Advocates (Amendment) Bill, 2017: Parody or Necessity?

By Malvika Gupta 20 Minutes Read

INTRODUCTION

Since Independence and even before that, advocates held a very significant place in the formation and growth of the country. From attaining freedom to governing the country and drafting laws were the sole responsibilities and duties of the lawyers. Even today, lawyers and advocates are appreciated for the preservation of the law, which their seniors had made decades ago. Thus the legal profession is still considered as an independent, holy and most importantly a very noble profession where the officers of the court work in spirit of service for the public. Advocacy has always been considered as an important limb in the administration of justice.

However, the sad truth today is that it is now being maligned due to the lack of professionalism and dedication towards the field of law. Judiciary is the third pillar of our country where the advocates are the officers of the courts that carry certain responsibilities while helping in the attainment of justice but in recent years, a change has been seen and many instances have come into picture where the advocates call for strikes and protests which has now become a reason for the tension between the Bar and the Bench. Despite various judgments delivered by the Apex court and different High Courts, they have been going on strikes, thus defying the very values imbibed in this field. Lawyers, who are considered to be the defenders of the legal values, they themselves have breached the trust of the courts by disrespecting and ignoring the judgments of the Supreme Court. In between all these strikes and ignorance of values, it is the consumer of justice that is the real sufferer who is being denied the basic right of speedy trial given to them under Article 21 of the Indian Constitution. Such instances have led to heavy criticisms for the noble profession grouped with the advocates being looked with distrust by society.

Many reasons have been put forth at different times that were not so appreciated by the courts. Some of them included Kavi sammelan, Shraadh, earthquakes in Nepal, and bomb blast in a school in Pakistan. The 266th Law Commission Report suggested that such were one of the many reasons for strikes. The Commission headed by the former Supreme Court Judge, Justice B.S. Chauhan observed that bomb blasts in Pakistan, amendments to Sri Lanka’s Constitution, to show solidarity to advocates of other State Bar Association or moral support to various social activists have been the reasons for strikes in the country. Such reasons were not accepted by the Court since strikes paralyzed the judicial processes and held the justice to common man a wrath.

THE 266TH LAW COMMISSION OF INDIA REPORT

The 266th report submitted and suggested comprehensive amendments in the Advocates Act of 1961 which made drastic changes in the regulatory bodies. The commission also submitted a draft of Advocate (Amendment) Bill, 2017. It referenced some points identified with the advocates’ strike. It saw that this activity was against the moral commitments of a lawyer towards his calling. Legal counselors are the officials of the Court and it is their prime obligation to help the court in administering equity in the most effective way. In the event that they don’t play out their obligation in an imperative way, it would prompt the retrogression of the standard of law.

The bill also suggested that at every district headquarters, the District Judge may form an Advocates’ Grievance Redressal Committee headed by a Judicial Officer which will deal with the day to day routine matters, since it is the daily issue and grievances that become a reason for huge strikes. Further, the High Court may issue a circular in exercise of its power under Article 235 of the Constitution providing for redressal of grievances of the Advocates which will help in improving their efficiency. Moreover, if there is a grievance against a Judicial Officer, the bar may raise such issue before the Chief Justice of the concerned High Court.

In the draft of The Advocates (Amendment) bill, 2017 the commission recommended following amendments in The Advocates Act, 1961[1].

  1. Insertion of clauses in sub section 3 of Section 35
  1. Imposition of fine (upto 3 lakhs) and the cost of proceedings.
  2. Award compensation (upto 5 lakh) to the person aggrieved by the misconduct of advocate.
  3. Impose cost (upto 2 lakhs) on complaints if found vexatious, false or frivolous and if the advocate concerned is not cooperating in the disciplinary proceedings under the Act.

2) Insertion of new section 35A after section 35 of the Advocates Act, namely

 “35A. Prohibition on the boycotts or abstention from court’s work“.

3) Insertion of new section 45A after section 45 of the Advocates Act, for claiming of compensation in certain cases

  1. If any person suffers loss due to the misconduct of the advocate or for his participation in the strike, such person may make a claim for compensation against the advocate in the appropriate forum established under any law for the time being in force. 
    1. The non-payment of fees, either in full or part, by a person to his advocate, shall not be a defense available for the advocate against whom such claim for compensation is made.

