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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO. 5440  OF 2020 [@ DIARY NO. 1476 OF 2020]

District Bar Association, Dehradun through its Secretary .. Petitioner

Versus

Ishwar Shandilya & Ors. .. Respondents

J U D G M E N T

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order

dated 25.09.2019 passed by the High Court  of  Uttarakhand at  Nainital  in Writ

Petition (PIL) No. 31 of 2016, the District Bar Association, Dehrarun, through its

Secretary,  has preferred the present  SLP.  That  by the impugned judgment and

order, the High Court in the writ  petition (PIL) filed by the private respondent

herein has issued the following directions:

“The  District  Bar  Associations  of  Dehradun,  Haridwar  and

Udham Singh Nagar shall, forthwith, withdraw their call for a strike,

and start attending Courts on all working Saturdays.   All the District

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Bar Associations in the State shall forthwith refrain from abstaining

from Courts because of condolence references for family members of

Advocates, or for other reasons. In case they do not start attending

Courts, as directed hereinabove, the District Judges concerned shall

submit  their  respective reports to the High Court  for it  to consider

whether action should be initiated against the errant Advocates under

the Contempt of Courts Act.

The Bar Council of India shall at the earliest, and in any event

within three months from today, take action against the recalcitrant

Bar Associations pursuant to its show-cause notice dated 12.07.2019,

and ensure that these Bar Associations desist  from continuing such

strikes/boycott of Courts.

The Uttarakhand State  Bar  Council  shall,  within a  period of

four weeks from today, initiate disciplinary action against the office

bearers  of  the  aforesaid  District  Bar  Associations  for  their  having

given a call for illegal strikes/boycott of Courts on Saturdays in the

judgeship of Dehradun, Haridwar and Udham Singh Nagar.

The District Judges of these districts shall ensure that Courts

function on Saturdays, and sufficient cases are listed and are disposed

of by Courts, under their judgeship, on all working Saturdays.

The Commissioner of Police/Senior Superintendent of Police,

of the concerned districts, shall, as and when requested by the District

Judge  or  a  Judicial  Officer,  regarding  the  possibility  of  Court

proceedings  being impeded  because  of  strike/boycott  of  Courts  by

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Advocates,  forthwith  provide  necessary  police  protection  to  ensure

smooth functioning of Courts, and thereby prevent any impediment to

Court  proceedings  because  of  strikes/boycott  by  Bar

Associations/Advocates.

The  High  Court  is  requested  to  consider  taking  appropriate

measures to ensure functioning of Courts on Saturdays, that judicial

work is not hampered by such illegal strikes/boycott of Courts and

wholly unjustified condolence references, and that the Circular issued

by it earlier on 12.03.2019 is implemented.”

2. From the impugned judgment and order passed by the High Court, it appears

that  the  Advocates  in  the  entire  District  of  Dehradun,  in  several  districts  of

Haridwar and Udham Singh Nagar district in the State of Uttarakhand have been

boycotting the Courts on all Saturdays for the past more than 35 years.  As the

strikes  are  seriously  obstructing  the  access  to  justice  to  the  needy  litigants,

respondent  No.  1  was  compelled  to  approach  the  High Court  by  way of  Writ

Petition (PIL).  Having noted from the information sent by the High Court to the

Law Commission that with respect to the State of Uttarakhand for the years 2012-

2016 showed that in Dehradun district, the Advocates were on strike for 455 days

(on an average 91 days per year) and in Haridwar district it is 515 days (about 103

days per year), the High Court was of the opinion that on all such working days on

account of strikes and the conduct of the Advocates in boycotting Courts, it has

affected  the  functioning  of  the  Courts  and  it  contributes  to  the  ever-mounting

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pendency of the cases, and therefore aforesaid directions have been issued by the

High Court.

3. Feeling aggrieved and dissatisfied with the impugned judgment and order

passed by the High Court, the District Bar Association, Dehradun has preferred the

present SLP.

4. Shri  Mahabir  Singh, learned Senior Advocate appearing on behalf  of  the

petitioner  has  vehemently  submitted  that  the  High  Court  has  not  properly

appreciated and considered the fact that the right to go on strike/boycott courts is a

fundamental right to Freedom of Speech and Expression guaranteed under Article

19(1)(a) of the Constitution of India.

4.1 It  is  vehemently submitted by the learned Senior Advocate  appearing on

behalf  of  the  petitioner  that  the  strike  is  a  mode of  peaceful  representation  to

express the grievances by the lawyers’ community in absence of no other forum is

available.

4.2 It is further submitted by the learned Senior Advocate appearing on behalf of

the petitioner that the High Court ought to have held that the protection conferred

by Section 48 of the Advocates Act is for any act done in good faith and therefore

the directions issued by the High Court to take action against the Advocates on

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strike would be contrary to the protection conferred by Section 48 of the Advocates

Act.

