Dr.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

ACADEMIC SESSION: 2024-2025

Professional Ethics

“RIGHT TO STRIKE OF ADVOCATES”

Submitted To: Submitted By:

Dr. Samreen Hussain Vanshita Gupta

Assistant Professor Enrolment No. 200101153

RMLNLU, Lucknow IX Sem, B.A.LL.B. (Hons.)

1|Page
 TABLE OF CONTENTS

“RIGHT TO STRIKE OF ADVOCATES” ..................................................................................... 1

TABLE OF CONTENTS ................................................................................................................ 2

ACKNOWLEDGMENT ................................................................................................................. 3

DECLARATION ............................................................................................................................. 3

INTRODUCTION .......................................................................................................................... 4

RESEARCH METHODOLOGY .................................................................................................... 5

LITERATURE REVIEW ................................................................................................................ 5

OBJECTIVES OF THE STUDY .................................................................................................... 5

MEANING OF THE TERM ‘STRIKE’ ......................................................................................... 6

RIGHT TO STRIKE ....................................................................................................................... 7

International Perspective ............................................................................................................. 7

Right To Strike And Indian Constitution .................................................................................... 8

ADVOCATES RIGHT TO STRIKE IN INDIA ............................................................................. 9

ANALYZING SOME IMPORTANT JUDGMENTS ....................................................................11

Role Of Bar Council Of India: .................................................................................................. 12

CONCLUSION ............................................................................................................................. 13

SUGGESTIONS ........................................................................................................................... 14

BIBLIOGRPAHY ......................................................................................................................... 15

2|Page
 ACKNOWLEDGMENT

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals and organizations. I would like to extend my sincere thanks
to all of them. I am highly indebted to Dr. Samreen Hussain for her guidance and constant
supervision as well as for providing necessary information regarding the project, also for her
support in completing the project.

I extend my gratitude towards the seniors of my course, who constantly helped me find the best
sources for research. Finally, I acknowledge the authorities of Dr. Madhu Limaye Library, who
provided me with the means to make this project in the form of access to online books and
resources.

This project is a result of my efforts combined with all the means and environment that has been
provided to me by Dr. Ram Manohar Lohiya National Law University, Lucknow and its authorities
and I am thankful to them.

DECLARATION

I hereby declare that the project report of “RIGHT TO STRIKE OF ADVOCATES”, submitted
by me to Dr. Ram Manohar Lohiya National Law University, Lucknow, Uttar Pradesh in partial
fulfilment requirement for the award of the degree of B.A. LL.B. (Hons.) is a record of bonafide
project work carried out by me under the guidance of Dr. Samreen Hussain. I further declare that
the work reported in this project has not been submitted, and will not be submitted either in part
or in full, for the award of any other degree or diploma in this institute or any another university.

3|Page
 INTRODUCTION

Traditionally in industrial relations both the management and the workers union had a tool each.
The management in this had the right of lock-out while the labour union could call a strike. It was
in this manner that the two parties remained at an equal footing while considering their bargaining
powers. The constitutional framers too understood the importance of citizens coming together for
a cause and provided them "right to assemble peacefully and without arms" as a fundamental right.

Modern India, however, has moved on. The Supreme Court in In Communist Party of India
(Marxist) v. Bharat Kumar1 1997 held that any individual or cross-section of a society has no right
to call for a bandh or hartal or a general strike which interferes with the fundamental freedoms and
rights of other citizens, which may also cause national loss in many ways.

Similar has been a fate of lawyers. While they are considered as harbingers and guards against an
autocratic society, yet they are not allowed to gather and voice their opinion. In 2002, the Supreme
Court gave a categorical finding, that lawyers had no right to strike because the strike comes in the
way of already suffering litigants. And it was also held that any such strike by lawyers will be held
as illegal and will bring actions against them.

There was overwhelming judicial opinion against the lawyers going on strike. Dignity of the court
was required to be maintained from the bar for not absconding work and abandoning the client
which was clearly held in the case of Ex-Capt. Harish Uppal v. Union of India2.

