DISTRICT BAR ASSOCIATION, DEHRADUN THROUGHITS SECRETARY versus ISHWAR SHANDILYA & ORS. on 28 February 2020

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 25.09.2019 passed by the High Court of Uttarakhand atNainital in Writ Petition (PIL) No. 31 of 2016, the District Bar Association, H

ADehradun, through its Secretary, has preferred the present SLP. That bythe impugned judgment and order, the High Court in the writ petition(PIL) filed by the private respondent herein has issued the followingdirections:

“The District Bar Associations of Dehradun, Haridwar andBUdham Singh Nagar shall, forthwith, withdraw their call for astrike, and start attending Courts on all working Saturdays. All theDistrict Bar Associations in the State shall forthwith refrain fromabstaining from Courts because of condolence references forfamily members of Advocates, or for other reasons. In case theydo not start attending Courts, as directed hereinabove, the DistrictCJudges concerned shall submit their respective reports to the HighCourt for it to consider whether action should be initiated againstthe errant Advocates under the Contempt of Courts Act.

The Bar Council of India shall at the earliest, and in anyevent within three months from today, take action against theDrecalcitrant Bar Associations pursuant to its show-cause noticedated 12.07.2019, and ensure that these Bar Associations desistfrom continuing such strikes/boycott of Courts.

The Uttarakhand State Bar Council shall, within a periodof four weeks from today, initiate disciplinary action against theEoffice bearers of the aforesaid District Bar Associations for theirhaving given a call for illegal strikes/boycott of Courts on Saturdaysin the judgeship of Dehradun, Haridwar and Udham Singh Nagar.

The District Judges of these districts shall ensure that Courtsfunction on Saturdays, and sufficient cases are listed and areFdisposed of by Courts, under their judgeship, on all workingSaturdays.

The Commissioner of Police/Senior Superintendent of Police,of the concerned districts, shall, as and when requested by theDistrict Judge or a Judicial Officer, regarding the possibility ofGCourt proceedings being impeded because of strike/boycott ofCourts by Advocates, forthwith provide necessary police protectionto ensure smooth functioning of Courts, and thereby prevent anyimpediment to Court proceedings because of strikes/boycott byBar Associations/Advocates.

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The High Court is requested to consider taking appropriatemeasures to ensure functioning of Courts on Saturdays, that judicialwork is not hampered by such illegal strikes/boycott of Courtsand wholly unjustified condolence references, and that the Circularissued by it earlier on 12.03.2019 is implemented.”

2. From the impugned judgment and order passed by the HighCourt, it appears that the Advocates in the entire District of Dehradun,in several districts of Haridwar and Udham Singh Nagar district in theState of Uttarakhand have been boycotting the Courts on all Saturdaysfor the past more than 35 years. As the strikes are seriously obstructingthe access to justice to the needy litigants, respondent No. 1 was compelledto approach the High Court by way of Writ Petition (PIL). Having notedfrom the information sent by the High Court to the Law Commissionthat with respect to the State of Uttarakhand for the years 2012-2016showed that in Dehradun district, the Advocates were on strike for 455days (on an average 91 days per year) and in Haridwar district it is 515days (about 103 days per year), the High Court was of the opinion thaton all such working days on account of strikes and the conduct of theAdvocates in boycotting Courts, it has affected the functioning of theCourts and it contributes to the ever-mounting pendency of the cases,and therefore aforesaid directions have been issued by the High Court.

3. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, the District Bar Association,Dehradun has preferred the present SLP.

4. Shri Mahabir Singh, learned Senior Advocate appearing onbehalf of the petitioner has vehemently submitted that the High Courthas not properly appreciated and considered the fact that the right to goon strike/boycott courts is a fundamental right to Freedom of Speechand Expression guaranteed under Article 19(1)(a) of the Constitution ofIndia.

4.1 It is vehemently submitted by the learned Senior Advocateappearing on behalf of the petitioner that the strike is a mode of peacefulrepresentation to express the grievances by the lawyers’ community inabsence of no other forum is available.

4.2 It is further submitted by the learned Senior Advocate appearingon behalf of the petitioner that the High Court ought to have held that theprotection conferred by Section 48 of the Advocates Act is for any act A

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Adone in good faith and therefore the directions issued by the High Courtto take action against the Advocates on strike would be contrary to theprotection conferred by Section 48 of the Advocates Act.

5. The learned Senior Advocate appearing on behalf of thepetitioner has stated at the Bar that, as such, the Bar Association hasBalready withdrawn the strike and/or boycotting Courts on all Saturdays,his statement is taken on record.

6. Having heard the learned Senior Advocate appearing on behalfof the petitioner and considering the impugned judgment and order passedby the High Court, more particularly, the directions issued by the HighCCourt, which are reproduced hereinabove, we are of the firm opinionthat the High Court is absolutely justified in issuing such directions. Assuch, the directions issued by the High Court are absolutely in consonancewith the decisions of this Court in the cases of Ex-Capt. Harish Uppalv. Union of India (2003) 2 SCC 45; Common Cause, A RegisteredSociety v. Union of India (2006) 9 SCC 295 and KrishnakantDTamrakar v. State of M.P. (2018) 17 SCC 27.

