Can Lawyers Go on a Strike? - Bar Can Hold Meeting To Condole Someone's Demise But No Right To Obstruct Court's Functioning: Allahabad HC

In a clear-cut message to all the lawyers fraternity, the Allahabad High Court has been extremely forthright to hold in a latest, laudable, landmark and learned judgment titled Imtiyaj Ali & Ors. vs Add., Commissioner Faizabad-I, Mandal Ayodhya, Ayodhya & Anr. in Misc. Single No. – 28555 of 2021 delivered as recently as on December 23, 2021 that the Members of the Bar are free to hold a meeting to condole the demise of any member or anyone else, but they do not have the right to obstruct the functioning of Courts. It goes without saying that the lawyers are bound to follow what the Allahabad High Court has held so explicitly in this leading case. It must be apprised here that the single Judge Bench of Justice JJ Munir observed so while dealing with the affidavits that were filed before it by the President and the Secretary of Commissioner Court's Bar Association Ayodhya tendering their unconditional apology for the repeated strikes.

To start with, the single Judge Bench of Justice JJ Munir of Allahabad High Court who authored this brief, brilliant, bold and balanced judgment sets the judgment in motion by first and foremost observing that, "Heard Mr. Mohammad Nauman, Advocate appearing for the petitioners, Mr. P.K. Singh, learned Additional Chief Standing Counsel appearing on behalf of the State. Mr. Atul Kumar Dwivedi, appearing on behalf of the President and the Secretary, Commissioner Court's Bar Association, Ayodhya."

While proceeding ahead, the Bench then puts forth that, "On 17.12.2021, an order was passed requiring the personal presence of the President of Commissioner Court's Bar Association, Ayodhya and that of the Secretary, the relevant part of which reads:

"1. In compliance with our order dated 07.12.2021, the Additional Commissioner, Faizabad (First) Ayodhya Division, Ayodhya has submitted a report dated 15.12.2021. A perusal of the said report indicates the following dates on which the cause could not be taken up because of strike by Members of the Bar. These dates are: 22.11.2018, 22.02.2019, 12.03.2019, 09.04.2019, 26.04.2019, 13.06.2019, 02.07.2019, 01.08.2019, 16.09.2019, 09.01.2020, 11.02.2020, 27.02.2020, 01.05.2020, 04.08.2020, 03.02.2021 and 15.04.2021."

Briefly stated, the report says that, "2. A look at the report submitted by the Additional Commissioner, Faizabad (First) Ayodhya Division, Ayodhya shows that the Faizabad Bar Association and the Commissioner Court's Bar Association have virtually brought the functioning of the Commissioner's Court to a standstill. They are indulging in rampant and repeat strikes. This Court is also compelled to take judicial notice of the fact that in Misc. Single No. 34436 of 2019 some affidavits were filed before this Court by the former Presidents and the Secretaries of the Faizabad Bar Association and the Commissioner Court's Bar Association, undertaking that they will not abstain from judicial work, except under some extraordinary circumstances. It has come to the notice of the Court through the report of the Additional Commissioner, Faizabad (First) Ayodhya Division, Ayodhya that the present President of the Commissioner Court's Bar Association, Mr. Anand Srivastava and the Secretary, Mr. Sunil Kumar Singh, are not honouring the aforesaid undertaking given to this Court. In breach of the said undertaking given by their predecessors, the two office bearers are indulging in repeat and rampant adoption of resolutions, asking the Members of the Bar to abstain from judicial work. This conduct is not only unacceptable, but is prima facie contumacious. In District Bar Association, Dehradun through its Secretary v. Ishwar Shandilya and Others, 2020 SCC OnLine SC 244, it has been held:

"14. In spite of the law laid down by this Court in the aforesaid decisions, this Court time and again deprecated the lawyers to go on strikes, the strikes were continued unabated. Even in the present case, the advocates have been boycotting the courts on all Saturdays, in the entire district of Dehradun, in several parts of the district of Haridwar and Udham Singh Nagar district of the State of Uttaranchal. Because of such strikes, the ultimate sufferers are the litigants. From the data mentioned in the impugned judgment and order, things are very shocking. Every month on 3-4 Saturdays, the Advocates are on strike and abstain from working, on one pretext or the other. If the lawyers would have worked on those days, it would have been in the larger interest and it would have achieved the ultimate goal of speedy justice, which is now recognized as a fundamental right under Articles 14 and 21 of the Constitution. It would have helped in early disposal of the criminal trials and therefore it would have been in the interest of those who are languishing in the jail and waiting for their trial to conclude. When the Institution is facing a serious problem of arrears and delay in disposal of cases, how the Institution as a whole can afford such four days strike in a month.

