Summary of the facts[1]
Harish Uppal, the petitioner, was a former army officer. During the 1971 Liberation War, he was stationed in Bangladesh. Due to suspicions of embezzlement and other irregularities, he was court-martialled and subsequently jailed in 1972. He was given a two-year prison sentence and was fired from the army. He attempted to have the case reviewed in court, but it was denied. He then filed another post-affirmation application, to which he received no response.
After 11 years, he finally received a response. The review period had expired up until that point. The records and all of the review applications were later determined to have been misplaced due to a strike by a group of attorneys, which caused a delay. The petitioner filed writ petition before the Supreme Court asking it to declare lawyer strikes as illegal.
Analysis
The argument, usually, presented is that strike by advocates infringes upon the fundamental rights of the litigants. However, what about the rights of lawyers? The reasons given by most lawyers for strikes are:
- When a disagreement arises between the advocates and the investigating authorities.
- Judicial officers’ being corrupt or accused of wrongdoing.
- Court positions remain vacant over an extended period of time. (vacancies pending over time)
- Withdrawing jurisdiction and delegating it to a different court.
- Wrongful Constitution of Benches in High Courts.
- Any law passed by the parliament or state legislature that is detrimental to the advocates’ interests.
- When there is a national or regional issue that has a broad impact on the community.
Most of the issues have a legal remedy to them however, what about issues which may take an eternity to resolve? In the judgement the Court suggests that instead of crippling the court, advocates might use alternative tactics to strike, such as giving interviews, making press statements, wearing black, white, or any colour armbands, peaceful protest marches outside and away from court premises, and so on. What if none of the given suggestions seem to resolve the issues related to advocates at a speedy rate?
If a strike can lead to faster resolution of the issues then why ask advocates to refrain from organising them?
In the case of Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar[2] the Supreme Court held that the right to a speedy trial is a fundamental right under Article 21. However, what about the fundamental right of advocates? Do advocates not have the right to a resolution of their issues?
The Court also goes on to remark that even if a strike is organised, it shall be of maximum one day. The court shall not have any right to limit or place a restriction of the time period for a strike. Yes, the strikes by advocates do indeed lead to wastage of the Court’s time however this does not hold as a strong argument against the advocates striking.
The judicial system in India is under tremendous pressure. As of May 2022, over 4.7 crore cases are pending in courts across various strata of the judiciary. Of them, 87.4% are pending in subordinate courts, 12.4% in High Courts, while nearly 1, 82,000 cases have been pending for over 30 years. Can the entire pendency of cases be attributed to strikes by advocates? Yes, the Law Commission understandably tried to explain how this can be true. Take an example from a Law Commission report, where it has strategically tried explaining how strikes by lawyers are to blame for increasing pendency in courts.
“Between 31st December 1987 and 30th June 1988, almost all advocates in the capital were on strike. The pending number of cases on 31st December 1987 (at the start of the strike) in the Supreme Court of India, was 1, 75,748 and this number rose to 1, 85,950 by the end of the strike on the 30th of June 1988. There was thus an increase of 10,202 in the pending number of cases in a period of six months. If this number was compared with the previous graph of increasing in a pending number of cases, it can be easily found that sudden rise is purely attributable to the strike of the advocates.”
The database here includes advocates from the NCR region only. In a country where there is a hierarchy for courts comprising of several courts on these levels, the Law Commission chose to conclude the blame of pendency only through the smallest database possible. Not even the reason behind that strike was discussed. In the case of Krishnakant Tamrakar vs The State of Madhya Pradesh[3], the Supreme Court pointed out the strikes by lawyers cause “non-reversible” damage to the judicial system, in particular to the litigants.
The Supreme Court has to question its decisions. Where on one hand the litigants seem to hold more importance for the Court, it has to understand that Advocates hold similar, if not greater, importance. Advocates can court assistors and not court servants. The court cannot dictate terms to advocates and especially not on issues such as protest. Not only dictate terms but also state punishment for not following the terms. In the case of Common Cause (a Registered Society) v. Union of India[4], the Supreme Court stated with clarity that if an advocate’s association was to lobby for a strike, the Indian Bar Council would have to take stern action against them. Does the Court believe that it can coerce lawyers into working by hiding behind the reason that strikes by lawyers are a form of coercion towards litigants?
Litigants are invaluable to the court. They are the reason courts exist. However, at the same time the issues of advocates cannot be ignored. The court should instead look at the reasons behind strikes. Resolving the issues leading to frequent strikes can reduce the event of strike. Some steps that may help reduce the number of strikes are as follows:
- A District Judge at each district headquarters may appoint an “Advocates’ Grievance Redressal Committee” chaired by a Judicial Officer, to deal with ordinary issues that arise in the day-to-day operations of advocates.
- To avoid a confrontation between police and advocates, it could be a wise idea to ask the president of the bar association or a prominent judge in the area before arresting an advocate.
- When the state’s legislative branch is considering enacting a new legislation or amending an existing law that may affect the legal industry, the state may consult representatives of the legal profession and take their opinions into account.
Issues such as the transparency of the working of “Advocates’ Grievance Redressal Committee” or consultations between government and lawyers bearing fruit will continue to exist. However, overcoming these issues and restoring the faith of the public in the judiciary shall be the immediate goal of the judiciary.
Author’s Name: Pranit Singh (RGNUL, Patiala)
References:
[1] REFERENCE: W.P. (civil) 132 of 1988
[2] 1979 SCR (3) 532
[3] Criminal Appeal No. 470 of 2018 (Arising out of Special Leave Petition (Crl.) No. 9393 of 2017)
[4] AIR 2018 SC 1665
