Lawyer’s Strikes in India: A Balanced Approach through Arbitration

17th February, 2023 - 5:39 am Categories: Legal Issues 0 Comments

Introduction

“On the slightest pretense strikes and/or boycott calls are resorted to. The judicial system is being held to ransom. Administration of law and justice is threatened. The rule of law is undermined,” stated a three-judge bench of the Supreme Court in Ex-Capt. Harish Uppal vs Union Of India (2002).[i] The Court ultimately held that lawyers have no right to strike, engage in a boycott, or even call for a token strike with the sole exception of a circumstance where the Bar or the Bench’s dignity, integrity, and independence were in jeopardy. The aforementioned position of law, which imposes a strict ban on lawyer’s strikes, has been repeatedly reaffirmed by courts throughout the country.

[Image Sources : Times of India]

However, lawyer’s strikes have continued unabated despite the various judicial pronouncements on the issue. This dire situation was examined by the Law Commission of India in its 266^th report,[ii] which, after presenting its observations regarding the number of days wasted due to strikes and their reasons, recommended an amendment to the Advocates Act, 1961.[iii] The amendment aimed to penalize any strikes by lawyers and made them liable for losses suffered by their clients during the pendency of the strike. The report was not well received by the Bar Council of India (‘BCI’), which termed it “draconian, anti-lawyer and undemocratic.”[iv] Therefore, the ban on Strikes by lawyers remains un-codified and exists only in Judicial pronouncements, which by themselves are rarely enforced. The recent judgement of the Allahabad High Court issuing contempt notices to office bearers of Ambedkar Nagar Bar Association for indulging in frequent strikes[v] is a glaring reminder of the need for a balanced approach that adequately addresses the issues of the striking lawyers while maintaining the efficient working of the judicial system.

In the interest of Justice: Seeking a balanced outlook

Arbitration, coupled with other Alternative Dispute Resolution (‘ADR’) mechanisms, has the potential to solve the above-mentioned problem. Since the previous judgements alone in this regard could not resolve the issue, a different approach must be taken, i.e., codifying the rules and regulations regarding strikes in the Advocates Act. The BCI may act as the drafting authority, and within the rules, there must exist a hybrid/multi-tiered Arbitration clause wide enough to cover all or any disputes that may lead to a strike by lawyers. The dispute resolution process, as provided for in the clause, shall work in the following way (Figure 1):

 First, taking inspiration from Section 22 of the Industrial Disputes Act 1947,[vi] the lawyers must serve a notice of strike that details the dates, concerns, and reasons behind the strike. The notice must be given within a reasonable time limit, which shall be provided for in the rules and immediately after serving the same, the parties are mandatorily referred to a Mediation/Negotiation/Conciliation. Any strike during the pendency of adjudication proceedings would be banned. If an agreement is reached, it shall be binding upon the parties, and the dispute resolution process shall come to an end.

Nevertheless, if a resolution is not reached within a prescribed time limit, then we shall move to the second step, i.e., referring the dispute to Arbitration, whose award shall be final and binding upon the parties. The Arbitration clause in the Advocates Act shall clearly provide the necessary details such as the mode of appointment of arbitrators, the number of arbitrators, and the seat of Arbitration, which can be the place where the cause of action arose. If the lawyers fail to give reasonable notice or abide by the process, their strike would be illegal, and they shall be liable to pay the requisite fine with compensation to aggrieved persons.

Unfortunately, the above-mentioned process faces certain practical difficulties as one crucial question needs to be addressed before it is implemented: Are all disputes that lead to strikes by lawyers capable of being resolved through Arbitration or any other ADR mechanism?