However, in the legal profession, the role of advocates complicates this right, as their actions can
significantly impact both the justice system and the rights of their clients. Advocates serve as
intermediaries between the court and citizens, responsible for upholding justice and ensuring the
smooth operation of legal proceedings. Consequently, the question of whether lawyers should
have the right to strike is contentious, as it brings into conflict their rights as workers and their
ethical responsibilities as officers of the court. This report examines the right to strike of advocates
in India, exploring legal frameworks, judicial perspectives, and ethical considerations surrounding
this topic.

1
In Communist Party of India (Marxist) v. Bharat Kumar, AIR 1998 SC 184.
2
Ex-Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45

4|Page
 RESEARCH METHODOLOGY

This research is descriptive and analytical in nature. Secondary and Electronic resources have been
largely used to gather information about the topic. Websites, books, journals and articles have been
primarily helpful in giving this project a firm structure. Footnotes have been provided wherever
needed to acknowledge the source.

LITERATURE REVIEW

The right to strike, particularly among advocates, is a contested issue with complex legal and
ethical implications. Literature on this topic often explores the balance between the rights of legal
professionals to protest and their obligations to clients and the judicial system. In India, while
labor laws recognize strikes as a form of collective bargaining, advocates face stringent restrictions
on this right due to their unique role in upholding justice. The Indian judiciary has consistently
ruled against strikes by lawyers, as seen in landmark cases like Ex-Capt. Harish Uppal v. Union
of India, which held that lawyers must prioritize court proceedings and client interests over
collective action. Internationally, frameworks like the International Labour Organization (ILO)
conventions provide broader support for strike actions, yet the application to the legal profession
remains limited. This divergence underscores a tension between advocates' rights as workers and
their duties as officers of the court, highlighting a need for nuanced ethical guidelines.

OBJECTIVES OF THE STUDY

The primary objectives of this project report are:

1. To study the term strike;

2. To understand the right to strike from both Indian and international perspective
3. To discuss the right to strike of advocates in India
4. To analyze some of the important judgment of the Supreme Court in regard to lawyer’s
right to strike.

5|Page
 MEANING OF THE TERM ‘STRIKE’

The right to strike is the most visible form of collective industrial action that workers employ to
force employers to express their grievance and to force the employer to the bargaining table.

In the case of Tramp Shipping Corporation v. Greenwich Marine Incorp3, Lord Denning stated

that a strike is “a concerted stoppage of work by men, done with a view to improving their wages
or conditions of employment, or giving vent to a grievance or making a protest about something
or sympathizing with other workmen in such endeavor. It is distinct from stoppage brought by an
external event such as a bomb scare or by apprehension of danger.”

In brief the definition of strike includes the following points:

• Strikers are persons employed in any industry to do work.

• A strike is called against an employer of labour.
• Strike is a concerted action under common understanding by the strikers to refuse to work or
accept employment.
• The concerted action may be pre-planned or spontaneous
• The action resulted in physical cessation of work whose duration is immaterial.
Hence, Strike means “concerned stoppage of work by workers done with a view to improving their
wages or conditions, or giving vent to a grievance or making a protest about something or the
other, or supporting or sympathizing with other workers in such endeavour.” Based upon opinion
of various jurists the `strike' is a weapon of social justice for the powerless against the powerful
to be used as a last resort when no other option is available.

For advocates, however, striking takes on additional implications. As legal professionals, their
role is bound by a duty to clients and the court, which makes their participation in strikes
particularly complex. While strikes in other industries are seen as tools for social justice and
workplace fairness, strikes by advocates can directly disrupt the administration of justice,
affecting the public’s access to legal representation and undermining the client-attorney
relationship.

3
Tramp Shipping Corporation v. Greenwich Marine Incorp ,[1975] 1 WLR 1042
 RIGHT TO STRIKE

International Perspective

The right to strike has acquired an implied sanction from the Universal Declaration of Human
Rights (1948). Articles 23,24 and 25 of the declarations asserts that everyone has the right to work,
right to just and favorable remuneration and right to form and join trade unions and also the right
to rest, leisure, leave etc. and the right for fair living conditions with necessary social benefits.4

The English Courts have already recognized this right as a justifiable right. Lord Denning in

Morgan v. Fry5 stated that strike is labour’s ultimate weapon and in the course of hundred years it
has emerged as the inherent right of every worker. It is an element which is the inherent nature of
the principle of collective bargaining.