PROFESSIONAL MISCONDUCT OR A RIGHT TO STRIKE?

Taking the Constitutional perspective, right to strike is a fundamental corollary conferred by the Part III of the Constitution under Article 19(1) (c)[2] . However, this right of associations is not an absolute right and it does come with some restrictions. That brings us to the question that whether putting on a strike is an actual right of the advocates in particular or not?  Referring to the Supreme Court decisions over the years showed that the right to strike by the advocates is not a Fundamental Right and is considered illegal, thus ensuring some necessary steps that should be taken to curb the growing tendency.

In the landmark judgment of Ex-Capt. Harish Uppal v. Union of India and Another[3], the Supreme Court stated that advocates do not have a right to go on strikes or even boycott their work. The maximum advocates can do to show their resentments for a particular issue or cause, they can either do TV interviews, carry banner or placards outside court premises or can just wear black or any other coloured band on their arms. They are even allowed to do peaceful rallies but all outside the premises of the court. In another case of Hussain v. Union of India the Apex Court stated that the strikes by professional lawyers or advocates is illegal and completes degrades the image and dignity of the profession as well as the Courts, thus making the public lose faith in the justice delivery system.

Advocates are bound to maintain rules on professional conduct and behavior that have been clearly laid down in the Bar Council of India Rules, under Chapter II and Part IV. It states that the advocates have to follow certain duties and responsibilities they have towards their client and the Court. In the case of Roman Services Pvt. Ltd. v. Subhash Kapoor[4] an issue was raised that when an advocate participates on a strike call made by the association and boycotts the court proceedings, is the litigant liable for a penalty. The court held that when an advocate involves himself in strike there is no obligation by the court to either wait or adjourn the case on that very ground. Thus, it was stated that the advocate does not have a right to boycott the proceedings on the ground that he has participated in the strike. Further, in the case of B.L. Wadhera v. State[5]it was held that if on the ground of strike, an advocate abstains himself from attending the court proceedings, then he is conducting professional misconduct, breach of trust, breach of contract and most importantly breach of professional duty.

The Advocates Act, 1961 mentions about the establishment and functions of the Bar Council of India in sections 4 and 7 respectively. Further, clause (b) of Section 1 of Chapter II Part VI of the Bar Council of India Rules, lays down the standards and professional etiquettes that must be followed by an advocate. According to various verdicts of the Court the BCI has to ensure that the advocates do not participate in strikes and such other activities. However, there have been instances where the BCI itself has called for strikes. The judgment in Ex. Capt. Harish Uppal v. Union of India and Another[6], it was clearly stated out by the court that No Bar Council or Bar Association can permit a meeting for the call of strikes, protests or any other requisition. It further noted that only in the rarest of rare cases can the Bar permit a strike only in the cases where the integrity, dignity and independence of the Bar or the Bench are at issue and that too not for more than a day. In Krishnakant Tamrakar v State of Madhya Pradesh[7], the Supreme Court held that frequent strikes are illegal as they obstruct justice.  In Common Cause Registered Society v. Union of India and Others[8]; the Supreme Court observed that if any association of advocates call for a strike then the State Bar Council or the Bar Council of India must take actions against those who called for a strike. Also, in the case of Praveen Pandey v. State of Madhya Pradesh and others the court held “the decision of the State Bar Council calling upon the Advocates in the State to observe a week-long protest and to abstain from all judicial works and Court proceedings is illegal, unconstitutional and against the statutory provisions as well as contrary to the judgments of the Supreme Court”

THE DENIAL AND ITS REASONS

The crucial obligation of Judiciary is to serve individuals who are looking for equity for themselves and to do so it is significant that each part of it must organize and help out one another. Any lack in the framework would prompt the infringement of the key right to speedy trial ensured under Article 21 of the Constitution. Along these lines, a strike by legal advisors has an unfavorable impact in the working of the legal executive. The continuous dissent and hits, meddle with the organization of equity that prompts delay in the trial of cases and at last bringing about enormous pendency of cases. Every now and then, the incomparable court in its different decisions has turned down the option to strike by legal counselors and guided the disputants to work proficiently for equity with no disappointments.

