LIVE Online Course on NDPS by Riva Pocha and Adv. Taraq Sayed. Starting from 24th May. Register Now!!
LAW Courses

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More


EVERY ADVOCATE MUST READ - OPINION BY MADRAS HIGH COURT

 

 

EVERY ADVOCATE MUST READ - OPINION BY MADRAS HIGH COURT

 

LAWYER AN OFFICER OF COURT * DUTIES AND RESPONSIBILITIES


ADVOCATE PROFESSION SUGESTIONS&COMMENTS BY MADRAS-HIGH COURT IN POLICE-LAWYERS CLASH JUDGMENT

192. The Hon*ble Supreme Court has extensively dealt with the various pit falls in the boycott resorted to by the Advocates and have held as under in paragraph 35 in the decision reported in (2003) 2 SCC 45 (Harish Uppal (Ex-Capt.) Vs. Union of India)

*35. In conclusion, 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 armbands, peaceful protest marches outside and away from court premises, going on dharnas or relay fasts etc. It is held that lawyers holding vakalats on behalf of their clients cannot refuse to attend courts in pursuance of a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequences by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. 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. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before advocates decide to absent themselves from court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all courts to go on with matters on their boards even in the absence of lawyers. In other words, courts must not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a vakalat of a client, abstains from attending court due to a strike call, he shall be personally liable to pay costs which shall be in addition to damages which he might have to pay his client for loss suffered by him.* (Emphasis added)


193. The Hon*ble Supreme Court has held as under in paragraph 4 of the decision reported in (2006) 9 SCC 295 (Common Cause, A Registered Society Vs. Union of India)

*4. The Constitution Bench has, in Ex Capt. Harish Uppal case culled out the law in the following terms: (SCC pp.64 & 71-74, paras 20-21 & 34-36)

*20. Thus the law is already well settled. 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. It is settled law that courts are under an obligation to hear and decide cases brought before them and cannot adjourn matters merely because lawyers are on strike. The law is that it is the duty and obligation of courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike. It is also settled law that if a resolution is passed by Bar Associations expressing want of confidence in judicial officers, it would amount to scandalising the courts to undermine its authority and thereby the advocates will have committed contempt of court. Lawyers have known, at least since Mahabir Singh case that if they participate in a boycott or a strike, their action is ex facie bad in view of the declaration of law by this Court. A lawyer*s duty is to boldly ignore a call for strike or boycott of court(s). Lawyers have also known, at least since Ramon Services case, that the advocates would be answerable for the consequences suffered by their clients if the non-appearance was solely on grounds of a strike call.


21. It must also be remembered that an advocate is an officer of the court and enjoys special status in society. Advocates 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.

*****

34. One last thing which must be mentioned is that the right of appearance in courts is still within the control and jurisdiction of courts. Section 30 of the Advocates Act has not been brought into force and rightly so. Control of conduct in court can only be within the domain of courts. Thus Article 145 of the Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person (including an advocate) can practise in the Supreme Court and/or in the High Court and courts subordinate thereto. Many courts have framed rules in this behalf. Such a rule would be valid and binding on all. Let the Bar take note that unless self-restraint is exercised, courts may now have to consider framing specific rules debarring advocates guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the courts. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of the Bar Councils. It would be concerning the dignity and orderly functioning of the courts. The right of the advocate to practise envelops a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for clients before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts done by an advocate during his practice. He may even file vakalat on behalf of a client even though his appearance inside the court is not permitted. Conduct in court is a matter concerning the court and hence the Bar Council cannot claim that what should happen inside the court could also be regulated by them in exercise of their disciplinary powers. The right to practise, no doubt, is the genus of which the right to appear and conduct cases in the court may be a specie. But the right to appear and conduct cases in the court is a matter on which the court must and does have major supervisory and controlling power. Hence courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an advocate. A rule can stipulate that a person who has committed contempt of court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appear and plead and conduct cases in courts. The Bar Councils cannot overrule such a regulation concerning the orderly conduct of court proceedings. On the contrary, it will be their duty to see that such a rule is strictly abided by. Courts of law are structured in such a design as to evoke respect and reverence to the majesty of law and justice. The machinery for dispensation of justice according to law is operated by the court. Proceedings inside the courts are always expected to be held in a dignified and orderly manner. The very sight of an advocate, who is guilty of contempt of court or of unbecoming or unprofessional conduct, standing in the court would erode the dignity of the court and even corrode its majesty besides impairing the confidence of the public in the efficacy of the institution of the courts. The power to frame such rules should not be confused with the right to practise law. While the Bar Council can exercise control over the latter, the courts are in control of the former. This distinction is clearly brought out by the difference in language in Section 49 of the Advocates Act on the one hand and Article 145 of the Constitution of India and Section 34(1) of the Advocates Act on the other. Section 49 merely empowers the Bar Council to frame rules laying down conditions subject to which an advocate shall have a right to practise i.e. do all the other acts set out above. However, Article 145 of the Constitution of India empowers the Supreme Court to make rules for regulating this practice and procedure of the court including inter alia rules as to persons practising before this Court. Similarly Section 34 of the Advocates Act empowers High Courts to frame rules, inter alia to lay down conditions on which an advocate shall be permitted to practise in courts. Article 145 of the Constitution of India and Section 34 of the Advocates Act clearly show that there is no absolute right to an advocate to appear in a court. An advocate appears in a court subject to such conditions as are laid down by the court. It must be remembered that Section 30 has not been brought into force, and this also shows that there is no absolute right to appear in a court. Even if Section 30 were to be brought into force control of proceedings in court will always remain with the court. Thus even then the right to appear in court will be subject to complying with conditions laid down by courts just as practice outside courts would be subject to conditions laid down by Bar Council of India. There is thus no conflict or clash between other provisions of the Advocates Act on the one hand and Section 34 or Article 145 of the Constitution of India on the other.


35. In conclusion, 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 armbands, peaceful protect marches outside and away from court premises, going on dharnas or relay fasts, etc. It is held that lawyers holding vakalats on behalf of their clients cannot refuse to attend courts in pursuance of a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequences by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. 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. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before advocates decide to absent themselves from court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all courts to go on with matters on their boards even in the absence of lawyers. In other words, courts must not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a vakalat of a client, abstains from attending court due to a strike call, he shall be personally liable to pay costs which shall be in addition to damages which he might have to pay his client for loss suffered by him.


36. It is now hoped that with the above clarifications, there will be no strikes and/or calls for boycott. It is hoped that better sense will prevail and self-restraint will be exercised. The petitions stand disposed of accordingly.*

The Court also dealt with the role of Bar Councils on the following terms: (SCC pp. 66-68, paras 25-26)

*25. In the case of Supreme Court Bar Assn. v. Union of India it has been held that professional misconduct may also amount to contempt of court (para 21). It has further been held as follows: (SCC pp.444-46, paras 79-80)

