-:Project Report on:-

RIGHT TO STRIKE OF ADVOCATES

Submitted to

Ms. PRIYANKA DHAR

(Faculty of Professional Ethics)

Submitted by

Ekta Chandrakar
B. A. LL. B. (Hons.) Student
Semester – X, Roll No. 62

Hidayatullah National Law University

Uparwara Post, Abhanpur, New Raipur – 493661 (C.G.)
 DECLARATION

I hereby declare that the project work entitled “Right to strike of advocates” submitted to
HNLU, Raipur, is record of an original work done by me under the guidance of Ms. Priyanka
Dhar, Faculty Member, HNLU, Raipur.

I further confirm that I have not infringed upon the rights of any copyright holder, publisher and
other connected parties.

EKTA CHANDRAKAR
Roll No. - 62
Semester – X
Section - C
Date- 11.06.2020

(i)
TABLE OF CONTENTS

ACKNOWLEDGEMENTS
INTRODUCTION ................................................................................................................ 1

OBJECTIVES ....................................................................................................................... 2
RESEARCH METHODOLOGY........................................................................................... 2
MEANING OF THE TERM ‘STRIKE’ ................................................................................ 3
RIGHT TO STRIKE ............................................................................................................. 4
International Perspective .................................................................................................. 4
Right To Strike And Indian Constitution .......................................................................... 5

ADVOCATES RIGHT TO STRIKE IN INDIA .................................................................. ..7

ANALYZING SOME IMPORTANT JUDGMENTS .......................................................... ..9

CONCLUSION ................................................................................................................... 11

REFERENCES ................................................................................................................... 12
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INTRODUCTION

Traditionally in industrial relations both the management and the workers union had a tool each.
The management in this had the right of lock-out while the labour union could call a strike. It
was in this manner that the two parties remained at an equal footing while considering their
bargaining powers. The constitutional framers too understood the importance of citizens coming
together for a cause and provided them the "right to assemble peacefully and without arms" as a
fundamental right.

Modern India, however, has moved on. The Supreme Court in In Communist Party of India
(Marxist) v. Bharat Kumar1 1997 held that any individual or cross-section of a society has no
right to call for a bandh or hartal or a general strike which interferes with the fundamental
freedoms and rights of other citizens, which may also cause national loss in many ways.

Similar has been a fate of lawyers. While they are considered as harbingers and guards against
an autocratic society, yet they are not allowed to gather and voice their opinion. In 2002, the
Supreme Court gave a categorical finding, that lawyers had no right to strike because the strike
comes in the way of already suffering litigants. And it was also held that any such strike by
lawyers will be held as illegal and will bring actions against them.

There was overwhelming judicial opinion against the lawyers going on strike. Dignity of the
court was required to be maintained from the bar for not absconding work and abandoning the
client which was clearly held in the case of Ex-Capt. Harish Uppal v. Union of India2.

1
In Communist Party of India (Marxist) v. Bharat Kumar, AIR 1998 SC 184.
2
Ex-Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45
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OBJECTIVES OF THE STUDY

The primary objectives of this project report are:

1. To study the term strike;

2. To understand the right to strike from both Indian and international perspective

3. To discuss the right to strike of advocates in India

4. To analyze some of the important judgment of the Supreme Court in regard to lawyer’s
right to strike.

RESEARCH METHODOLOGY

This research is descriptive and analytical in nature. Secondary and Electronic resources have
been largely used to gather information about the topic. Websites, books, journals and articles
have been primarily helpful in giving this project a firm structure. Footnotes have been provided
wherever needed to acknowledge the source.
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MEANING OF THE TERM ‘STRIKE’

The right to strike is the most visible form of collective industrial action that workers employ to
force employers to express their grievance and to force the employer to the bargaining table.

In the case of Tramp Shipping Corporation v. Greenwich Marine Incorp3, Lord Denning stated
that a strike is “a concerted stoppage of work by men, done with a view to improving their wages
or conditions of employment, or giving vent to a grievance or making a protest about something
or sympathizing with other workmen in such endeavor. It is distinct from stoppage brought by an
external event such as a bomb scare or by apprehension of danger.”

In brief the definition of strike includes the following points:

1. Strikers are persons employed in any industry to do work.

2. A strike is called against an employer of labour.

3. Strike is a concerted action under common understanding by the strikers to refuse to

work or accept employment.

4. The concerted action may be pre-planned or spontaneous

5. The action resulted in physical cessation of work whose duration is immaterial.

Hence, Strike means “concerned stoppage of work by workers done with a view to improving
their wages or conditions, or giving vent to a grievance or making a protest about something or
the other, or supporting or sympathizing with other workers in such endeavour.”