5. The learned Senior Advocate appearing on behalf of the petitioner has stated

at  the  Bar  that,  as  such,  the  Bar  Association  has  already 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  behalf  of  the

petitioner and considering the impugned judgment and order passed by the High

Court,  more  particularly,  the  directions  issued  by  the  High  Court,  which  are

reproduced  hereinabove,  we  are  of  the  firm  opinion  that  the  High  Court  is

absolutely justified in issuing such directions.  As such, the directions issued by the

High Court are absolutely in consonance with the decisions of this Court in the

cases of  Ex-Capt. Harish Uppal v. Union of India  (2003) 2 SCC 45;  Common

Cause,  A  Registered  Society  v.  Union  of  India  (2006)  9  SCC  295  and

Krishnakant Tamrakar v. State of M.P. (2018) 17 SCC 27.

6.1 In the case of  Ex-Capt. Harish Uppal  (supra), this Court has specifically

observed and held that the lawyers have no right to go on strike or even token

strike or to give a call for strike.   It is also further observed that nor can they while

holding Vakalat on behalf of clients, abstain from appearing in courts in pursuance

of  a  call  for  strike  or  boycott.   It  is  further  observed  by  this  Court  that  it  is

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unprofessional as well as unbecoming for a lawyer to refuse to attend the court

even in pursuance of a call for strike or boycott by the Bar Association or the Bar

Council.   It is further observed that an Advocate is an officer of the court and

enjoys a special  status in the society; Advocates have obligations and duties to

ensure the smooth functioning of the court; they owe a duty to their clients and

strikes interfere with the administration of justice.  They cannot thus disrupt court

proceedings and put interest of their clients in jeopardy.  

6.2 While considering the role of the Bar Councils, it is observed in paragraphs

25 and 26 of the aforesaid decision as under:

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

“79.  An  advocate  who is  found guilty  of  contempt  of court  may also,  as  already noticed,  be  guilty  of  professional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that advocate by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of each case. The learned  Solicitor-General  informed  us  that  there  have  been cases  where  the  Bar  Council  of  India  taking  note  of  the contumacious and objectionable  conduct  of  an advocate,  had initiated  disciplinary  proceedings  against  him  and  even punished him for ‘professional misconduct’, on the basis of his having been found guilty of committing contempt of court. We do not entertain any doubt that the Bar Council of the State or Bar Council of India, as the case may be, when apprised of the established contumacious conduct of an advocate by the High

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Court  or  by this Court,  would rise to the occasion,  and take appropriate action against such an advocate. Under Article 144 of  the  Constitution  ‘all  authorities,  civil  and  judicial,  in  the territory of India shall act in aid of the Supreme Court’. The Bar Council which performs a public duty and is charged with the obligation to protect the dignity of the profession and maintain professional standards and etiquette is also obliged to act ‘in aid of the Supreme Court’. It must, whenever facts warrant, rise to the  occasion  and  discharge  its  duties  uninfluenced  by  the position of the contemner advocate. It must act in accordance with the prescribed procedure, whenever its attention is drawn by this Court to the contumacious and unbecoming conduct of an  advocate  which  has  the  tendency  to  interfere  with  due administration of justice. It is possible for the High Courts also to draw the attention of the Bar Council of the State to a case of professional misconduct of a contemner advocate to enable the State Bar Council to proceed in the manner prescribed by the Act and the Rules framed thereunder. There is no justification to assume that the Bar Councils would not rise to the occasion, as  they  are  equally  responsible  to  uphold  the  dignity  of  the courts and the majesty of law and prevent any interference in the administration of  justice.  Learned counsel  for  the  parties present before us do not dispute and rightly so that whenever a court  of  record  records  its  findings  about  the  conduct  of  an advocate while finding him guilty of committing contempt of court and desires or refers the matter to be considered by the Bar Council concerned, appropriate action should be initiated by the Bar Council concerned in accordance with law with a view to maintain the dignity of the courts and to uphold the majesty  of  law  and  professional  standards  and  etiquette. Nothing  is  more  destructive  of  public  confidence  in  the administration  of  justice  than  incivility,  rudeness  or disrespectful conduct on the part of a counsel towards the court or disregard by the court of the privileges of the Bar. In case the Bar Council,  even after receiving ‘reference’ from the Court, fails to take action against the advocate concerned, this Court might consider invoking its powers under Section 38 of the Act by  sending  for  the  record  of  the  proceedings  from  the  Bar Council and passing appropriate orders. Of course, the appellate

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powers under Section 38 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 the High Court,  to prevent the contemner advocate to appear before it till he purges himself of the contempt but that is much different from suspending or revoking his licence or debarring him  to  practise  as  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  Rules  itself,  to  withdraw his  privilege  to practise  as  an  Advocate-on-Record  because  that  privilege  is conferred by this  Court  and the power to grant  the privilege includes the power to revoke or suspend it. The withdrawal of that  privilege,  however,  does  not  amount  to  suspending  or revoking his licence to practise as an advocate in other courts or tribunals.”