*79. An advocate who is found guilty of contempt of court may also, as already noticed, be guilty of professional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that advocate by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of each case. The learned Solicitor General informed us that there have been cases where the Bar Council of India taking note of the contumacious and objectionable conduct of an advocate, had initiated disciplinary proceedings against him and even punished him for *professional misconduct*, on the basis of his having been found guilty of committing contempt of court. We do not entertain any doubt that the Bar Council of the State or Bar Council of India, as the case may be, when apprised of the established contumacious conduct of an advocate by the High Court or by this Court, would rise to the occasion, and take appropriate action against such an advocate. Under Article 144 of the Constitution *all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court*. The Bar Council which performs a public duty and is charged with the obligation to protect the dignity of the profession and maintain professional standards and etiquette is also obliged to act *in aid of the Supreme Court*. It must, whenever facts warrant, rise to the occasion and discharge its duties uninfluenced by the position of the contemnor advocate. It must act in accordance with the prescribed procedure, whenever its attention is drawn by this Court to the contumacious and unbecoming conduct of an advocate which has the tendency to interfere with due administration of justice. It is possible for the High Courts also to draw the attention of the Bar Council of the State to a case of professional misconduct of a contemnor advocate to enable the State Bar Council to proceed in the manner prescribed by the Act and the rules framed thereunder. There is no justification to assume that the Bar Councils would not rise to the occasion, as they are equally responsible to uphold the dignity of the courts and the majesty of law and prevent any interference in the administration of justice. Learned counsel for the parties present before us do not dispute and rightly so that whenever a court of record records its findings about the conduct of an advocate while finding him guilty of committing contempt of court and desires or refers the matter to be considered by the Bar Council concerned, appropriate action should be initiated by the Bar Council concerned in accordance with law with a view to maintain the dignity of the courts and to uphold the majesty of law and professional standards and etiquette. Nothing is more destructive of public confidence in the administration of justice than incivility, rudeness or disrespectful conduct on the part of a counsel towards the court or disregard by the court of the privileges of the Bar. In case the Bar Council, even after receiving *reference* from the Court, fails to take action against the advocate concerned, this Court might consider invoking its powers under Section 38 of the Act by sending for the record of the proceedings from the Bar Council and passing appropriate orders. Of course, the appellate powers under Section 38 would be available to this Court only and not to the High Courts. We, however, hope that such a situation would not arise.



80. In a given case it may be possible, for this Court or the High Court, to prevent the contemnor advocate to appear before it till he purges himself of the contempt but that is much different from suspending or revoking his licence or debarring him to practise as an advocate. In a case of contemptuous, contumacious, unbecoming or blameworthy conduct of an Advocate-on-Record, this Court possesses jurisdiction, under the Supreme Court Rules itself, to withdraw his privilege to practise as an Advocate-on-Record because that privilege is conferred by this Court and the power to grant the privilege includes the power to revoke or suspend it. The withdrawal of that privilege, however, does not amount to suspending or revoking his licence to practise as an advocate in other courts or tribunals.*


Thus a Constitution Bench of this Court has held that the Bar Councils are expected to rise to the occasion as they are responsible to uphold the dignity of courts and majesty of law and to prevent interference in administration of justice. In our view it is the duty of the Bar Councils to ensure that there is no unprofessional and/or unbecoming conduct. This being their duty no Bar Council can even consider giving a call for strike or a call for boycott. It follows that the Bar Councils and even Bar Associations can never consider or take seriously any requisition calling for a meeting to consider a call for a strike or a call for boycott. Such requisitions should be consigned to the place where they belong viz. the waste-paper basket. In case any Association calls for a strike or a call for boycott, the State Bar Council concerned and on its failure the Bar Council of India must immediately take disciplinary action against the advocates who give a call for strike and if the committee members permit calling of a meeting for such purpose, against the committee members. Further, it is the duty of every advocate to boldly ignore a call for strike or boycott.

26. It must also be noted that courts are not powerless or helpless. Section 38 of the Advocates Act provides that even in disciplinary matters the final Appellate Authority is the Supreme Court. Thus even if the Bar Councils do not rise to the occasion and perform their duties by taking disciplinary action on a complaint from a client against an advocate for non-appearance by reason of a call for strike or boycott, on an appeal the Supreme Court can and will. Apart from this, as set out in Ramon Services case every court now should and must mulct advocates who hold vakalats but still refrain from attending courts in pursuance of a strike call, with costs. Such costs would be in addition to the damages which the advocate may have to pay for the loss suffered by his client by reason of his non-appearance.*

Apart from reiterating the above law, we do not propose to take any further action. The contempt notices stand discharged.* (Emphasis added)


194. The Hon*ble Supreme Court has held as under in paragraphs 22, 23 and 25 in the decision reported in (2001) 1 SCC 118 (Ramon Services (P) Ltd. Vs. Subhash Kapoor)

*22. Generally strikes are antithesis of progress, prosperity and development. Strikes by the professionals including the advocates cannot be equated with strikes undertaken by the industrial workers in accordance with the statutory provisions. The services rendered by the advocates to their clients are regulated by a contract between the two besides statutory limitations, restrictions and guidelines incorporated in the Advocates Act, the rules made thereunder and rules of procedure adopted by the Supreme Court and the High Courts. Abstaining from the courts by the advocates, by and large, does not only affect the persons belonging to the legal profession but also hampers the process of justice sometimes urgently needed by the consumers of justice, the litigants. Legal profession is essentially a service-oriented profession. The relationship between the lawyer and his client is one of trust and confidence.


23. With the strike by the lawyers, the process of court intended to secure justice is obstructed which is unwarranted under the provisions of the Advocates Act. Law is no trade and briefs of the litigants not merchandise. This Court in Bar Council of Maharashtra v. M.V. Dabholkar placed on record its expectations from the Bar and observed: (SCC pp.301-02, para 24)


*24. We wish to put beyond cavil the new call to the lawyer in the economic order. In the days ahead, legal aid to the poor and the weak, public interest litigation and other rule-of-law responsibilities will demand a whole new range of responses from the Bar or organised social groups with lawyer members. Indeed, the hope of democracy is the dynamism of the new frontiersmen of the law in this developing area and what we have observed against solicitation and alleged profit-making vices are distant from such free service to the community in the jural sector as part of the profession*s tryst with the people of India.*

*****

25. This Court in Tahil Ram Issardas Sadarangani v. Ramchand Issardas Sadarangani while deprecating the decreasing trend of service element and increasing trend of commercialisation of legal profession, pointed out that it was for the Members of the Bar to act and take positive steps to remove such an impression before it is too late. By striking work, the lawyers fail in their contractual and professional duty to conduct the cases for which they are engaged and paid. In Common Cause, A Regd. Society v. Union of India it was observed: (SCC p. 558, para 1)


*Since litigants have a fundamental right to speedy justice as observed in Hussainara Khatoon (I) v. Home Secy., State of Bihar it is essential that cases must proceed when they appear on board and should not ordinarily be adjourned on account of the absence of the lawyers unless there are cogent reasons to do so. If cases get adjourned time and again due to cessation of work by lawyers it will in the end result in erosion of faith in the justice delivery system which will harm the image and dignity of the court as well.*


195. Taking a clue and guided by the above decisions we state that time has now come for this Court to put things straight and make the message loud and clear that hereafter under the guise of boycott of Courts no hindrance should be caused to the litigant public or the working of the Court.


196. As far as the guidelines issued by the Government of India for preserving the security of this institution is concerned as per the direction contained in the relevant letter No.VI.23014/79/2005-VS, dated 31.05.2007 and the subsequent order dated 17.11.2008 and the steps taken by the Madras High Court Security Committee revising the Security arrangement system as was implemented from 28.01.2009, should be restored forthwith.


197. The imposition of ban ordered by the Division Bench in the decision reported in (2007) 2 MLJ 1 (Madras High Court Advocates Association Vs State of Tamil Nadu) should be strictly enforced.


198. The ban imposed (W.P.No.7646 of 2006 dated 20.06.2006) for any one to hold meeting inside the High Court campus other than regular meetings of the Association or any special meetings in their association premises shall be strictly adhered and no political party affiliation shall be permitted inside the High Court campus and other Court premises throughout the State for holding any meeting or demonstration or any other form of agitation inside the premises.


199. In this context, the recent order of the Hon*ble Supreme Court in this case itself dated 26.02.2009, namely that the advocates should not cause any disturbance to the Court proceedings and should not shout slogans inside the Court premises as well as no meeting should be held in the Court premises without the permission of the Chief Justice except other meetings in their Association premises shall be implemented forthwith by the Registry.


