TaxTMI 
TaxTMI 
2002 (12) TMI 562
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....Aggarwala, N. Karvendan, Ms. Seita Vaidialingam, G. Balaji, Ashok Kr. Pandey, A. Mariaputham, Anurag D. Mathur, Ms. Aruna Mathur, K.P. Sasiprabhu, Ranjan Mukherjee, Ramesh Babu M.R., Robson Paul, V.K. Sidharthan, S. Chandersekhar, Tathagat Harshwardhan, Ms. S. Reddy, Dr. I.P. Singh, C.D. Singh, Amit Kumar, S.A. Khan, A.A. Tiwary, Ashok Arora, Ms. Sumita Rao, C.V.S. Rao, K.M.K. Nair, Rishi Agarwal, Manu Krishnan, Alok K. Agarwal, E.G. Agarwala, Mahesh Agarwal, Ashwani Kumar, K.C. Kaushik, Ms. Bina Gupta, Ms. Rakhi Ray, Ms. Vanita Bhargava, Raj Kr. Gupta, Sheo Kr. Gupta, A.N. Bardaiyar, S.K. Kulkarni, Gireesh Kumar, Ankur S. Kulkarni, Ms. Sangeeta Kumar, S. Guru Krishna Kumar, S.S.H. Rizvi, D.N. Mishra, P.S. Narasimha, A. Bhattacharya, P. Sridhar, Sakesh Kumar, S.K. Agnihotri, A.K. Srivastava, Prakash Kr. Singh, U.U. Lalit, S.S. Shinde, V.N. Raghupathy, Ms. Manmeet Arora, Angad Narula, T.V. Ratnam, K. Subba Rao, Rajendra Singhvi, Ashok K. Singh, S.L. Singh, J.S. Bhasin, H.A. Raichura, S.H. Raichura, A.V. Palli, Rajnesh Jaswal, Ms. Rekha Palli, Aruneshwar Gupta, M.N. Shroff, Prabir Chowdhury, Ms. B. Vijayalakshmi Menon, M. Veerappa, Ms. S. Janani, Ms. Aruna Gupta, Ashwani Bhardwaj, Ab....
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....fession does not like it as members of the profession are themselves the losers in the process' and while it is not necessary to sit in judgment over the wider question whether members of the profession can at all go on strike or boycott of courts, it was felt that even if it is assumed that such a right enures to the members of the profession, the circumstances in which such a step should be resorted to should be clearly indicated. Referring to an earlier case before the Delhi High Court, it was stated that the Bar Council of India had made its position clear to the effect "(a) the Bar Council of India is against resorting to strike excepting in rarest of rare cases involving the dignity and independence of the judiciary as well as of the Bar; and (b) whenever strikes become inevitable, efforts shall be made to keep it short and peaceful to avoid causing hardship to the litigant public." (emphasis supplied). It was in response to the above that a consensus emerged at the Bar at the hearing of the matter that instead of the Court going into the wider question whether or not the members of the legal profession can resort to strike or abstain from appearing in cases in c....
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....on whether or not members of the profession can abstain from work commends to us. We also agree with the suggestion that we see the working of the suggestions in clauses (1) to (4) above for a period of at least six months by making the said clauses the rule of the Court. Accordingly we make clauses (1) to (4) mentioned above the order of this Court and direct further course of action in terms thereof. The same will operate prospectively. We also suggest to the Bar Councils and Bar Associations that in order to clear the pitch and to uphold the high traditions of the profession as well as to maintain the unity and integrity of the Bar they consider dropping action already initiated against their members who had appeared in Court notwithstanding strike calls given by the Bar Council or Bar Association. Besides, members of the legal profession should be alive to the possibility of Judge of different Courts refusing adjournments merely on the ground of their being a strike call and insisting on proceeding with cases." The above interim Order was passed in the hope that better sense could prevail and lawyers would exercise self restraint. In spite of the above interim directions and t....
