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Monday, 20 August 2018

MP HC To Debar Members/Office Bearers Of Bar Council/Assns From Appearing Before Courts In Case They Give Strike Calls

It has to be said right at the outset that in a significant and landmark judgment with far reaching consequences, the first Bench of Madhya Pradesh High Court in the landmark case of Praveen Pandey vs The State of Madhya Pradesh and others delivered on July 31, 2018 which is in continuation of the order dated 10.04.2018 has issued significant directives against the call of a strike by State Bar Council and Bar Associations, including debarring members/officials of the Bar Council/Association which gives a call for a strike, from appearing before the courts. It held in no uncertain terms that, “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 antithesis of democratic life of the country.” Very rightly said!

                                          Truth be told, the Bench of Madhya Pradesh High Court comprising Chief Justice Hemant Gupta and Justice Vijay Kumar Shukla also directed the high court administration to frame rules to the effect that the members of the Bar, who abstain from work shall stand debarred from appearing in courts and the conditions thereof. The Bench also observed that the State Bar Council, which is a statutory authority created to enroll and impart discipline in the members enrolled with it, fails to discharge its role as warranted under the law then the severe action is warranted against the disciplinary authority itself.  

                            Background  

                          To put it pithily, advocate Praveen Pandey had set the ball rolling by challenging the call to all the advocates in the State by the Madhya Pradesh State Bar Council to abstain from court work from 9th to 14th April 2018. In an earlier detailed order dated 10th April, 2018, the Bench had observed that the decision of the State Bar Council calling upon the advocates in the State to observe the ongoing week-long protest and to abstain from all judicial work and court proceedings is illegal and unconstitutional. The Bench had also observed that call to abstain from judicial work is a violation of the fundamental right of an advocate. Also, the advocates in the State were directed to resume work forthwith so that poor, needy, under-trials, convicts and numerous other persons desirous of seeking justice from the Courts to not suffer on account of lack of legal assistance.

                                     Be it noted, para 3 points out that, “Subsequently, on 01.05.2018, an order was passed to examine the question as to what will be the reasonable reasons for the District Bar Associations or the High Court Bar Associations calling upon its members to abstain from work and if such call is given, what steps can be taken by the statutory or non-statutory Authorities.” Furthermore, para 4 states that, “On 09.05.2018, the suggestions were invited from the general public and the members of the Bar Associations as to in what circumstances, Bar Association can give call to its members to abstain from Court work and if the Bar Association gives the said call, how the situation is required to be addressed so that fundamental rights of the Advocates to appear before the Court are not infringed.”

                           To be sure, para 5 while highlighting the contention of State Bar Council stated that, “The State Bar Council has submitted written submissions on 1907.2018, inter alia alleging that the writ petition has become infructuous as the reliefs claimed in the writ petition have already been granted. However, it is stated that the Hon’ble Supreme Court has given a detailed and exhaustive judgment in Ex-Capt. Harish Uppal vs Union of India and Another (2003) 2 SCC 45 as well as in Common Cause, A Registered Society and others vs Union of India and others, (2006) 9 SCC 295. Therefore, there is no need for this Court to discuss and decide the issues, which have already been settled by the Supreme Court. It is further stated that the question as to whether fundamental right of an Advocate to appear before the Court is infringed or not, is purely hypothetical and academic in nature and should be answered only in an appropriate petition. It is also said that call for abstaining from work is purely voluntary in nature and thus, there is no question of violation of anyone’s fundamental right when a member voluntarily abstains from work. It is also pointed out that the Supreme Court is seized of a matter in Writ Petition (Criminal) No. 144/2018 (Deepak Kalra vs State of M.P. and others). It is also pointed out that the Supreme Court can travel beyond the lis involved in the matter under Article 142 of the Constitution of India to do complete justice but no such parallel power is available with the High Court. Therefore, the issue raised by this Court could not be answered in the present petition.”