200. Having expressed our grave concern of the litigant public and the emergent need of this institution to come up to the expectations of the public at large, we hold that by implementing the severe security measures approved by the Security Committee of this Court in the interest of the institution, the implementation of it will be unscrupulously followed and it will be the responsibility of the members of the Bar to extend their cooperation in its implementation. Question No.(v) is answered in the above terms.


201. As far as the various criminal cases listed out in between pages 167 and 243 of the Respondents Volume-I is concerned, if there is no other impediment by way of Court orders or otherwise there is no reason why the police should fail to prosecute those proceedings without any further delay.


202. Having thus answered the various questions posed for consideration and having regard to our consensual conclusion on various issues, we deem it appropriate to give our common conclusions and directions contained in paragraph Nos. 602 to 607.

* * * * *

Drawing our attention to long list of incidents of misbehaviour by the Advocates and number of Criminal cases registered against the Advocates, Dr.Rajeev Dhavan, learned Senior Counsel submitted that there was a serious threat perception which justified mobilisation of Police force. Learned Senior Counsel would further submit that the attack on Dr.Subramaniam Swamy on 17.2.2009 contributed to the threat perception and therefore, mobilisation of Police force was only a precautionary measure. Learned Senior Counsel made persuasive submissions interalia raising the following contentions:-

(i)Whether presence of Police on the Court premises was uninvited and what was the level of threat perception;

(ii)Difficult and complicated questions of facts are involved; reliability and acceptability of evidence and materials available cannot be gone into exercising jurisdiction under Article 226 of the Constitution of India;

(iii)Because of continuous boycott of Advocates and their defiant acts in the past, there was serious threat perception which necessitated use of reasonable force; Court cannot comprehend what would have been the anticipated threat;

(iv)Since Police officers are Civil Servants entitled to protection under Article 311 of Constitution, Court straightaway cannot order suspension/impose punishment without due process of law by initiation of disciplinary proceedings; rights available to the Officers for acting bonafide;

(v)Absolutely, there was no malafide intention or pre-planned attack to invoke contempt jurisdiction; and

(vi)Moulding relief * balance to be adopted and how the reliefs could be moulded, keeping in view of interest of both lawyers and Police.


247. Pitched battle of lawyers with Police in the Court premises on 19.2.2009 was the most unfortunate incident; a situation which should never happen in future anywhere. Lawyers and the Police are two wings of the law-enforcement machinery. They complement each other in the task of maintaining law and order. It is deplorable that their relationship has been strained to the extent of indulging in a pitched battle. The relationship between the lawyers and the police has never been particularly good. What happened in the High Court was the culmination of such long-standing differences. The gross impropriety committed by the police on the Court premises resulted indiscriminate attack on everyone * lawyers, litigants, staff and one High Court Judge.


248. An unbiased examination of facts would reveal that culture of boycott of Courts by the lawyers developed in the State in the recent past and provocation of handful of lawyers on 17.2.2009 and 19.2.2009 led to this unprecedented incident. Though, we are mainly concerned with the developments during and aftermath of 19.2.2009, at the outset, it is apposite to highlight the high standards fixed for the lawyers and decadence of values in the legal profession.



 

 

 

249. Legal profession * Necessity for maintaining high level of morality and standards:-

Because of the good work and services rendered by the professionals, they are accorded status and autonomy in the society. It is relevant to quote the following passage from the book Howard Gardner's Five Minds for the Future * Chapter 6 * The Ethical Mind * Page 128 [Published by Harvard Business School Press, Boston, Massachusetts]:

"We conceptualize a profession as a highly trained group of workers who perform an important service for society. In return for serving in an impartial manner and exercising prudent judgment under complex circumstances, professionals are accorded status and autonomy."


"Work may be good in the sense of being excellent in quality * in our terms, it is highly disciplined. Such work may be good in the sense of being responsible * it regularly takes into account its implications for the wider community within which it is situated. And such work may be good in the sense of feeling good * it is engaging and meaningful, and provides sustenance even under challenging conditions. ....."


250. In AIR 1993 SC 1535 : 1993 (2) SCC 562 [J.S.Jadhav v. Mustafa Haji Mohamed Yusuf], the Supreme Court observed that the legal profession is regarded to be a noble one. In the inaugural address at the Bar Council of India Seminar, Justice Sundara Aiyar, former Judge, Madras High Court spoke that the profession of an advocate has always been regarded as one of the noblest profession. [See AIR 1961 (15th April) Journal Section]. There is no profession/class which has done more to develop and defend the human rights.


251. It will be apposite to quote a passage from a celebrated decision of the Supreme Court in Sanjiv Datta's case (1995) 3 SCC 619 - "The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to are its honourable members. Although entry to the profession can be had by acquiring merely the qualification of technical competence, honour as a conduct both in and outside the court."


252. The legal profession is most honourable profession, with high traditions and with the potentialities for great good in the progress of orderely society and maintenance of law and order. Lawyers have been in the vanguard of a country's progress and have always zealously guarded human liberties and the rule of law. For an ambitious young man of keen intellect and capacity to work hard, the legal profession holds unlimited prizes. It gives him an insight into the character of his fellow-men, into all their weaknesses and all their strength, and an opportunity to do real good by helping in the proper administration of justice and maintenance of judicial standards.


253. The profession of the advocate is a permanent institution in the world's justice, coming down through the ages, and garnering traditions and wisdom from generation to generation for the edification of present and future ones. Client and counsellor, advocate, jury, and judge - their ways and their needs and their notions were known and studied in Athens, Rome, England and America. The world's business and its laws may change, but human nature's motives and foibles have formed a constant element. The psychology of a law suit is still the great problem for the lawyer; and Quintilian, Scarlett and Choate here come together on common ground [Passage quoted from Page No.6 of P.Ramanatha Aiyer's * Legal and Professional Ethics * Third Edition, 2003].


254. There is a nobility of purpose involved in the profession of the law. There is a chivalry of action. It may be called into play any day. It involves the idea that a man can stand forward and become the advocate of some person who cannot speak for himself, who will have the courage and boldness to defend liberty from an assault upon her citizens, who will have the strength of character to denounce a wrong and who after all will remember that while he owes a great duty to his profession, he is called upon to give a corresponding duty to his country [Passage quoted from Page No.12 of P.Ramanatha Aiyer's * Legal and Professional Ethics * Third Edition, 2003].

255. The American Tycoon Mr. IACOCCA who achieved fame as one of America's leading Captain of industry was asked to address a group of prominent lawyers. He said to his captive audience:

"As lawyers you are little more equal than the rest of us. You are trained to use the freedoms granted by the Constitution. We all have them, of course, but you know better than the rest of us how to use them. That is your job. Advocacy is your profession. And it is an hon'ble one. The Constitution might tell us that our rights are sacred, but some times they are not worth a dime unless people like you, skilled in the law, are able to push them and protect them for us". "In our democracy, the final judges will always be laymen like me, and all the millions like me, who do not read the Constitution regularly and who may not even understand everything it says. We are the judges of the effectiveness of the Constitution and the wisdom of the laws written under it and the integrity of the legal profession. There is a lawyer in the United States called Roger Bridges who is engaged in unearthing legal cases in which Abraham Lincoln appeared and argued * this ambitious research project undertaken by Bridges and his team is called the 'Lincoln Legals'. They came across Abraham Lincoln's notes for a law lecture in 1850. In it he said:

"Resolve to be honest at all events; and if in your judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation rather than one in the chosing of which you do, in advance, consent to be a knave." "

[Passage quoted from Gururaja Chari's Advocacy and Professional Ethics * Page No.644 of first Edition, Wadwa and Company].

