Lawyers are allowed to protest in 'the rarest of the rare' cases, but the causes for their strikes are anything but rare
Advocate Prashant Bhushan has filed a contempt petition in the Supreme Court against the propensity of lawyers to go on strike.
On certain days, the Indian litigant knows better than to hold the courts to their official calendar of working days: at least 100 days have already been lost this year across various Indian courts to strikes by advocates.
Delhi’s six district courts are in the lead, having lost more than a fifth of the working year so far to strikes by bar associations. Rivalling Delhi are the district courts in western Uttar Pradesh, on unofficial holidays, every Saturday for the last year, as well for two weeks last month.
Advocates practising before the Rajasthan high court’s Jaipur bench have been striking every Friday for the last 30 years and in Meerut, every Saturday is dedicated to lawyers’ strikes over the last 15 years.
Under a law laid down by the Supreme Court in 2002, lawyers are allowed “protest abstention from work for not more than one day," in case of the “rarest of rare cases where the dignity, integrity and independence of the Bar and/or Bench is at stake".
In the last few years, bar associations have interpreted the expression “rarest of rare" to mean a variety of things. It is clear that strikes and the reasons for them are anything but rare, and the ones who suffer are usually the clients.
Delhi district bar associations’ coordination committee chairman R.K. Wadhwa has a different view. “When we abstain from our work it is our own loss because we are not appearing in courts then. But at times it is the only remedy available to lawyers," he said.
Wadhwa is one of the four respondents in non-governmental organisation (NGO) Common Cause’s contempt petition in the Supreme Court against lawyers going on strike. The NGO, acting through advocate Bhushan, said that there had been more than two months of strikes this year—once for 19 days at a stretch—by Delhi lawyers.
Bhushan also made Delhi High Court Bar Association (DHCBA) secretary Abhijat (who uses only one name) a respondent in the case. DHCBA called for strikes to protest both the impending and eventual passage of the law enhancing the district courts’ jurisdiction. In the middle of one such strike, some DHCBA members purportedly suspended their own president Rajiv Khosla.
Khosla had, before his suspension, commented that court boycotts are a “futile exercise".
“We wouldn’t have had to strike for almost two months had the government enhanced the pecuniary jurisdiction (of Delhi’s district courts) from ₹ 20 lakh to ₹ 2 crore a long time ago," commented Wadhwa on the issue which was covered in Mint on 16 March 2015 (http://mintne.ws/1FpWPqi). “In the rest of the states the jurisdiction is unlimited. If you go to Haryana it is ₹ 200 crore in the district court. Similarly in Uttar Pradesh, in Noida. So what we are asking for is a legitimate raise."
The increase in pecuniary jurisdiction was of benefit to litigants, he argued, adding that, “Lawyers are not just agitating for their own cause."
DHCBA secretary Abhijat responded that the high court opposing camp was “compelled to abstain from work, as the government was clearly succumbing to the strike in the district courts". He said he thought the DHCBA had complied with the “rarest of rare" dictum.
Western Uttar Pradesh advocate Ajit Kumar, explaining the western Uttar Pradesh districts’ recent fortnight-long strike, said: “The bar as a collective body needs to assert itself off and on just as a labour union does, and send the message across. In some adverse situations it is justified, I believe, such as in our case—for the demand of an Allahabad high court bench in western Uttar Pradesh."
“(The government) is restricting somebody’s access to freedom merely on this ground. Litigants (in western Uttar Pradesh) are not filing cases in Allahabad simply because of the distance and costs involved."
Agitation and strikes for a local high court bench are commonplace, and while often justified as more convenient for local litigants, a local bench is also a profitable new institution for local lawyers to practice in.
Kumar said that Meerut’s district courts have been striking every Saturday for the last 15 years, and that all other western UP districts had also begun following suit over the last year. He said this was a “nice" way of registering a protest because “usually" court proceedings were not held on Saturdays, which were reserved for clerical work such as drafting affidavits.
However, he added that every year in certain western Uttar Pradesh districts the movement behind this demand peaked and at such times strikes lasting one to two weeks have been called for.
Kumar said another legitimate reason for calling a court-boycott was the assault on lawyers on court premises. The Bar Council of India (BCI), another respondent in Bhushan’s contempt petition, had called a nationwide strike in March when an Allahabad high court lawyer was allegedly killed by a policeman on court premises.
