CHAPTER-VII

Loss of Courts’ Working Days: A Staggering Fact

7.1 Every High Court, on its administrative side, takes a

decision fixing the minimum number of working days for
subordinate courts which varies from State to State.

7.2. In the State of Uttarakhand, the information sent by the

High Court for the years 2012-2016 shows that in Dehradun
District, the Advocates were on strike for 455 days during 2012-
2016 (on an average, 91 days per year). In Haridwar District,
515 days (103 days a year) were wasted on account of strike.

7.3 In the case of the State of Rajasthan, the High Court of

Judicature at Jodhpur saw 142 days of strike during 2012-
2016, while the figure stood at 30 for the Jaipur Bench. In
Ajmer District courts, strikes remained for 118 days in the year
2014 alone, while in Jhalawar, 146 days were lost in 2012 on
account of strike.

7.4 The case of Uttar Pradesh appears to be the worst. The

figures of strike for the years 2011-2016 in the subordinate
courts are alarmingly high. In the State of Uttar Pradesh, the
District courts have to work for 265 days in a year. The period
of strike in five years period in worst affected districts has been
as - Muzaffarnagar (791 days), Faizabad (689 days), Sultanpur
(594 days), Varanasi (547 days), Chandauli (529 days),
Ambedkar Nagar (511 days), Saharanpur (506 days) and
Jaunpur (510 days). The average number of days of strike in
eight worst affected districts comes to 115 days a year. Thus, it
is evident that the courts referred to hereinabove could work on
an average for 150 days only in a year.

13
7.5 In this regard, the situation in subordinate courts in
Tamil Nadu had by no means, been better. The High Court of
Tamil Nadu has reported that there are 220 working days in a
year for the courts in the State. During the period 2011-2016,
districts like Kancheepuram, 687 days (137.4 days per year);
Kanyakumari, 585 days (117 days per year); Madurai, 577 days
(115.4 days per year); Cuddalore, 461 days (92.2 days per year);
and Sivagangai, 408 days (81.6 days per year), were the most
affected by strike called by advocates.

7.6 As per the responses received from the High Courts of

Madhya Pradesh and Odisha, the picture does not emerge to be
satisfactory.

7.7 The Commission noted that the strike by advocates or

their abstinence from the court were hardly for any justifiable
reasons. It could not find any convincing reasons for which the
advocates resorted to strike or boycott of work in the courts.
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. To mention a few, bomb blast in
Pakistan school, amendments to Sri Lanka’s Constitution,
interstate river water disputes, attack on / murder of advocate,
earthquake in Nepal, to condole the death of their near relatives,
to show solidarity to advocates of other State Bar Associations,
moral support to movements by social activists, heavy rains, or
on some religious occasions such as shraadh, Agrasen Jayanti,
etc. or even for kavi sammelan.

7.8 The Commission is of the view that unless there are

compelling circumstances and the approval for a symbolic strike
of one day is obtained from the Bar Council concerned, the
advocates shall not resort to strike or abstention from the court
work.

14
 CHAPTER-VIII

Supreme Court Judgements on Strike –

Reprehensible act

8.1 The prevailing situation in the courts are a real eye-

opener and ironically it is one of the reasons for pendency of
about 2.5 crores cases in subordinate courts. The Supreme
Court had consistently been declaring that advocates do not
have a right to call for strikes and held that the lawyers’ strikes
are illegal and that effective steps should be taken to stop the
growing tendency. In numerous cases beginning from
Pandurang Dattatraya Khandekar v. Bar Council of
Maharashtra, Bombay 7 ; to Ex Capt. Harish Uppal v. Union of
India 8 , it was held that the advocates have no right to go on
strike. The 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, Court must not be privy to
strikes or calls for boycotts. It was held that if a lawyer, holding
a vakalatnama of a client, abstains from attending Court due to
a strike call, he shall be personally liable to pay costs which
shall be in addition to damages which he might have to pay his
client for loss suffered by him.