256. As held by the Supreme Court in 1994 (2) LW 187 : (1994) 2 SCC 204 (State of U.P. and others v. U.P. State Law Officers Association and others), legal profession is essentially a service oriented profession. Lawyers should remember, that service is the keynote of profession and should not consider it as a mere means of livelihood. They have great responsibility to protect and promote the democratic institutions in the country by striving to uphold rule of law.


257. Lawyer an Officer of Court * Duties and responsibilities:-

The United States has somewhat dubious distinction of having world's largest population of lawyers. India comes second in having world's largest population of lawyers. No free nation can ignore or forget the judiciary as part of democracy.


258. Indian society is multifaceted, multi-racial, multi-religious, and multi-lingual. The greatness, glory and distinction of this Country lies in unity in diversity. The very fact that we are surviving as a democratic country having a Rule of Law and an independent judiciary itself is significant. The constitution might tell that our rights are sacred. But sometimes they are not worth a dime unless lawyers skilled in the law are able to push them and protect them for the citizen.


259. No free nation can ignore or forget the importance of Law of Judiciary. If the Rule of Law has been a success and is even progressing in this country, the lawyers and judges are to be credited for their contribution to what is Rule of Law.


260. The profession of law is a public institution and lawyer discharges his public duty in so far as he assists in the administration of justice. The preamble of the chapter on Standards of professional conduct and Etiquette prescribed by the Bar Council of India reads as follows:

"An advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate."


261. It takes great intellectual gifts to make a great advocate. No man wins a height at a bar, without a struggle and without intellectual power. Here no deception is possible, as in other cases. Not like the clergyman with his ex parte case behind the pulpit; not like the physician with his prescription in the dark; the lawyer's work is done in the broad light of open day, confronted at every step by able opposition and argument, with the entire public looking on. To meet such a test requires the greatest and keenest powers. The vulgar notion of advocacy that sees nothing in it higher than an effort to 'before the jury' is a great mistake. Rather it is often the business of the true advocate to clear and dispel by the electric heat and lightning of his genius, the fog-bank that has already settled there [See from 60 Mich. Reports, Page 1, Eulogy on Hon. Chas Stuart, a great Advocate; May on Advocates cited in Donovan's skill in Trials, Page 145].


262. Genius indeed will leave its mark in whatever sphere it may move. But learning, industry and integrity or essential traits in the profession. Fidelity to the Court, fidelity to the client, fidelity to the claims of truth and honour: these are the matters comprised in the oath of office of a lawyer.


263. There are pitfalls and mantraps at every step, and the mere youth at the very outset of his career, needs often the prudence and self-denial, as well as the moral courage, which belong commonly to riper years. High moral principle is his only safe guide; the only torch to light his way amidst darkness and obstruction. [Passage quoted from Page No.12 of P.Ramanatha Aiyer's * Legal and Professional Ethics * Third Edition, 2003].


264. In (1995) 1 SCC 732 [Indian Council of Legal Aid and Advice v. Bar Council of India], Para (3) the Supreme Court held as follows:-

"3. ....... It is generally believed that members of the legal profession have certain social obligations. e.g. to render "pro bono publico" service to the poor and the underprivileged. Since the duty of a lawyer is to assist the Court in the administration of justice, the practice of law has a public utility flavour and, therefore, he must strictly and scrupulously abide by the Code of Conduct behoving the noble profession and must not indulge in any activity which may tend to lower the image of the profession in society. That is why the functions of the Bar Council include the laying down of standards of professional conduct and etiquette which advocates must follow to maintain the dignity and purity of the profession."


265. Observing that the legal profession is a solemn and serious occupation, in (1995) 3 SCC 619 : 1995 AIR SCW 2203 [In Re: Sanjeev Datta], Para (20), the Supreme Court has stated as follows:-


"20. The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the Court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practised it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible."


266. On the Conduct of Lawyers:

As held by the Hon'ble Supreme Court in Ramon Services (P) Ltd. v. Subhash Kapoor (2001 1 SCC 118), persons belonging to the legal profession are concededly the elite of the society. The lawyers, who have been acknowledged as being sober, task-oriented, professionally-responsible stratum of the population, are further obliged to utilise their skills for socio-political modernisation of the country. The lawyers are a force for the preservance and strengthening of constitutional government as they are guardians of the modern legal system.


267. As soon as a lawyer is enrolled as an advocate, he is subject to:-

a) the professional code of advocates;

and

b) disciplinary proceedings for misconduct.


268. Section 35(1) of the Advocates Act reads as follows:

"35. Punishment of advocates for misconduct:- (1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee".

It will be seen that the emphasis is on both the professional and other misconduct.


269. Likewise, the Bar Council of India Rules has laid down 'Rules governing Advocates, in part IV of the said Rules. In particular, Chapter II of that part lays down

"Standard of Professional Conduct and Etiquette"

The preamble of these Standards states:

"An Advocate shall, at all times, comport himself in a manner befitting his status as an officer of the court, a privileged member in the community; and a gentleman, bearing in mind that what may be lawful and a moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. Without prejudice to the generality of the foregoing obligation, an advocate shall fearlessly uphold the interests of his client, and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as a denial of the existence of other equally imperative though not specifically mentioned."


270. Dilution of Professional Standards:-

The moral decadence that has crept into society has not spared the advocates. It is important to underscore that being recognised as a member of a profession is not the same acting like a professional. Some lawyers fail to honour the central precepts and strictures of their of calling and nobility of profession. It must be remembered that advocate pursues the profession not only for his personal enrichment but primarily to help the court in adjudicating a dispute according to law. (Emphasis supplied) The law should not be stultified by sanctifying little omissions as fatal flaws. Some of the defects may be attributed to the lack of inservice training. We only wish that in future Leadership in Bar would endeavour to impart inservice training to new entrants.


271. The ever-growing numerical strength of the advocates and the ever-shrinking litigation scope have certainly had their impact. Mediocrity, indifference and incompetence on the part of the members of the profession can seriously vitiate the cause of justice and undermine public confidence in the system.


272. Dilution of professional standards and the consequent weakening of the administration of justice have reached disturbing proportions. Professional competence has been eroded to an alarming extent. A lack of professional discipline and poor standard of ethical conduct pervade the system. The effect is felt in the system and on its credibility among the people.


273. An increasing number of entrants are ill-equipped, poorly trained with little sense of social accountability. Considerations of professional competence have been jettisoned to an alarming extent, leading society to question the very ability of the profession to correct the distortions and to serve public interest. Ignorance of common man and depravity in the system have led to the unfair and indifferent delivery of legal service.


274. Expressing deep concern over the falling standards in the legal profession, Professor (Dr.) N.R.Madhava Menon, has emphasised need for meaningful reforms in the legal profession. We quote -

"With unprecedented changes induced by technology and globalisation, all professions are forced to re-think their methods of management and delivery of services. Accountability systems are being made more transparent and participatory with the object of controlling commercialisation and improving the quality of services. Even the code of ethics and methods of disciplining erring members are being reworked across professions. It is in this context that the Indian legal profession is to be looked at for seeking reforms."

[Article by Professor (Dr.) N.R.Madhava Menon, former Director of National Law School, National University of Juridical Sciences and National Judicial Academy - Reforming the legal profession:some ideas * Hindu dated 20th February 2008 -].


275. In his popular work "The World is Flat" Thomasfriedman has detailed on how the progress of globalisation has resulted in a 'flat playing field'. In the era of globalisation foreign law firms are making endeavours to make entry in India. Despite the resistance to their entry, we understand foreign law firms have tie-ups and associate offices in India with whom they continue to work. When everywhere there is competence and thriving to excel in professionalism, lawyers cannot afford to lag behind.



