Courting controversy: Strikes called by
lawyers are a fairly common occurence in India. Picture shows lawyers
protesting in Jaipur in 2013 against a police lathi- charge on them.
Photo: Rohit Jain Paras
In all cases of protests, the advocates on strike have been censured by
the courts and reports show that litigants are the biggest losers.
Tamil Nadu is especially notorious for lawyers going on strike, as politics is often mixed with law, say senior advocates.
— Manan Kumar Mishra, Chairman, Bar Council of India
No professional community organises protests and strikes as
frequently as lawyers do, and the Bar Council of India and its State
wings have been virtually powerless to stop them so far. Now, finally,
the community seems to have crossed the invisible line, and it looks as
if the higher courts are prepared to throw the book at them
On February 19, 2009 there was an appalling clash between lawyers and
policemen inside the grounds of the Madras High Court, in which over 100
people were injured and a police station on the court premises was
burnt to the ground. The incident followed two tumultuous weeks which
had seen several hundred advocates of the Tamil Nadu court vocally
sympathising with the cause of the Liberation Tigers of Tamil Eelam
(LTTE) and opposing the policies of the Sri Lankan government.
The incident caused something of a crisis for the Dravida Munnetra
Kazhagam (DMK) government in power at the time, and the Supreme Court
appointed a committee under Justice B.N. Srikrishna, a retired judge of
the Supreme Court, to examine the incident. The Srikrishna Committee
report came down heavily on the police for using excessive force on the
protesting lawyers, but it also noted that it was the lawyers who had
started the confrontation. This, Justice Srikrishna said, was in large
part because of the ‘soft pedalling’ by high court judges when the
lawyers’ strikes and protests had first started.
“The incidents that transpired over the last month or so make it clear
that the lawyers seemed to be under the impression that because they are
officers of the court, they are immune from the process of law and that
they could get away with any unlawful act without being answerable to
the law enforcing agency,” the report said.
In the report thereafter, Justice Srikrishna urged the Supreme Court to
“take this opportunity to exercise its constitutional powers and lay
down sufficient guidelines for the behaviour of the lawyers... as the
bar councils have not been acting as an effective regulatory body of
their professional conduct”. The report also said it would be ideal if
the Advocates Act was amended to ensure a better disciplinary mechanism
for the profession of law.
Repeating history
Not much was made of the Srikrishna Committee report after 2009, but
those observations seem almost prescient in the light of the events that
have taken place in court over the last few weeks. On September 14, a
group of lawyers entered the court of the Chief Justice of the Madras
High Court holding placards and remained there for the whole day. They
were demanding that Tamil be declared the official language of the
court. Despite their presence in the court room, Chief Justice Sanjay
Kishan Kaul did his best to ignore them and ensure that the regular
business of the court proceeded as usual. When the protesting lawyers
refused to yield at the end of the day, they were arrested and remanded.
Another related protest also led to equally unedifying scenes. On June
8, the Madras High Court passed an order mandating the wearing of
helmets by those who ride two-wheelers. A section of lawyers at the
District Bar in Madurai, for reasons that are still unclear, decided to
protest against the order. They took out processions, held meetings, and
distributed pamphlets in which the judiciary was denounced and several
allegations were made against sitting judges. In response to the
inflammatory nature of some of these speeches, the Madras High Court
invoked contempt proceedings against the president and secretary of the
Madurai District Court Advocates Association. The hearing of the
contempt application again witnessed a series of protests, with three
busloads of advocates from Madurai entering the court campus and
directing abuse against the judge hearing the case.
Having failed to draw the line on several earlier occasions, finally
this time the judges of the Madras High Court acted swiftly — they
realised that a line had been crossed. Altercations between the police
and lawyers are regular occurrences, but such an open challenge to the
authority of the court itself made it far more serious. The Chief
Justice immediately ordered that the court campus should be secured with
protection from the Central Industrial Security Force. The High Court
also issued notices to the protesting bar associations, asking them why
they should not vacate the premises allotted to them inside the High
Court. This, along with the contempt notices issued to bar association
leaders, constitutes the strongest action taken by the courts in years.