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....e is no strike and/or call for boycott. He submitted that now the Executive Committee of any Bar Council or Bar Association which calls for a strike or boycott should be held responsible by the Courts. He submitted that the Courts must take action against the Committee members for giving such calls on the basis that they have committed contempt of court. He submitted that the law is that a lawyer who has accepted a Vakalat on behalf of a client must attend Court and if he does not attend Court it would amount to professional misconduct and also contempt of court. He submitted that the Court should now frame rules whereby the Courts regulate the right of lawyers to appear before the Court. He submitted that Courts should frame rules whereby any lawyer who misconducts himself and commits contempt of court by going on strike or boycotting a Court will not be allowed to practice in that Court. He submitted that it should now be held that even if a requisition for a meeting to consider a strike is received, the Committee members of a Bar Association or the Bar Council should refuse to call a meeting for that purpose. He submitted that no Association or Bar Council can have any legal or ....
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.... grievances can be submitted. 8. It must however be mentioned that counsel on behalf of U.P. Bar Council struck a discordant note. He submitted that lawyers had a right to go on strike or give a call for boycott. He submitted that Courts had no power of supervision over the conduct of lawyers. He submitted that Section 50 of the Advocates Act, 1961 repealed earlier provisions which had permitted Courts to control rights of Advocates to practice in Courts. He submitted that there are many occasions when lawyers require to go on strike or gave a call for boycott. He submitted that this Court laying down that going on strike amounts to misconduct is of no consequence as the Bar Councils have been vested with the power to decide whether or not an Advocate has committed misconduct. He submitted that this Court cannot penalise any Advocate for misconduct as the power to discipline is now exclusively with the Bar Councils. He submitted that it is for the Bar Councils to decide whether strike should be resorted to or not. 9. The learned Attorney-General submitted that strike by lawyers cannot be equated with strikes resorted to by other sections of the society. He submitt....
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.... in the case of Bharat Kumar K. Palicha v. State of Kerala - AIR 1997 Ker 291 : (1997) 2 Ker LT 287 (FB) which are reproduced below : "17. No political party or organization can claim that it is entitled to paralyse the industry and commerce in the entire State or nation and is entitled to prevent the citizens not in sympathy with its viewpoint, from exercising their fundamental rights or from performing their duties for their own benefit or for the benefit of the State or the nation." [See Communist party of India (M) v. Bharat Kumar - (1998) 1 SCC 201 at p. 204, para 17].                           [emphasis added] 10. He pointed out that the judgment of the Kerala High Court has been approved by this Hon'ble Court in the case of Communist Party of India (M) v. Bharat Kumar, (1998) 1 SCC 201 at P.202. 11. Before considering the question raised it is necessary to keep in mind the role of lawyers in the administration of justice and also their duties and obligations as officers of this Court. In the case of Lt. Col. S.J. Ch....
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.... court so that the party can engage another counsel. But retaining the brief of his client and at the same time abstaining from appearing in that court, that too not on any particular day on account of some personal inconvenience of the counsel but as a permanent feature, is unprofessional as also unbecoming of the status of an advocate. No Court is obliged to adjourn a cause because of the strike call given by any association of advocates or a decision to boycott the courts either in general or any particular court. It is the solemn duty of every court to proceed with the judicial business during court hours. No court should yield to pressure tactics or boycott calls or any kind of browbeating." 14. In the case of Koluttumottil Razak v. State of Kerala - (2000) 4 SCC 465, counsel did not appear in the Court as advocates had called for a strike. As the appellant was languishing in jail this Court held that an adjournment would not be justified. This Court held that it is the duty of the Court to look into the matter itself. 15. In the case of U.P. Sales Tax Service Assn. v. Taxation Bar Assn. - (1995) 5 SCC 716, the question was whether the High Court could ....