276. Lawyers should not forget that they have glorious traditions left behind them while the previous generations they have to maintain those traditions of love and service to the society. Advocates must have exemplary traits of sincerity of purpose. Re-appraisal of professional obligations, decency and decorum should be placed high on the agenda to check the debasement of advocacy. Bar Associations/Council's need to adopt strategies to improve the image of the profession. As a whole, lawyers need to elaborate Codes of Ethics even for their fundamental values remain the same. Lawyers need to take steps to raise their collective consciousness against unethical practices or violation of professional responsibility.


277. Boycott of Courts by Lawyers:-

It must be remembered that Advocate is an Officer of the Court. Lawyers have obligation and duties to ensure smooth functioning of the Court. They owe a duty towards their clients and Court and society at large. Strikes interfere with the administration of justice.


278. In Ex. Capt. Harish Uppal's case, Supreme Court held that by very nature of their calling to assist in the dispensation of justice, lawyers should not resort to strike. Observing that Advocates owe a duty towards clients, in AIR 2001 SC 207 [Ramon Services Pvt. Ltd. v. Subhash Kapoor and others] in Para (5), the Supreme Court held as follows:-

"5. ... When the advocate who was engaged by a party was on strike there is no obligation on the part of the Court either to wait or to adjourn the case on that account. Time and again this Court has said that an advocate has no right to stall the Court proceedings on the ground that advocates have decided to strike or to boycott the Courts or even boycott any particular Court. Vide U.P.Sales Tax Service Association v. Taxation Bar Association, Agra (1995) 5 SCC 716: (1995 AIR SCW 3759 : AIR 1996 SC 98 : 1995 All LJ 2052), K.John Koshy v. Dr. Tarakeshwar Prasad Shaw (1998) 8 SCC 624; Mahabir Prasad Singh v. Jacks Aviation (1999) 1 SCC 37 : (1998 AIR SCW 3806 : AIR 1999 SC 287); and Kolittumottil Razak v. State of Kerala (2000) 4 SCC 465.


279. While it is true that lawyers have contributed largely in the fields of human rights, environmental law, socio-economic rights, there are very few professions that have been criticised as legal profession. Of late, boycotting of Courts has become order of the day. Advocates strike and boycott the Courts at the slightest provocation overlooking the harm caused to the judicial system in general and the litigant public in particular and to themselves in the estimate of the general public.

280. Observing that striking lawyers failed in their contractual and professional duty and conduct, in AIR 2001 SC 207 [Ramon Services Pvt. Ltd., v. Subhash Kapoor and others], Para (26) the Supreme Court held as under:-

"26. Noting casual and indifferent attitude of some of the lawyers and expecting improvement in quality of service this Court in In Re : Sanjiv Datta, Deputy Secretary, Ministry of Information and Broadcasting, New Delhi (1995) 3 SCC 619 : (1995 AIR SCW 2203 : 1995 Cri LJ 2910) held (para 12 of AIR SCW and Cri LJ):

"Of late, we have been coming across several instances which can only be described as unfortunate both for the legal profession and the administration of justice. It becomes, therefore, our duty to bring it to the notice of the members of the profession that it is in their hands to improve the quality of the service they render both to the litigant-public and to the Courts, and to brighten their image in the society. Some members of the profession have been adopting perceptibly casual approach to the practice of the profession as is evident from their absence when the matters are called out, the filing of incomplete and inaccurate pleadings * many time even illegible and without personal check and verification, the non-payment of Court-fees and process fees, the failure to remove office objections, the failure to take steps to serve the parties, et al. They do not realise the seriousness of these acts and omissions. They not only amount to the contempt of the Court but do positive disservice to the litigants and create embarrassing situation in the Court leading to avoidable unpleasantness and delay in the disposal of matters. This augurs ill for the health of our judicial system.

The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the Court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practised it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible. The casualness and indifference with which some members practise the profession are certainly not calculated to achieve that purpose or to enhance the prestige either of the profession or of the institution they are serving. If people lose confidence in the profession on account of the deviant ways of some of its members, it is not only the profession which will suffer but also the administration of justice as a whole. The present trend unless checked is likely to lead to a stage when the system will be found wrecked from within before it is wrecked from outside. It is for the members of the profession to introspect and take the corrective steps in time and also spare the Courts the unpleasant duty. We say no more."

In Brahma Prakash Sharma v. State of U.P., 1953 SCR 1169 : (AIR 1954 SC 10 : 1954 Cri LJ 238) a Constitution Bench of this Court held that a resolution passed by the Bar Association expressing want of confidence in the judicial officers amounted to scandalising the Court to undermine its authority which amounted to contempt of Court. In Tarini Mohan Barari, Re : AIR 1923 Cal 212 the Full Bench of the High Court held that pleaders deliberately abstaining from attending the Court and taking part in a concerted movement to boycott the Court, was a course of conduct held not justified. The pleaders had duties and obligations to their clients in respect of matters entrusted to them which were pending in the Courts. They had duty and obligation to co-operate with the Court in the orderly administration of justice. Boycotting the Court was held to be high-handed and unjustified. In Pleader, Re : AIR 1924 Rangoon 320 a Division Bench of the High Court held that a pleader abstaining from appearing in the Court without obtaining his client's consent and leaving him undefended, amounted to unprofessional conduct. In U.P. Sales Tax Service Association v. Taxation Bar Association, Agra (1995) 5 SCC 716 : (1995 AIR SCW 3759 : AIR1996 SC 98 : 1995 All LJ 2052) this Court observed (paras 15 and 16 of AIR SCW, AIR and All LJ):

"It has been a frequent notice in the recent past to witness that advocates strike work and boycott the Courts at the slightest provocation overlooking the harm caused to the judicial system in general and the litigant public in particular and to themselves in the estimate of the general public. An advocate is an officer of the Court and enjoys a special status in the society. The workers in furtherance of collective bargaining organise strike as per the provisions of the Industrial Disputes Act as a last resort to compel the management to concede their legitimate demands. ......."


281. Question of lawyers going on strike has been the subject in number of decisions of the Supreme Court. Most of those decisions have been referred to in the decision of the Constitution Bench of Supreme Court in AIR 2003 SC 739 [Ex. Capt. Harish Uppal v. Union of India and another] in Paras (27) to (31), it has been held as follows:-

"27. In the case of B.L.Wadehra v. State (NCT of Delhi) and others reported in AIR (2000) Delhi 266, one of the questions was whether a direction should be issued to the lawyers to call off a strike. The Delhi High Court noted certain observations of this Court which are worth reproducing:

"In Indian Council of Legal Aid and Advice v. Bar Council of India, reported in (1995) 1 SCC 732 : (AIR 1995 SC 691), the Supreme Court observed thus:

"It is generally believed that members of the legal profession have certain social obligations. e.g. to render "pro bono publico" service to the poor and the underprivileged. Since the duty of a lawyer is to assist the Court in the administration of justice, the practice of law has a public utility flavour and, therefore, he must strictly and scrupulously abide by the Code of Conduct behoving the noble profession and must not indulge in any activity which may tend to lower the image of the profession in society. That is why the functions of the Bar Council include the laying down of standards of professional conduct and etiquette which advocates must follow to maintain the dignity and purity of the profession."

............