15. Now, so far as the submission on behalf of the petitioner that to go on strike/boycott courts is a fundamental right of Freedom of Speech and Expression under Article 19(1)(a) of the Constitution and it is a mode of peaceful representation to express the grievances by the lawyers' community is concerned, such a right to freedom of speech cannot be exercised at the cost of the litigants and/or at the cost of the Justice Delivery System as a whole. To go on strike/boycott courts cannot be justified under the guise of the right to freedom of speech and expression under Article 19(1)(a) of the Constitution. Nobody has the right to go on strike/ boycott courts. Even, such a right, if any, cannot affect the rights of others and more particularly, the right of Speedy Justice guaranteed under Articles 14 and 21 of the Constitution. In any case, all the aforesaid submissions are already considered by this Court earlier and more particularly in the decisions referred to hereinabove. Therefore, boycotting courts on every Saturday in the entire District of Dehradun, in several districts of Haridwar and Udham Singh Nagar district in the State of Uttarakhand is not justifiable at all and as such it tantamounts to contempt of the courts, as observed by this Court in the aforesaid decisions. Therefore, the High Court is absolutely justified in issuing the impugned directions. We are in complete agreement with the view expressed by the High Court and the ultimate conclusion and the directions issued by the High Court. Therefore, the present Special Leave Petition deserves to be dismissed and is accordingly dismissed. We further direct all concerned and the concerned District Bar Associations to comply with the directions issued by the High Court impugned in the present SLP in its true spirit. It is directed that if it is found that there is any breach of any of the directions issued by the High Court in the impugned judgment and order, a serious view shall be taken and the consequences shall follow, including the punishment under the Contempt of Courts Act.

16. As observed hereinabove, in spite of the decisions of this Court in the cases of Ex-Capt Harish Uppal (supra), Common Cause, A Registered Society (supra) and Krishnakant Namrakar (supra) and despite the warnings by the courts time and again, still, in some of the courts, the lawyers go on strikes/are on strikes. It appears that despite the strong words used by this Court in the aforesaid decisions, criticizing the conduct on the part of the lawyers to go on strikes, it appears that the message has not reached. Even despite the resolution of the Bar Council of India dated 29.09.2002, thereafter, no further concrete steps are taken even by the Bar Council of India and/or other Bar Councils of the States. A day has now come for the Bar Council of India and the Bar Councils of the States to step in and to take concrete steps. It is the duty of the Bar Councils to ensure that there is no unprofessional and unbecoming conduct by any lawyer. As observed by this Court in the case of Ex-Capt. Harish Uppal (supra), the Bar Council of India is enjoined with a duty of laying down the standards of professional conduct and etiquette for Advocates. It is further observed that this would mean that the Bar Council of India ensures that advocates do not behave in an unprofessional and unbecoming manner. Section 48 of the Advocates Act gives a right to the Bar Council of India to give directions to the State Bar Councils. It is further observed that the Bar Associations may be separate bodies but all advocates who are members of such associations are under disciplinary jurisdiction of the Bar Councils and thus the Bar Councils can always control their conduct. Therefore, taking a serious note of the fact that despite the aforesaid decisions of this Court, still the lawyers/Bar Associations go on strikes, we take suo moto cognizance and issue notices to the Bar Council of India and all the State Bar Councils to suggest the further course of action and to give concrete suggestions to deal with the problem of strikes/abstaining the work by the lawyers. The Notices may be made returnable within six weeks from today. The Registry is directed to issue the notices to the Bar Council of India and all the State Bar Councils accordingly."

3. Here is a case, where, despite an undertaking by their predecessors, Mr. Anand Srivastava, President of the Commissioner Court's Bar Association and Mr. Sunil Kumar Singh, Secretary of the said Association, are observing the undertaking in breach.""

To put things in perspective, the Bench then enunciates that, "Mr. Atul Kumar Dwivedi, appears on behalf of the President, Commissioner Court's Bar Association, and the Secretary of the said Bar Association. He has filed in Court two personal affidavits, one sworn by Mr. Anand Srivastava, President of the Commissioner's Court Bar Association and the other by Mr. Sunil Kumar Singh, Secretary of the said Association. Both affidavits have been filed along with a Civil Misc. Application to take the respective affidavits on record. Let both the applications be numbered by the office. Both the applications, as aforesaid, are allowed and the affidavits filed by Mr. Anand Srivastava, President of the Commissioner's Court Bar Association and Mr. Sunil Kumar Singh, Secretary of the said Association are taken on record."