Thus a Constitution Bench of this Court has held that the Bar Councils are expected to rise to the occasion as they are responsible to uphold the dignity of courts and majesty of law and to prevent interference in administration of justice. In our view it is the duty of the Bar Councils to ensure that there is no unprofessional and/or unbecoming conduct. This being their duty no Bar Council can even consider giving a call for strike or a call for boycott. It follows that the Bar Councils and even  Bar  Associations  can  never  consider  or  take  seriously  any requisition calling for a meeting to consider a call for a strike or a call for boycott. Such requisitions should be consigned to the place where they belong viz. the waste-paper basket. In case any Association calls for a strike or a call for boycott the State Bar Council concerned and on  their  failure  the  Bar  Council  of  India  must  immediately  take disciplinary action against the advocates who give a call for strike and if  the  Committee  members  permit  calling  of  a  meeting  for  such purpose,  against the Committee members.  Further,  it  is  the duty of every advocate to boldly ignore a call for 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 matters the final appellate authority is the Supreme Court.

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Thus even if the Bar Councils do not rise to the occasion and perform their duties by taking disciplinary action on a complaint from a client against an advocate for non-appearance by reason of a call for strike or boycott, on an appeal the Supreme Court can and will. Apart from this, as set out in Ramon Services case [(2001) 1 SCC 118 : 2001 SCC (Cri)  3 :  2001 SCC (L&S) 152] every court now should and must mulct  advocates  who hold  vakalats  but  still  refrain  from attending courts in pursuance of a strike call with costs. Such costs would be in addition to the damages which the advocate may have to pay for the loss suffered by his client by reason of his non-appearance.”

6.3 In  the  aforesaid  decision,  this  Court  took  note  of  the  resolution  dated

29.09.2002 passed by the Bar Council of India, by which it was resolved,  inter

alia, to constitute the Grievance Redressel Committees at the Taluk/Sub-Division

or  Tehsil  levels,  at  the  District  level,  High  Court  and  Supreme  Court  levels.

Thereafter, this Court further observed that merely holding strikes as illegal would

not  be  sufficient  in  the  present-days  situation  nor  would  it  serve  any purpose.

Some concrete joint action is required to be taken by the Bench and the Bar to see

that there are no strikes any more.   That, thereafter, this Court directed that (a) all

the  Bar  Associations  in  the  country  shall  implement  the  resolution  dated

29.09.2002 passed by the Bar Council of India, and (b) under Section 34 of the

Advocates Act, the High Courts would frame necessary rules so that appropriate

actions can be taken against defaulting advocate/advocates.   

6.4 Despite the law laid down by this Court in the aforesaid decisions and even

the concern expressed by this Court against the strikes by the lawyers, things did

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not improve and again the issue of lawyers going on strikes came to be considered

in the case of  Common Cause,  A Registered Society (supra)  and this Court  in

paragraph 4 of that judgment, held as under:

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

“20. Thus the law is already well settled. It is the duty of every advocate who has accepted a brief to attend trial, even though it may go on day to day and for a prolonged period. It is also settled law that a lawyer who has accepted a brief cannot refuse to attend court because a boycott call is given by the Bar Association. It is settled law that it is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council.  It  is settled law that courts are under an obligation to hear and decide cases brought before  them  and  cannot  adjourn  matters  merely  because lawyers  are  on  strike.  The  law  is  that  it  is  the  duty  and obligation of courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike. It is also settled law that if a resolution is passed by Bar Associations expressing want  of  confidence  in  judicial  officers,  it  would  amount  to scandalising the courts to undermine its authority and thereby the advocates will have committed contempt of court. Lawyers have  known,  at  least  since  Mahabir  Singh  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 by this Court. A lawyer's duty is to boldly ignore a call for strike or boycott of court(s). Lawyers have also known, at least since  Ramon Services case [Ramon Services (P) Ltd. v Subhash Kapoor, (2001) 1 SCC 118 : 2001 SCC (Cri) 3 : 2001 SCC (L&S) 152] , that the advocates would  be  answerable  for  the  consequences  suffered  by their clients if the non-appearance was solely on grounds of a strike call.