Right from the industrial revolution, the reasonable right of the workers to strike work is
recognized in various countries. Article 42 of the constitution of Ethiopia provides the right to
strike to the workers and also enjoins the state to provide such right, subject to any restrictions,
even to the government employees. Article 34 of the constitution of Angola guarantees right to
strike and prohibit lockouts.5 Under Article 9 of the constitution, Brazil, guarantees the right to
strike. Capitalist countries like Japan and South Korea too provide for the right to strike in their
respective constitutions.

With the help of International conventions, International Labour Organization also guarantees
these rights and many other labour rights. India is a founding member of the ILO and it is naturally
expected from our country too that it doesn’t violate the international labour standards.

There are two most important conventions in relation to right to strike, Convention no. 87
(Freedom of Association and Protection of the Right to Organize Convention, 1948) and 98 (Right
to Organise and Collective Bargaining Convention, 1949).

4
Human Rights (Mar. 30, 2019). http://www.encyclopedia.com/topic/human_rights.aspx 5 Morgan v. Fry , [ 1968] 2
Q.B. 710
5
Human rights watch (Mar. 30, 2019) https://www.hrw.org/sites/default/files/wr2013_web.pdf
Even though these convention does not refer to the right of strike, the ILO committee on experts
has been regarding it as an essential and vital part of the basic right to organize.6

Right To Strike And Indian Constitution

Indian law does not expressly recognize the right to strike. It was the Trade Union Act, 1926 which
for the first time provided limited right to strike. The Act legalized certain activities of a registered
trade union in furtherance of a trade dispute, which were otherwise a breach of common economic
law. In the present time, the right to strike is recognized only to a limited extent as a legitimate
recourse for Trade Unions.

In context of the Indian Constitution, the right to strike streams out from the right to form unions
and is not recognized as an absolute right. Every right is subject to reasonable restrictions and the
same applies to forming trade unions and calling out the workers to go on strike wherein, the state
can impose reasonable restrictions. In All India Bank Employees Association v. I. T.,7 the Supreme
Court held:
“The right to strike or right to declare lock out may be controlled or restricted by appropriate
industrial legislation and the validity of such legislation would have to be tested not with reference
to the criteria laid down in clause (4) of article 19 but by totally different considerations.”

There is a guaranteed fundamental right to form associations or labour unions but a fundamental
right to go on strike does not exist. The Industrial Disputes Act, 1947 lays down the grounds and
conditions for a legal strike which if unfulfilled, render a strike illegal.

In Kameshwar Prasad and Others v. State of Bihar and Another,8 the High Court took the view
that the freedom guaranteed under Arts. 19 (1) (a) and 19 (1) (c) does not include a right to
demonstrate or to strike by servants of Government.

6
Right To Strike- A Legitimate Illegality (Apr. 2, 2017) http://www.legalservicesindia.com/articles/legill.htm
7
All India Bank Employees Association v. I. T, 1962 SCR (3) 269
8
Kameshwar Prasad and Others v. State of Bihar and Another, AIR 1962 SC 1166.
In Bank of India v. I.S.Kalewala9 the constitutional bench held that, whether the strike is legal or
justified is question of fact to be decided with the help of the evidence on record.

In Crompton Greaves Ltd v. Workmen10 the division bench held it that a strike is legal if it does not
violate any provision of the statute. A strike cannot be said to be unjustified until and unless the
reasons given are entirely unreasonable. Whether a particular strike is justified or not is a question
of fact which has to be seen and determined according to the facts and circumstances of each case.