6.1 In the case of Ex-Capt. Harish Uppal (supra), this Courthas specifically observed and held that the lawyers have no right to goon strike or even token strike or to give a call for strike. It is also furtherobserved that nor can they while holding Vakalat on behalf of clients,Eabstain from appearing in courts in pursuance of a call for strike orboycott. It is further observed by this Court that it is unprofessional aswell as unbecoming for a lawyer to refuse to attend the court even inpursuance of a call for strike or boycott by the Bar Association or theBar Council. It is further observed that an Advocate is an officer of theFcourt and enjoys a special status in the society; Advocates have obligationsand duties to ensure the smooth functioning of the court; they owe aduty to their clients and strikes interfere with the administration of justice.They cannot thus disrupt court proceedings and put interest of their clientsin jeopardy.

G6.2 While considering the role of the Bar Councils, it is observedin paragraphs 25 and 26 of the aforesaid decision as under:

“25. In the case of Supreme Court Bar Assn. v. Union ofIndia [(1998) 4 SCC 409] it has been held that professionalmisconduct may also amount to contempt of court (para 21). Ithas further been held as follows: (SCC pp. 444-46, paras 79-80)H

“79. An advocate who is found guilty of contempt of courtmay also, as already noticed, be guilty of professional misconductin a given case but it is for the Bar Council of the State or BarCouncil of India to punish that advocate by either debarring himfrom practice or suspending his licence, as may be warranted, inthe facts and circumstances of each case. The learned Solicitor-General informed us that there have been cases where the BarCouncil of India taking note of the contumacious and objectionableconduct of an advocate, had initiated disciplinary proceedingsagainst him and even punished him for ‘professional misconduct’,on the basis of his having been found guilty of committing contemptof court. We do not entertain any doubt that the Bar Council ofthe State or Bar Council of India, as the case may be, whenapprised of the established contumacious conduct of an advocateby the High Court or by this Court, would rise to the occasion, andtake appropriate action against such an advocate. Under Article144 of the Constitution ‘all authorities, civil and judicial, in theterritory of India shall act in aid of the Supreme Court’. The BarCouncil which performs a public duty and is charged with theobligation to protect the dignity of the profession and maintainprofessional standards and etiquette is also obliged to act ‘in aidof the Supreme Court’. It must, whenever facts warrant, rise tothe occasion and discharge its duties uninfluenced by the positionof the contemner advocate. It must act in accordance with theprescribed procedure, whenever its attention is drawn by this Courtto the contumacious and unbecoming conduct of an advocatewhich has the tendency to interfere with due administration ofjustice. It is possible for the High Courts also to draw the attentionof the Bar Council of the State to a case of professional misconductof a contemner advocate to enable the State Bar Council to proceedin the manner prescribed by the Act and the Rules framedthereunder. There is no justification to assume that the BarCouncils would not rise to the occasion, as they are equallyresponsible to uphold the dignity of the courts and the majesty oflaw and prevent any interference in the administration of justice.Learned counsel for the parties present before us do not disputeand rightly so that whenever a court of record records its findingsabout the conduct of an advocate while finding him guilty ofcommitting contempt of court and desires or refers the matter to AB

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Abe considered by the Bar Council concerned, appropriate actionshould be initiated by the Bar Council concerned in accordancewith law with a view to maintain the dignity of the courts and touphold the majesty of law and professional standards and etiquette.Nothing is more destructive of public confidence in theadministration of justice than incivility, rudeness or disrespectfulBconduct on the part of a counsel towards the court or disregardby the court of the privileges of the Bar. In case the Bar Council,even after receiving ‘reference’ from the Court, fails to take actionagainst the advocate concerned, this Court might consider invokingits powers under Section 38 of the Act by sending for the recordCof the proceedings from the Bar Council and passing appropriateorders. Of course, the appellate powers under Section 38 wouldbe available to this Court only and not to the High Courts. We,however, hope that such a situation would not arise.

80. In a given case it may be possible, for this Court or theDHigh Court, to prevent the contemner advocate to appear beforeit till he purges himself of the contempt but that is much differentfrom suspending or revoking his licence or debarring him to practiseas an advocate. In a case of contemptuous, contumacious,unbecoming or blameworthy conduct of an Advocate-on-Record,this Court possesses jurisdiction, under the Supreme Court RulesEitself, to withdraw his privilege to practise as an Advocate-on-Record because that privilege is conferred by this Court and thepower to grant the privilege includes the power to revoke orsuspend it. The withdrawal of that privilege, however, does notamount to suspending or revoking his licence to practise as anFadvocate in other courts or tribunals.”

Thus a Constitution Bench of this Court has held that the BarCouncils are expected to rise to the occasion as they are responsible touphold the dignity of courts and majesty of law and to prevent interferencein administration of justice. In our view it is the duty of the Bar CouncilsGto ensure that there is no unprofessional and/or unbecoming conduct.This being their duty no Bar Council can even consider giving a call forstrike or a call for boycott. It follows that the Bar Councils and even BarAssociations can never consider or take seriously any requisition callingfor a meeting to consider a call for a strike or a call for boycott. Suchrequisitions should be consigned to the place where they belong viz. theH

waste-paper basket. In case any Association calls for a strike or a callfor boycott the State Bar Council concerned and on their failure the BarCouncil of India must immediately take disciplinary action against theadvocates who give a call for strike and if the Committee memberspermit calling of a meeting for such purpose, against the Committeemembers. Further, it is the duty of every advocate to boldly ignore a callfor strike or boycott.

