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Analysis: BCI claims post-strike win after law min says: Law Com is independent, we’ve not decided anything yet

Right now it doesn’t look as though the government has given up this fight. Likewise, it is open for debate how many cards the BCI has left to play before the law catches up with it..

Gov’t be like: We haven’t made a decision yet... BCI be like: Woot, we totally won this one!
Gov’t be like: We haven’t made a decision yet... BCI be like: Woot, we totally won this one!

Law minister Ravi Shankar Prasad said today that the government had not yet taken a decision on the Law Commission proposals to overhaul the regulation of the legal profession, which included the banning of lawyer strikes and induction of non-elected, non-lawyer members into bar councils.

Prasad also said that the Law Commission was a body independent of the government, apparently on a day of protests that included the burning of copies of the “anti-people” and “anti-lawyer” Law Commission recommendations, according to BCI chairman Manan Kumar Mishra.

In the video of Prasad shared by Mishra on his Facebook page today, Prasad said (translated from Hindi, emphasis added, full video below):

Today the BCI’s chairman, members, bar association members met me. The LC has made a proposal and bar associations have given their All India Meeting’s resolution against it. I want to clarify one thing that this is a recommendation and in this recommendation the Indian government has no role and there is no inconvenience. Second thing: On this recommendation, any proceedings in the form of a law, only the Indian government has to act on. And at the moment the Indian government has not made any decision to amend the law. Lawyers were concerned that with them the Law Commission very seriously [... recording ends].

Update: 13:03: Other reports, such as the PTI report, have reported similar comments from Prasad: “The government has not taken any decision on these recommendations... I have instructed my ministry to hold effective and meaningful consultations with lawyers’ bodies to understand their concerns. Till the consultations are complete, no action will be taken on the (law panel) report. After the consultations I will apply my mind.”

However, Mishra calling off the strikes in another Facebook post published around the same time was far more celebratory than Prasad’s simple restatement of the Law Commission’s statutory role and the government’s lack of a decision would have suggested.

Mishra instead claimed that the law minister had given a “clear assurance” that “no action would be taken” by the government about the Law Commission proposal.

But that does not really reflect what Prasad unequivocally said in the video that Mishra himself had shared, unless Prasad says something else after the recording of that video ends, or Mishra knows something we don’t due to back-room talks with Prasad.

Mishra wrote on Facebook around the same time that he had shared Prasad’s video:

As I was hoping ,Hon’ble Law Minister has clearly said that no action will be taken by the Govt.on the recommendations of Law Commission. He has also stated it before media. In view of this clear assurance of our Govt. the Bar Council of India has decided to recall all the agitational programs to protest the Bill n report of law commission .

I’m thankful to all the lawyer friends, all the Bar Councils n all the Bar Associations of the country for showing their solidarity ,unity n strength. I’m especially grateful to my friends of Co ordination Committee of Bar Associations of Delhi who have come forward for our cause very openly n boldly.

The role of Adhivakta Parishad n B.J.P. Legal cell is also unforgettable. Entire Bar is thankful to all those who actively participated in this agitation.

Congratulations to the legal fraternity.

Again thanks to all.

We’ll keep an eye on what other statements of Prasad’s surface in the media, who were clearly watching his statements.

But prima facie, in light of the government’s stated ambition to bring foreign law firms into India and several successive governments’ plans to reform the BCI’s regulation of the profession and legal regulation (with a CBI court having convicted three BCI officials of corruption last year), who knows which way the wind will blow in the coming months.

However, if Prasad got the BCI and striking lawyers to back down today with a statement that apparently promised literally nothing, and has left the door wide open for the government to implement whatever reforms it wants to in future, then Prasad has played his hand exceedingly well at taking the wind out of the BCI’s sails.

After all, there is probably an upper limit to the number of times the BCI will be able to call strikes over the same issue, without exhausting the patience of the profession, judiciary and the government. Or is there?

Strikes are clearly contempt of court, but that’s not been stopping anyone

The Supreme Court has basically all but banned lawyer strikes in 2002 in its judgment, essentially placing the BCI chairman and all those associations and lawyers following calls for strike at the theoretical risk of contempt of court.

The Supreme Court said in the Harish Uppal case:

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 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 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 Advocate 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.

In short, the Law Commission proposals to ban strikes, which the BCI has been objecting to so strongly (despite having initially asked the Commission for a similar crack-down on strikes), simply codified what should be the currently existing law on strikes as decided by the Supreme Court.

However, despite strikes legally being controversial, to put it mildly, they haven’t at all been a last resort in the past 5 years: as we reported today, shockingly some courts have seen more days of strikes per year than they have had working days.

So, lawyers really need to ask themselves: in the absence of any contrary judgments, what are the endemic lawyer strikes, if not contempt of a binding judgment of the highest court of the land?

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