The word "strike" has been defined under Section 2(q) of the Industrial Disputes Act, 1947. Strike
is the act of stoppage of work by a body of workmen for the purpose of coercing their employer
to agree to some of the demands which have been made upon him. A perusal of various provisions
of the Industrial Disputes Act, 1947 would reveal that workers have no absolute right to go on
strike. Section 22 of the Industrial Disputes Act, 1947 lays down circumstances in which strike in
public utility services is prohibited. Under Section 23 there are restrictions imposed on workmen
from going on strike in the circumstances enumerated therein. It is regarded as a powerful weapon
for collective bargaining though.11

ADVOCATES RIGHT TO STRIKE IN INDIA

If we look into the provisions of the Advocates Act and the Legal Practitioners Act, it becomes
evident that the position of advocates is quite different from an employee. An advocate is a person
learned in the law and duly admitted to practice, who assists his client with advice and pleads for
him in open court. It is the professional body of lawyers - the Bar Council of India which lays
down standards of professional conduct and etiquette for advocates to safeguard the rights,
privileges and interests of advocates. A Code of Ethics for the legal profession in India was framed
as early as 1962. It details the duties of advocates. Bar Council of India has also framed rules in
exercise of its rule-making power under the Advocates Act, 1961. Chapter II of Part VI of these

9
Bank of India v. I.S.Kalewala, (1990) 2 Lab & IC 39.
10
Crompton Greaves Ltd v. Workmen, AIR 1978 SC 1489.
11
JUSTICE PANA CHAND JAIN (RETD.), Lawyers and the Boycott of Courts (Mar. 30, 2015).
http://www.ebcindia.com/lawyer/articles/95v5a3.htm
"Rules Governing Advocates" prescribe standards of professional conduct and etiquette for
lawyers.12

The Preamble to these Rules states the duties and obligations of lawyers in general terms.
Summarizing the rules it says nothing but the advocates owe a duty not only to their clients, but
also to the court and are bound to cooperate with the court in the orderly administration of justice.

It is in this background that one has to look into the problems created by lawyers' strikes. The
questions usually raised are: Can we afford lawyers' boycott of courts anymore? Whether lawyers'
boycott is justified? Who suffers the most on account of boycott? Amongst various duties required
to be discharged by the lawyers, one of the duties to the court is that an advocate shall maintain
towards the court a respectful attitude bearing in mind that the dignity of the judicial office is
essential for the survival of an independent judiciary, and thus of constitutional Government.

The court has also a reciprocal duty to perform and should not only not be discourteous to a lawyer
but should also try to maintain respect in the eyes of his clients and the general public with whom
he has to deal in his professional capacity. Hypersensitiveness on the one side or rudeness on the
other must be avoided at all costs.

In this view it is difficult to concede a right to boycott courts to the lawyers on the analogy of
conceding right to strike of employees. Moreover, the right to strike work in India is admittedly
not absolute. This is so in the industrial sector as well as in public service sector. The members of
the Bar Association thus have no right to boycott courts in view of the duties which they are
required to discharge. It is true that under the Constitution of India, freedom of association is
guaranteed as a fundamental right, but this right is subject to reasonable restriction in the interest
of public order or morality. The prohibition against strikes by lawyers is inbuilt in the Advocates
Act, 1961. The duties to the court and duties to the clients prescribed by Bar Council of India go
to prove that strike or boycotting of courts is antithesis to practise in the court, and is a professional
misconduct. An advocate being an officer of the court and thus bound to submit to its
authority cannot join in an action to boycott the court or a particular judge because of any
grievance - real or alleged.

12
Id.
 ANALYZING SOME IMPORTANT JUDGMENTS

There are a series of case laws which declare that a strike by advocates is illegal.

In B.L.Wadehra v. State 13 the Court held that if on the ground of strike a lawyer abstains from
appearing in court in a case in which he holds a vakalatnama from a client, he is conducting
professional misconduct, a breach of contract, breach of trust and a breach of professional duty.

This sentiment was futher echoed in Ramon Services Pvt. Ltd v. Subhash Kapoor 14 where it was
observed “Abstaining from the courts by the Advocates, by and large, does not only affect the persons
belonging to the legal profession but also hampers the process of justice sometimes urgently needed
by the consumers of justice, the litigants. Legal profession is essentially a service oriented profession.
The relationship between the lawyer and his client is one of trust and confidence. With the strike by
the lawyers, the process of court intended to secure justice is obstructed which is unwarranted under
the provisions of the Advocates Act. Law is no trade and briefs of the litigants not merchandise”.