The Bar Council of India also pitched in, suspending 15 advocates who
had indulged in violence in the court premises. The important question,
however, is if these measures are enough, and what can be done to
effectively deal with the larger issue of frequent lawyer strikes.
Tamil Nadu, unfortunately, has a long history of lawyers going on
strikes at the drop of a hat for various reasons. The losses, in terms
of working days for courts already burdened with a high number of
pending cases, have only compounded over the years. A report published
in this newspaper in 2010 for instance (“Lawyers to abstain from courts
opposing entry of foreign law firms” ) quotes official statistics for
2009 to show that lawyers in Chennai abstained from attending court
proceedings for 32 days, those in Coimbatore for 56 days, and those in
Madurai for 44 days.
On September 28 this year, the Lawyers Association of Madurai District
Court, a body of senior advocates, appealed to their fellow lawyers to
call off strikes because courts in Madurai had lost 70 working days this
year alone.
Infamous case of Tamil Nadu
(Recommendation: The Madras High Court has suggested that BCI
should stop the three-year law degree course and retain only the
five-year degree to standardise the quality of education. File photo:
shows law students at the fifth convocation of the National University
of Advanced Legal Studies in Kochi. Photo: Thulasi Kakkat)
Why is Tamil Nadu notorious for lawyers going on strike? Senior lawyers
in the State point out that part of the problem is mixing politics with
law. The structure of the State’s numerous bar associations often
mirrors political structures, with representative groups from political
parties such as the All India Anna Dravida Munnetra Kazhagam, DMK,
Paattaali Makkal Katchi, and so on. Boycotts and strikes over various
issues therefore become a competitive process to display political
one-upmanship, with the causes taken up having little to do with the
independence of the judiciary or the working conditions for lawyers, the
real issues on which associations such as these could rally around.
In the past few months alone, protests have been called on issues as
diverse as the ill-treatment of Tamil people in Sri Lanka and the ban on
beef in Maharashtra to the under-representation of some communities in
collegium appointments and helmets being made mandatory for two-wheeler
riders.
The working of these various associations is also equally a cause for
concern. “There is no democratic voting that goes on. If there is a
meeting of the association and the leaders call for arranging a boycott,
then other members have no choice but to follow the diktat because if
they dissent, they will be shouted down,” says Arun P., a Chennai-based
advocate. In the so-called election of the leaders of these
associations, huge sums of money are spent for what are seen as
lucrative posts because of the power they wield.
Quality of lawyers
Underlying all this is a growing concern about the quality of lawyers
now entering the profession and how standards of ethicality and
integrity can be maintained. “It is almost as if the image of the lawyer
in public perception has been split into two now,” remarks a senior
advocate. “On the one hand there are lawyers who take up causes for
their clients, and on the other is a growing section that simply uses
the position of being a lawyer to secure their demands in a completely
unlawful manner.”
Given Tamil Nadu’s long and complicated history with lawyers’ strikes,
the State is now undertaking some significant debates on the cleansing
of the legal profession. On October 6, the Madras High directed the
Union government to consider entrusting the functions of the Bar Council
of India (BCI) to an expert committee headed by a retired Supreme Court
judge. The BCI is currently the body entrusted with regulating the
legal profession and to deal with lawyers who step out of line.
The court said this expert committee could consist of academics, legal
luminaries, doctors, prominent social workers, and retired Indian
Administrative Service officers and police officers; and shall be
entrusted with the functions of the BCI permanently or till the
Advocates Act is suitably amended so that the entry of criminal or
extremist elements into the profession is barred. Besides the suggestion
for a body of experts, the Madras High Court also suggested that the
BCI should stop the three-year law degree course at the earliest and
retain only the five-year degree to keep the degree on a par with other
professional courses such as medicine and engineering.
