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Breaking: BCI’s anti-HRD strike by lawyers illegal, says writ

Wall Street is passé; #Occupy High Court is in
Wall Street is passé; #Occupy High Court is in
Exclusive: Right to Information (RTI) activist and advocate Anoop Prakash Awasthi filed a writ petition before the Delhi high court today, challenging the two-day nationwide lawyers’ strike called by the Bar Council of India (BCI) for 11 and 12 July 2012 to oppose the Higher Education and Research Bill 2011.

The BCI and the state bar councils have been made defendants in the petition [download petition here].

Awasthi, who is a national core member of the Liberal Youth Forum of India (LYF), said that the strike is illegal because it has been called “without taking the chief justice of any high court or a district court judge into confidence”, and it has been called for more than a day.

He told Legally India that according to the position settled by the Supreme Court (SC) in 1988 in Ex. Capt Harish Uppal vs. Union of India & Anr, lawyers do not have a right to strike or give a call for boycott - “not even a token strike”.

Under that case, lawyers’ strikes are permissible for a maximum of one day “only in rarest of rare cases where the dignity, integrity and independence of the bar or bench are at stake”, and the question whether such occasion has arisen must be decided by the court.

He added that the position settled by the SC in 1988 also provided that if a lawful alternative to the strike is available to advocates, they must exercise that alternative instead of resorting to striking which interferes with the administration of justice.

Awasthi’s petition annexed letters and emails exchanged between various BCI leaders and the Ministry of Human Resource Development (HRD), since 1 February 2012, indicating that the HRD ministry was open to negotiations on the issue with the BCI.

According to Awasthi, in letters addressed by HRD minister Kapil Sibal to BCI chairman Manan Kumar Mishra on 5 and 6 July 2012, Sibal clarified that the HRD ministry did not intend to usurp the powers of the BCI, and invited the ministry for further negotiations.

Copies of other letters annexed include an email reply from 27 March 2012 by the HRD ministry to a 1 February email by the BCI and correspondence between Sibal, Mishra, attorney general of India GE Vahanvati, Ranchi BCI member Nilesh Kumar, Tamil Nadu BCI member S Prabhakaran, and Andhra Pradesh BCI member N Ramachander Rao.

Awasthi found it “beyond anybody’s understanding” that a statutory body such as the BCI, which is an “instrumentality of the state under Article 12 of the [Indian] constitution” called for a strike against the state itself.

“I was not willing to file this petition initially. I was waiting for a senior to file. But when I saw that the Delhi bar council came up with a full page advertisement that if their demands are not satisfied they will go on a strike… When I saw this I had to file,” said Awasthi.

“I could not bear with the illegality. Someone should also represent responsible advocates who want to participate in the administration of justice.”

Awasthi said that because of the delay in taking the final decision to file the petition, he mentioned it in court only in the afternoon session. The division bench of justices Sanjay Kishan Kaul and Vipin Sangi, observing the difficulty in taking up fresh petitions in the Delhi high court in the afternoon session, ordered that it should be mentioned in the morning.

A copy of the petition was served on PP Singh, standing counsel for the BCI in the Delhi high court.

Mishra was not reachable for comment by telephone at the time of going to press.

The BCI said that it would start a heavy lobbying and agitation campaign against the bill, which it called unconstitutional, reported Legally India in May.

Download the writ petition (excluding annexures)

Photo by Heart of Oak

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