IMPLICITY

Lawyers and the Right to Strike

Posted in legal profession by armalcolite on November 17, 2009

THE RIGHT TO STRIKE

The hooliganism exhibited by advocates of the Karnataka High Court on November 9th brings into focus the issue of the right to strike of lawyers. Ignoring for the moment the causes for the protest by the Advocates Association of Bangalore (AAB), the right to strike  must be examined in isolation.

It is established law that though not a fundamental right, the right to strike is nevertheless, a legal right and this right extends to hospitals, educational institutions, trade unions and any legal association. However, the right to strike is not an absolute right and the restrictions on it vary from profession to profession. For instance, in the case of doctors, the right to strike is subject to the Medical Council of India’s Code of Ethics and Regulations which require that emergency care should not be denied to a patient under any circumstances. Whether lawyers have such a right and to what extent is the question that this article seeks to answer.

LAWYERS’ RIGHT TO STRIKE

Justice Rama Jois provides a very stinging opinion on the issue of the AAB strike in this piece in the Times of India where he dismisses the idea of an advocate’s right to strike on the grounds that the administration of justice is not a business. This is the prevailing view on the issue with many judgments expressing similar views. The Punjab and Haryana High Court in the case of R N Sharma Advocate v. State of Haryana stated that the legal profession is not a trade or business and advocates being officers of the Court have to strive to secure justice for within legally permissible limits. Further on the issue of strikes by lawyers, the Supreme Court in the case of Raman Services Pvt. Ltd v. Subhash Kapoor has clearly stated that strikes by advocates is both illegal and unconstitutional.

The idea behind these judgements is that lawyers, being officers of justice should not themselves obstruct the administration of justice by striking and boycotting court proceedings. This, however does not entirely rule out the right to strike. The case of Ex Capt Harish Uppal v. Union of India,  decided by a Constitutional Bench of the Supreme Court  allowed for strikes and boycotts 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. So, while lawyers may have  right to strike, it arises only in the rarest of rare cases where the integrity of the Bar or the Bench is at stake.

THE CASE OF JUSTICE DINAKARAN

But what constitutes a threat to the dignity, integrity and independence of the Bench? Surely, a corrupt Chief Justice could threaten the integrity of the Court. That said, the allegations against Justice Dinakaran have not been proven. While the Supreme Court may have delinked Dinakaran’s name from the list of Judges recommended for elevation, it was to further the probe into the allegations as he had refuted the allegations levelled against him. Like in any case, he had to be presumed to be innocent until proven guilty, and the lawyers being officers of the court had to allow the law to take it’s course. Thus, there was no prima facie threat to the integrity of the Court and the lawyers by turning unruly, in fact undermined the dignity of the Bar.

Furthermore, it wasn’t as if the Court did not recognise the right of the lawyers to strike. In the days leading up to the protest, a Division Bench of the High Court (constitued as it was a matter of some urgency) hearing a PIL against the  resolution by the AAB to organise the protest, had stayed the resolution. As an organisation that draws it’s legality from the Court, the AAB had to keep the High Court’s order in abeyance and not organise the protest.

In conclusion, the lawyers in this case went ahead with a protest which was not only based on valid grounds but was also explicitly prohibited by the Court. The violence which ensued served only to tarnish the reputation of the Justice system in whose interest it was supposedly conducted

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One Response

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  1. sboray said, on November 24, 2009 at 6:14 pm

    I was talking to an advocate whilst he was showing me the Karnataka High Court, a few days after the protests.His logic is based on this premise: There are legal instruments to reprimand him by impeaching him in parliament…….but is the government doing anything? And should we just continue and be presided over a corrupt judge? Fine allegations may not have been proven yet, but shouldn’t he resign on at least moral grounds? On that same day, there was a speech that was given by an eminent American Indian jurist on the workings of the American judiciary.He said if by any chance if a judge might be alleged of corrupt practices, he would resign out of a sense of moral guilt.He might not have broke the law per se, but he believes that he must have broken some kind of natural law.But will this work here? people will tell me,”Why should he resign if he hasnt broken the law?”.But answer this, would you want to have a judge against whom there are many credible corruption charges filled against? Think about it.


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