The Hindu : The right to strike

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Friday, Jan 10, 2003

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The right to strike

By Rajeev Dhavan

Lawyers should have the right to return briefs and participate in non-coercive, albeit exceptional, strikes in the public interest.

PROTEST IS essential to a democracy. Democracies which rely only on periodic elections are moribund. Active democracies, as opposed to inactive ones, are kept alive by public discussion, protest, civil disobedience or satyagraha and even stronger public reactions. A majoritarian democracy becomes autocratic if it abjures discontent and tries to discipline the many forms of "free speech and expression" through `proper channels'. As India's governance becomes more impatient and unscrupulous, the justice system needs to be given a more significant constitutional place. It is in this light that the Supreme Court's decision in the Lawyers' No Strike case (2002), which outlaws lawyers' strikes altogether, must be reconsidered.

Like other forms of protest, the right to strike places pressure on those in power to recognise dissent and respond to just demands. India's jurisprudence needs to reassess its views on protest and dissent. In the Bihar Civil Servants case (1962), the Supreme Court took the view that civil servants had a right to demonstrate but that there was no fundamental right to strike. Distinguishing demonstrations from strikes, the court held that unless the demonstration was contrary to public order (and not just law and order) it must be permitted. But no real explanation was provided for why the right to strike was impermissible. In the Civil Servants case (1963), the court made a subtle distinction between participating in demonstrations connected with a strike or its preparation (which was permissible) and participating in a strike (which was not). Two things flow from these old decisions. First, to deny that a `strike' is part of free speech seems illogical. Second, the court was solicitous about examining free speech issues with the care and circumspection they deserve. This is no longer the case.

Beginning with the Romesh Thappar case (1950) and the Lohia case (1960), the Court sustained the role of free speech — but not always consistently. Unfortunately, the latest judgments of the court do not reflect these democratic concerns. In the Kerala Bandh case (1998), the Supreme Court affirmed the High Court decisions with a minimal hearing to virtually license and nationalise the demonstration process when more thought and inputs were clearly required. That decision led to further havoc when the High Court verdict (fortunately reversed by the Supreme Court) suggested that political parties (including the Congress, Communists and others) should be de-registered from the electoral register if they called for or supported a bandh. This case brought to the fore the startling consequence of an inadequate, free-speech jurisprudence.

Clearly, if no one has a right to strike but only to demonstrate and support strikes, neither do lawyers. But even if there is no fundamental right to strike, a strike is not per se illegal. This question requires examination. The principal reasons advanced for lawyers not participating in a strike are: (i) breach of contract, (ii) obviating trade union tyranny and (iii) the public interest including professional responsibility.

Let us first take the contractual argument. Lawyers have always retained the right not to accept or return a brief which they feel is against the public interest even though this militates against the `cab-rank' rule that a lawyer must accept what arrives on his cab rank. Recently, Fali Nariman courageously returned Gujarat's brief in the Narmada case because of the Government's indifference towards Christians. Some lawyers did not appear before Justice V. Ramaswamy during his impeachment proceedings. Lawyers routinely return briefs because they are ill, have social engagements or other personal reasons. What prevents a lawyer from returning a brief on the basis that he will not appear in a case because be firmly believes in the call to strike for good public interest reasons? What happens if a lawyer enters a caveat empowering its return at his instance? It is surely not a breach of contract if the brief is returned in time as long as the lawyer does not charge fees for the non-appearance. No work, no pay. To charge such fees would be both a civil wrong as well as a criminal fraud. Where there is a breach or fraud, the lawyer can be sued or prosecuted. But to say that a lawyer is necessarily guilty of professional misconduct because he returns a brief in support of a strike is ex facie incorrect — leading to the ironic situation that abstinence from appearing for personal reasons is not misconduct but doing so for public interest reasons is. All this is quite apart from the power of the court (emphasised in various decisions, including an important one in 1999) that courts have the power to reject adjournments on grounds of the boycott of the courts — irrespective of the public interest reasons. Thus, contractually, lawyers can return briefs. Such a return should not be misconduct per se. Courts may refuse adjournments due to a lawyers' boycott, but should not take a policy decision to do so in all cases.

This leads to the second argument in relation to whether a lawyer can be forced not to appear in a court on a `boycott day', on pain of being expelled from the bar association or bar council that called the strike. The answer to this is relatively simple. No lawyer should be coerced into joining a strike. Any subsequent action by a bar association or council to expel such a lawyer would be unjustified. Non-coercive calls to join a strike fall within the domain of free speech not professional misconduct.

The third consideration is the public and professional interest. In the Lawyers' No Strike case (2002), the judges recounted `five' kinds of lawyers' strikes which can be re-grouped as those pertaining to (a) lawyers and their work, (b) legislation or rule changes affecting the justice system (c) protests against constitutional breakdown or subversion (such as the Emergency) and (d) the conduct of judges. The last category has achieved public notoriety. But look at the judicial response to it. In the Bombay Scandal case (1995), the Supreme Court denied lawyers — on pain of contempt — the right to publicly expose judicial corruption. In the Karnataka Contempt case, notices were issued to all leading newspapers for publishing preliminary call-to-attention reports concerning a judicial scandal. In 1995, the Bar was told to bring such matters to the Chief Justice of India through a High Court Chief Justice. That informal process has failed. But, if all else fails what should lawyers do? Likewise — as in the case of the Civil Procedure Code (CPC) or the Calcutta Court fees controversy — there may be issues that affect the justice system. Our legislatures enact laws too fast — often without due consideration. This calls for protest. It would seem incongruous that everyone can protest and strike except lawyers. As our constitutional system becomes more majoritarian, the role of protest has increased. Wearing `arm bands' may be no more effective than wearing shorter trousers. No doubt, the strike weapon must be resorted to on a non-coercive basis as a last resort for a limited duration — bearing in mind the workload of the courts and the effect on the administration of justice. The Bar Council proposed this to the Supreme Court in 1991 and passed resolutions in 2002 supporting exceptional strikes. As things go, this is unexceptional. Indeed, it is the Bar that comes to the rescue of the Bench when the judicial power is under threat and judges pressured. Browbeating lawyers may undermine judicial independence.

The Lawyers' No Strike decision of 2002 requires reconsideration. India needs a strong, free-speech jurisprudence at a time when its democracy is in peril. Lawyers should have the right to return briefs and participate in non-coercive, albeit exceptional, strikes in the public interest.

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