Based upon opinion of various jurists the `strike' is a weapon of social justice for the powerless
against the powerful to be used as a last resort when no other option is available.

3
Tramp Shipping Corporation v. Greenwich Marine Incorp ,[1975] 1 WLR 1042
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RIGHT TO STRIKE

International Perspective

The right to strike has acquired an implied sanction from the Universal Declaration of Human
Rights (1948). Articles 23,24 and 25 of the declarations asserts that everyone has the right to
work, right to just and favorable remuneration and right to form and join trade unions and also
the right to rest, leisure, leave etc. and the right for fair living conditions with necessary social
benefits. 4

The English Courts have already recognized this right as a justifiable right. Lord Denning in
Morgan v. Fry5 stated that strike is labour’s ultimate weapon and in the course of hundred years
it has emerged as the inherent right of every worker. It is an element which is the inherent nature
of the principle of collective bargaining.

Right from the industrial revolution, the reasonable right of the workers to strike work is
recognized in various countries. Article 42 of the constitution of Ethiopia provides the right to
strike to the workers and also enjoins the state to provide such right, subject to any restrictions,
even to the government employees. Article 34 of the constitution of Angola guarantees right to
strike and prohibit lockouts.6 Under Article 9 of the constitution, Brazil, guarantees the right to
strike. Capitalist countries like Japan and South Korea too provide for the right to strike in their
respective constitutions.

With the help of International conventions, International Labour Organization also guarantees
these rights and many other labour rights. India is a founding member of the ILO and it is
naturally expected from our country too that it doesn’t violate the international labour standards.

4
Human Rights (Mar. 30, 2019).
http://www.encyclopedia.com/topic/human_rights.aspx
5
Morgan v. Fry , [ 1968] 2 Q.B. 710
6
Human rights watch (Mar. 30, 2019)
https://www.hrw.org/sites/default/files/wr2013_web.pdf
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There are two most important conventions in relation to right to strike, Convention no. 87
(Freedom of Association and Protection of the Right to Organize Convention, 1948) and 98
(Right to Organise and Collective Bargaining Convention, 1949). Even though these convention
does not refer to the right of strike, the ILO committee on experts has been regarding it as an
essential and vital part of the basic right to organize.7

Right To Strike And Indian Constitution

Indian law does not expressly recognize the right to strike. It was the Trade Union Act, 1926
which for the first time provided limited right to strike. The Act legalized certain activities of a
registered trade union in furtherance of a trade dispute, which were otherwise a breach of
common economic law. In the present time, the right to strike is recognized only to a limited
extent as a legitimate recourse for Trade Unions.

In context of the Indian Constitution, the right to strike streams out from the right to form unions
and is not recognized as an absolute right. Every right is subject to reasonable restrictions and the
same applies to forming trade unions and calling out the workers to go on strike wherein, the
state can impose reasonable restrictions. In All India Bank Employees Association v. I. T.,8 the
Supreme Court held:

“The right to strike or right to declare lock out may be controlled or restricted by appropriate
industrial legislation and the validity of such legislation would have to be tested not with
reference to the criteria laid down in clause (4) of article 19 but by totally different
considerations.”

7
Right To Strike- A Legitimate Illegality (Apr. 2, 2017)
http://www.legalservicesindia.com/articles/legill.htm
8
All India Bank Employees Association v. I. T, 1962 SCR (3) 269
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There is a guaranteed fundamental right to form associations or labour unions but a fundamental
right to go on strike does not exist. The Industrial Disputes Act, 1947 lays down the grounds and
conditions for a legal strike which if unfulfilled, render a strike illegal.

In Kameshwar Prasad and Others v. State of Bihar and Another,9 the High Court took the view
that the freedom guaranteed under Arts. 19 (1) (a) and 19 (1) (c) does not include a right to
demonstrate or to strike by servants of Government.

In Bank of India v. I.S.Kalewala 10 the constitutional bench held that, whether the strike is legal or
justified is question of fact to be decided with the help of the evidence on record.

In Crompton Greaves Ltd v. Workmen 11 the division bench held it that a strike is legal if it does
not violate any provision of the statute. A strike cannot be said to be unjustified until and unless
the reasons given are entirely unreasonable. Whether a particular strike is justified or not is a
question of fact which has to be seen and determined according to the facts and circumstances of
each case.