8.2 It is relevant to mention here that the Supreme Court, in

Ex-Capt. Harish Uppal, 9 dealt extensively with strikes by
advocates. The Court 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

7
AIR 1984 SC 110.
8
AIR 2003 SC 739.
9
Ibid.

15
 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. …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…”

8.3 In spite of all these, the strikes have continued unabated.

The dispensation of justice must not stop for any reason. The
strike by lawyers have lowered the image of the courts in the
eyes of the general public. The Supreme Court has held that
right to speedy justice is included in article 21 of the
Constitution. In Hussainara Khatoon v. Home Secy., State of
Bihar10; and in some other cases, it was held that the litigant
has a right to speedy justice. The lawyers’ strike, however,
result in denial of these rights to the citizens in the State.

8.4 Recently, the Supreme Court while disposing off the

Criminal Appeal of Hussain & Anr. v. Union of India11 deprecated
the practice of boycotting the Court observing that:

“One other aspect pointed out is the obstruction of Court

proceedings by uncalled for strikes/abstaining of work
by lawyers or frequent suspension of court work after
condolence references. In view of judgment of this Court
in Ex. Captain Harish Uppal versus Union of India, such
suspension of work or strikes are clearly illegal and it is
high time that the legal fraternity realizes its duty to the
society which is the foremost. Condolence references can
be once in a while periodically say once in two/three
months and not frequently. Hardship faced by witnesses
if their evidence is not recorded on the day they are
summoned or impact of delay on under trials in custody
on account of such avoidable interruptions of court
proceedings is a matter of concern for any responsible

10
AIR 1979 SC 1360.
11
Criminal Appeal No. 509 of 2017 decided on 9th March 2017.

16
 body of professionals and they must take appropriate
steps. In any case, this needs attention of all concerned
authorities – the Central Government/State
Governments/Bar Councils/Bar Associations as well as
the High Courts and ways and means ought to be found
out to tackle this menace. Consistent with the above
judgment, the High Courts must monitor this aspect
strictly and take stringent measures as may be required
in the interests of administration of justice.”.

8.5 In Ramon Services Pvt. Ltd. v. Subhash Kapoor12, the apex

Court observed that if any advocate claims that his right to
strike must be without any loss to him, but the loss must only
be borne by his innocent client, such a claim is repugnant to
any principle of fair play and canons of ethics. Therefore, when
he opts to strike or boycott the Court he must as well be
prepared to bear at least the pecuniary loss suffered by the
litigant client who entrusted his brief to that advocate with all
confidence that his cause would be safe in the hands of that
advocate.

8.6 The Constitution provides for an independent and

efficient justice delivery system. Any delay in disposal of cases
not only creates disillusionment amongst the litigants, but also
undermines the capability of the system to impart justice in an
effective manner. 13 The Supreme Court disapproved the
conduct of the party resorting to dilatory tactics before the court
seeking adjournments on one or other pretext and observed that
the party acted in a manner to cause colossal insult to justice
and to the concept of speedy disposal of cases14.

8.7 In addition to the issue of strikes, the Supreme Court has

also dealt with a large number of cases of browbeating of courts
by advocates for getting a favourable order. As a rule, an
12
AIR 2001 SC 207.
13
Syed Gulzar Hussain v. Dewan Syed Ale Ramul Ali Khan, (2014) 10 SCC 825.
14
Gayathri v. M.Girish, (2016) 14 SCC 142.

17
Advocate, as an officer of the court, cannot be adamant on any
unwarranted and uncalled for issue.

8.8 The Supreme Court in Vishram Singh Raghubanshi v.

State of Uttar Pradesh15 held:

“The Superior Courts have a duty to protect the

reputation of judicial officers of subordinate courts,
taking note of the growing tendency of maligning
the reputation of judicial officers by unscrupulous
practising advocates who either fail to secure
desired orders or do not succeed in browbeating for
achieving ulterior purpose. Such an issue touches
upon the independence of not only the judicial
officers but brings the question of protecting the
reputation of the Institution as a whole.”