26. It must also be noted that courts are not powerless or helpless.Section 38 of the Advocates Act provides that even in disciplinary mattersthe final appellate authority is the Supreme Court. Thus even if the BarCouncils do not rise to the occasion and perform their duties by takingdisciplinary action on a complaint from a client against an advocate fornon-appearance by reason of a call for strike or boycott, on an appealthe Supreme Court can and will. Apart from this, as set out in RamonServices case [(2001) 1 SCC 118 : 2001 SCC (Cri) 3 : 2001 SCC (L&S)152] every court now should and must mulct advocates who holdvakalats but still refrain from attending courts in pursuance of a strikecall with costs. Such costs would be in addition to the damages whichthe advocate may have to pay for the loss suffered by his client byreason of his non-appearance.”

6.3 In the aforesaid decision, this Court took note of the resolutiondated 29.09.2002 passed by the Bar Council of India, by which it wasresolved, inter alia, to constitute the Grievance Redressel Committeesat the Taluk/Sub-Division or Tehsil levels, at the District level, High Courtand Supreme Court levels. Thereafter, this Court further observed thatmerely holding strikes as illegal would not be sufficient in the present-days situation nor would it serve any purpose. Some concrete joint actionis required to be taken by the Bench and the Bar to see that there are nostrikes any more. That, thereafter, this Court directed that (a) all the BarAssociations in the country shall implement the resolution dated29.09.2002 passed by the Bar Council of India, and (b) under Section 34of the Advocates Act, the High Courts would frame necessary rules sothat appropriate actions can be taken against defaulting advocate/advocates.

6.4 Despite the law laid down by this Court in the aforesaiddecisions and even the concern expressed by this Court against the strikesby the lawyers, things did not improve and again the issue of lawyersgoing on strikes came to be considered in the case of Common Cause, AB

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AA Registered Society (supra) and this Court in paragraph 4 of thatjudgment, held as under:

“4. The Constitution Bench has, in Ex Capt. Harish Uppalcase [(2003) 2 SCC 45] culled out the law in the following terms:(SCC pp. 64 & 71-74, paras 20-21 & 34-36)

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“20. Thus the law is already well settled. It is the duty ofevery advocate who has accepted a brief to attend trial, eventhough it may go on day to day and for a prolonged period. It isalso settled law that a lawyer who has accepted a brief cannotrefuse to attend court because a boycott call is given by the BarAssociation. It is settled law that it is unprofessional as well asunbecoming for a lawyer who has accepted a brief to refuse toattend court even in pursuance of a call for strike or boycott bythe Bar Association or the Bar Council. It is settled law that courtsare under an obligation to hear and decide cases brought beforethem and cannot adjourn matters merely because lawyers are onstrike. The law is that it is the duty and obligation of courts to goon with matters or otherwise it would tantamount to becoming aprivy to the strike. It is also settled law that if a resolution is passedby Bar Associations expressing want of confidence in judicialofficers, it would amount to scandalising the courts to undermineits authority and thereby the advocates will have committedcontempt of court. Lawyers have known, at least since MahabirSingh case [Mahabir Prasad Singh v. Jacks Aviation (P) Ltd.,(1999) 1 SCC 37] that if they participate in a boycott or a strike,their action is ex facie bad in view of the declaration of law bythis Court. A lawyer’s duty is to boldly ignore a call for strike orboycott of court(s). Lawyers have also known, at least sinceRamon Services case [Ramon Services (P) Ltd. v SubhashKapoor, (2001) 1 SCC 118 : 2001 SCC (Cri) 3 : 2001 SCC (L&S)152] , that the advocates would be answerable for theconsequences suffered by their clients if the non-appearance wassolely on grounds of a strike call.

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21. It must also be remembered that an advocate is anofficer of the court and enjoys special status in society. Advocateshave obligations and duties to ensure smooth functioning of thecourt. They owe a duty to their clients. Strikes interfere with administration of justice. They cannot thus disrupt courtproceedings and put interest of their clients in jeopardy.

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34. One last thing which must be mentioned is that theright of appearance in courts is still within the control andjurisdiction of courts. Section 30 of the Advocates Act has notbeen brought into force and rightly so. Control of conduct in courtcan only be within the domain of courts. Thus Article 145 of theConstitution of India gives to the Supreme Court and Section 34of the Advocates Act gives to the High Court power to framerules including rules regarding condition on which a person(including an advocate) can practise in the Supreme Court and/orin the High Court and courts subordinate thereto. Many courtshave framed rules in this behalf. Such a rule would be valid andbinding on all. Let the Bar take note that unless self-restraint isexercised, courts may now have to consider framing specific rulesdebarring advocates guilty of contempt and/or unprofessional orunbecoming conduct, from appearing before the courts. Such arule if framed would not have anything to do with the disciplinaryjurisdiction of the Bar Councils. It would be concerning the dignityand orderly functioning of the courts. The right of the advocate topractise envelops a lot of acts to be performed by him in dischargeof his professional duties. Apart from appearing in the courts hecan be consulted by his clients, he can give his legal opinionwhenever sought for, he can draft instruments, pleadings, affidavitsor any other documents, he can participate in any conferenceinvolving legal discussions, he can work in any office or firm as alegal officer, he can appear for clients before an arbitrator orarbitrators etc. Such a rule would have nothing to do with all theacts done by an advocate during his practice. He may even filevakalat on behalf of a client even though his appearance insidethe court is not permitted. Conduct in court is a matter concerningthe court and hence the Bar Council cannot claim that what shouldhappen inside the court could also be regulated by them in exerciseof their disciplinary powers. The right to practise, no doubt, is thegenus of which the right to appear and conduct cases in the courtmay be a specie. But the right to appear and conduct cases in thecourt is a matter on which the court must and does have major A