The division bench comprising of Justices U.U. Lalit and A.K. Goel, in the case of Krishnakant Tamrakar v. State of Madhya Pradesh[9] stated that irreversible damage is caused to the judicial system by every strike that is called for, specifically to the consumers of justice. They are the ones who are denied justice. Furthermore, in Hussain and Anr. v. Union of India, the court said that hardships are faced by the witnesses or the victims who are summoned for the evidence or other judicial matters and such interruptions of court proceedings is a matter of concern for any responsible body of professionals and they must take appropriate steps. Judicial services and legal services are missions for serving the society and such missions are interrupted when a litigant who waits for hours and still does not gets his turn. And finally again in Harish Uppal’s case[10] the Supreme Court further stated, that a lawyer may refuse to engage in new cases but he cannot abstain from work if he holds a vakaltnama on the very ground of strike held by him or any bar of associations. If he does so, he will be liable to suffer consequences.

SOLUTIONS AND CONCLUSION

The ban imposed on advocates to have strikes is justifiable since such an act corrodes the very roots of the judiciary. On the other hand, it is also important to protect the rights and interests of the advocates who are completely dedicated in this noble field. Section 7(d) of the Advocates Act,1961 specifically states that the function of the Bar Council of India is to safeguards the rights, privileges and interests of the advocates. Furthermore, in the 266th Law Commission of India Report suggested that in every district headquarters the District Judge must constitute an Advocate’s grievance redressal committee which will be headed by a judicial officer and will deal with the daily routine matters. In this regard, the High Court may issue a circular in an exercise of its power under article 235 of the Constitution providing for redressal of grievances of the Advocates which will help in improving their efficiency. Further, if there is some grievance against a Judicial Officer, the Bar may raise the grievance before the Chief Justice of the concerned High Court.

Since strikes and boycotts are prohibited by the judgment of Supreme Court in Ex-Captain Harish Uppal’s case and now the Law Commission has also recommended that it should not be resorted to and be declared illegal and therefore it should be deemed as misconduct. Eventually the ultimate sufferers are litigants and the system as a whole. But there are instances where the independence of judiciary is itself at stake, then in such cases a token strike of a day is seemingly justifiable to show that there is a large scale resentment against a particular action. For example the recent event of Justice Jayant Patel being superseded and been transferred to Allahabad High court from Karnataka High court, it was a clear case of executive and political interference in the judicial work. Such instances strike at the independence of judiciary and therefore token strikes of one day should be allowed. The Constitution of India provides for an independent judiciary for the efficient administration of justice. Roscoe Pound, an eminent jurist states that “historically, there are three ideas involved in a profession: organization, learning, and a spirit of public service.”[11] The most important of these three elements is public service. Legal profession also requires adherence to its norms and devotion towards the society. It is the prime duty of a lawyer to answer the call for public service on time. Going on strikes on petty and remotely concernable issues bring disgrace not only to the profession of advocacy but also to the justice delivery system as a whole. Any delay in disposal of cases not only creates disillusionment amongst the litigants but also undermines the capability of the system to impart justice in an effective manner.[12] Justice delayed is justice denied. It infringes the right to speedy trial of litigant which must not be tolerated in an ideal setup of ‘Rule of Law’. One who secures law should ensure law.


[1] Draft of The Advocate (Amendmernt) Bill, 2017.
[2] Protection of certain rights regarding freedom of speech,etc.- (1) All citizens shall have the right- (c)- to form associations or unions [or co-operative societies];
[3] (2003) 2 SCC 45
[4] (2001) 1 SCC 118
[5] AIR 2000 Delhi 166
[6] Supra note 3.
[7] AIR 2018 SC 3635.
[8] AIR 2005 SC 4442
[9] AIR 2018 SC 3635.
[10] (2003) 2 SCC 45
[11] Roscoe Pound, “What is a Profession – The Rise of the Legal Profession in Antiquity”, 19 Notre Dame L. Rev. 203 (1944), at p. 204.
[12] Syed Gulzar Hussain v. Dewan Syed Ale Ramul Ali Khan, (2014) 10 S.CC 825.

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