                          As it turned out, the Bench noted in para 8 that, “The argument that the writ petition has become infructuous is not tenable for the reason that in exercise of power under Article 226 of the Constitution of India, the Court can issue any direction or order. The High Court has power to issue a writ to any person or Authority including any Government within the territory of this Court for enforcement of any of the rights conferred by Part-III of the Constitution of India and/or any other purpose. The writ jurisdiction is being exercised to protect the fundamental rights of the members of the Bar to appear in the Court and also the fundamental rights of the citizens of the State to get their cases decided with the assistance of the Advocates engaged by them.”

                               Needless to say, the Bench noted in para 16 that, “In Ex. Capt. Harish Uppal’s case (supra), the Court delineated steps to be taken before the call for abstaining from work is to be given. It was held that a protest on an issue involving dignity, integrity and independence of the Bar and Judiciary, can be taken provided it does not exceed one day. But, such decision has to be taken by the court as to whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore, it was directed that the President of the 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 will have to be abided by the Bar. Still the State Bar Council as well as the Bar Associations has not cared to follow the directions of the Supreme Court or to give respect to said decision though they are duty bound to follow the law laid down by the highest court of the country.”

                             Not stopping here, the Bench further goes on to observe in para 17 that, “The Advocates are officers of the Court. Their duty is to aid and assist in dispensation of justice. The strike or abstention from work impairs the administration of justice and is inconsistent with the duties of an Advocate. The Bar Association is not Trade Union under the Trade Union Act, 1926. The Trade Union Act 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. By abstaining from work, the members of the Bar do not help anybody. The members of the Bar are protectors of independence of the judiciary. They must rise to maintain independence of judiciary by being an active participant in the administration of justice and not by withdrawing from the pious duty enjoined on them in terms of the Advocates Act, 1961.”

                                   It also cannot be lost on us that the Bench in its landmark judgment also held in para 18 that, “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.” Also, in para 19 it was held that, “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. The situation will be alarming if yearly figures are tabulated. The judgment of the Supreme Court in the case of Ex. Capt. Harish Uppal (supra) has not deterred the State Bar Council or the Bar Associations at the State and the District level to abstain from work. Though the Supreme Court has said that a protest or an issue involving dignity, integrity and independence of the Bar and Judiciary can be overlooked if it does not exceed one day. It has been further said that such call to abstain from work would be in the rarest of rare cases and that it will be for the Court to decide whether or not the issue involves dignity or independence of the Bar and/or the Bench. Therefore, it was ordered that the President of the Bar must first consult the Chief Justice or the District Judge before the Advocates decide to absent themselves from Court work. The decision of the Chief Justice or the District Judge will be final, to be followed by the Bar. But 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.”

                                             To say the least, para 20 aptly questions that, “In these circumstances, the question arises: 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. There are different options available; one is to proceed with the decision of the cases listed for hearing. If the case is decided in the absence of an Advocate or it is dismissed in default, in either case, the litigant who may not be aware of the call of the strike, suffers. Such process, in fact, is not conducive to administration of justice as it leads to applications for recall of the orders passed and further burdens the docket of court. The second opinion is that the contempt proceedings be initiated against the office bearers and/or the members who abstain from work but initiation of contempt proceedings is also not a suitable option in as much as, by the time contempt proceedings could be decided, the mischief of abstaining from work would be done. Still further, the initiation of contempt proceedings against the members of the Bar is not a practical solution as large number of Advocates cannot be possibly proceeded against in contempt proceedings. Therefore, the third option is to oust the office bearers from managing the affairs of the Bar Association(s) or the State Bar Council so that the members of the Bar are not prohibited from appearing in the courts. By prohibiting the members of the Bar, not only the fundamental rights of the Advocates are defeated but also the fundamental right of the citizens to have decision on merits from the Courts of Law gets defeated.”