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supervisory and controlling power. Hence courts cannot be andare not divested of control or supervision of conduct in court merelybecause it may involve the right of an advocate. A rule can stipulatethat a person who has committed contempt of court or has behavedunprofessionally and in an unbecoming manner will not have theright to continue to appear and plead and conduct cases in courts.The Bar Councils cannot overrule such a regulation concerningthe orderly conduct of court proceedings. On the contrary, it willbe their duty to see that such a rule is strictly abided by. Courts oflaw are structured in such a design as to evoke respect andreverence to the majesty of law and justice. The machinery fordispensation of justice according to law is operated by the court.Proceedings inside the courts are always expected to be held in adignified and orderly manner. The very sight of an advocate, whois guilty of contempt of court or of unbecoming or unprofessionalconduct, standing in the court would erode the dignity of the courtand even corrode its majesty besides impairing the confidence ofthe public in the efficacy of the institution of the courts. The powerto frame such rules should not be confused with the right to practiselaw. While the Bar Council can exercise control over the latter,the courts are in control of the former. This distinction is clearlybrought out by the difference in language in Section 49 of theAdvocates Act on the one hand and Article 145 of the Constitutionof India and Section 34(1) of the Advocates Act on the other.Section 49 merely empowers the Bar Council to frame rules layingdown conditions subject to which an advocate shall have a rightto practise i.e. do all the other acts set out above. However, Article145 of the Constitution of India empowers the Supreme Court tomake rules for regulating this practice and procedure of the courtincluding inter alia rules as to persons practising before this Court.Similarly Section 34 of the Advocates Act empowers High Courtsto frame rules, inter alia to lay down conditions on which anadvocate shall be permitted to practise in courts. Article 145 ofthe Constitution of India and Section 34 of the Advocates Actclearly show that there is no absolute right to an advocate to appearin a court. An advocate appears in a court subject to such conditionsas are laid down by the court. It must be remembered that Section30 has not been brought into force, and this also shows that thereis no absolute right to appear in a court. Even if Section 30 were to be brought into force control of proceedings in court will alwaysremain with the court. Thus even then the right to appear in courtwill be subject to complying with conditions laid down by courtsjust as practice outside courts would be subject to conditions laiddown by Bar Council of India. There is thus no conflict or clashbetween other provisions of the Advocates Act on the one handand Section 34 or Article 145 of the Constitution of India on theother.

35. In conclusion, it is held that lawyers have no right to goon strike or give a call for boycott, not even on a token strike. Theprotest, if any is required, can only be by giving press statements,TV interviews, carrying out of court premises banners and/orplacards, wearing black or white or any colour armbands, peacefulprotect marches outside and away from court premises, going ondharnas or relay fasts, etc. It is held that lawyers holding vakalatson behalf of their clients cannot refuse to attend courts in pursuanceof a call for strike or boycott. All lawyers must boldly refuse toabide by any call for strike or boycott. No lawyer can be visitedwith any adverse consequences by the Association or the Counciland no threat or coercion of any nature including that of expulsioncan be held out. It is held that no Bar Council or Bar Associationcan permit calling of a meeting for purposes of considering a callfor strike or boycott and requisition, if any, for such meeting mustbe ignored. It is held that only in the rarest of rare cases wherethe dignity, integrity and independence of the Bar and/or the Benchare at stake, courts may ignore (turn a blind eye) to a protest,abstention from work for not more than one day. It is being clarifiedthat it will be for the court to decide whether or not the issueinvolves dignity or integrity or independence of the Bar and/or theBench. Therefore in such cases the President of the Bar mustfirst consult the Chief Justice or the District Judge before advocatesdecide to absent themselves from court. The decision of the ChiefJustice or the District Judge would be final and have to be abidedby the Bar. It is held that courts are under no obligation to adjournmatters because lawyers are on strike. On the contrary, it is theduty of all courts to go on with matters on their boards even in theabsence of lawyers. In other words, courts must not be privy tostrikes or calls for boycotts. It is held that if a lawyer, holding avakalat of a client, abstains from attending court due to a strike AB

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call, he shall be personally liable to pay costs which shall be inaddition to damages which he might have to pay his client for losssuffered by him.

36. It is now hoped that with the above clarifications, therewill be no strikes and/or calls for boycott. It is hoped that bettersense will prevail and self-restraint will be exercised. The petitionsstand disposed of accordingly.”

The Court also dealt with the role of Bar Councils on the followingterms: (SCC pp. 66-68, paras 25-26)

“25. In the case of Supreme Court Bar Assn. v. Union ofIndia [(1998) 4 SCC 409 : AIR 1998 SC 1895 : 1998 AIR SCW1706] it has been held that professional misconduct may alsoamount to contempt of court (para 21). It has further been held asfollows: (SCC pp. 444-46, paras 79-80)

