Lawyers across India have been busy shutting down the judiciary. Lawyers in Durg district in Chhattisgarh carried out a strike recently because they were unhappy with the new location of a family court. Couple of days ago, the Supreme Court directed the Odisha Bar Council and the Bar Council of India to initiate action against lawyers who have been on strike in different districts in Odisha.
In October 2019, there was a statewide strike in Odisha protesting against the decisions of the Supreme Court collegium. In November 2019, lawyers in Delhi were on strike protesting against the police. While the lawyers across the country keep finding different motivations to lock down the courts, the people of the country are left with the common feeling of being denied access to justice.
In the case of Ex-Capt. Harish Uppal vs Union Of India & Anr on 17 December, 2002, the court has categorically held that lawyers do not have the right to strike and they should adopt other methods to register protest. The court observed: "it is 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 colour arm bands, peaceful protest marches outside and away from Court premises, going on dharnas or relay fasts etc."
The court recognised that on exceptionally rare occasions, a strike for one day could be tolerated. It observed: "It is held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. It is being clarified that it will be for the Court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench."
The thing to note is that the court has not created any exception to the rule that lawyers do not have a right to strike. It has merely given a discretion to the courts to tolerate a strike of one day if the strike has been called to protect the dignity, integrity and independence of the Bar and/or the Bench.
The Law Commission in its 266th Report noted, "The advocates' conduct in courts, behaviour with litigants and their unprofessional conduct, including the act of going on frequent strikes as a measure of protest for irrelevant issues has reached to terrifying proportions."
The Commission on a perusal of data received from various high courts found that "strikes by the advocates were rampant throughout the length and breadth of the country with little variation in degree." For example, between 2012 and 2016, lawyers in Dehradun and Haridwar district were on strike for an average of 91 days and 103 days per year. In eight districts (Muzaffarnagar, Faizabad, Sultanpur, Varanasi, Chandauli, Ambedkar Nagar, Saharanpur and Jaunpur) in Uttar Pradesh, lawyers were on a strike for an average of 115 days a year in the period between 2011 and 2016. In a salute to irony, the Bar council of India reacted to the Law Commission's incriminating report by calling for a strike.
The loss of working hours for the judiciary due to strikes called by lawyers is frightening. However, it needs to be noted that while lawyers are private professionals, strikes called by them does not simply impair some private business which can be ignored. Strikes by lawyers cripple the judiciary and directly affects judicial productivity. It leads to a direct denial of justice for the people of this country.
Recognising this, the Law Commission in 2017 recommended certain amendments to the Advocates Act, 1961 which would prescribe a mandate to the Bar Council of India to make rules to deal with strikes, boycotts and abstentions from courts by advocates and to provide for adequate punishment. It also recommended that there should be a provision for a person to claim compensation for any loss suffered by him/her due to the participation of any lawyer in a strike. However, no such step has been taken so far.
It is a very normal practice to blame the judiciary and the judges for the inordinate delay in the disposal of cases and for the mounting pendency in courts. However, without a professional and responsible Bar, the wheels of justice will always roll slowly. Any serious enquiry into judicial delay should include the role of lawyers in hampering the judicial process. It is time that the role of lawyers in hampering judicial productivity is recognised and remedied.
The author is a Fulbright Post-Doctoral Research Scholar at the Harvard Law School