These suggestions for quality control closely follow a speech given by
the current chairman of the BCI, Manan Kumar Mishra, in Chennai, in
which he stated that 30 per cent of the lawyers in the country hold fake
degrees and that this was a major reason why strikes keep happening.
The number of advocates in the country has been pegged at close to 1.7
million.
Other protests
The suggestion of the Madras High Court for an expert committee to
replace the BCI could have important implications nationally. While
Tamil Nadu may have always provided the most extreme examples of
protest, strikes called by lawyers are a fairly common occurrence across
the country.
“Of the 1.7 million-odd lawyers in India, over 30 per cent have fake degrees. ”
In July this year, lawyers of Delhi’s district courts began an
indefinite strike against the delay in passage of an amended bill in
Parliament on enhancement of pecuniary jurisdiction of trial courts. The
Bill was supposed to reduce the workload of the Delhi High Court and
transfer several cases to the lower courts. A parallel protest was held
by the Delhi High Court Bsssar Association against the passage of the
Bill and things reached such a stalemate that a non-profit organisation
called Common Cause filed a Public Interest Litigation in the Delhi High
Court calling for the strikes to end. Appearing on their behalf,
advocate Prashant Bhushan asked the court to direct the BCI to
incorporate appropriate rules that prohibited advocates from striking
work in the Standards for Professional Conduct and Etiquette framed
under the Advocates Act, 1961.
In June, lawyers in Pune went on strike demanding that a Bombay High
Court bench be established there. That strike went on for over two
weeks. Similar strikes over the setting up a of a high court bench have
frequently taken place in western Uttar Pradesh as well. In July this
year, thousands of lawyers in Bihar called a strike protesting over
alleged corruption in the lower judiciary while in Rajasthan last year,
advocates called a strike lasting about 68 days to press for a range of
demands including a corruption-free judiciary, misuse of contempt
provisions, disposal of pending cases against judges, probe into legal
aid funds, and irregular judicial appointments.
Enforcing order
In all these cases, the advocates on strike have been censured by the
courts and there are numerous reports of litigants being the biggest
losers, as they have to contend with even further delay in the hearings
of their cases. The reality is that no other professional community
organises protests and strikes as frequently as lawyers do — and the Bar
Council of India and its state wings have been virtually powerless to
stop them.
The issue of whether lawyers can go on strike was addressed by the
Supreme Court in Common Cause vs. Union of India in 2005. The Court held
that it was unprofessional for a lawyer to strike, or boycott the
court, that bar associations should not permit meetings calling for such
strikes or boycotts, and such requisitions should be ignored. And that
it is the duty of the State and National Bar Councils to take action
against striking bar associations and sponsors of boycotts.
Last, it held that it is only in the rarest of rare cases that
abstention from court is justified, such as dignity, integrity and
independence of the Bar and Bench, and the importance of the matter
would be decided by the judge heading the Court. If valid, the Court
said a protest could be held, but for only one day.
This order has, of course, never been enforced in full spirit, either by
the apex court or the Bar Council. The legal community has been given a
long rope for too long, perhaps in recognition of the fact that
strained relations between the bar and bench creates a difficult problem
to deal with. It may now be time for a new outlook and tougher
regulations.
Some major protests across the country
- 2014: Advocates in Rajasthan call a strike that lasts for about 68 days to press for various issues including a corruption-free judiciary, irregular judicial appointments, and disposal of pending cases against judges.
- June, 2015: Lawyers in Pune go on strike for two weeks demanding that a Bombay High Court bench be established there.
- July, 2015: Lawyers of Delhi’s district courts begin an indefinite strike against the delay in passage of an amended bill in Parliament on enhancement of pecuniary jurisdiction of trial courts. A parallel protest is held by the Delhi High Court Bar association against the passage of the Bill.
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