‘79. An advocate who is found guilty of contempt of courtmay also, as already noticed, be guilty of professional misconductin a given case but it is for the Bar Council of the State or BarCouncil of India to punish that advocate by either debarring himfrom practice or suspending his licence, as may be warranted, inthe facts and circumstances of each case. The learned SolicitorGeneral informed us that there have been cases where the BarCouncil of India taking note of the contumacious and objectionableconduct of an advocate, had initiated disciplinary proceedingsagainst him and even punished him for “professional misconduct”,on the basis of his having been found guilty of committing contemptof court. We do not entertain any doubt that the Bar Council ofthe State or Bar Council of India, as the case may be, whenapprised of the established contumacious conduct of an advocateby the High Court or by this Court, would rise to the occasion, andtake appropriate action against such an advocate. Under Article144 of the Constitution “all authorities, civil and judicial, in theterritory of India shall act in aid of the Supreme Court”. The BarCouncil which performs a public duty and is charged with theobligation to protect the dignity of the profession and maintainprofessional standards and etiquette is also obliged to act “in aidof the Supreme Court”. It must, whenever facts warrant, rise tothe occasion and discharge its duties uninfluenced by the positionof the contemnor advocate. It must act in accordance with the prescribed procedure, whenever its attention is drawn by this Courtto the contumacious and unbecoming conduct of an advocatewhich has the tendency to interfere with due administration ofjustice. It is possible for the High Courts also to draw the attentionof the Bar Council of the State to a case of professional misconductof a contemnor advocate to enable the State Bar Council to proceedin the manner prescribed by the Act and the rules framedthereunder. There is no justification to assume that the BarCouncils would not rise to the occasion, as they are equallyresponsible to uphold the dignity of the courts and the majesty oflaw and prevent any interference in the administration of justice.Learned counsel for the parties present before us do not disputeand rightly so that whenever a court of record records its findingsabout the conduct of an advocate while finding him guilty ofcommitting contempt of court and desires or refers the matter tobe considered by the Bar Council concerned, appropriate actionshould be initiated by the Bar Council concerned in accordancewith law with a view to maintain the dignity of the courts and touphold the majesty of law and professional standards and etiquette.Nothing is more destructive of public confidence in theadministration of justice than incivility, rudeness or disrespectfulconduct on the part of a counsel towards the court or disregardby the court of the privileges of the Bar. In case the Bar Council,even after receiving “reference” from the Court, fails to takeaction against the advocate concerned, this Court might considerinvoking its powers under Section 38 of the Act by sending for therecord of the proceedings from the Bar Council and passingappropriate orders. Of course, the appellate powers under Section38 would be available to this Court only and not to the High Courts.We, however, hope that such a situation would not arise.

80. In a given case it may be possible, for this Court or theHigh Court, to prevent the contemnor advocate to appear beforeit till he purges himself of the contempt but that is much differentfrom suspending or revoking his licence or debarring him to practiseas an advocate. In a case of contemptuous, contumacious,unbecoming or blameworthy conduct of an Advocate-on-Record,this Court possesses jurisdiction, under the Supreme Court Rulesitself, to withdraw his privilege to practise as an Advocate-on-Record because that privilege is conferred by this Court and the ABC

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314SUPREME COURT REPORTS

Apower to grant the privilege includes the power to revoke orsuspend it. The withdrawal of that privilege, however, does notamount to suspending or revoking his licence to practise as anadvocate in other courts or tribunals.’

Thus a Constitution Bench of this Court has held that the Bar CouncilsBare expected to rise to the occasion as they are responsible to uphold thedignity of courts and majesty of law and to prevent interference inadministration of justice. In our view it is the duty of the Bar Councils toensure that there is no unprofessional and/or unbecoming conduct. Thisbeing their duty no Bar Council can even consider giving a call for strikeor a call for boycott. It follows that the Bar Councils and even BarCAssociations can never consider or take seriously any requisition callingfor a meeting to consider a call for a strike or a call for boycott. Suchrequisitions should be consigned to the place where they belong viz. thewaste-paper basket. In case any Association calls for a strike or a callfor boycott, the State Bar Council concerned and on its failure the BarDCouncil of India must immediately take disciplinary action against theadvocates who give a call for strike and if the committee members permitcalling of a meeting for such purpose, against the committee members.Further, it is the duty of every advocate to boldly ignore a call for strikeor boycott.

E26. It must also be noted that courts are not powerless or helpless.Section 38 of the Advocates Act provides that even in disciplinary mattersthe final Appellate Authority is the Supreme Court. Thus even if the BarCouncils do not rise to the occasion and perform their duties by takingdisciplinary action on a complaint from a client against an advocate fornon-appearance by reason of a call for strike or boycott, on an appealFthe Supreme Court can and will. Apart from this, as set out in RamonServices case [Ramon Services (P) Ltd. v. Subhash Kapoor, (2001) 1SCC 118 : 2001 SCC (Cri) 3 : 2001 SCC (L&S) 152] every court nowshould and must mulct advocates who hold vakalats but still refrainfrom attending courts in pursuance of a strike call, with costs. SuchGcosts would be in addition to the damages which the advocate may haveto pay for the loss suffered by his client by reason of his non-appearance.”

Apart from reiterating the above law, we do not propose to takeany further action. The contempt notices stand discharged.”

