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ADVOCATES RIGHT TO STRIKE IN LIGHT OF EX CAPT. HARISH UPPAL V UNION OF INDIA (2002)

INTRODUCTION

Advocacy is the art of seeking justice and advocates are the artists. Justice delivered in Courts largely depends on the conduct and efficiency of the advocates. But most importantly, they are human beings and citizens of the country who like other people have their own rights and privileges. One of such rights has been a contested debate in India for a long time i.e. the advocates’ right to strike.

THE RIGHTS AND PRIVILEGES OF AN ADVOCATE IN INDIA

In India, all provisions relating to advocates come under the purview of the Advocates Act 1961. Section 24 of the Act mentions that a person wanting to be an Advocate under this Act must have completed 21 years of age and should have a law degree[1]. The Act also mentions certain rights which an Advocate shall have:

  • Section 30 of the Act states that every person who is an Advocate and whose name is entered in the State Roll shall be entitled to practice in any court or tribunal to which this Act extends including the Supreme Court[2]. Advocates are also entitled to practice under Article 19(1) of the Indian Constitution which talks about freedom to practice the profession of one’s liking.
  • Advocates also have the right to enter into any court irrespective of whether they are involved in the proceeding or not.
  • Section 23 of the Act states that advocates have the right of being heard. This right is called the right of pre-audience[3]. Advocates cannot be interrupted while reading out their statements in court. Advocates also have the right of pre-audience among their peers according to hierarchy. For example, the Attorney General has the right of pre-audience over other advocates in India. Next in line is the Solicitor General and so on.
  • Advocates are exempted from getting arrested under Section 135 of the Code of Civil Procedure 1908.
  • Advocates have the right to go and meet the party whom he/she are representing in jail as many times as they want.

EX CAPT. HARISH UPPAL v UNION OF INDIA (2002)

One of the most contested issues regarding advocates in India has been whether they have the right to strike/protest or boycott the Court. In the case of Arunava Ghosh v Bar Council of West Bengal AIR 1996 Cal 331[4], the Court touched upon the issue of whether the Bar Council has a right to call a strike by advocates. It was observed that the call for a strike of advocates by the Bar Council will lead to the Contempt of Court and violate the provisions of Article 21 of the Indian Constitution. In another famous case of Mahavir Prasad v Jacks Aviation Ltd 1999 1 SCC 37[5], the Court remarked that the advocates have no right to boycott any Court or stop any Court from executing its powers. Despite there being famous judgments on the right to strike by advocates, there seemed to be a lot of confusion. The Supreme Court finally put this issue to rest in 2002, by delivering a landmark judgment in the case of Ex Capt. Harish Uppal v Union of India W.P (civil) 132 1988[6].

FACTS OF THE CASE

The petitioner (Harish Uppal) was a retired army officer. He was posted in Bangladesh during the 1971 Liberation war. In 1972, he was court-martialed and then arrested due to allegations of embezzlement and certain other irregularities. He was sentenced to two years of imprisonment and was dismissed from his post. He filed a review application in Court, but to no avail. He then filed a post-affirmation application again for which there was no reply. He finally received a reply after 11 years. Till then, the time period of the review had expired. It was later discovered that the documents and all the review applications had got misplaced due to a strike by a group of advocates as a result of which there was a delay. In response to this, he filed a writ petition in the Supreme Court to declare that the strikes by law advocates are unlawful.

ISSUES

  • Whether advocates in India have the right to strike or boycott the Court?

CONTENTIONS MADE BY THE PETITIONER

The petitioner submitted that advocates are officers of the Court and should not be allowed to use strikes as a means to blackmail or extort the Courts. He further contended that advocates who commit contempt of Court by boycotting the Courts and going on strikes should be made to face serious consequences like getting debarred from practicing in any Court. It was submitted that those committees who give a call for strikes, should be punished with contempt proceedings. Lastly, he argued that if an advocate has accepted a Vakalat on behalf of a client, he must appear in Court. Strikes done by advocates are usually to break the agreement between their clients and not appear in Court. So the Bar Council must frame strict rules regarding this.

CONTENTIONS MADE BY THE RESPONDENT

The learned Counsel appearing for the respondents submitted that the advocates have the right to go on strikes, and it is up to the Bar Councils to decide whether a strike by advocates should be done or not.

JUDGMENT BY THE COURT

The Court remarked that advocates have no right to call for strike or boycott any Court under their jurisdiction. Protests if any should be made done in the form of publications, TV statements, Holding banners, etc., and should be made outside the Court premises. They should refuse any call for a strike or a boycott of the Court that comes their way. No association or Council can authorize a call for a strike or boycott. Regarding the advocate’s right to appear, the Court observed that those advocates who have accepted a Vakalat must appear in Court irrespective of a call for strike or boycott. The Court concluded by observing that only in the “rarest of rare cases” involving the dignity and integrity of the Indian Judiciary, can advocates protest. But such a protest should not exceed one day.

ANALYSIS OF THE JUDGMENT

The Court while examining the facts and circumstances of the case, referred to certain provisions of the Advocates Act 1961. Section 38 of the Act states that the Supreme Court is the final appellate authority and if the disciplinary committee of the Bar Council fails to provide any disciplinary action, the decision shall lie with the Supreme Court[7]. Hence if the Bar Council does not take action against the non-appearance of an advocate in Court due to strike or boycott, the Supreme Court will. The Court further referred to Article 145 of the Indian Constitution[8], and Section 34 of the Advocates Act 1961, which talks about the powers of the Supreme Court and High Courts respectively[9], to make rules relating to the advocates’ right to practice. The Court opined that using this privilege, the Courts should now make rules regarding misconduct and contempt of court done by the advocates. Such advocates must not be allowed to appear before any Courts.

CONCLUSION

Hence the Supreme Court declared that advocates’ right to strike is illicit. This was indeed due for a long time. Advocates usually tend to go on strikes due to some personal grievances which are not addressed by the Judiciary. Hence as per my opinion, it is the duty of the Courts to first hear the problems of advocates, and then move on with the Court proceedings. This will help in maintaining a balance between advocates and the judicial system, and further avoid any disruption due to strikes or protests.

Author(s) Name: Ishan Mudbidri

References:

[1] Advocates Act 1961, s 24

[2] Advocates Act 1961, s 30

[3] Advocates Act 1961, s 23

[4] Arunava Ghosh v Bar Council of West Bengal, AIR 1996 (CAL) 331

[5] Mahavir Prasad v Jacks Aviation Ltd, (1999) 1 SC 37

[6] Ex Capt. Harish Uppal v Union of India, (1988) W.P (civil) 132

[7] Advocates Act 1961, s 38

[8] Indian Constitution, Art 145

[9] Advocates Act 1961, s 34