Bar lawyers who participate in boycotts and strikes: Madhya Pradesh HC [Read Order]

The Madhya Pradesh High Court has passed an order directing the incorporation of rules to clamp down on strikes and court boycotts called by advocates, Bar Associations and Bar Councils..Among the recommendations made by the Bench is the debarment of lawyers who call for or engage in court boycotts or strikes from appearing in Court..The Bench of Chief Justice Hemant Gupta and Justice Vikas Kumar Shukla passed the order in a petition filed by Advocate Praveen Pandey in view of a strike called for by the Madhya Pradesh State Bar Council between April 9 and April 14, 2018..The strike was called pursuant to an ultimatum given by the State Bar Council in March in connection with three main demands i.e. appointment of High Court judges, enactment of the Advocate’s Protection Act, and appropriate seating arrangements for Advocates in the High Court premises..After the Court took cognisance of the petition against the strike, the Bench was informed by Senior Advocate Naman Nagrath that the State Bar Council had decided to call for a voluntary abstention from work..However, when the case was taken up for hearing on April 9, Nagrath himself did not appear, leading the Bench to opine that the strike was not voluntary as claimed. As noted in its order passed on April 10,.“Therefore, it is not a voluntary act but a call given by a statutory body which is competent to take disciplinary action against the Advocates enrolled with it and is compelling the members of the Bar to abstain from work.”.The Court went to observe that in this case, the call for strike was counter-productive..“The so-called object to abstain from work is that there are huge arrears. There is no doubt about it. But, the abstaining of work is not addressing the issue of reducing the arrears but is increasing the same.”.The Court proceeded to direct the advocates to resume their work, given the well-established position that an advocate who has accepted a brief cannot refuse to attend court because of calls for a strike or court boycott..This law was reiterated by the Court in an order passed yesterday. The Court observed that abstention from work through strikes, boycotts etc. are inconsistent with the professional duties of a lawyer since it impairs the administration of justice. It also opined that abstention of work does not serve to help anyone..“The strike or abstention from work impairs the administration of justice and is inconsistent with the duties of an Advocate…By abstaining from work, the members of the Bar do not help anybody…”.The Court noted that Bar Associations can be distinguished from Trade Unions as far as the right to demonstrate is concerned..“The Bar Association is not a Trade Union under the Trade Union Act, 1926. The Trade Union has a right to demonstrate as a mode of redress for resolving the grievances of the workers but the Advocates though are members of Bar Association but are professionals engaged by the sufferers for redressal of their grievances by intervention of the Court.”.Ultimately, the Court emphasised that it is the litigant who suffers when the advocates abstain from work..“The litigant has a right to get justice. He will get justice only if the Courts are functioning in the country but the members of the Bar cannot make the third pillar of democracy non-functional by deciding to withdraw from work. Their action is antitheses of democratic life of the country.”.Persistent Court Boycotts despite Supreme Court directions.Numerous cases including Ex-Capt Harish Uppal’s case, TK Rangarajan’s case and Krishnakant Tamrakar’s case have laid down that strikes and court boycotts by advocates are illegal. Despite this, the Court noted that there was no deterrent effect as far as lawyers’ strikes are concerned..“Even though the Supreme Court has held that strikes are illegal and the members of the Bar cannot resort to strike but the strikes are still common. .Within the jurisdiction of this Court almost 9000 working hours have been lost on account of decision of the members of the Bar to abstain from work in three months.”.In Harish Uppal’s case, the Court had allowed some leeway for short, day-long token strikes protesting an issue involving the dignity, integrity and independence of the Bar and the Judiciary..However, it was also directed that such measures should only be resorted to in the rarest of rare cases, and with the permission of the Chief Justice or the District Judge, as the case may be. Regardless, the High Court observed,.“…such solemn hope has never been followed. Rather, after decision is taken by the State Bar Council or by the Bar Association(s), the Court is informed of the decision.”.This prompted the Bench to ask,.“…how to address the menace of frequent calls of strike or of abstaining from Court work by the Bar Association(s) and or State Bar Council [?]”.Bar delinquent lawyers from appearing before Court.The Bench ultimately opined that the viable solution would be to amend the High Court of Madhya Pradesh (Conditions of Practice) Rules, 2012 so as to bar striking lawyers from appearing before Courts..“…we deem it appropriate to direct the High Court to prescribe in such Rules that the members of the Bar, who abstain from work shall stand debarred from appearing in Courts and the conditions thereof.”.To this end, the Court has proposed the following recommendations:.If the call for abstaining from work is given by the State Bar Council (without the consent of the Chief Justice): .office bearers of the State Bar Council will be debarred to appear before any court for one month or till such time the office bearers direct resumption of court work;if the decision is taken to strike within one year of such an earlier decision, then the State Bar Council itself shall stand suspended from the day of call of strike or decision to abstain from work by whatever name called. Such suspension shall be initially for a period of one month or till such time, the decision is recalled;during the abovesaid period, the affairs of the State Bar Council shall be conducted by the Advocate General as an ex-officio member of the Bar Councilany further call for strike or abstaining from work shall entail supersession of the State Bar Council. The Advocate General shall manage the affairs of the State Bar Council and to conduct the elections of the State Bar Council within six months. In such elections, the defaulting members of the State Bar Council, as per the above directions, shall not be eligible to contest the election for a period of three years..2. If the call for abstaining from work is given by the High Court / District Court Bar Association(s):.The State Bar Council shall declare such strike as illegal unless resorted to in consultation with the Chief Justice and/or the District JudgeConsequently, the State Bar Council shall appoint an ad hoc committee to manage the affairs of such Bar Association(s) for one month superseding the elected office bearers. The elected office bearers shall not be permitted to appear before any court for one month. If the Bar Association resolves to resume work, the elected office bearers of the Bar Association shall resume their office;if the Bar Association again calls for strike, the State Bar Council shall conduct fresh elections to such Bar Association. Office bearers of the Bar Association shall not be eligible to contest the election of the Bar Associations or the State Bar council for three yearsif the State Bar Council fails to act in terms of the above directions, the members of the State Bar Council shall be deemed to have vacated their office and the fresh elections will be conducted.The writ petition was disposed of with a direction that the High Court introduce the appropriate amendments within three months..Read Order dated July 31, 2018.Read Order dated April 10, 2018

Bar lawyers who participate in boycotts and strikes: Madhya Pradesh HC [Read Order]

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