6.5 While considering the issue of delay/speedy disposal, in caseof Krishnakant Tamrakar (supra), this Court had the occasion toconsider how uncalled for frequent strikes obstructs the access to justiceand what steps are required to remedy the situation. In the aforesaiddecision, it is observed by this Court that access to speedy justice is apart of the fundamental rights under Articles 14 and 21 of the Constitutionof India. This Court was of the opinion that one of the reasons/rootcause for delay is uncalled for strikes by the lawyers. In the aforesaiddecision, this Court also took note of 266[th] Law Commission Report, inwhich there was a reference to the strikes by the lawyers in the Dehradunand Haridwar districts itself. In the aforesaid decision, this Court alsotook note of the recommendations made by the Law Commission. ThisCourt further observed that since the strikes are in violation of the lawlaid down by this Court, the same amounts to contempt and at least theoffice bearers of the Associations who give call for the strikes cannotdisown their liability for contempt. In paragraphs 41 to 50, this Courtheld as under:

“41. We may also deal with another important aspect ofspeedy justice. It is well known that at some places there arefrequent strikes, seriously obstructing access to justice. Even casesof persons languishing in custody are delayed on that account. Byevery strike, irreversible damage is suffered by the judicial system,particularly consumers of justice. They are denied access tojustice. Taxpayers’ money is lost on account of judicial and publictime being lost. Nobody is accountable for such loss andharassment.

42. Dr Ambedkar in his famous speech on 25-11-1949 hadwarned: (CAD Vol. 11)

“The first thing in my judgment we must do is to hold fast toconstitutional methods of achieving our social and economicobjectives. It means we must abandon the bloody methods ofrevolution. It means that we must abandon the method of civildisobedience, non-cooperation and satyagraha. When there wasno way left for constitutional methods for achieving economicand social objectives, there was a great deal of justification forunconstitutional methods. But where constitutional methods areopen, there can be no justification for these unconstitutionalmethods. These methods are nothing but the Grammar of Anarchyand the sooner they are abandoned, the better for us.”

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43. The above warning of the Constitution-maker needs tobe adhered to at least by the legal fraternity. The Bar has thetradition of placing their professional duty of assisting the accessto justice above every other consideration. How is the situation tobe tackled. Competent authorities may take a final call.

44. In Harish Uppal v. Union of India [Harish Uppal v.Union of India, (2003) 2 SCC 45] , this Court held that lawyershave no right to go on strike or to give a call for boycott of courtsnor can they abstain from the courts. Calls given by BarAssociation or Bar Council for such purpose cannot require thecourt to adjourn the matters. Strike or abstaining from court isunprofessional. Even though more than 15 years have passed afterthe said judgment was rendered, the judgment of this Court isrepeatedly flouted and no remedial measures have been adopted.Regulation of right of appearance in courts is within the jurisdictionof the courts. This Court also asked the Law Commission tosuggest appropriate changes in the regulatory framework for thelegal profession [Mahipal Singh Rana v. State of U.P., (2016) 8SCC 335 : (2016) 4 SCC (Civ) 1 : (2016) 3 SCC (Cri) 476 : (2016)2 SCC (L&S) 390] . The Law Commission has submitted 266thReport [Ed.: On The Advocates Act, 1961 (Regulation of LegalProfession)]. The problem continues seriously affecting the ruleof law.

45. In Mahipal Singh Rana [Mahipal Singh Rana v.State of U.P., (2016) 8 SCC 335 : (2016) 4 SCC (Civ) 1 : (2016)3 SCC (Cri) 476 : (2016) 2 SCC (L&S) 390] , this Court notedthat the High Courts can frame rules to lay down conditions onwhich advocates can be permitted to practise in courts. Anadvocate can be debarred from appearing in court even if thedisciplinary jurisdiction for misconduct is vested with the BarCouncils [Mahipal Singh Rana v State of U.P., (2016) 8 SCC335, paras 20, 30 to 35]. This Court requested the Law Commissionto look into all relevant aspects relating to regulation of legalprofession [Mahipal Singh Rana v. State of U.P., (2016) 8 SCC335, para 58].

46. The Law Commission, accordingly, examined therelevant aspects relating to regulation of the legal profession. TheLaw Commission in its 266th Report found that such conduct of the advocates affects functioning of courts and particularly itcontributes to pendency of cases. It analysed the data on loss ofworking days on account of call of strikes. The analysis is asfollows:

“7.2. In the State of Uttarakhand, the information sentby the High Court for the years 2012-2016 shows that inDehradun District, the advocates were on strike for 455 daysduring 2012-2016 (on an average, 91 days per year). InHaridwar District, 515 days (103 days a year) were wastedon account of strike.

7.3. In the case of the State of Rajasthan, the High Courtof Judicature at Jodhpur saw 142 days of strike during 2012-2016, while the figure stood at 30 for the Jaipur Bench. InAjmer District Courts, strikes remained for 118 days in theyear 2014 alone, while in Jhalawar, 146 days were lost in 2012on account of strike.

7.4. The case of Uttar Pradesh appears to be the worst.The figures of strike for the years 2011-2016 in the subordinatecourts are alarmingly high. In the State of Uttar Pradesh, theDistrict Courts have to work for 265 days in a year. The periodof strike in five years period in worst affected districts hasbeen as Muzaffarnagar (791 days), Faizabad (689 days),Sultanpur (594 days), Varanasi (547 days), Chandauli (529days), Ambedkar Nagar (511 days), Saharanpur (506 days)and Jaunpur (510 days). The average number of days of strikein eight worst affected districts comes to 115 days a year.Thus, it is evident that the courts referred to hereinabove couldwork on an average for 150 days only in a year.

7.5. In this regard, the situation in subordinate courts inTamil Nadu had by no means, been better. The High Court ofTamil Nadu has reported that there are 220 working days in ayear for the courts in the State. 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 peryear); and Sivagangai, 408 days (81.6 days per year), werethe most affected by strike called by advocates.