8.9 In M.B. Sanghi v. High Court of Punjab and Haryana16, it

has been opined that:

“The tendency of maligning the reputation of

judicial officers by disgruntled elements who fail to
secure the desired order is ever on the increase
and it is high time it is nipped in the bud. And,
when a member of the profession resorts to such
cheap gimmicks with a view to browbeating the
Judge into submission, it is all the more painful.
When there is a deliberate attempt to scandalise
which would shake the confidence of the litigating
public in the system, the damage caused is not
only to the reputation of the Judge concerned but
also to the fair name of the judiciary.”

15
AIR 2011 SC 2275.
16
AIR 1991 SC 1834.

18
8.10 In R.D. Saxena v. Balram Prasad Sharma17, the Supreme
Court held:

“In our country, admittedly, a social duty is cast

upon the legal profession to show the people
beckon (sic beacon) light by their conduct and
actions. The poor, uneducated and exploited mass
of the people need a helping hand from the legal
profession, admittedly, acknowledged as a most
respectable profession. No effort should be made or
allowed to be made by which a litigant could be
deprived of his rights, statutory as well as
constitutional, by an advocate only on account of
the exalted position conferred upon him under the
judicial system prevalent in the country.”

8.11 In Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd.18, the

Supreme Court held that it is the solemn duty of every Court to
proceed with the judicial business during court hours and no
Court should yield to pressure tactics or boycott calls or any
kind of browbeating. The Court held:

“At any rate, no advocate can ask the Court to

avoid a case on the ground that he does not want
to appear in that Court.”

8.12 In M/s. Chetak Construction Ltd. v. Om Prakash 19 , the

Court deprecated the practice of making allegations against the
Judges observing as under:

“Lawyers and litigants cannot be allowed to

“terrorize” or “intimidate” Judges with a view to
“secure” orders which they want. This is basic and
fundamental and no civilised system of
administration of justice can permit it.”

17
AIR 2000 SC 2912.
18
AIR 1999 SC 287.
19
AIR 1998 SC 1855.

19
Similar view has been reiterated in Radha Mohan Lal v.
Rajasthan High Court20.

8.13 In view of the observations by the Courts, in the event of a

strike, a court is not obliged to become complicit in the illegality
by adjourning the case for the absence of counsel, it may
proceed to pass orders ex parte. Litigation work requires the
representatives and authorities to systematically engage in legal
proceedings at various points over sustained periods of time so
as to arrive at resolution to the disputes. To use this situation of
necessity to claim increased bargaining power is a wanton
perversion of the aims of the justice delivery system. To forcibly
prevent other advocates from appearing in their respective
proceedings is even worse. The act of going on strike amounts to
a violation of an advocate’s duty as an officer of the court and
his duty to maintain standards of professional conduct and
ethics. It also results in a violation of his agreement with the
client. At the same time, it is also contempt of court and a
violation of the right of speedy trial for litigants. The
unacceptable actions of advocates have not shown any
significant improvement despite the establishment of competent
authorities to regulate the conduct of advocates. The reasons for
strikes reported in case law have not been found to justify
organised violence directly prejudicial to the vital function of
justice delivery.

8.14 The unacceptable trend of making false allegations

against judicial officers and humiliating them requires to be
curbed, otherwise the judicial system would lose its credibility.
The Bench and the Bar have to avoid unwarranted situations on
trivial issues that hamper the cause of justice and are in the
interest of none. “Liberty of free expression is not to be

20
AIR 2003 SC 1467.

20
confounded or confused with license to make unfounded
allegations against any institution, much less the Judiciary”21.
An Advocate in a profession as well in his conduct should be
diligent and conform to the requirements of the law by which an
Advocate plays an important role in the preservation of justice
system. Any violation of the principles of professional ethics by
an Advocate is unfortunate and unacceptable. Any kind of
deviance not only affects the system but corrodes the faith of
the people at large22.