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

*** 34. One last thing which must be mentioned is that the

right  of  appearance  in  courts  is  still  within  the  control  and jurisdiction of courts. Section 30 of the Advocates Act has not been brought into force and rightly so. Control of conduct in court can only be within the domain of courts. Thus Article 145 of the Constitution of  India gives to  the Supreme Court  and Section 34 of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person  (including  an  advocate)  can  practise  in  the  Supreme Court and/or in the High Court and courts subordinate thereto. Many courts have framed rules in this behalf. Such a rule would be valid and binding on all. Let the Bar take note that unless self-restraint  is  exercised,  courts  may  now have  to  consider framing specific rules debarring advocates guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before  the  courts.  Such  a  rule  if  framed  would  not  have anything  to  do  with  the  disciplinary  jurisdiction  of  the  Bar Councils.  It  would  be  concerning  the  dignity  and  orderly functioning of the courts. The right of the advocate to practise envelops a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever  sought  for,  he  can  draft  instruments,  pleadings, affidavits  or  any  other  documents,  he  can  participate  in  any conference  involving  legal  discussions,  he  can  work  in  any office or firm as a legal officer, he can appear for clients before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts done by an advocate during his practice. He may even file vakalat on behalf of a client even though his appearance inside the court is not permitted. Conduct in court is

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a matter concerning the court and hence the Bar Council cannot claim that what should happen inside the court could also be regulated by them in exercise of their disciplinary powers. The right to practise, no doubt, is the genus of which the right to appear and conduct cases in the court may be a specie. But the right to appear and conduct cases in the court is a matter on which  the  court  must  and  does  have  major  supervisory  and controlling power. Hence courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an advocate. A rule can stipulate that a person who has committed contempt of court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appear and plead and conduct cases in courts.  The  Bar  Councils  cannot  overrule  such  a  regulation concerning the orderly conduct  of  court  proceedings.  On the contrary, it will be their duty to see that such a rule is strictly abided by. Courts of law are structured in such a design as to evoke respect and reverence to the majesty of law and justice. The machinery for dispensation of justice according to law is operated by the court. Proceedings inside the courts are always expected to be held in a dignified and orderly manner. The very sight of an advocate, who is guilty of contempt of court or of unbecoming or  unprofessional  conduct,  standing in  the court would  erode  the  dignity  of  the  court  and  even  corrode  its majesty besides impairing the confidence of the public in the efficacy of  the institution of  the courts.  The power  to  frame such rules should not be confused with the right to practise law. While the Bar Council can exercise control over the latter, the courts are in control of the former. This distinction is clearly brought out by the difference in language in Section 49 of the Advocates  Act  on  the  one  hand  and  Article  145  of  the Constitution of India and Section 34(1) of the Advocates Act on the  other.  Section  49  merely  empowers  the  Bar  Council  to frame  rules  laying  down  conditions  subject  to  which  an advocate shall have a right to practise i.e. do all the other acts set out above. However, Article 145 of the Constitution of India empowers the Supreme Court to make rules for regulating this practice and procedure of the court including inter alia rules as to persons practising before this Court. Similarly Section 34 of the Advocates Act empowers High Courts to frame rules, inter

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alia  to  lay  down  conditions  on  which  an  advocate  shall  be permitted to practise in courts. Article 145 of the Constitution of India and Section 34 of the Advocates Act clearly show that there is no absolute right to an advocate to appear in a court. An advocate appears in a court subject to such conditions as are laid down by the court. It must be remembered that Section 30 has not been brought into force, and this also shows that there is no absolute right to appear in a court. Even if Section 30 were to be brought into force control  of  proceedings in court  will always  remain  with  the  court.  Thus  even  then  the  right  to appear in court will  be subject  to complying with conditions laid down by courts just  as practice outside courts would be subject to conditions laid down by Bar Council of India. There is  thus  no  conflict  or  clash  between  other  provisions  of  the Advocates Act on the one hand and Section 34 or Article 145 of the Constitution of India on the other.

35. 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 armbands,  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 refuse  to  attend  courts  in  pursuance  of  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

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Bar must first  consult the Chief Justice or the District Judge before advocates 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 in addition to damages which he might have to pay his client for loss suffered by him.

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

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

“25. In the case of Supreme Court Bar Assn. v. Union of India [(1998) 4 SCC 409 : AIR 1998 SC 1895 : 1998 AIR SCW 1706] it has been held that professional misconduct may also amount to contempt of court (para 21). It has further been held as follows: (SCC pp. 444-46, paras 79-80)

‘79.  An  advocate  who is  found  guilty  of  contempt  of court  may also,  as  already noticed,  be  guilty  of  professional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that advocate by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of each case. The learned  Solicitor  General  informed  us  that  there  have  been cases  where  the  Bar  Council  of  India  taking  note  of  the contumacious and objectionable  conduct  of  an advocate,  had initiated  disciplinary  proceedings  against  him  and  even punished him for “professional misconduct”, on the basis of his having been found guilty of committing contempt of court. We