Finally in Ex-Capt. Harish Uppal v. Union of India, 15 a three judge bench of the Supreme Court
declared the law in certain on terms against lawyers going on strike. The Bench further declared that
the lawyers could ventilate their grievances by "giving press statements, TV interviews, carrying out
of Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful
protest marches outside and away from Court premises, going on dharnas or relay fasts etc" but not by
holding strike and abstaining from appearing in a court.

The Bench noted that lawyers cannot disrupt court proceedings and put the interest of their clients in
jeopardy. The Bench noted that even if the Bar Councils, on a complaint from a client, do not take
disciplinary action against an advocate for non-appearance owing to a call for strike or boycott, the
Supreme Court, on an appeal, can and will. Apart from this, the Bench cited the Supreme Court's
judgment in Ramon Services Pvt. Ltd. v. Subhash Kapoor16 and said every court should and must
mulct, with costs, advocates who hold vakalats (power of attorney) but do not attend courts in response
to a strike call. Such costs would be in addition to the damages the advocates may have to pay for the
loss suffered by his or her client because of his or her nonappearance. There are remedies available to
a client, if he or she feels that the advocate has violated the contract by going on strike.

13
B.L.Wadehra v. State ,AIR 2000 Delhi 266
14
Ramon Services Pvt. Ltd v. Subhash Kapoor, (2001) 1 SCC 118.
15
Ex-Capt. Harish Uppal v. Union of India, 1994 SCC Supl. (2) 195.
16
(2001) 1 SCC 118
On the grievance that strikes interfere with administration of justice, the Bench held that courts are
under no obligation to adjourn matters because lawyers are on strike. "On the contrary, it is the duty
of all courts to go on with matters on their boards even in the absence of lawyers. In other words,
courts must not be privy to strikes or calls for boycotts," the Bench ruled. More important, the Bench
made it clear that no threat or coercion of any nature, including the threat of expulsion from the Bar
Council or any lawyers' association, can be held out against an advocate who defies a strike call.

Role Of Bar Council Of India:

The Advocates Act, 1961, Section 7, outlines the responsibilities of the Bar Council of India[15] which
are as follows;

• Maintenance of Standards of Professional Conduct and Ethics: The BCI formulates and
enforces rules of professional conduct and etiquette for advocates. It ensures that advocates
maintain high standards of integrity, professionalism, and ethics in their practice.
• Safeguarding the Rights, Privileges, and Interests of Advocates: The BCI works to protect the
rights and interests of advocates. It addresses grievances and concerns raised by advocates and
takes appropriate measures to safeguard their professional interests.
• Disciplinary Proceedings: The BCI has the authority to inquire into allegations of misconduct
against advocates. It conducts disciplinary proceedings and imposes penalties or sanctions on
advocates found guilty of professional misconduct.
• Representation of the Legal Profession: The BCI represents the legal profession in India and
serves as its apex regulatory body. It interacts with the government, judiciary, and other
stakeholders on behalf of advocates, addressing issues concerning the legal profession and
advocating for its interests.

Hence, the Supreme Court in a case in 2002 held that lawyers have no right to strike and such strike
and declaration is illegal. Their powers are within the judicial system only. The Bar Council should
see that there is smooth functioning of the judicial body. In Common Cause a Registered Society v.
Union of India and Others18In this case it was held that, if any associations of advocates call for a
strike, then it is mandatory for the authorities to take strict actions against them.

The Bar council is represented by the lawyers; hence it is the lawyers' duty towards the court which
matters. Even the Bar Council has certain provisions under Section 1 of Chapter II; Part VI of The Bar
Council of India Rules, 1975; the advocates duties towards the court have been mentioned.
 CONCLUSION

In conclusion it is held that lawyers have no right to go on strike or give a call for boycott, not even on
a token strike. The protest, if any is required, can only be by giving press statements, TV interviews,
carrying out of Court premises banners and/or placards, wearing black or white or any colour arm
bands, peaceful protest marches outside and away from Court premises, going on dharma‟s or relay
fasts etc. It is held that lawyers holding Vakalats on behalf of their clients cannot not attend Courts in
pursuance to a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike
or boycott. No lawyer can be visited with any adverse consequences by the Association or the Council
and no threat or coercion of any nature including that of expulsion can be held out.