8.15 In Arun Kumar Yadav v. State of Uttar Pradesh Through

District Judge23, the Supreme Court observed:

“The judicial proceeding has its own solemnity and

sanctity. No one has any authority to sully the
same. It is the obligation of everyone to behave
with propriety when a judicial proceeding is
conducted. Any kind of deviancy not only affects
the system but corrodes the faith of the collective
at large. Neither any counsel nor a litigant can
afford to behave in this manner.”

8.16 The lawyer who presents the application before the court
making unfounded allegations against a judicial officer,
impleading him by name, though not permissible in law as
explained by the Court in Savitri Devi v. District Judge,
Gorakhpur 24 , without reasonably satisfying himself about the
prima facie existence of adequate grounds, is equally
responsible for contempt for scandalizing the court for the
reason that he cannot be a mouthpiece of his client and cannot
associate himself with his client in maligning the reputation of
judicial officer merely because his client failed to secure the
desired order from the said officer. A deliberate attempt to

21
Dr.D.C. Saxena v. Hon’ble Chief Justice of India, (1996) 5 SCC 216, 220.
22
O.P. Sharma v. High Court of Punjab and Haryana, AIR 2011 SC 2101.
23
(2013) 14 SCC 127.
24
AIR 1999 SC 976.

21
scandalise the court which would shake the confidence of the
litigating public in the system would cause a very serious
damage to the name of the judiciary25.

8.17 In Re: Ajay Kumar Pandey26, the Supreme Court held:

“No one can be permitted to intimidate or terrorize

judges by making scandalous unwarranted and
baseless imputations against them in the discharge of
their judicial functions so as to secure orders which
the litigant ‘wants’…The liberty of expression cannot
be treated as a licence to scandalize the court...”

8.18 In Bar Council of India v. High Court of Kerala 27 , the

Supreme Court observed, “An advocate in no circumstances is
expected to descend to the level of appearing to support his view
in a vulgar brawl.”

8.19 In Re: S. Mulgaokar28, the Supreme Court observed that

public interest and public justice require that whenever there is
an attack on the judge, it is scurrilous, offensive, intimidatory
or malicious, the law must strike a blow on him as he
challenges the supremacy of law by fouling the source and
stream.

8.20 The legal profession requires the safeguarding of moral

standards. As an officer of the court, a lawyer has a duty to the
court towards his profession and to the public. Since the prime
duty of a lawyer is to assist the court in dispensing justice, the
members of the Bar cannot behave in a manner which is

25
M.Y. Shareef v. Hon’ble Judges of Nagpur High Court AIR 1955 SC 19; Shamsher Singh
Bedi v. High Court of Punjab & Haryana AIR 1995 SC 1974; Tushar D. Bhatt v. State of
Gujarat (2009) 11 SCC 678 and R.K.Anand v. Registrar, Delhi High Court (2009) 8 SCC
106.
26
AIR 1998 SC 3299.
27
AIR 2004 SC 2227.
28
AIR 1978 SC 727.

22
doubtful, or full of scruples or which strives to thrive on
litigation. Lawyers must remember that they are to assist the
court in the administration of justice. If lawyers do not perform
their function properly, it would be degenerative to the rule of
law.

8.21 A suggestion has been made that at every district

headquarters, the District Judge may constitute an Advocates’
Grievance Redressal Committee headed by a Judicial Officer
which will deal with the day to day routine matters, as large
number of issues and grievances arise in the smooth working of
the advocates. In this regard, the High Court may issue a
circular in exercise of its power under article 235 of the
Constitution providing for redressal of grievances of the
Advocates which will help in improving their efficiency.

8.22 In case there is some grievance against a Judicial Officer,

the Bar may raise the grievance before the Chief Justice of the
concerned High Court.

23