The word "strike" has been defined under Section 2(q) of the Industrial Disputes Act, 1947.
Strike is the act of stoppage of work by a body of workmen for the purpose of coercing their
employer to agree to some of the demands which have been made upon him. A perusal of
various provisions of the Industrial Disputes Act, 1947 would reveal that workers have no
absolute right to go on strike. Section 22 of the Industrial Disputes Act, 1947 lays down
circumstances in which strike in public utility services is prohibited. Under Section 23 there are
restrictions imposed on workmen from going on strike in the circumstances enumerated therein.
It is regarded as a powerful weapon for collective bargaining though.12

9
Kameshwar Prasad and Others v. State of Bihar and Another, AIR 1962 SC 1166.
10
Bank of India v. I.S.Kalewala, (1990) 2 Lab & IC 39.
11
Crompton Greaves Ltd v. Workmen, AIR 1978 SC 1489.
12
JUSTICE PANA CHAND JAIN (RETD.), Lawyers and the Boycott of Courts (Mar. 30, 2015). http://www.ebc-
india.com/lawyer/articles/95v5a3.htm
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ADVOCATES RIGHT TO STRIKE IN INDIA

If we look into the provisions of the Advocates Act and the Legal Practitioners Act, it becomes
evident that the position of advocates is quite different from an employee. An advocate is a
person learned in the law and duly admitted to practice, who assists his client with advice and
pleads for him in open court. It is the professional body of lawyers - the Bar Council of India
which lays down standards of professional conduct and etiquette for advocates to safeguard the
rights, privileges and interests of advocates. A Code of Ethics for the legal profession in India
was framed as early as 1962. It details the duties of advocates. Bar Council of India has also
framed rules in exercise of its rule-making power under the Advocates Act, 1961. Chapter II of
Part VI of these "Rules Governing Advocates" prescribe standards of professional conduct and
etiquette for lawyers.13

The Preamble to these Rules states the duties and obligations of lawyers in general terms.
Summarizing the rules it says nothing but the advocates owe a duty not only to their clients, but
also to the court and are bound to cooperate with the court in the orderly administration of
justice.

It is in this background that one has to look into the problems created by lawyers' strikes. The
questions usually raised are: Can we afford lawyers' boycott of courts anymore? Whether
lawyers' boycott is justified? Who suffers the most on account of boycott? Amongst various
duties required to be discharged by the lawyers, one of the duties to the court is that an advocate
shall maintain towards the court a respectful attitude bearing in mind that the dignity of the
judicial office is essential for the survival of an independent judiciary, and thus of constitutional
Government.

The court has also a reciprocal duty to perform and should not only not be discourteous to a
lawyer but should also try to maintain respect in the eyes of his clients and the general public
with whom he has to deal in his professional capacity. Hypersensitiveness on the one side or
rudeness on the other must be avoided at all costs.

13
Id.
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In this view it is difficult to concede a right to boycott courts to the lawyers on the analogy of
conceding right to strike of employees. Moreover, the right to strike work in India is admittedly
not absolute. This is so in the industrial sector as well as in public service sector. The members
of the Bar Association thus have no right to boycott courts in view of the duties which they are
required to discharge. It is true that under the Constitution of India, freedom of association is
guaranteed as a fundamental right, but this right is subject to reasonable restriction in the interest
of public order or morality. The prohibition against strikes by lawyers is inbuilt in the Advocates
Act, 1961. The duties to the court and duties to the clients prescribed by Bar Council of India go
to prove that strike or boycotting of courts is antithesis to practise in the court, and is a
professional misconduct. An advocate being an officer of the court and thus bound to submit
to its authority cannot join in an action to boycott the court or a particular judge because
of any grievance - real or alleged.

In Emperor v. Rajani Kanta Bose14 a Special Bench of the Calcutta High Court consisting of
three Judges opined that a pleader being an officer of the court is bound to submit to its authority
and thus cannot join any action to boycott the court or a particular judge because of any
grievance - real or alleged, whether touching the court or of political or other character.

The same view was expressed by the Punjab and Haryana High Court in Maharaj Baksh Singh.15
An advocate is considered as harbingers and guards against an autocratic society yet they are not
allowed to gather and voice their opinion. Being of the view that their strike comes in the way of
delivering justice to the already suffering litigant, the Supreme Court gave a categorical finding
in 2002 holding that lawyers had no right to strike and any such strike or declaration was illegal
requiring action against the errant individuals. There was overwhelming judicial opinion against
the lawyers going on strike and that the dignity of the court required from the bar, was affected
by the lawyers absconding work and abandoning the client whose brief he held.

14
Emperor v. Rajani Kanta Bose ,AIR1922 Cal 515
15
Maharaj Baksh Singh ,AIR 1987 P&H
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ANALYZING SOME IMPORTANT JUDGMENTS

There are a series of case laws which declare that a strike by advocates is illegal.

In B.L.Wadehra v. State16 the Court held that if on the ground of strike a lawyer abstains from
appearing in court in a case in which he holds a vakalatnama from a client, he is conducting
professional misconduct, a breach of contract, breach of trust and a breach of professional duty.