The Delhi High Court then considered various other authorities of this Court, including some set out above, and concluded as follows:-

"30. In the light of the above-mentioned views expressed by the Supreme Court, lawyers have no right to strike i.e. to abstain from appearing in Court in cases in which they hold vakalat for the parties, even if it is in response to or in compliance with a decision of any association or body of lawyers. In our view, in exercise of the right to protest, a lawyer may refuse to accept new engagements and may even refuse to appear in a case in which he had already been engaged, if he has been duly discharged from the case. But so long as a lawyer holds the vakalat for his client and has not been duly discharged, he has no right to abstain from appearing in Court even on the ground of a strike called by the Bar Association or any other body of lawyers. If he so abstains, he commits a professional misconduct, a breach of professional duty, a breach of contract and also a breach of trust and he will be liable to suffer all the consequences thereof. There is no fundamental right, either under Article 19 or under Article 21 of the Constitution, which permits or authorises a lawyer to abstain from appearing in Court in a case in which he holds the vakalat for a party in that case. On the other hand a litigant has a fundamental right for speedy trial of his case, because, speedy trial, as held by the Supreme Court in Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 81 : (AIR 1979 SC 1360) is an integral and essential part of the fundamental right to life and liberty enshrined in article 21 of the Constitution. Strike by lawyers will infringe the above-mentioned fundamental right of the litigants and such infringement cannot be permitted. Assuming that the lawyers are trying to convey their feelings or sentiments and ideas through the strike in exercise of their fundamental right to freedom of speech and expression guaranteed by Article 19 (1) (a) of the Constitution. We are of the view that the exercise of the right under Article 19(1)(a) will come to an end when such exercise threatens to infringe the fundamental right of another. Such a limitation is inherent in the exercise of the right under Article 19(1)(a). Hence the lawyers cannot go on strike infringing the fundamental right of the litigants for speedy trial. The right to practise any profession or to carry on any occupation guaranteed by Article 19(1)(g) may include the right to discontinue such profession or occupation but it will not include any right to abstain from appearing in Court while holding a vakalat in the case. Similarly, 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. The lawyer has a duty and obligation to co-operate with the Court in the orderly and pure administration of justice.

Members of the legal profession have certain social obligations also and the practice of law has a public utility flavour.

According to the Bar Council of India Rules, 1975 "an Advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar or for a member of the Bar in his non-professional capacity, may still be improper for an Advocate". It is below the dignity, honour and status of the members of the noble profession of law to organize and participate in strike. It is unprofessional and unethical to do so. In view of the nobility and tradition of the legal profession, the status of the lawyer as an officer of the court and the fiduciary character of the relationship between a lawyer and his client and since strike interferes with the administration of justice and infringes the fundamental right of litigants for speedy trial of their cases, strike by lawyers cannot be approved as an acceptable mode of protest, irrespective of the gravity of the provocation and the genuineness of the cause. Lawyers should adopt other modes of protest which will not interrupt or disrupt court proceedings or adversely affect the interest of the litigant. Thereby lawyers can also set an example to other sections of the society in the matter of protest and agitations.


31. Every Court has a solemn duty to proceed with the judicial business during Court hours and the Court is not obliged to adjourn a case because of a strike call. The Court is under an obligation to hear and decide cases brought before it and it cannot shirk that obligation on the ground that the advocates are on strike. If the counsel or/and the party does not appear, the necessary consequences contemplated in law should follow. The Court should not become privy to the strike by adjourning the case on the ground that lawyers are on strike. Even in the Common Cause case the Supreme Court had asked the members of the legal profession to be alive to the possibility of Judges refusing adjournments merely on the ground of there being a strike call and insisting on proceeding with the cases. Strike infringes the litigant's fundamental right for speedy trial and the Court cannot remain a mute spectator or throw up its hands in helplessness on the face of such continued violation of the fundamental right.

32. Either in the name of a strike or otherwise, no lawyer has any right to obstruct or prevent another lawyer from discharging his professional duty of appearing in Court. In any one does it, he commits a criminal offence and interferes with the administration of justice and commits contempt of Court and he is liable to be proceeded against on all these counts.

33. In the light of the above discussion we are of the view that the present strike by lawyers is illegal and unethical. Whatever might have been the compelling circumstances earlier, now there is absolutely no justification for the continuance of the strike in view of the appointment of the Commission of Inquiry and the directions being issued in this case."


28. In our view the conclusions reached are absolutely correct and the same need to be and are hereby approved.


29. Thereafter in the case of Ramon Services Pvt. Ltd. v. Subhash Kapoor reported in (2001) 1 SCC 118 = 2001 -1 -L.W. 61, the question was whether a litigant should suffer a penalty because his advocate had boycotted the Court pursuant to a strike call made by the Association of which the advocate was a member. In answer to this question it has been held that when an advocate engaged by a party is on strike there is no obligation on the part of the Court to either wait or adjourn the case on that account. It was held that this Court has time and again set out that an advocate has no right to stall court proceedings on the ground that they have decided to go on a strike. In this case it was noted that in Mahabir Prasad's case (supra), it has been held that strikes and boycotts are illegal. That the lawyers and the Bar understood that they could not resort to strikes is clear from statement of Senior Counsel Shri. Krishnamani which this Court recorded. The state is as follows:

"13. Shri Krishnamani, however, made the present position as unambiguously clear in the following words:

"Today, if a lawyer participates in a Bar Association's boycott of a particular court that is ex facie bad in view of the clear declaration of law by this Hon'ble Court. Now, even if there is boycott call, a lawyer can boldly ignore the same in view of the ruling of this Hon'ble Court in Mahabir Prasad Singh (1999) 1 SCC 37."

30. Thus the law is already well settled. 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. It is settled law that Courts are under an obligation to hear and decide cases brought before it and cannot adjourn matters merely because lawyers are on strike. The law is that it is the duty and obligation of the Courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike. It is also settled law that if a resolution is passed by Bar Associations expressing want of confidence in judicial officers it would amount to scandalising the Courts to undermine its authority and thereby the Advocates will have committed contempt of Court. Lawyers have known, at least since Mahabir Singh's case (supra) that if they participate in a boycott or a strike, their action is ex-facie bad in view of the declaration of law by this Court. A lawyer's duty is to boldly ignore a call for strike or boycott of Court/s. Lawyers have also known, at least since Roman Services' case, that the Advocates would be answerable for the consequences suffered by their clients if the non-appearance was solely on grounds of a strike call.

31. It must also be remembered that an Advocate is an officer of the Court and enjoys special status in society. Advocates have obligations and duties to ensure smooth functioning of the Court. They owe a duty to their client. Strikes interfere with administration of justice. They cannot thus disrupt Court proceedings and put interest of their clients in jeopardy. ......"


282. Despite such positive direction by the Supreme Court, in the State of Tamil Nadu, there are any number of lawyers' strike and boycott of Courts. Not a single day passes without strike by lawyers in some part of the State. We have lost very many Court working hours as seen from the number of days of boycott of various Courts in the State of Tamil Nadu and Pondicherry from 2006 till 31.8.2009. The number of days of boycott of Courts is really shocking. It may be noticed that there is an increasing trend of strike by lawyers and more Court working hours are lost because of lawyers strike.


283. At this juncture, it is apposite to refer the following passage of Shri P.P.Rao, Senior Advocate * Strikes by Professionals, extracted in Gururaja Chari's Advocacy and Professional Ethics * First Edition, 2000 [page 553]:

"A strike is an extreme form of protest. It loses its efficiency if it is resorted to frequently. During the struggle for Independence Mahatma Gandhi gave a call to boycott the British rule and many lawyers responded by giving up their lucrative practice and joining the freedom movement. Is it wise to use this weapon in free India over relatively insignificant issues? No every provocation by the police or the Government warrants a strike, there are strikes and strikes. In the year 1986 when Mr. Justice T.P.S. Chawla, the senior most Judge was not appointed as the Chief Justice of the Delhi High Court although he was entitled to the office even according to the declared policy of the Government, the entire Bar in Delhi went on strike. The Supreme Court Bar too joined the strike. It was successful. The Government had to yield to the demand, as the cause was just and had wide public support. The strike was over a basic issue affecting the independence of the judiciary which is a matter of overriding importance to the public at large. Can the same thing be said in respect of a strike over alteration of pecuniary jurisdiction of a High Court or setting up of a new Bench of a High Court or opening new District Courts?


