The Hindu : The Bar Council's strike call

Online edition of India's National Newspaper
Tuesday, Sep 17, 2002

Opinion

Opinion - News Analysis

The Bar Council's strike call

By P.P. Rao

The Bar Council of India (BCI), a statutory body constituted under the Advocates Act, inter alia, to enforce discipline and observance of professional ethics by the members of the Bar, has given a call to the lawyers all over the country to abstain from attending court work on September 18 and observe it as National Protest Day. The provocation is the recent amendments to the Civil Procedure Code and the Legal Services Authorities Act. This is not the first time the guardian of the profession has given such a call. In March, 1993, the BCI had organised a strike to secure enforcement of Section 30 of the Advocates Act to enable lawyers to appear before all courts, tribunals, authorities and persons authorised to take evidence anywhere in the country. The strike did not achieve its purpose. It had caused immense suffering and hardship to the litigants who were in dire need of speedy justice. In the words of Justice E.S. Venkataramiah, "Who suffers if lawyers, doctors and teachers go on strike? They are the harassed litigants, patients and students. Is it just that these professional men should make them unnecessarily suffer to satisfy their own fancies? These strikes also cause immeasurable injury to the entire community. These strikes are not, therefore, signs of good citizenship."

The amendments to the CPC were not made overnight but after interaction with the BCI and several Bar Associations. The Statement of Objects and Reasons mentions that the proposed amendments seek to cut-short the delays at various levels in the disposal of cases in the hierarchy of civil courts. It appears that the earlier Law Minister, Arun Jaitley, who carried on the consultations with the Bar accepted some of the suggestions made but not all. It is obvious that the Bar is not satisfied with the amendments made effective from July 1, 2002. The BCI is entitled to organise a National Protest Day. The question is what should be the form of protest? Like teaching and medicine, the legal profession is a service-oriented one. The legal profession exists to serve the litigant public and to assist the Judges in dispensing justice and providing relief to the rightful claimants. The lawyer has no legal or moral authority to act against the interests of his clients. Dislocation of court work cannot obviously be in the interest of the litigants. Even when a lawyer wishes to disengage himself form a case, in case of personal difficulty, he has to give due notice to the client, return the brief and the fees in time to enable the client to engage another lawyer to present his case. Therefore, any unilateral decision by the members of the profession taken, individually or collectively, without notice to the clients and obtaining their consent will be, strictly speaking, impermissible.

The proposed strike is even otherwise ill-advised and ill-timed. A Public Interest Litigation (PIL) initiated by Common Cause has been pending in the Supreme Court since 1990 questioning the right of the BCI to issue a strike call. One of the reliefs sought from the Court is that in the event of lawyers going on strike, the Court should freely allow persons who are not enrolled Advocates to appear and present the cases of the litigants. The BCI in its affidavit mentioned that the profession does not like strikes as members of the profession are themselves losers in the process. The Court passed a consent order on December 7, 1994, as an interim measure consistent with the BCI's thinking that except in the rarest of rare cases strikes should not be resorted to and instead have a peaceful demonstration to avoid hardship to the litigant public. Counsel representing the BCI stated that he would suggest to it to incorporate the interim directions in the BCI (Conduct & Disciplinary) Rules so that they could have statutory support. This has not been done so far. The Court mentioned in its order that wearing of arms bands and other forms of protest which, in no way, interrupt or disrupt court proceedings or adversely affect the interests of the litigants could be adopted, so long as they are not derogatory to the court or to the profession. The BCI could have organised a National Protest Day by suggesting any other form of protest except strike.

The legal profession and the Judiciary have a great role to play in preserving the rule of law and upholding the Constitutional values. There is no provision of law which confers the right to strike on lawyers. The Industrial Disputes Act only recognises the trade unions' right to strike in furtherance to their legitimate demands. Of late, even the trade unions have, by and large, not been using this weapon. It is not too late to respond to the well meaning and timely suggestion made by the Supreme Court to the BCI to reconsider its call to strike and avert irreparable injury to innocent litigants. The grievances of the Bar can be sorted out through legal means by enlisting the support of lawyer members in Parliament, former Attorney-Generals and other eminent leaders of the Bar whose voice commands respect from all concerned. A strike should be the last resort. Last year in Raman Services Pvt. Ltd. v. Subhash Kapoor, the Supreme Court disapproved in strong terms advocates going on strike, observing that there was no obligation on the part of the court either to wait or to adjourn the case on that account. The Court cautioned that a litigant who suffers entirely on account of his advocate's non-appearance in Court could sue the advocate for damages. The BCI should rise to the occasion and modify its decision in public interest.

(The writer is a Senior Advocate in the Supreme Court.)

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