To answer this question, various reasons why strikes have been organized in the past must be closely examined. According to the law commission, “the Strike by advocates or their abstinence from the Court were hardly for any justifiable reasons…. The reasons for strike call or abstinence from work varied from local, national to international issues, having no relevance to the working of the courts.”[vii] Heavy rains, a bomb blast in a Pakistan school, amendments to Sri Lanka’s constitution, and inter-state river water disputes were further cited by the commission as some of the previous reasons for strikes. Clearly, the dispute resolution process, as discussed in this essay, is not meant to deal with the aforementioned issues. Any such strike must be strictly prohibited, and a ban on the same ensures the protection of the clients’ interests. Similarly, a strike against a judgement or a particular legislation cannot be held reasonable as appropriate legal remedies are available to the lawyers. The Allahabad High Court, while dealing with the issue of frequent strikes by lawyers in Uttar Pradesh in Manoj Kumar and others v. Civil Judge (Junior Division), Deoria and others (1997), has rightly observed that:

“[T]he judiciary and Bar are both accountable to the public, and they must behave in a responsible manner so that cases are decided quickly and thus the faith of the public in the judiciary is maintained…… The lawyers must realize that litigants, witnesses, etc., often come from distant places at heavy expense and it is most improper that they have to go away because of strikes by lawyers.”[viii]

However, strikes are justifiable in some instances even where the judicial system’s dignity, integrity, or independence is not at stake. For instance, a strike due to a notice[ix] issued by the government that impacts the interests of the lawyers, working conditions of the district court, low wages, long hours and unsatisfactory work conditions and environment for Legal Aid Counsels and Public Prosecutors,[x] and the like. In 2019, BCI, Bar Council of Delhi (BCD) and District Bar Association organized a strike after an altercation between lawyers and police personnel at Delhi’s Tis Hazari Court Complex escalated and resulted in grave violence, including a lawyer getting shot.[xi] Delhi High Court suggested that the responsible members of the Bar and the police conduct a joint meeting to resolve their differences amicably, and subsequently, the strike was called off.[xii] Though criminal matters are not adjudicated through ADR, this situation clarifies that resolving disputes amicably through discussion and dialogue can help deal with the issue of strikes. If such dialogue does not work, the matter can be finally settled through Arbitration.

Conclusion

In the situations mentioned above, where the traditional legal remedies do not work or are not available, strikes are the only way to pressure the concerned authorities. A blanket ban on any strikes by lawyers, labelling all strikes as unjustifiable and setting a very high threshold for a justifiable strike as the Court did in Harrish Uppal, renders the lawyers with genuine grievances in exploitative positions. Thus, there is an urgent need to approach this issue with a balanced perspective. A hybrid/multi-tiered Arbitration clause in the Advocates Act, if drafted carefully, can go a long way in resolving a problem that results in direct denial of justice to the country’s citizens.

Author: Pratham Malhotra, a third-year law student at Rajiv Gandhi National University of Law, Punjab (RGNUL), in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

REFERENCES

[i] https://main.sci.gov.in/jonew/judis/18663.pdf

[ii] https://lawcommissionofindia.nic.in/reports/Report266.pdf

[iii] https://www.indiacode.nic.in/bitstream/123456789/1631/1/A1961_25.pdf

[iv]https://indianexpress.com/article/india/bar-council-rejects-law-panels-266th-report-4743439/

[v] https://www.barandbench.com/news/litigation/contempt-notice-issued-to-office-bearers-of-ambedkar-nagar-bar-association-for-calling-frequent-strikes-allahabad-high-court

[vi] https://www.indiacode.nic.in/bitstream/123456789/15191/1/A1947-14.pdf

[vii] https://lawcommissionofindia.nic.in/reports/Report266.pdf

[viii] https://indiankanoon.org/doc/1551784/

[ix] https://www.firstpost.com/india/gyanvapi-row-no-hearing-in-varanasi-court-today-due-to-lawyers-strike-10689151.html

[x] https://www.epw.in/engage/article/plight-legal-aid-counsels-district-courts-india

[xi]https://www.barandbench.com/news/tis-hazari-bcd-bci-district-bar-association-representatives-pass-resolution-to-suspend-lawyers-strike

[xii] http://164.100.68.118:8080/FreeText/download.do?FILENAME=dhc/CHS/judgement/06-11-2019//CHS06112019CW116522019.pdf&ID=1880749208_0