrupt court proceedings by going on strike.
- The Bar Councils have a responsibility to ensure that there is no unprofessional and unbecoming conduct by any lawyer.
- The Court also took note of the 266th Law Commission Report, which highlighted the alarming number of strike days in various districts of the country, including Dehradun and Haridwar.
| Sentiment/Reason | Percentage |
|---|---|
| Need to ensure smooth functioning of the judiciary | 30% |
| Fundamental right of citizens to speedy justice | 30% |
| Duty of lawyers as officers of the court | 20% |
| Responsibility of the Bar Councils to ensure professional conduct | 10% |
| 266th Law Commission Report on frequent strikes | 10% |
| Category | Percentage |
|---|---|
| Fact (Consideration of factual aspects of the case) | 30% |
| Law (Consideration of legal provisions and precedents) | 70% |
Logical Reasoning
Frequent strikes by lawyers disrupt court proceedings and delay justice.
Right to speedy justice is a fundamental right under Articles 14 and 21 of the Constitution.
Lawyers, as officers of the court, have a duty to ensure the smooth functioning of the court.
Previous judgments have established that lawyers have no right to strike.
Therefore, the High Court was justified in directing the Bar Associations to withdraw their strike calls.
The Court considered the argument that the right to strike is a fundamental right under Article 19(1)(a) of the Constitution, but rejected it, stating that this right cannot be exercised at the cost of the litigants and the justice system. The Court also considered the protection provided under Section 48 of the Advocates Act, but clarified that this section does not protect advocates who go on strike. The Court emphasized that the right to speedy justice is paramount and that lawyers’ strikes are a major impediment to this right.
The Supreme Court quoted from the judgment:
“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. 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.”
“It is settled law that 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.”
“Lawyers have obligations and duties to ensure smooth functioning of the court. They owe a duty to their clients. Strikes interfere with administration of justice. They cannot thus disrupt court proceedings and put interest of their clients in jeopardy.”
The Supreme Court observed that it is the duty of the Bar Council to take action against the advocates who go on strike.
Conclusion
The Supreme Court’s judgment in District Bar Association, Dehradun vs. Ishwar Shandilya & Ors. reaffirms the principle that lawyers do not have a right to strike or boycott courts. The Court emphasized the importance of the continuous functioning of the judiciary and the fundamental right of citizens to speedy justice. The Court upheld the directions issued by the High Court of Uttarakhand, which mandated the withdrawal of strike calls and directed disciplinary action against those who called for illegal strikes. This judgment serves as a strong reminder to lawyers that they are officers of the court, and their duty is to uphold the rule of law and ensure that justice is delivered to all. The Court has made it clear that the right to freedom of speech cannot be exercised at the cost of the litigants and the justice system.