284. So far as, Principal Bench of Madras High Court is concerned, there was vigorous boycott of Courts from 1st July 2004 protesting against formation of Madurai Bench of Madras High Court and also inclusion of certain Districts within the jurisdiction of Madurai Bench. There were clashes between two groups of Advocates and number of cases came to be registered from March 2004 to August 2004. There were also demonstration, protest, forming human chain, fast unto death demonstrations inside the Court campus and procession in the Court corridors. At that stage, the Code of Conduct for Advocates was notified. Protesting the notification of Code of Conduct, the Advocates in George Town/Egmore/Saidapet/Tiruvotriyur also joined in the protest. Lawyers' strike percolated to the Districts also. Later the Code of conduct was withdrawn. What we notice is that there is an ever increasing trend of boycott of Courts both in High Court as well as in the Districts.


285. Another disturbing feature is that the strikes are of long duration. It is a matter of common experience that during the strike periods, no one is allowed to appear before the Court. More often, there will be demonstrations and procession inside the Court premises particularly in the verandah. Of course, now the processions in the Court verandah have been stopped after the direction of the Supreme Court in S.L.P. (Civil) No.7540/2009 dated 14.7.2009 directing that there shall be no procession in the Court verandah.


286. Yet another disturbing feature of strikes is that they tend to divide the Bar and at times they lead to scuffle amongst lawyers. Democratic functioning of the Bar becomes impossible. Litigants are not the only sufferers. The non-affluent sections of the Bar too suffer silently. The Judges are handicapped in disposing of cases without the assistance of lawyers.


287. We must admit that judiciary has not strongly reacted the lawyers' boycott calls. Pointing out adopting of soft approach towards continuance of strikes in AIR 2001 SC 207 [Ramon Services Pvt. Ltd. v. Subhash Kapoor and others], Para (28), the Supreme Court observed as under:-

"28. Though a matter of regret, yet it is a fact, that the Courts in the country have been contributory to the continuance of the strikes on account of their action of sympathising with the Bar and failing to discharge their legal obligations obviously under the threat of public frenzy and harassment by the striking advocates. I find myself in agreement with the submission of Sh. M.N.Krishnamani, Senior Advocate that the Courts were sympathising with the Bar by not agreeing to dismiss the cases for default of appearance of the striking advocates. I have my reservations with the observations of Thomas, J. That the Courts had not been sympathising with the Bar during the strikes or boycotts. Some Courts might have conducted the cases even during the strike or boycott periods or adjourned due to helplessness for not being in a position to decide the lis in the absence of the counsel but majority of the Courts in the country have been impliedly sympathisers by not rising to the occasion by taking positive stand for the preservation of the high traditions of law and for continued restoration of the confidence of the common man in the institution of judiciary. ......."


288. During boycott calls, most of the times no adverse orders would be passed and thereby a convenient ground was created for the lawyers again and again to give boycott call even on 'non-legal issue'. As a result, as noted earlier, Courts have lost number of working days. Hitherto, number of steps have been taken to ensure smooth/cordial relationship between the Bar and Police by forming committees at Districts level. After initial euphoria not much could be deliberated upon them and the committees are no longer functional.


289. Pendency of Cases:

There is staggering arrears of nearly three crore cases are pending at every stage in different Courts of India. In the country, Madras High Court has the second largest pendency of cases i.e. 4,62,009 [Source * Court News - Supreme Court of India * Vol.IV, Issue No.2 * April & June 2009]. Subordinate Courts in the State of Tamil Nadu have pendency of 10,57,141 [Source * Court News - Supreme Court of India * Vol.IV, Issue No.2 * April & June 2009]. Disposal of pending cases in a time bound manner and also dealing with newly filed cases is a daunting challenge before the judiciary.


290. Expressing concern as to how lawyer's boycott affected Subordinate Judiciary making it difficult in reaching the norms in 2007 2 MLJ page 1[Madras High Court Advocates' Association V. State of T.N] First bench of this Court has held as under:-

"18. We are constrained to observe that while going through the norms fixed for the Subordinate Courts and when remarks have been received from many of the Subordinate Courts that the norms have not been able to be achieved because of the prolonged strike by the advocates. This is a serious issue and if it is allowed to proceed, it may even paralyse the functioning of the judiciary, which is not in public interest."

291. Any judicial reform will have to go hand in hand with administrative reforms as well as co-operation from the Bar, otherwise speedy disposal of cases would surely then become a farce. We wish and hope that lawyers in the State of Tamil Nadu would rise up to the occasion rendering hands of co-operation and refraining from Courts' boycott.


292. Observing that lawyers have no right to strike and issuing directions to Courts for framing specific rules/Code of conduct of lawyers in Court, in Ex. Capt. Harish Uppal's case [AIR 2003 SC 739], the Supreme Court held as under:-

"44. One last thing which must be mentioned is that the right of appearance in Courts is till within the control and jurisdiction of Courts. Section 30 of the Advocates Act has not been brought into force and rightly so.


Control of conduct in Court can only be within the domain of Courts. Thus Article 145 of the Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person (including an Advocate) can practice in the Supreme Court and/or in the High Court and Courts subordinate thereto. Many Courts have framed rules in this behalf.


Such a rule would be valid and binding on all. Let all the Bar take note that unless self restraint is exercised, Courts may now have to consider framing specific rules debarring Advocates, guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the Courts. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of Bar Councils. It would be concerning the dignity and orderly functioning of the Courts.

..............

The Bar Councils cannot overrule such a regulation concerning the orderly conduct of Court proceedings. On the contrary it will be their duty to see that such a rule is strictly abided by. Courts of law are structured in such a design as to evoke respect and reverence to the majesty of law and justice. The machinery for dispensation of justice according to law is operated by the Court. Proceedings inside the Courts are always expected to be held in a dignified and orderly manner. The very sight of an advocate, who is guilty of contempt of Court or of unbecoming or unprofessional conduct, standing in the court would erode the dignity of the Court and even corrode the majesty of it besides impairing the confidence of the public in the efficacy of the institution of the Courts. The power to frame such rules should not be confused with the right to practise law.


While the Bar Council can exercise control over the latter, the Courts are in control of the former. This distinction is clearly brought out by the difference in language in Section 49 of the Advocates Act on the one hand and Article 145 of the Constitution of India and Section 34(1) of the Advocates Act on the other. Section 49 merely empowers the Bar Council to frame rules laying down conditions subject to which an Advocate shall have a right to practise i.e. do all the other acts set out above.


However, Article 145 of the Constitution of India empowers the Supreme Court to make rules for regulating this practice and procedure of the Court including inter-alia rules as to persons practising before this Court. Similarly Section 34 of the Advocates Act empowers High Courts to frame rules, inter-alia to lay down conditions on which an Advocate shall be permitted to practice in Courts.


Article 145 of the Constitution of India and Section 34 of the Advocates Act clearly show that there is no absolute right to an Advocate to appear in a Court. An Advocate appears in a Court subject to such conditions as are laid down by the Court. It must be remembered that Section 30 has not been brought into force and this also shows that there is no absolute right to appear in a Court. Even if Section 30 were to be brought into force control of proceedings in Court will always remain with the Court.



Thus even then the right to appear in Court will be subject to complying with conditions laid down by Courts just as practice outside Courts would be subject to conditions laid down by Bar Council of India. There is thus no conflict or clash between other provisions of the Advocates Act on the one hand and Section 34 or Article 145 of the Constitution of India on the other.