                         Now coming to para 21 of this landmark judgment. It states that, “Section 34 of the Advocates Act, 1961 empowers the High Court to make Rules laying down the conditions subject to which an advocate shall be permitted to practice in the High Court and the courts subordinate thereto. In exercise of such powers, the High Court has frmaed the High Court of Madhya Pradesh (Conditions of Practice) Rules, 2012 which are published in M.P. Gazette (Extraordinary) on 7.6.2012 but such Rules do not contemplate the consequences of the members of the Bar of abstaining from work either voluntarily or in terms of resolution of the State Bar Council or the High Court or the District Bar Associations. Therefore, 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 condition thereof.” The Bench then minces no words in stating clearly and categorically in next para 22 that, “The State Bar Council is a statutory Authority created to enroll and impart discipline in the members enrolled with it. If such Authority fails to discharge its role as warranted under the law then severe action is warranted against the Disciplinary Authority itself.”

                                          Finally and most importantly, the Bench concludes this landmark judgment in para 23 by giving various directions. It states explicitly and elegantly that, “Therefore, in these circumstances, to give effect to the mandate of the decision of the Supreme Court in Ex. Capt. Harish Uppal’s case (supra), we pass the following directions so that the functioning of courts is conducted smoothly in discharge of its duties of administration of justice:

(A)        IF THE CALL FOR ABSTAINING FROM WORK IS GIVEN BY THE STATE BAR COUNCIL – A STATUTORY BODY CONSTITUTED UNDER THE ADVOCATES ACT, 1961

(i)                         If the State Bar Council gives call to the Members/Advocates enrolled with it to abstain from the Court work, without the consent of the Chief Justice even for a day, the 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.

(ii)                      If the decision is taken to strike or to abstain from work within one year of an earlier decision, leading to debarment of the office bearers to appear in court, 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.

(iii)                   During the above said period, the affairs of the State Bar Council shall be conducted by the Advocate General as an ex officio member of the Bar Council in terms of Section 3 of the Advocates Act; and

(iv)                   Any 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 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.

(B)         IF THE CALL FOR ABSTAINING FROM WORK IS GIVEN BY THE HIGH COURT BAR ASSOCIATION(S) OR DISTRICT COURT BAR ASSOCIATION(S):

(i)                         If the call for abstaining from work is given by any High Court Bar Association or District Court Bar Association, the State Bar Council shall intervene and forthwith declare such strike as illegal unless such strike has been resorted to in consultation with the Chief Justice and/or the district judge, as the case may be;

(ii)                       as a consequence of declaring the action of the Bar Association(s) as illegal, the State Bar Council shall appoint an ad hoc committee to manage the affairs of such Bar Association(s) for a period of one month superseding the elected office bearers. The elected office bearers shall not be permitted to appear before any court for a period of one month. If the Bar Association resolves to resume work so as to not to resort to strike or from abstaining from work, the elected office bearers of the Bar Association shall resume their office;

(iii)                   if the office bearers of the Bar Association again call for strike or to abstain from work, the State Bar Council shall conduct fresh elections to such Bar Association, in which, all office bearers of the Bar Association shall not be eligible to contest the election for a period of three years either of Bar Associations or the State Bar Council; and

(iv)                   if 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 in the manner mentioned in clause A(iv) above.

(C)         The High Court is directed to examine and incorporate in the High Court of Madhya Pradesh (Conditions of Practice) Rules, 2012, the consequences of the members of the Bar, the office bearers of the Bar Association(s) and/or the State Bar Council of not appearing in the Court including the action of the debarment of such erring members and the period thereof. Necessary direction should be carried out within a period of three months.

The writ petition stands disposed of.”

                                 On a concluding note, it can be said that it is a landmark judgment which if implemented in Madhya Pradesh for whom it is meant will go a long way in checking the lawyers from going on strike at the drop of a hat. It needs to be implemented not just in Madhya Pradesh but also in all other parts of India. Strike by lawyers should only be the last option and not the first option at the drop of a hat! This is exactly what this landmark judgment of Madhya Pradesh High Court truly entails!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.