As it turned out, the Bench then envisages that, "The affidavits filed by the two office bearers of the Association have been perused. In paragraph 20 of the affidavit filed by the President of the Association, it is stated thus:

"20. That be that as it may, the deponent tenders his unconditional apology and assures this Hon'ble Court that no resolution abstaining from work shall be passed by the "Commissioner Courts Bar Association" except any grave situation and all possible efforts shall be made and full support shall be extended by the "Commissioner Courts Bar Association" to ensure proper and uninterrupted functioning of the Court.""

Furthermore, the Bench then added that, "Likewise, in the affidavit filed by the Secretary of the Association Mr. Sunil Kumar Singh, it is stated in paragraph 20 of the affidavit thus:

"20. That be that as it may, the deponent tenders his unconditional apology and assures this Hon'ble Court that no resolution abstaining from work shall be passed by the "Commissioner Courts Bar Association" except any grave situation and all possible efforts shall be made and full support shall be extended by the "Commissioner Courts Bar Association" to ensure proper and uninterrupted functioning of the Court."

Most significantly and also most remarkably, what truly forms the cornerstone of this learned judgment is then waxed eloquent stating that, "Going by the law laid down by the Supreme Court in District Bar Association, Dehradun through its Secretary Vs. Ishwar Shandilya and Others, AIR 2020 SC 1412, no kind of freedom or right entitles a Bar Association to give a call for any kind of strike or boycott of Courts. Therefore, the qualified undertaking given by the President and the Secretary of the Bar Association that they will not pass resolutions abstaining from judicial work except in a grave situation is not accepted for the qualifications of it. The undertaking is accepted without any qualifications. It is ordered that until further orders, the Commissioner's Court Bar Association, Ayodhya, shall not pass any resolution, abstaining from judicial work, whether styled as a strike or a call to abstain from judicial work, a condolence resolution that has the effect of withdrawing Advocates from judicial work, by whatever name called. The Members of the Bar are free to hold a meeting to condole the demise of any member or anyone else, but they do not have the right to obstruct the functioning of Courts. The undertaking given today, on the basis of which this order is passed, shall not only apply to the incumbent President and Secretary of the Commissioner's Court Bar Association, Ayodhya but to all their successors-in-Office."

While dwelling in context of this case, the Bench then holds quite succinctly that, "So far as the present petition is concerned, it is directed that the Additional Commissioner Faizabad (First), Ayodhya Division Ayodhya, shall proceed with Appeal No.00911 of 2018, Computerized Case No.C-201804000000911 on a day to day basis and submit a status report also by the next date fixed."

Going ahead, the Bench then directed that, "List this petition again as fresh on 28.01.2022 by which time, the Commissioner, Ayodhya Division Ayodhya, shall submit a report to this Court indicating whether any resolution obstructing the judicial work or withdrawing the Members of the Bar from their professional duties has been passed by the Bar Association."

Adding more to it, the Bench then also made it clear that, "The personal presence of Mr. Anand Srivastava, President of the Commissioner's Court Bar Association, Ayodhya and Mr. Sunil Kumar Singh, Secretary of the said Association is exempted, unless otherwise ordered."

Finally, the Bench then concludes by holding that, "Let this order be communicated to the Commissioner, Ayodhya Division Ayodhya, by the Senior Registrar."

In sum, the key takeaway that one can take from this extremely candid, cogent, composed, commendable, creditworthy and courageous judgment is that lawyers cannot resort to strike as a fundamental right. It merits no reiteration that the lawyers have to adhere to rules and regulations and they are obliged to maintain strict discipline, dignity and decorum in the court. The single Judge Bench of Justice JJ Munir has thus left not even an iota of doubt to reiterate that Bar can definitely hold meeting to condole someone's demise in which there is nothing wrong but the Bench also made it amply clear that there is no unquestionable right to obstruct court functioning. It goes without saying that all the lawyers are definitely bound to adhere to what has been laid down in this leading case so clearly unless and until it is overturned by a Division Bench or by the Apex Court which does not appear possible as we have seen how even the Apex Court in the past also has been so strict with regard to lawyers strike and has ruled decisively against it!