This sentiment was futher echoed in Ramon Services Pvt. Ltd v. Subhash Kapoor17 where it was
observed “Abstaining from the courts by the Advocates, by and large, does not only affect the
persons belonging to the legal profession but also hampers the process of justice sometimes
urgently needed by the consumers of justice, the litigants. Legal profession is essentially a
service oriented profession. The relationship between the lawyer and his client is one of trust and
confidence. With the strike by the lawyers, the process of court intended to secure justice is
obstructed which is unwarranted under the provisions of the Advocates Act. Law is no trade and
briefs of the litigants not merchandise”.

Finally in Ex-Capt. Harish Uppal v. Union of India,18 a three judge bench of the Supreme Court
declared the law in certain on terms against lawyers going on strike. The Bench further declared
that the lawyers could ventilate their grievances by "giving press statements, TV interviews,
carrying out of Court premises banners and/or placards, wearing black or white or any colour
arm bands, peaceful protest marches outside and away from Court premises, going on dharnas or
relay fasts etc" but not by holding strike and abstaining from appearing in a court.

16
B.L.Wadehra v. State ,AIR 2000 Delhi 266
17
Ramon Services Pvt. Ltd v. Subhash Kapoor, (2001) 1 SCC 118.
18
Ex-Capt. Harish Uppal v. Union of India, 1994 SCC Supl. (2) 195.
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The Bench noted that lawyers cannot disrupt court proceedings and put the interest of their
clients in jeopardy. The Bench noted that even if the Bar Councils, on a complaint from a client,
do not take disciplinary action against an advocate for non-appearance owing to a call for strike
or boycott, the Supreme Court, on an appeal, can and will. Apart from this, the Bench cited the
Supreme Court's judgment in Ramon Services Pvt. Ltd. v. Subhash Kapoor19 and said every court
should and must mulct, with costs, advocates who hold vakalats (power of attorney) but do not
attend courts in response to a strike call. Such costs would be in addition to the damages the
advocates may have to pay for the loss suffered by his or her client because of his or her non-
appearance. There are remedies available to a client, if he or she feels that the advocate has
violated the contract by going on strike.

On the grievance that strikes interfere with administration of justice, the Bench 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," the Bench ruled. More
important, the Bench made it clear that no threat or coercion of any nature, including the threat
of expulsion from the Bar Council or any lawyers' association, can be held out against an
advocate who defies a strike call.

19
(2001) 1 SCC 118
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CONCLUSION

In conclusion it is held that lawyers have no right to go on strike or give a call for boycott, not
even on a token strike. The protest, if any is required, can only be by giving press statements, TV
interviews, carrying out of Court premises banners and/or placards, wearing black or white or
any colour arm bands, peaceful protest marches outside and away from Court premises, going on
dharma‟s or relay fasts etc. It is held that lawyers holding Vakalats on behalf of their clients
cannot not attend Courts in pursuance to a call for strike or boycott. All lawyers must boldly
refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse
consequences by the Association or the Council and no threat or coercion of any nature including
that of expulsion can be held out.

It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of
considering a call for strike or boycott and requisition, if any, for such meeting must be ignored.
It is held that only in the rarest of rare cases where the dignity, integrity and independence of the
Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention
from work for not more than one day. It is being clarified that it will be for the Court to decide
whether or not the issue involves dignity or integrity or independence of the Bar and/or the
Bench. Therefore in such cases the President of the Bar must first consult the Chief Justice or the
District Judge before Advocate decide to absent themselves from Court. The decision of the
Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that
Courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary,
it is the duty of all Courts to go on with matters on their boards even in the absence of lawyers.
In other words, Courts must not be privy to strikes or calls for boycotts. It is held that if a lawyer,
holding a Vakalat of a client, abstains from attending Court due to a strike call, he shall be
personally liable to pay costs which shall be addition to damages which he might have to pay his
client for loss suffered by him.
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REFERENCES

Articles

1. B. AHMED, A Critical Appraisal of the Right to Strike in Nigeria (Mar. 30, 2017).
http://www.ijhssnet.com/journals/Vol_4_No_11_1_September_2014/32.pdf

2. Human Rights (Mar. 30, 2017).

http://www.encyclopedia.com/topic/human_rights.aspx

3. Human rights watch (Mar. 30, 2017).

https://www.hrw.org/sites/default/files

4. Right To Strike- A Legitimate Illegality (Apr. 2, 2017).

http://www.legalservicesindia.com/articles/legill.htm

5. JUSTICE PANA CHAND JAIN (RETD.), Lawyers and the Boycott of Courts (Mar. 30,
2017).

http://www.ebc-india.com/lawyer/articles/95v5a3.htm

6. V. VENKATESAN, A right curtailed (Apr 2, 2017).

http://www.frontline.in/static/html/fl2001/stories/20030117002803600.htm