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do not entertain any doubt that the Bar Council of the State or Bar Council of India, as the case may be, when apprised of the established contumacious conduct of an advocate by the High Court  or  by this Court,  would rise to the occasion,  and take appropriate action against such an advocate. Under Article 144 of  the  Constitution  “all  authorities,  civil  and  judicial,  in  the territory of India shall act in aid of the Supreme Court”. The Bar Council which performs a public duty and is charged with the  obligation  to  protect  the  dignity  of  the  profession  and maintain professional standards and etiquette is also obliged to act  “in  aid  of  the  Supreme  Court”.  It  must,  whenever  facts warrant,  rise  to  the  occasion  and  discharge  its  duties uninfluenced by the position of the contemnor advocate. It must act in accordance with the prescribed procedure, whenever its attention  is  drawn  by  this  Court  to  the  contumacious  and unbecoming conduct of an advocate which has the tendency to interfere with due administration of justice. It is possible for the High Courts also to draw the attention of the Bar Council of the State  to  a  case  of  professional  misconduct  of  a  contemnor advocate  to  enable  the  State  Bar  Council  to  proceed  in  the manner prescribed by the Act and the rules framed thereunder. There is no justification to assume that the Bar Councils would not  rise  to  the  occasion,  as  they  are  equally  responsible  to uphold the dignity of  the courts  and the majesty of  law and prevent  any  interference  in  the  administration  of  justice. Learned counsel for the parties present before us do not dispute and  rightly  so  that  whenever  a  court  of  record  records  its findings about the conduct of an advocate while finding him guilty of committing contempt of court and desires or refers the matter  to  be  considered  by  the  Bar  Council  concerned, appropriate  action  should  be  initiated  by  the  Bar  Council concerned in accordance with law with a view to maintain the dignity  of  the  courts  and  to  uphold  the  majesty  of  law and professional  standards  and  etiquette.  Nothing  is  more destructive of public confidence in the administration of justice than incivility, rudeness or disrespectful conduct on the part of a counsel  towards  the  court  or  disregard  by  the  court  of  the privileges  of  the  Bar.  In  case  the  Bar  Council,  even  after receiving “reference” from the Court, fails to take action against the advocate concerned, this Court might consider invoking its

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powers under Section 38 of the Act by sending for the record of the proceedings from the Bar Council and passing appropriate orders. Of course, the appellate powers under Section 38 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 the High Court, to prevent the contemnor advocate to appear before it till he purges himself of the contempt but that is much different from suspending or revoking his licence or debarring him  to  practise  as  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  Rules  itself,  to  withdraw his  privilege  to practise  as  an  Advocate-on-Record  because  that  privilege  is conferred by this  Court  and the power to grant  the privilege includes the power to revoke or suspend it. The withdrawal of that  privilege,  however,  does  not  amount  to  suspending  or revoking his licence to practise as an advocate in other courts or tribunals.’

Thus a Constitution Bench of this Court has held that the Bar Councils are expected to rise to the occasion as they are responsible to uphold the dignity of courts and majesty of law and to prevent interference in administration of justice. In our view it is the duty of the Bar Councils to ensure that there is no unprofessional and/or unbecoming conduct. This being their duty no Bar Council can even consider giving a call for strike or a call for boycott. It follows that the Bar Councils and even  Bar  Associations  can  never  consider  or  take  seriously  any requisition calling for a meeting to consider a call for a strike or a call for boycott. Such requisitions should be consigned to the place where they belong viz. the waste-paper basket. In case any Association calls for a strike or a call for boycott, the State Bar Council concerned and on  its  failure  the  Bar  Council  of  India  must  immediately  take disciplinary action against the advocates who give a call for strike and if  the  committee  members  permit  calling  of  a  meeting  for  such purpose,  against  the committee members.  Further,  it  is  the duty of every advocate to boldly ignore a call for 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

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disciplinary  matters  the  final  Appellate  Authority  is  the  Supreme Court. Thus even if the Bar Councils do not rise to the occasion and perform their duties by taking disciplinary action on a complaint from a client against an advocate for non-appearance by reason of a call for strike or boycott, on an appeal the Supreme Court can and will. Apart from this, as set out in Ramon Services case [Ramon Services (P) Ltd. v. Subhash Kapoor, (2001) 1 SCC 118 : 2001 SCC (Cri) 3 : 2001 SCC (L&S) 152] every court now should and must mulct advocates who hold vakalats but still refrain from attending courts in pursuance of a strike call, with costs. Such costs would be in addition to the damages which the advocate may have to 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 take any further action. The contempt notices stand discharged.”