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7.6. As per the responses received from the High Courtsof Madhya Pradesh and Odisha, the picture does not emergeto be satisfactory.

7.7. The Commission noted that the strike by advocatesor their abstinence from the court were hardly for any justifiablereasons. It could not find any convincing reasons for whichthe advocates resorted to strike or boycott of work in the courts.The reasons for strike call or abstinence from work variedfrom local, national to international issues, having no relevanceto the working of the courts. To mention a few, bomb blast inPakistan school, amendments to Sri Lanka’s Constitution, inter-State 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, oron some religious occasions such as shraadh, Agrasen Jayanti,etc. or even for kavi sammelan.

7.8. The Commission is of the view that unless thereare compelling circumstances and the approval for a symbolicstrike of one day is obtained from the Bar Council concerned,the advocates shall not resort to strike or abstention from thecourt work.”

47. Thereafter, the Law Commission referred toobservations in the judgment of this Court in Harish Uppal case[Harish Uppal v. Union of India, (2003) 2 SCC 45] that thereshould be no strikes by the Bar except in rarest of rare situationswhich should also not exceed one day. The Bar Councils werecalled upon to take appropriate action in the matter. The LawCommission noted that the strikes were continuing and causinggreat obstruction to the access to justice. It was observed: (ReportNo. 266)

“8.3. In spite of all these, the strikes have continuedunabated. The dispensation of justice must not stop for anyreason. The strike by lawyers have lowered the image of thecourts in the eyes of the general public. The Supreme Courthas held that right to speedy justice is included in Article 21 ofthe Constitution. In Hussainara Khatoon (1) v. State of Bihar [Hussainara Khatoon (1) v. State of Bihar, (1980) 1 SCC81 : 1980 SCC (Cri) 23] ; and in some other cases, it was heldthat the litigant has a right to speedy justice. The lawyers’strike, however, result in denial of these rights to the citizens inthe State.

8.4. Recently, the Supreme Court while disposing of thecriminal appeal of Hussain v. Union of India [Hussain v.Union of India, (2017) 5 SCC 702 : (2017) 2 SCC (Cri) 638]deprecated the practice of boycotting the Court observing that:

‘27. One other aspect pointed out is the obstructionof court proceedings by uncalled for strikes/abstaining ofwork by lawyers or frequent suspension of court work aftercondolence references. In view of judgment of this Courtin Harish Uppal v. Union of India [Harish Uppal v.Union of India, (2003) 2 SCC 45] , such suspension ofwork or strikes is clearly illegal and it is high time that thelegal fraternity realises its duty to the society which is theforemost. Condolence references can be once in a whileperiodically say once in two/three months and not frequently.Hardship faced by witnesses if their evidence is notrecorded on the day they are summoned or impact of delayon undertrials in custody on account of such avoidableinterruptions of court proceedings is a matter of concernfor any responsible body of professionals and they musttake appropriate steps. In any case, this needs attention ofall authorities concerned—the Central Government/StateGovernments/Bar Councils/Bar Associations as well as theHigh Courts and ways and means ought to be found out totackle this menace. Consistent with the above judgment,the High Courts must monitor this aspect strictly and takestringent measures as may be required in the interests ofadministration of justice.’

8.5. In Ramon Services (P) Ltd. v. Subhash Kapoor[Ramon Services (P) Ltd. v. Subhash Kapoor, (2001) 1 SCC118 : 2001 SCC (Cri) 3 : 2001 SCC (L&S) 152] , the ApexCourt observed that if any advocate claims that his right tostrike must be without any loss to him, but the loss must onlybe borne by his innocent client, such a claim is repugnant to A

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any principle of fair play and canons of ethics. Therefore, whenhe opts to strike or boycott the Court he must as well beprepared to bear at least the pecuniary loss suffered by thelitigant client who entrusted his brief to that advocate with allconfidence that his cause would be safe in the hands of thatadvocate.”

48. Examining other aspects of the regulation of legalprofession, the Law Commission recommended review ofregulatory mechanism of the Advocates Act as follows: (ReportNo. 266)

“17.1. There is a dire necessity of reviewing theregulatory mechanism of the Advocates Act, not only in mattersof discipline and misconduct of the advocates, but in other areasas well, keeping in view the wide expanse of the legal professionbeing involved in almost all areas of life. The very constitutionof the Bar Councils and their functions also require theintroduction of a few provisions in order to consolidate thefunction of the Bar Councils in its internal matters as well.”

49. Since the strikes are in violation of law laid down bythis Court, the same amount to contempt and at least the office-bearers of the associations who give call for the strikes cannotdisown their liability for contempt. Every resolution to go onstrike and abstain from work is per se contempt. Even ifproceedings are not initiated individually against suchcontemnors by the court concerned or by the Bar Councilconcerned for the misconduct, it is necessary to provide forsome mechanism to enforce the law laid down by this Court,pending a legislation to remedy the situation.

