|(2003) 2 SCC 45
|DATE OF JUDGMENT
|17th DECEMBER, 2002
|SUPREME COURT OF INDIA
|HARISH UPPAL (EX-CAPTAIN)
|UNION OF INDIA AND ANR.
|G.B. PATTANAIK CJI, M.B. SHAH, DORAISWAMY RAJU, S.N. VARIAVA, D.M. DHARMADHIKARI
The Supreme Court of India’s decision regarding the case of “Ex-Captain Harish Uppal v. Union of India and Anr.” was declared on December 17, 2002, carrying a noteworthiness within the Indian legal framework. The primary question of the case was whether lawyers should be permitted to strike and the implications of the same on the adequate dispensation of justice. The case can be considered a landmark case. An advocate’s right to strike is enshrined in Article 19(1)(c) of the Indian Constitution. Though it broadly includes various people, advocates come within its scope. Advocates have the role of assisting others in administering proper justice, and therefore their right to strike remains a contentious and hotly debated topic. Using the case, we can highlight the delicate balance between the right of a lawyer to be vocal in their dissent and the rights of a litigant in their access to fair and speedy trial. The bar and the bench must coexist – while the Bar should demonstrate courtesy, the Bench must mutually respect and attend to the demands of its members.
FACTS OF THE CASE
The fundamental base of the case revolves around whether lawyers possess the right and power to initiate strikes, along with the subsequent effects on the operation of justice.
In 1972 a retired army officer named Ex-Captain Harish Uppal dealt with accusations of alleged embezzlement when he was assigned in Bangladesh. This is where the case originates. He was dismissed from duty after his resultant arrest and two years of imprisonment following a court-martial order.
Review applications were filed in court to find a solution, but there was no reply. After that, he filed a post-affirmation application but there was no reply again. 11 years later, there was finally a response, but by then the period for the review had flown past; it had expired. Only then was it discovered that at the same time as the submission of the application, a group of advocates were leading a strike, due to which there were substantial delays and document misplacement.
Harish Uppal was ultimately discontent with the court’s lack of promptness and delays caused by the strikes. He petitioned the Supreme Court of India to inquire into the legality of lawyer strikes and whether they should be entertained or banned. He implored the court to declare such strikes unlawful. From this case, we gain a more insightful perspective into lawyers’ duties and obligations, as well as the impact of strikes on the functioning of the judiciary. There needs to be a fine line between safeguarding the interests of lawyers in contrast to the proper operation of the legal system.
- As per Article 19(1)(c) of the Indian Constitution, do lawyers have the inherent right to strike, and if the same is held to be true, what are the constraints of this right?
- Considering the interest of their clientele and the impact on administering justice, are lawyer’s strikes permitted by law or not?
- Should lawyers’ strikes be prohibited, and is there a justification? How can strategies be implemented so that the legal system can function while the interests of lawyers are maintained?
- In the Supreme Court’s ruling, it is described that lawyers’ strikes are permitted only in the “rare of rarest cases”.What cases qualify as such?
- The right to a speedy trial is assured by Article 21 of the Indian Constitution. Amidst frequent protests by lawyers, how can this right be assured?
CONTENTIONS OF PETITIONER
- Lawyers’ strikes were considered unlawful by the petitioner, Ex-Captain Harish Uppal, and he asserted that the court should declare them as such instead of sitting idly by when they occurred. Judicial systems function through an organised process which strikes disrupt. Due to strikes, there are often delays in court proceedings which jeopardises the interests of clients. According to him, strikes caused document misplacement as well which would impede any progress in legal cases.
- Lawyers have a unique obligation to uphold the operation of the judicial system barring any hindrances, as stressed by the petitioner. Compromising the integrity of the legal profession, strikes are a breach of this essential responsibility on the shoulders of lawyers.
- Advocates are officers of the Court. They should not manipulate the Courts by resorting to strikes. It is viewed as a means of coercion and should be deemed unethical.
- Those lawyers found guilty of contempt by boycotting the Courts or conducting strikes should be subject to stringent consequences including but not limited to getting debarred from practising in any court. Committees discovered to be behind these strikes should also endure contempt proceedings.
- Advocates should honour their commitment to their client by appearing in court, should they accept Vakalat on their behalf. This agreement is consistently violated by advocate strikes. Therefore, there is an urgency for the Bar Council to establish strict regulations regarding this issue.
CONTENTIONS OF RESPONDENT
- The respondents argued otherwise. They proposed that the freedom of association, enclosed by Article 19(c) of the Constitution, also encompassed the right to strike. It was a derivative. Akin to any other social group, lawyers also deserve to assemble and voice their demands since they share similar interests.
- The respondents had their legal representatives, who argued that advocates should have the prerogative to initiate strikes. The rest should be left up to the Bar Council – they can determine whether advocate strikes are feasible.
The Supreme Court gave a prominent ultimatum in the case of “Ex-Capt. Harish Uppal vs. Union of India and Anr.” around whether lawyer strikes were legal or not. As per the judgement, lawyers do not have the privilege to initiate strikes or boycott court proceedings even if it is for the sake of symbolism. The legal reasoning for the decision culminated around a few key points.
- First of all, the court pointed out a distinct position held by lawyers as officers of the court. With this role, the adequate operation of the judicial system is in the hands of lawyers. Strikes, proving as a disruption to the regular court proceedings impede on on justice and jeopardise clients. As a result of this result, the court determined that lawyer strikes could not be harmonised with their duties as officers of the court.