The Patna high court also witnessed a strike this year over greater security for lawyers practising before it.
The prerogative to decide whether the cause of a strike fits the “rarest of rare" description as per the law laid down by the Supreme Court lies with the chief justice of the court whose boycott is called for. The judgment even states that the bar is obligated to consult with the chief justice before calling the strike.
And yet the courts are seemingly letting this prerogative go. At least on 6 March, the Calcutta high court did. On 6 March—a Friday—6,000 advocates practising before that high court chose to “gift themselves an additional holiday to fill the missing piece in a long weekend break", reported The Telegraph (http://mintne.ws/1OfyA2z).
Chief justice Manjula Chellur, along with several other judges of the high court, acquiesced and adjourned cases listed on that Friday to the next working day, reported The Telegraph.
Several Delhi lawyers spoken to, on condition of anonymity, claimed that on days when they had chosen to ignore bar associations’ strike calls and appear before a court bench, the judges had asked them, in light of the ongoing strike, if they were sure about attending court proceedings that day.
Delhi advocate Apar Gupta commented: “Even if we disregard the social sanctions later (which come with not obeying a call for lawyer strike)—for instance the bar (may hold it against me) that I do not believe in the larger social benefit of arguing for enhanced pecuniary jurisdiction—we are stopped by (physical) force from appearing in courts (on strike days). There are threats to our security (if we want to appear in courts on strike days).
Gupta said that during the Delhi district court strike, thousands of Delhi lawyers were sent text messages by the various bar associations ordering them not to get even affidavits made on court premises.
Unsurprisingly, Bhushan’s and Common Cause’s contempt petition in the Supreme Court was met with reluctance from the judges as it came up for hearing on 11 September. Common Cause has asked that the court direct BCI to incorporate a prohibition on strikes in the professional conduct rules framed under the Advocates Act, 1961. Such a rule would empower the regulator to initiate disciplinary proceedings against striking lawyers.
However, the presiding judge initially tried to persuade Bhushan to withdraw the petition, as it would not serve any purpose, saying that the burden of self-discipline was on the bar itself, Legally India reported.
The Allahabad high court had a bolder reaction to BCI’s 23 March nationwide strike. The court took up the matter of its own accord on 24 March, to formulate measures to tighten security in the high court and Uttar Pradesh district courts. Chief justice D.Y. Chandrachud’s seven-judge bench observed on the first day of the hearing: “The judgment of the Supreme Court has been flouted by the associations representing the lawyers. Even the restriction that strikes should not be resorted to, even in an exceptional matter, for a period in excess of one day, is observed in the breach. One-day strikes are extended from day to day, almost indefinitely.
“In view of the clear statement of the law which has been laid down by the Supreme Court, there can be no doubt about the principle that a strike by the members of the Bar on the call of the office-bearers of the Bar associations is without the authority of law and is illegal. An officer convening a meeting for the purpose would be liable to be held personally responsible along with others who interfere in the functioning of the court."
That case is currently pending but the pressure is now on the Supreme Court, which no lawyers’ body has dared to boycott in recent recorded history, about whether to follow the Allahabad high court in firing another warning salvo across the bow of the bar.
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l Bar associations have called strikes to press for greater pecuniary jurisdiction (the lower limit of the value of cases a court can hear), which was ultimately successful for the Delhi district courts. Local bar associations have also held protests demanding their own high court benches in various regions. Violence against lawyers, either by individuals or by the police, has also often figured as a reason.
l Advocates who make a living citing India’s civil and criminal procedure codes in court have also gone on strike in solidarity with an advocate colleague whose first information report (FIR) was not registered by the police, or one who wasn’t compensated adequately in a court case or another against whom an allegedly false case was registered.
l Lawyers have collectively boycotted courts demanding apologies from or transfer of specific judges, and in other cases in defence of certain judges.
l Other reasons behind recent strikes include there not being enough chairs for lawyers to sit on in court (Patna high court), the absence of an All India Institute of Medical Sciences (AIIMS)-style hospital in a particular location (Jammu), on one occasion because it was simply too hot (Calcutta high court) and once when a working day had fallen in the middle of an extended weekend.