6.5 While  considering  the  issue  of  delay/speedy  disposal,  in  case  of

Krishnakant  Tamrakar (supra),  this  Court  had  the  occasion  to  consider  how

uncalled  for  frequent  strikes  obstructs  the access  to  justice  and what  steps  are

required to remedy the situation.  In the aforesaid decision, it is observed by this

Court that access to speedy justice is a part of the fundamental rights under Articles

14 and 21 of the Constitution of India.  This Court was of the opinion that one of

the reasons/root  cause  for  delay is  uncalled for  strikes  by the lawyers.   In  the

aforesaid decision, this Court also took note of 266th Law Commission Report, in

which there was a reference to the strikes by the lawyers in the Dehradun and

Haridwar districts itself.   In the aforesaid decision, this Court also took note of the

recommendations made by the Law Commission. This Court further observed that

since the strikes are in violation of the law laid down by this Court,  the same

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amounts to contempt and at least the office bearers of the Associations who give

call for the strikes cannot disown their liability for contempt.   In paragraphs 41 to

50, this Court held as under:

“41.  We may also deal with another important aspect of speedy justice. It is well known that at some places there are frequent strikes, seriously  obstructing  access  to  justice.  Even  cases  of  persons languishing in custody are delayed on that account. By every strike, irreversible  damage  is  suffered  by  the  judicial  system,  particularly consumers of  justice.  They are denied access to justice.  Taxpayers' money  is  lost  on  account  of  judicial  and  public  time  being  lost. Nobody is accountable for such loss and harassment.

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

“The first thing in my judgment we must do is to hold fast to constitutional  methods of  achieving our  social  and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open,  there  can  be  no justification  for  these  unconstitutional methods.  These  methods  are  nothing  but  the  Grammar  of Anarchy and the sooner they are abandoned, the better for us.”

43.  The  above  warning  of  the  Constitution-maker  needs  to  be adhered to at least by the legal fraternity. The Bar has the tradition of placing their professional duty of assisting the access to justice above every  other  consideration.  How  is  the  situation  to  be  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 lawyers have no right to go on strike or to give a call for boycott of courts nor can they abstain

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from the courts. Calls given by Bar Association or Bar Council for such purpose cannot require the court to adjourn the matters. Strike or abstaining from court is unprofessional.  Even though more than 15 years have passed after the said judgment was rendered, the judgment of  this  Court  is  repeatedly  flouted and no remedial  measures have been adopted. Regulation of right of appearance in courts is within the jurisdiction of the courts. This Court also asked the Law Commission to suggest  appropriate changes in the regulatory framework for the legal profession [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] . The Law Commission has submitted 266th Report [Ed.: On The Advocates Act, 1961 (Regulation of Legal Profession)] . The problem continues seriously affecting the rule of 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 noted that the High Courts can frame  rules  to  lay  down  conditions  on  which  advocates  can  be permitted to  practise  in  courts.  An advocate  can be debarred  from appearing in court even if the disciplinary jurisdiction for misconduct is vested with the Bar Councils [Mahipal Singh Rana v State of U.P., (2016) 8 SCC 335, paras 20, 30 to 35] . This Court requested the Law Commission to look into all relevant aspects relating to regulation of legal profession [Mahipal Singh Rana v. State of U.P., (2016) 8 SCC 335, para 58] .

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

“7.2. In the State of Uttarakhand, the information sent by the High Court for the years 2012-2016 shows that 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.

7.3. In the case of the State of Rajasthan, the High Court of Judicature at Jodhpur saw 142 days of strike during 2012-

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2016,  while  the  figure  stood  at  30  for  the  Jaipur  Bench.  In Ajmer District Courts, strikes remained for 118 days in the year 2014 alone, while in Jhalawar, 146 days were lost in 2012 on 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 subordinate courts are alarmingly high. In the State of Uttar Pradesh, the District Courts have to work for 265 days in a year. The period of strike in five years period in worst affected districts has been as 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). The average number of days of strike in eight worst affected districts comes to 115 days a year. Thus, it is evident that the courts referred to hereinabove could work on an average for 150 days only in a year.

7.5. In this regard, the situation in subordinate courts in Tamil Nadu had by no means, been better. The High Court of Tamil Nadu has reported that there are 220 working days in a year 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  per year); and Sivagangai, 408 days (81.6 days per year), were the most affected by strike called by advocates.

7.6. As per the responses received from the High Courts of Madhya Pradesh and Odisha, the picture does not emerge to be satisfactory.

7.7. The Commission noted that the strike by advocates or their abstinence from the court were hardly for any justifiable reasons. It could not find any convincing reasons for which the advocates resorted to strike or boycott of work in the courts. The reasons for strike call or abstinence from work varied from local, national to international issues, having no relevance to the working of the courts. To mention a few, bomb blast in Pakistan 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

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support  to  movements  by social  activists,  heavy rains,  or  on some religious occasions such as shraadh, Agrasen Jayanti, etc. or even for kavi sammelan.