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....r tribunal or vindication of authority or majesty of the court/tribunal. The accusation of the judicial officer or authority or arbitrary and corrupt conduct undermines their authority and rudely shakes them and the public confidence in proper dispensation of justice. It is of necessity to protect dignity or authority of the judicial officer to maintain the stream of justice pure and unobstructed. The judicial officer/authority needs protection personally. Therefore, making wild allegations of corruption against the presiding officer amounts to scandalising the court/statutory authority. Imputation of motives of corruption to the judicial officer/authority by any person or group of persons is a serious inroad into the efficacy of judicial process and threat to judicial independence and needs to be dealt with the strong arm of law." 16. It was held that the High Court did not have power to issue a writ of direction prohibiting a statutory authority from discharging quasi judicial functions. The question whether lawyers had a right to strike was not gone into. 17. In the case of B.L. Wadehra (Dr.) v. State (NCT of Delhi) - AIR (2000) Delhi 266, one of the questions was wh....
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.... and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible."" The Delhi High Court then considered various other authorities of this Court, including some set out above, and concluded as follows : "30. In the light of the above-mentioned views expressed by the Supreme Court, lawyers have no right to strike i.e. to abstain from appearing in Court in cases in which they hold vakalat for the parties, even if it is in response to or in compliance with a decision of any association or body of lawyers. In our view, in exercise of the right to protest, a lawyer may refuse to accept new engagements and may even refuse to appear in a case in which he had already been engaged, if he has been duly discharged from the case. But so long as a lawyer holds the vakalat for his client and has not been duly discharged, he has no right to abstain from appearing in Court even on the ground of a strike called by the Bar Association or any other body of lawyers. If he so abstains, he commits a professional misconduct, a breach of professional duty, a breach of contract and also a brea....
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....mber of the Bar in his non- professional capacity, may still be improper for an Advocate". It is below the dignity, honour and status of the members of the noble profession of law to organize and participate in strike. It is unprofessional and unethical to do so. In view of the nobility and tradition of the legal profession, the status of the lawyer as an officer of the court and the fiduciary character of the relationship between a lawyer and his client and since strike interferes with the administration of justice and infringes the fundamental right of litigants for speedy trial of their cases, strike by lawyers cannot be approved as an acceptable mode of protest, irrespective of the gravity of the provocation and the genuineness of the cause. Lawyers should adopt other modes of protest which will not interrupt or disrupt court proceedings or adversely affect the interest of the litigant. Thereby lawyers can also set an example to other sections of the society in the matter of protest and agitations. 31. Every Court has a solemn duty to proceed with the judicial business during Court hours and the Court is not obliged to adjourn a case because of a strike call. The Court is....
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....abir Prasad's case, it has been held that strikes and boycotts are illegal. That the lawyers and the Bar understood that they could not resort to strikes is clear from the statement of Senior Counsel Shri Krishnamani which this Court recorded. The statement is as follows : "13. Shri Krishamani, however, made the present position as unambiguously clear in the following words : "Today, if a lawyer participates in a Bar Association's boycott of a particular court that is ex facie bad in view of the clear declaration of law by this Hon'ble Court. Now, even if there is boycott call, a lawyer can boldly ignore the same in view of the ruling of this Hon'ble Court in Mahabir Prasad Singh - (1999) 1 SCC 37." This Court thereafter directed the advocate concerned to pay half the amount of the cost imposed on his client. The observations in this behalf are as follows : "15. Therefore, we permit the appellant to realize half of the said amount of Rs. 5000 from the firm of advocates M/s B.C. Das Gupta & Co. or from any one of its partners. Initially we thought that the appellant could be permitted to realise the whole amount from the said firm of advocates. However, we are in....
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....m the counsel of the other party whose absence caused the passing of such ex parte order, if the court is satisfied that such absence was due to that counsel boycotting the court or participating in a strike."                       (emphasis supplied) 20. Thus the law is already well settled. It is the duty of every Advocate who has accepted a brief to attend trial, even though it may go on day to day and for a prolonged period. It is also settled law that a lawyer who has accepted a brief cannot refuse to attend Court because a boycott call is given by the Bar Association. It is settled law that it is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend Court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council. It is settled law that Courts are under an obligation to hear and decide cases brought before them and cannot adjourn matters merely because lawyers are on strike. The law is that it is the duty and obligation of Courts to go on with matters or otherwise it would tantamoun....