It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of
considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. It is
held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or
the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not
more than one day. It is being clarified that it will be for the Court to decide whether or not the issue
involves dignity or integrity or independence of the Bar and/or the Bench.
Therefore in such cases the President of the Bar must first consult the Chief Justice or the
District Judge before Advocate decide to absent themselves from Court. The decision of the Chief
Justice or the District Judge would be final and have to be abided by the Bar. It is held that Courts are
under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of
all Courts to go on with matters on their boards even in the absence of lawyers. In other words, Courts
must not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a Vakalat of a client,
abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall
be addition to damages which he might have to pay his client for loss suffered by him.

In conclusion, while the right to strike is an established aspect of collective bargaining, its application
to advocates raises ethical and practical concerns. The judiciary’s firm stance against advocates’ strikes
reflects the need to protect the integrity of the legal system and the interests of clients who rely on
timely legal assistance. The prohibition of strikes by advocates is not merely a restriction on their
rights but a necessary measure to maintain public trust and the smooth functioning of the courts.
Alternative protest methods, such as peaceful demonstrations or press statements, allow advocates to
express their concerns without compromising their professional responsibilities. Ultimately, balancing
advocates’ rights with their ethical obligations requires careful adherence to standards that uphold
justice, accountability, and the rule of law.
 SUGGESTIONS

1. Promote Alternative Protest Methods: Encourage advocates to use non-disruptive methods, such as
press releases or peaceful demonstrations outside court premises, to voice grievances without
hindering court proceedings.

2. Establish Grievance Redressal Mechanisms: Set up formal channels within Bar Councils to address
advocates' concerns, reducing the need for strikes as a means of protest.

3. Enhance Mediation Between Bar Associations and Judiciary: Strengthen collaboration to resolve
disputes and issues advocates face, fostering a cooperative environment that prioritizes justice
delivery.

4. Implement Clear Disciplinary Guidelines: Enforce strict disciplinary actions for unauthorized
strikes, ensuring advocates adhere to ethical obligations while expressing their concerns responsibly.

5. Educate Advocates on Legal and Ethical Standards: Conduct regular training on professional ethics
and legal consequences of strikes, clarifying permissible avenues for protest.

6. Review Legislation on Strike Rights for Advocates: Re-evaluate laws governing advocates’ right to
strike, potentially amending legislation to allow limited, regulated protest options that do not interfere
with client interests or court operations.

7. Encourage Bar Councils to Facilitate Dialogue: Bar Councils could act as intermediaries, organizing
discussions between advocates and judicial authorities to address systemic issues, reducing the
likelihood of strikes.

8. Create Public Awareness Campaigns: Inform the public about the impact of advocate strikes on
judicial proceedings, encouraging greater accountability within the profession and fostering support
for alternative protest forms.
 BIBLIOGRPAHY

1. B. AHMED, A Critical Appraisal of the Right to Strike in Nigeria (Mar. 30, 2017).
http://www.ijhssnet.com/journals/Vol_4_No_11_1_September_2014/32.pdf
2. Human Rights (Mar. 30, 2017).

http://www.encyclopedia.com/topic/human_rights.aspx
3. Human rights watch (Mar. 30, 2017). https://www.hrw.org/sites/default/files
4. Right To Strike- A Legitimate Illegality (Apr. 2, 2017).
http://www.legalservicesindia.com/articles/legill.htm
5. JUSTICE PANA CHAND JAIN (RETD.), Lawyers and the Boycott of Courts (Mar. 30,

2017). http://www.ebc-india.com/lawyer/articles/95v5a3.htm
6. V. VENKATESAN, A right curtailed (Apr 2, 2017).

http://www.frontline.in/static/html/fl2001/stories/20030117002803600.htm