45. In conclusion it is held that lawyers have no right to do 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 protect marches outside and away from Court premises, going on dharnas or relay fasts etc. It is held that lawyers holding Vakalats on behalf of their clients cannot not attend Courts' in pursuance to a call for strike or boycott.


All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequences by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. It is held that only in the rarest of rate 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 Courts to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench.

Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before Advocates decide to absent themselves from Court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that Courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all Courts to go on with matters on their boards even in the absence of lawyers. In other words, Courts must not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a Vakalat of a client, abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall be addition to damages which he might have to pay his client for loss suffered by him.


46. It is now hoped that with the above clarifications, there will be no strikes and/or calls for boycott. It is hoped that better sense will prevail and self restraint will be exercised. The Petitions stand disposed of accordingly." (underlining added by us for emphasis)


293. As held by the Supreme Court in Ramon Services Pvt. Ltd case "majority of the Courts in the country have been impliedly sympathisers by not rising to the occasion by taking positive stand for the preservation of the high traditions of law and for continued restoration of the confidence of the common man in the institution of judiciary. The Supreme Court further held that it is not too late even now for the Courts in the country to rise from the slumber and perform their duties without fear or favour particularly after the Judgment of the Supreme Court in Mahabir Singh's case [AIR 1999 SC 287]. Inaction will surely contribute to the erosion of ethics and values in the legal profession. The defaulting Courts may also be contributory to the contempt of Court.


294. Role of Bar Council and its Responsibilities:

The Advocates Act 1961 gave autonomy to a Bar Council of a State or Bar Council of India and Section 6(1) empowers them to make such action deemed necessary to set their house in order, to prevent fall in professional conduct and to punish the incorrigible as not befitting the noble profession apart from admission of the advocates on its roll. Section 6(1) (c) and rules made in that behalf. The members of the judiciary are drawn primarily and invariably from the Bar at different levels. The high moral, ethical and professional standards among the members of the Bar are preconditions even for high ethical standards of the Bench. Degeneration thereof inevitably has its eruption and tends to reflect the other side of the coin. The Bar Council, therefore, is enjoined by the Advocates Act to maintain high moral, ethical and professional standards which of late is far from satisfactory.


295. The Bar Council acts as the sentinel of professional code of conduct and is vitally interested in the rights and privileges of the advocates as well as the purity and dignity of the profession. The Bar Council acts as the custodian of the high traditions of the noble profession.


296. Observing that Bar Councils are expected to rise to the occasion as they are responsible to uphold the dignity of courts and majesty of law and to prevent interference in the Administration of Justice, in the case of Supreme Court Bar Association v. Union of India reported in ( (1998) 4 SCC 408) Constitution Bench of the Hon'ble Supreme Court has held as follows:

"79. An advocate who is found guilty of Contempt of Court may also, as already noticed, be guilty of professional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that advocate by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of each case. The learned Solicitor General informed us that there have been cases where the Bar Council of India taking note of the contumacious and objectionable conduct of an advocate, had initiated disciplinary proceedings against him and even punished him for 'professional misconduct", on the basis of his having been found guilty of committing Contempt of Court. We do not entertain any doubt that the Bar Council of the State or Bar Council of India, as the case may be, when apprised of the established contumacious conduct of an advocate by the High Court or by this Court, would rise to the occasion, and take appropriate action against such an advocate. Under Article 144 of the Constitution all authorities, civil and judicial, in the territory of India shall act in the aid of the Supreme Court. The Bar council which performs a public duty and is charged with the obligation to protect the dignity of the profession and maintain professional standards and etiquette is also obliged to the act "in aid of the Supreme Court". It must, whenever facts warrant, rise to the occasion and discharge its duties uninfluenced by the position of the contemner advocate. It must act in accordance with the prescribed procedure, whenever its attention is drawn by this court to the contumacious and unbecoming conduct of an advocate which has the tendency to interfere with due administration of justice. It is possible for the High Courts also to draw the attention of the Bar Council of the State to a case of professional misconduct of a contemner advocate to enable the State Bar council to proceed in the manner prescribed by the Act and the Rules framed thereunder. There is no justification to assume that the Bar Council to proceed in the manner prescribed by the Act and the Rules framed thereunder. There is no justification to assume that the Bar Councils would not rise to the occasion, as they are equally responsible to uphold the dignity of the Courts and the majesty of law and prevent any interference in the administration justice. Learned counsel for the parties present before us do not dispute and rightly so the whenever a Court of record records its findings about the conduct of an advocate while finding him guilty of committing Contempt of court and desires or refers the matter to be considered by the Bar Council concerned, appropriate action should be initiated by the Bar council concerned in accordance with law with a view to maintain the dignity of the Courts and to uphold the majesty of law and professional standards and etiquette. Nothing is more destructive of public confidence in the administration of justice than incivility, rudeness of disrespectful conduct on the part of a counsel towards the Court or disregard by the Court of the privileges of the Bar. In case the Bar Council, even after receiving "reference" from the Court, fails to take action against the advocate concerned, this Court might consider invoking its powers under Section 38 of the Act by sending for the record of the proceedings from the Bar Council and passing appropriate orders. Of course, the appellate powers under Section 38 would be available to this Court only and not to the High Courts. We, however, hope that such a situation would not arise.


80. In a given case it may be possible, for this Court of the High Court, to prevent the contemner advocate before it till he purges himself of the contempt but that is much different from suspending or revoking his licence or debarring him to practise as an advocate. In a case of contemptuous, contumacious, unbecoming or blameworthy conduct of an Advocate on Record, this Court possesses jurisdiction, under the supreme Court Rules itself, to withdraw his privilege to practice as an Advocate on Record because that privilege is conferred by this court and the power to grant the privilege includes the power to revoke or suspend it. The withdrawal of that privilege, however, does not amount to suspending or revoking his licence to practice as an advocate in other courts of Tribunals."

297. Reiterating roles and responsibilities of Bar Council, decision on the Ex.Capt. Harish Uppal's case the Hon'ble Supreme Court has held as under:

"35. ...... Thus a Constitution Bench of this Court has held that the Bar Councils are expected to rise to the occasion as they are responsible to uphold the dignity of the Courts and majesty of law and to prevent interference in administration of justice. In our view it is the duty of the Bar Councils to ensure that there is no unprofessional and/or unbecoming conduct. This being their duty no Bar Council can even consider giving a call for strike or a call for boycott. It follows that the Bar Councils and eve Bar Associations can never consider or take seriously any requisition calling for a meeting to consider a call for a strike or a call for boycott. Such requisitions should be consigned to the place where they belong viz. the waste paper basket. In case any Association call for a strike or a call for boycott the concerned State Bar Council and on their failure the Bar Council of India must immediately take disciplinary action against the Advocates who give a call for strike and if the Committee Members permit calling of a meeting for such purpose against the Committee Members. Further it is the duty of every Advocate to bodily ignore a call for strike or boycott." (underlining added by us for emphasis).

We hope that Tamil Nadu State Bar Council would rise to the occasion to comply with directions of the Supreme Court in dealing with the conduct of advocates boycott calls and take serious view of the same.


298. In Ex. Capt. Harish Uppal's case directed the Constitution of Grievance Redressal Committees in the level of High Court and District Courts level to ventilate grievances:- (i) Local issues (ii) Issues relating to one section of the Bar and another section (iii) Issues involving dignity, integrity, independence of the Bar and Judiciary (iv) Legislation without consultation with the Bar Councils. (v) National issues and Regional issues affecting the Public at large/ the insensitivity of all concerned.




"Loved reading this piece by PJANARDHANA REDDY?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"






Tags :


Category Constitutional Law, Other Articles by - PJANARDHANA REDDY 



Comments


update
Post a Suggestion for LCI Team
Post a Legal Query