What Happens When The Law(yer) Goes On A Strike

Right at the onset of another scorching summer, the capital on the afternoon of 23 March 2017 experienced a fiery friction between the advocates from various bar associations in Delhi on one side and the Bar Council of India (BCI) on the other.

The events that unfolded saw certain district bar associations go on strike and the esteemed Supreme Court Bar Association (SCBA) strongly condemn a set of amendments recommended by the BCI to the Law Commission of India largely on issues pertaining to the rules and regulations governing the conduct of advocates.

To understand the entire episode, one must refer to a July 2016 ruling of the Hon’ble Supreme Court, wherein the Court had requested the Law Commission of India to study and report on issues pertaining to the regulation of legal profession. The Law Commission has since, reportedly, commenced the process of studying the issues by having invited comments from various bodies, including the Bar Council of India.

Interestingly, earlier this year in January, the Supreme Court had clarified on the issue concerning strikes and boycotts by advocates in the country. While hearing a petition pertaining to advocate strikes in Odisha, the Court was informed that the Bar Council of India is trying “to decide the matter effectively for all the times to come”. The Court took note that the Council “will consider the framing of the Rules” in line with the applicable law.

The BCI’s indication to frame rules on the issue was a reiteration of one of its proposed amendments to the 1961 Advocates Act as enumerated in its October 2016 circular.

Issue of Protesting in the Legal Profession

In a resolution passed on 23 March 2017, the SCBA called the BCI recommendations a “total subjugation of advocates as a class” with the effect to “curtail their right to protest”.

Among other amendments, the recommendation reportedly included proposals to ban strikes by advocates and impose fines for misconduct by an advocate. As a result, the BCI withdrew its recommendations to the Law Commission.

The issue of strikes in the legal profession has been hotly debated over the decades, and a positional gist of the arguments can be derived from the Law Commission of India’s 1988 report titled ‘Role of the Legal Profession in Administration of Justice’. The findings of the report, based on the responses to a widely circulated questionnaire, reflected an extreme divide in the opinions.

On one hand, the right to strike was “fiercely and self-righteously claimed” by the bar associations across the nation. On the other hand, “voluntary organisations, judges of High Court” among others contended that lawyers have no right to go on strike.

As far as the law on the subject is concerned, the match point was delivered on the turf of the Supreme Court, which made the legality of advocate strikes as tenable as the chances of a snowball in hell.

While the right to strike in other trades and professions is also not a fundamental right, the Supreme Court had, on an earlier occasion, classified the legal profession quite apart by observing that it is totally incorrect to compare the profession to the activity of a commercial character.

The Court in its 2003 decision in Ex Capt Harish Uppal Vs Union Of India cemented this view by expressly finding that “the exercise of the right to protest by the lawyers cannot be allowed to infract the litigant’s fundamental right for speedy trial or to interfere with the administration of justice”.

‘Strikes Obstructing Court Proceedings is Illegal’

Earlier this month, the Court pronounced its judgement on the important issue of delay in judicial proceedings of those in custody in Hussain and Anr Vs Union of India.

The Court reiterated that obstruction of court proceedings by uncalled for strikes is illegal and noted that “this needs attention of all concerned authorities – the Central Government/State Governments/Bar Councils/Bar Associations as well as the High Courts and ways and means ought to be found out to tackle this menace.”

The Court’s conclusive primacy of the litigants’ right over the lawyers’ can be assessed through certain legal doctrines, with one of them being the German idea of ‘praktische Konkordanz’. This translates to ‘practical reconciliation’ aiming to sustaining both the conflicting rights in a progressive fashion. The Supreme Court has employed variants of this doctrine, as have various other courts all over the world, to harmoniously interpret competing rights.

For instance, in its 2012 decision in McKenzie v Isla, the Human Rights Tribunal of Ontario, while attempting to resolving a contest arising out of two of the rights enshrined in its Code, observed that “ambiguity in the scope of the Code should be resolved in favour of protecting matters at the core of the rights and freedoms”.

One can decipher the rationale behind the Supreme Court’s decision by replacing the word “Code” in the above quote with “Constitution”.

In a bid to strike a balance the Court while ensuring that nothing gets in the way of the litigant’s right to speedy justice, has made space for the lawyers’ right to protest by keeping the recourse to other forms of protests open.

While such theories can use varying methodologies the outcome ought to be one that can be realised pragmatically.

As the noted 19th Century American logician and philosopher Charles Sanders Peirce wrote in his 1878 paper titled ‘How to Make Our Ideas Clear’: “Different minds may set out with the most antagonistic views, but the progress of investigation carries them by a force outside of themselves to one and the same conclusion”. This has been explained by example elsewhere that the speed of light will remain the same regardless of the methods employed to calculate it.

One wishes that the unfettered consistency like that in the speed of light could someday be reflected in the speed of justice.

Drawing a cue from what Peirce said, one can only hope that the efforts of the various stakeholders will enhance the speed of justice and keep the pursuit of justice from becoming a pyrrhic experience.

(Sukrit Rajesh Kapoor is an advocate practicing in New Delhi. This is a personal blog and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)