- The court also discussed the hugely detrimental effect of lawyer strikes on the legal system. These strikes result in trial delays, contribute to case pendency in the Indian judiciary and violate Article 21, which guarantees the fundamental right to a speedy trial for clients. The court deemed this disruption within the judiciary a concern which needed to be addressed.
- Lawyers should express their grievances using other roads of expression. From press statements, participating in interviews, wearing armbands and engaging with the media, there’s an endless amount of possibilities through which lawyers can voice their opinions without impeding the systematic functions of the court. The only circumstances in which these prerequisites can be violated are in the instances of rare and extreme situations where the integrity of the court is at risk.
There are several issues concerning the rights of lawyers which remain hotly debated. One of them pertains to their right to protest or boycott court proceedings, referred to as a strike. The court deliberated on the Bar Council’s authority to announce a strike among advocates in the case of “Arunava Ghosh v. Bar Council of West Bengal”. This was the first time the court commented on such strikes, noting that they could qualify as Contempt of Court under Article 21 of the Constitution. The stipulations of Article 21 could be contravened by the strikes. This principle was reinforced in the landmark judgement of “Mahavir Prasad v. Jacks Aviation Ltd.”. where the Court asserted that lawyers cannot be impeded by the court exercising its powers as designated by law or boycott necessary proceedings. These judgements tried to clear up the matter but failed leading to continuing confusion.
In “Krishnakant Tamrakar v. The State of Madhya Pradesh” the Supreme Court described irreversible harm directly caused by lawyers’ strikes to the judicial system and litigants. The primary argument is related to a litigant’s fundamental rights. Due to strikes by advocates, these rights may be infringed upon. However, this point neglects to mention the rights of lawyers and what their reasons are for their strikes. Some reasons include:
- Contentions between advocates and authorities investigating the case
- Judicial officers accused of corruption.
- Vacancy in the court on a persistent basis.
- Jurisdiction getting transferred to a different court.
- Benches in High Courts are being constituted improperly.
- Advocate’s interests being threatened by amendments in legislation
- Communities being impacted by national or regional issues.
Many issues have legal remedies but many may also take an indefinite time to resolve. The Court suggested differing tactics for lawyers to be vocal about their demands, ranging from interviews, press statements, protests, or symbolic wristbands. Even with these suggestions, advocates’ concerns may not be addressed promptly without the added pressure of a strike. When no solution can be reached, an advocate resorts to extreme methods like strikes which may at the time seem like the only route for a steadfast closure to the issue. If a lawyer’s intention is expediency in resolving a legal problem, then it can be argued that a lawyer’s strike assists in the administration of justice rather than acting as a hindrance. The purpose of refraining from strikes is then rendered moot.
In the case of “Hussainara Khatoon & Ors v. Home Secretary, State Of Bihar”, the Supreme Court upheld Article 21, outlining the right to a speedy trial. However, advocates should also possess a mechanism to resolve their issues in quick ways. To respond, the Court specifically underscored that in the event of a strike, the period should be limited to one day at max, without imposing any stringent restriction on the duration.
While it stands correct that advocates’ strikes to a loss of court time, this alone doesn’t prove to be a robust argument against advocates striking. The database to prove this contention is inadequate, lacking enough rationale and context. Case pendency is attributable to a variety of factors not restricted to strikes.
In “Common Cause (a Registered Society) v. Union of India”, the Supreme Court directed stern action by the Indian Bar Council against advocate associations lobbying for strikes. The question arises of whether the court should reconsider its stance on lawyers’ strikes. Litigants’ interests must be prioritised but an advocate’s interests are also essential to the enhancement of the judiciary. Advocates are not simply made for public service and they are not just servants to their clients. They also assist in a court’s functioning. The lawyers should have the right to disagree with the actions of a court, and imposing a punishment is non-compliant with the former principle.
Instead of dismissing the grievances of the advocates the Court must instead get to the root cause of the strikes and patch up the problem once and for all to diminish occurrence. Some measures which could be effective include setting up an Advocates’ Grievance Redressal Committee. These should be chaired by district-level Judicial Officers. Before arresting an advocate, the bar association president should be involved. On improving legislation, legal professionals should be involved. The aforementioned may reduce strike incidents. The first step needs to be to increase public trust in the judiciary so changes can be enacted. After that, they can focus on issues like effective consultancy between governments and lawyers, or transparency in grievance committees.
Lawyers are officers of the court, they shoulder the duty of making sure that the legal system is operating as it should. As it is their obligation, they should represent clients and attend court without the obstacle of strikes. Recognized as officers of the court, lawyers bear the responsibility to ensure the uninterrupted operation of the legal system. While lawyers’ interests are important and need to be attended to, it is equally important that the imperatives of the law are maintained. Clients deserve the right to time-bound administration of justice, but the grievances of lawyers must also be kept in mind when solving this issue. Lawyers should voice their concerns in alternative ways – these avenues are endless, from issuing press releases, and participating in interviews on TV, to organising peaceful protests outside the premises of a court. They could actively engage with the media, as highlighted by the judgement. When we zoom out to the impact of the case on the legal landscape, we realise it is a landmark case for delineating the role and responsibilities of a lawyer in court, and what is the proper code of conduct for them to abide by. The purpose of the legal profession is to ensure and administer justice to the public.
This Article is written by Eshal Zahur student of National Law University, Odisha; Intern at Legal Vidhiya.
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