50. Accordingly, we consider it necessary, with a viewto enforce fundamental right of speedy access to justice underArticles 14 and 21 and law laid by this Court, to direct theMinistry of Law and Justice to present at least a quarterlyreport on strikes/abstaining from work, loss caused and actionproposed. The matter can thereafter be considered in itscontempt or inherent jurisdiction of this Court. The Court may,having regard to the fact situation, hold that the office-bearersof the Bar Association/Bar Council who passed the resolution for strike or abstaining from work, are liable to be restrainedfrom appearing before any court for a specified period or untilsuch time as they purge themselves of contempt to thesatisfaction of the Chief Justice of the High Court concernedbased on an appropriate undertaking/conditions. They may alsobe liable to be removed from the position of office-bearers ofthe Bar Association forthwith until the Chief Justice of theHigh Court concerned so permits on an appropriate undertakingbeing filed by them. This may be in addition to any other actionthat may be taken for the said illegal acts of obstructing accessto justice. The matter may also be considered by this Court onreceipt of a report from the High Courts in this regard. Thisdoes not debar report/petition from any other source evenbefore the end of a quarter, if situation so warrants.”

6.6 In spite of the law laid down by this Court in the aforesaiddecisions, this Court time and again deprecated the lawyers to go onstrikes, the strikes were continued unabated. Even in the present case,the advocates have been boycotting the courts on all Saturdays, in theentire district of Dehradun, in several parts of the district of Haridwarand Udham Singh Nagar district of the State of Uttaranchal. Becauseof such strikes, the ultimate sufferers are the litigants. From the datamentioned in the impugned judgment and order, things are very shocking.Every month on 3-4 Saturdays, the Advocates are on strike and abstainfrom working, on one pretext or the other. If the lawyers would haveworked on those days, it would have been in the larger interest and itwould have achieved the ultimate goal of speedy justice, which is nowrecognized as a fundamental right under Articles 14 and 21 of theConstitution. It would have helped in early disposal of the criminal trialsand therefore it would have been in the interest of those who arelanguishing in the jail and waiting for their trial to conclude. When theInstitution is facing a serious problem of arrears and delay in disposal ofcases, how the Institution as a whole can afford such four days strike ina month.

6.7 Now, so far as the submission on behalf of the petitioner thatto go on strike/boycott courts is a fundamental right of Freedom of Speechand Expression under Article 19(1)(a) of the Constitution and it is amode of peaceful representation to express the grievances by thelawyers’ community is concerned, such a right to freedom of speech AB

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Acannot be exercised at the cost of the litigants and/or at the cost of theJustice Delivery System as a whole. To go on strike/boycott courts cannotbe justified under the guise of the right to freedom of speech andexpression under Article 19(1)(a) of the Constitution. Nobody has theright to go on strike/boycott courts. Even, such a right, if any, cannotaffect the rights of others and more particularly, the right of SpeedyBJustice guaranteed under Articles 14 and 21 of the Constitution. In anycase, all the aforesaid submissions are already considered by this Courtearlier and more particularly in the decisions referred to hereinabove.Therefore, boycotting courts on every Saturday in the entire District ofDehradun, in several districts of Haridwar and Udham Singh NagarCdistrict in the State of Uttarakhand is not justifiable at all and as such ittantamounts to contempt of the courts, as observed by this Court in theaforesaid decisions. Therefore, the High Court is absolutely justified inissuing the impugned directions. We are in complete agreement with theview expressed by the High Court and the ultimate conclusion and the directions issued by the High Court. Therefore, the present Special LeaveDPetition deserves to be dismissed and is accordingly dismissed. We furtherdirect all concerned and the concerned District Bar Associations tocomply with the directions issued by the High Court impugned in thepresent SLP in its true spirit. It is directed that if it is found that there isany breach of any of the directions issued by the High Court in theEimpugned judgment and order, a serious view shall be taken and theconsequences shall follow, including the punishment under the Contemptof Courts Act.

7. As observed hereinabove, in spite of the decisions of this Courtin the cases of Ex-Capt Harish Uppal (supra), Common Cause, A

FRegistered Society (supra) and Krishnakant Namrakar (supra) anddespite the warnings by the courts time and again, still, in some of thecourts, the lawyers go on strikes/are on strikes. It appears that despitethe strong words used by this Court in the aforesaid decisions, criticizingthe conduct on the part of the lawyers to go on strikes, it appears that

the message has not reached. Even despite the resolution of the BarGCouncil of India dated 29.09.2002, thereafter, no further concrete stepsare taken even by the Bar Council of India and/or other Bar Councils ofthe States. A day has now come for the Bar Council of India and theBar Councils of the States to step in and to take concrete steps. It is theduty of the Bar Councils to ensure that there is no unprofessional andHunbecoming conduct by any lawyer. As observed by this Court in the case of Ex-Capt. Harish Uppal (supra), the Bar Council of India isAenjoined with a duty of laying down the standards of professional conductand etiquette for Advocates. It is further observed that this would meanthat the Bar Council of India ensures that advocates do not behave in anunprofessional and unbecoming manner. Section 48 of the AdvocatesAct gives a right to the Bar Council of India to give directions to theBState Bar Councils. It is further observed that the Bar Associations maybe separate bodies but all advocates who are members of suchassociations are under disciplinary jurisdiction of the Bar Councils andthus the Bar Councils can always control their conduct. Therefore, takinga serious note of the fact that despite the aforesaid decisions of thisCourt, still the lawyers/Bar Associations go on strikes, we take suo motoCcognizance and issue notices to the Bar Council of India and all theState Bar Councils to suggest the further course of action and to giveconcrete suggestions to deal with the problem of strikes/abstaining thework by the lawyers. The Notices may be made returnable within sixweeks from today. The Registry is directed to issue the notices to theDBar Council of India and all the State Bar Councils accordingly.

Ankit Gyan

SLP dismissed.

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