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

47. Thereafter, the Law Commission referred to observations in the judgment of this Court in Harish Uppal case [Harish Uppal v. Union of India, (2003) 2 SCC 45] that there should be no strikes by the Bar except in rarest of rare situations which should also not exceed one day. The Bar Councils were called upon to take appropriate action in the  matter.  The  Law  Commission  noted  that  the  strikes  were continuing and causing great obstruction to the access to justice. It was observed: (Report No. 266)

“8.3.  In  spite  of  all  these,  the  strikes  have  continued unabated.  The  dispensation  of  justice  must  not  stop  for  any reason. The strike by lawyers have lowered the image of the courts in the eyes of the general public. The Supreme Court has held that right to speedy justice is included in Article 21 of the Constitution.  In  Hussainara  Khatoon  (1)  v.  State  of  Bihar [Hussainara Khatoon (1)  v.  State of Bihar, (1980) 1 SCC 81 : 1980 SCC (Cri) 23] ; and in some other cases, it was held that the litigant has a right to speedy justice. The lawyers'  strike, however, result in denial of these rights to the citizens in the State.

8.4. Recently, the Supreme Court while disposing of the criminal 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 obstruction of court  proceedings  by  uncalled  for  strikes/abstaining  of work by lawyers or  frequent suspension of  court  work after condolence references. In view of judgment of this

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Court in Harish Uppal v. Union of India [Harish Uppal v. Union of India, (2003) 2 SCC 45] , such suspension of work or strikes is clearly illegal and it is high time that the legal fraternity realises its duty to the society which is the  foremost.  Condolence  references  can  be  once  in  a while periodically say once in two/three months and not frequently. Hardship faced by witnesses if their evidence is not recorded on the day they are summoned or impact of  delay  on undertrials  in  custody on account  of  such avoidable interruptions of court proceedings is a matter of concern for any responsible body of professionals and they must take appropriate steps. In any case, this needs attention  of  all  authorities  concerned—the  Central Government/State  Governments/Bar  Councils/Bar Associations as well as the High Courts and ways and means  ought  to  be  found  out  to  tackle  this  menace. Consistent  with  the  above  judgment,  the  High  Courts must  monitor  this  aspect  strictly  and  take  stringent measures  as  may  be  required  in  the  interests  of administration of justice.’

8.5.  In  Ramon  Services  (P)  Ltd.  v.  Subhash  Kapoor [Ramon Services (P) Ltd.  v.  Subhash Kapoor,  (2001) 1 SCC 118 : 2001 SCC (Cri) 3 : 2001 SCC (L&S) 152] , the Apex Court  observed  that  if  any  advocate  claims  that  his  right  to strike must be without any loss to him, but the loss must only be borne by his innocent client, such a claim is repugnant to any principle of fair play and canons of ethics. Therefore, when he opts to strike or boycott the Court he must as well be prepared to bear at least the pecuniary loss suffered by the litigant client who entrusted his brief to that advocate with all confidence that his cause would be safe in the hands of that advocate.”

48. Examining other aspects of the regulation of legal profession, the Law Commission recommended review of regulatory mechanism of the Advocates Act as follows: (Report No. 266)

“17.1.  There  is  a  dire  necessity  of  reviewing  the regulatory mechanism of the Advocates Act, not only in matters

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of discipline and misconduct of the advocates, but in other areas as  well,  keeping  in  view  the  wide  expanse  of  the  legal profession being involved in almost all areas of life. The very constitution of the Bar Councils and their functions also require the introduction of a few provisions in order to consolidate the function of the Bar Councils in its internal matters as well.”

49.  Since  the  strikes  are  in  violation  of  law laid  down by  this Court, the same amount to contempt and at least the office-bearers of the  associations  who  give  call  for  the  strikes  cannot  disown  their liability for  contempt.  Every resolution to go on strike and abstain from work is per se contempt. Even if proceedings are not initiated individually against such contemnors by the court concerned or by the Bar Council concerned for the misconduct, it is necessary to provide for  some  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 view to enforce fundamental right of speedy access to justice under Articles 14 and 21 and law laid by this Court, to direct the Ministry of Law and Justice to present at least a quarterly report on strikes/abstaining from work, loss caused and action proposed. The matter can thereafter be considered in its contempt or inherent jurisdiction of this Court. The Court may, having regard to the fact situation, hold that the office-bearers of the Bar Association/Bar Council who passed the resolution for strike or abstaining  from  work,  are  liable  to  be  restrained  from  appearing before any court for a specified period or until such time as they purge themselves of contempt to the satisfaction of the Chief Justice of the High  Court  concerned  based  on  an  appropriate undertaking/conditions. They may also be liable to be removed from the position of office-bearers of the Bar Association forthwith until the Chief  Justice  of  the  High  Court  concerned  so  permits  on  an appropriate undertaking being filed by them. This may be in addition to  any  other  action  that  may  be  taken  for  the  said  illegal  acts  of obstructing access to justice. The matter may also be considered by this Court on receipt of a report from the High Courts in this regard. This does not debar report/petition from any other source even before the end of a quarter, if situation so warrants.”

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6.6 In spite of the law laid down by this Court in the aforesaid decisions, this

Court  time and again deprecated the lawyers to go on strikes,  the strikes were

continued unabated.  Even in the present case, the advocates have been boycotting

the courts on all Saturdays, in the entire district of Dehradun, in several parts of the

district of Haridwar and Udham Singh Nagar district of the State of Uttaranchal.

