As Bar Council of India (BCI) chairman Manan Kumar Mishra today said the national strike was a resounding success in a Facebook post (including the praising of Law Commission-report burnings), it is worth bearing in mind the cost of lawyer strikes on the judicial system.
Shocking data compiled by the Law Commission in its report revealed that several district courts in India had more days of protest than working days in the last few years, due to lawyers’ strikes (see graph above).
Between 2011 and 2016, 18 courts in Uttar Pradesh, Tamil Nadu, Uttarakhand and Rajasthan were on strike for an average of around 110 days per year, with several at more than 135 days a year, and one - Muzzafarnagar - at an average of 158 days.
That same LC report recommended amendments to the Advocates Act 1961 that were seeking to impose a ban on lawyers’ strikes (as also originally recommended by the Bar Council of India (BCI) in its proposals to it).
Are strikes justified?
Litigants’ right to speedy justice is a part of their fundamental rights, the Supreme Court has already held in the Harish Uppal case, which all but declared strikes unlawful except in the most extreme circumstances.
And the bar council of Tamil Nadu appeared to agree last week in the high court, undertaking not to issue a call for local lawyers to strike in response to a writ.
The LC stated in its report:
The Supreme Court had consistently been declaring that advocates do not have a right to call for strikes and held that the lawyers’ strikes are illegal and that effective steps should be taken to stop the growing tendency.
In numerous cases beginning from Pandurang Dattatraya Khandekar v. Bar Council of Maharashtra, Bombay7; to Ex Capt. Harish Uppal v. Union of India, it was held that the advocates have no right to go on strike. The 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, Court must not be privy to strikes or calls for boycotts.
It was held that if a lawyer, holding a vakalatnama 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.
But does anybody care for the SC’s view?
The run up to today’s strikes alone witnessed lawyers striking to oppose a ban on lawyers’ strikes, the BCI, which proposed the ban on strikes, using the mechanism of strike to protest against other proposals, and lawyers striking to counter-protest the call for a strike by other lawyers.
Moreover, whenever a lawyers’ strike is called usually somewhere between a few thousands to tens of thousands of lawyers may join in, even if it sometimes means that a faction of lawyers who are striking against another faction join the second faction days later in a wider strike.
The situation is so bad that on the day of a strike call the assumption is that all practicing lawyers have joined the strike. A lawyer told us that during the previous strike called by the BCI, he flew all the way to a major high court only to find that the matter in which he was to appear was adjourned to a future date without his knowledge.
What had transpired: The local counsel for his client had taken an adjournment on the other lawyer’s behalf, assuming that he would be joining the nationwide strike.
The Supreme Court Bar Association (SCBA) is one of the few to have gone against the grain officially, but not without attracting a social media outburst from the BCI chairman.
The spectrum of lawyer strike motivations
The LC report also highlights some of the more whimsical triggers for lawyers’ strikes, such as “bomb blast in Pakistan school, amendments to Sri Lanka’s Constitution, interstate river water disputes, attack on / murder of advocate, earthquake in Nepal, to condole the death of their near relatives, to show solidarity to advocates of other State Bar Associations, moral support to movements by social activists, heavy rains, or on some religious occasions such as shraadh, Agrasen Jayanti, etc. or even for kavi sammelan”.
But there have been certain instances when the reason could be argued as tenable. In western Uttar Pradesh, for instance, lawyers had been striking every Saturday for the last several years to protest the lack of local court benches and the consequent hardship faced by litigants, and in Allahabad and Patna lawyers’ strikes were to protest against violence against and greater security for lawyers on court premises.
Modern-day striking lawyers may also be modelling their action on textbook examples of leadership in the profession: the SCBA under MC Chagla – went on strike against the government’s indirect impingement on judicial independence in 1972, and India’s struggle for freedom was led by lawyers like Mahatma Gandhi, Rajendra Prasad, Sardar Patel and Saifuddin Kitchlew, about all of whom the BCI notes on its own website: “Most lawyers gave their time freely, at the cost of their own legal practice, to the defense of scores of helpless victims of Martial Law implemented by the British, who had been condemned to the gallows or sentenced to long terms of imprisonment.”
But those were examples of lawyers sacrificing their work hours for the benefit of the masses – a marked difference in ideologies from the lawyers mostly using abstention from practice and the ensuing inconvenience to litigants as a weapon of choice to bargain for their vested interests with the government.
In the words of former Advocate General of Mahrashtra Shreehari Aney in an interview on LiveLaw, when the choice is to debate and discuss a law before it is passed and to legally challenge it after it is passed, stopping the courts from working by breaching professional ethics in a strike, should be the last thing on the mind of an advocate who has entered into a contract with the litigant by accepting their case brief.
The data According to the report:
- In Dehradun District, the Advocates were on strike for 455 days during 2012-2016 (on an average, 91 days per year).
- In Haridwar District, 515 days (103 days a year) were wasted on account of strike, during 2012-2016
- The High Court of Judicature at Jodhpur saw 142 days of strike during 2012-2016
- The High Court of Judicature at Jaipur saw 30 days of strike during 2012-2016
- Ajmer District courts, strikes remained for 118 days in the year 2014 alone
- In Jhalawar, 146 days were lost in 2012
- UP- 2011-2016: Muzaffarnagar (791 days), Faizabad (689 days), Sultanpur (594 days), Varanasi (547 days), Chandauli (529 days), Ambedkar Nagar (511 days), Saharanpur (506 days) and Jaunpur (510 days)
- Tamil Nadu district courts: During the period 2011-2016, districts like Kancheepuram, 687 days (137.4 days per year); Kanyakumari, 585 days (117 days per year); Madurai, 577 days (115.4 days per year); Cuddalore, 461 days (92.2 days per year); and Sivagangai, 408 days (81.6 days per year)