Because of such strikes, the ultimate sufferers are the litigants.   From the data

mentioned in the impugned judgment and order, things are very shocking.  Every

month on 3-4 Saturdays, the Advocates are on strike and abstain from working, on

one pretext or the other.  If the lawyers would have worked on those days, it would

have been in the larger interest and it would have achieved the ultimate goal of

speedy justice, which is now recognized as a fundamental right under Articles 14

and 21 of the Constitution.  It would have helped in early disposal of the criminal

trials and therefore it would have been in the interest of those who are languishing

in the jail and waiting for their trial to conclude.   When the Institution is facing a

serious problem of arrears and delay in disposal of cases, how the Institution as a

whole can afford such four days strike in a month.   

6.7 Now,  so  far  as  the  submission on behalf  of  the  petitioner  that  to  go  on

strike/boycott courts is a fundamental right of Freedom of Speech and Expression

under  Article  19(1)(a)  of  the  Constitution  and  it  is  a  mode  of  peaceful

representation to express the grievances by the lawyers’ community is concerned,

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such a right to freedom of speech cannot be exercised at the cost of the litigants

and/or  at  the  cost  of  the  Justice  Delivery  System  as  a  whole.    To  go  on

strike/boycott courts cannot be justified under the guise of the right to freedom of

speech and expression under Article 19(1)(a) of the Constitution.  Nobody has the

right to go on strike/boycott courts.  Even, such a right, if any, cannot affect the

rights of others and more particularly, the right of Speedy Justice guaranteed under

Articles 14 and 21 of the Constitution.   In any case, all the aforesaid submissions

are already considered by this Court earlier and more particularly in the decisions

referred to hereinabove.  Therefore, boycotting courts on every Saturday  in the

entire  District  of  Dehradun,  in  several  districts  of  Haridwar  and Udham Singh

Nagar district in the State of Uttarakhand is not justifiable at all and as such it

tantamounts to contempt of the courts, as observed by this Court in the aforesaid

decisions.   Therefore,  the  High  Court  is  absolutely  justified  in  issuing  the

impugned directions.  We are in complete agreement with the view expressed by

the High Court and the ultimate conclusion and the directions issued by the High

Court.  Therefore, the present Special Leave Petition deserves to be dismissed and

is  accordingly  dismissed.    We further  direct  all  concerned  and  the  concerned

District Bar Associations to comply with the directions issued by the High Court

impugned in the present SLP in its true spirit.  It is directed that if it is found that

there  is  any  breach  of  any  of  the  directions  issued  by  the  High  Court  in  the

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impugned judgment and order, a serious view shall be taken and the consequences

shall follow, including the punishment under the Contempt of Courts Act.    

7. As observed hereinabove, in spite of the decisions of this Court in the cases

of  Ex-Capt Harish Uppal (supra), Common Cause, A Registered Society (supra)

and  Krishnakant Namrakar (supra) and despite the warnings by the courts time

and again, still, in some of the courts, the lawyers go on strikes/are on strikes.  It

appears that despite the strong words used by this Court in the aforesaid decisions,

criticizing the 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 Bar Council of India

dated 29.09.2002, thereafter, no further concrete steps are taken even by the Bar

Council of India and/or other Bar Councils of the States.  A day has now come for

the Bar Council of India and the Bar Councils of the States to step in and to take

concrete  steps.   It  is  the  duty  of  the  Bar  Councils  to  ensure  that  there  is  no

unprofessional and unbecoming conduct by any lawyer.  As observed by this Court

in the case of Ex-Capt. Harish Uppal (supra), the Bar Council of India is enjoined

with a duty of laying down the standards of professional conduct and etiquette for

Advocates.  It is further observed that this would mean that the Bar Council of

India ensures that advocates do not behave in an unprofessional and unbecoming

manner.  Section 48 of the Advocates Act gives a right to the Bar Council of India

to give directions to the State Bar Councils.   It is further observed that the Bar

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Associations may be separate bodies but all advocates who are members of such

associations are under disciplinary jurisdiction of the Bar Councils and thus the

Bar Councils can always control their conduct.   Therefore, taking a serious note of

the fact  that  despite  the aforesaid decisions of  this  Court,  still  the lawyers/Bar

Associations go on strikes, we take suo moto cognizance and issue notices to the

Bar Council of India and all the State Bar Councils to suggest the further course of

action  and  to  give  concrete  suggestions  to  deal  with  the  problem  of

strikes/abstaining the work by the lawyers.   The Notices may be made returnable

within six weeks from today.  The Registry is directed to issue the notices to the

Bar Council of India and all the State Bar Councils accordingly.    

…………………………..J. (ARUN MISHRA)

…………………………..J. (M. R. SHAH)

New Delhi, February 28, 2020