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.... affection or ill-will." 22. It was expected that having known the well-settled law and having seen that repeated strikes and boycotts have shaken the confidence of the public in the legal profession and affected administration of justice, there would be self regulation. The abovementioned interim Order was passed in the hope that with self-restraint and self-regulation the lawyers would retrieve their profession from lost social respect. The hope has not fructified. Unfortunately strikes and boycott calls are becoming a frequent spectacle. Strikes, boycott calls and even unruly and unbecoming conduct are becoming a frequent spectacle. On the slightest pretence 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. 23. It is held that submissions made on behalf of Bar Councils of U.P. merely need to be stated to be rejected. The submissions based on Advocates Act are also without merit. Section 7 of the Advocates Act provides for the functions of the Bar Council of India. None of the functions mentioned therein authorise paralysing of the....
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.... as the case may be, when apprised of the established contumacious conduct of an advocate by the High Court or by this Court, would rise to the occasion, and take appropriate action against such an advocate. Under Article 144 of the Constitution "all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court". The Bar Council which performs a public duty and is charged with the obligation to protect the dignity of the profession and maintain professional standards and etiquette is also obliged to act "in aid of the Supreme Court". It must, whenever facts warrant, rise to the occasion and discharge its duties uninfluenced by the position of the contemner advocate. It must act in accordance with the prescribed procedure, whenever its attention is drawn by this court to the contumacious and unbecoming conduct of an advocate which has the tendency to interfere with due administration of justice. It is possible for the High Courts also to draw the attention of the Bar Council of the State to a case of professional misconduct of a contemner advocate to enable the State Bar Council to proceed in the manner prescribed by the Act and the Rules fra....
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....ion as they are responsible to uphold the dignity of Courts and majesty of law and to prevent interference in administration of justice. In our view it is the duty of Bar Councils to ensure that there is no unprofessional and/or unbecoming conduct. This being their duty no Bar Council can even consider giving a call for strike or a call for boycott. It follows that the Bar Councils and even Bar Associations can never consider or take seriously any requisition calling for a meeting to consider a call for a strike or a call for boycott. Such requisitions should be consigned to the place where they belong viz. the waste paper basket. In case any Association calls for a strike or a call for boycott the concerned State Bar Council and on their failure the Bar Council of India must immediately take disciplinary action against the Advocates who give a call for strike and if the Committee Members permit calling of a meeting for such purpose against the Committee Members. Further it is the duty of every Advocate to boldly ignore a call for strike or boycott. 26. It must also be noted that Courts are not powerless or helpless. Section 38 of the Advocates Act provides that even in....
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....the Taluk/Sub Division or Tehsil level, at the District level, High Court and Supreme Court levels as follows :- (I) (a) A committee consisting of the Hon'ble Chief Justice of India or his nominee, Chairman, Bar Council of India, President, Supreme Court Bar Association, Attorney General of India.   (b) At the High Court level a Committee consisting of the Hon'ble Chief Justice of the State High Court or His nominee, Chairman, Bar Council of the State, President or Presidents High Court Bar Association, Advocate General, Member, Bar Council of India from the State.   (c) At the District level, District Judge, President or Presidents of the District Bar Association, District Government Pleader, Member of the Bar Council from the District, if any, and if there are more than one, then senior out of the two.   (d) At Taluka/Tehsil/Sub-Division, Seniormost Judge, President or Presidents of the Bar Association, Government Pleader, representative of the State Bar Council, if any. (II) Another reason for abstention at the District and Taluka level is arrest of an advocate or advocates by police in matters in which the ....
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....ar Council of India resolves that this resolution will be implemented strictly and the Bar Associations and the individual members of the Bar Associations should take all steps to comply with the same and avoid cessation of the work except in the manner and to the extent indicated above." 30. Whilst we appreciate the efforts made, in view of the endemic situation prevailing in the country, in our view, the above resolutions are not enough. It was expected that the Bar Council of India would have incorporated clauses as those suggested in the interim Order of this Court in their disciplinary rules. This they have failed to do even now. What is at stake is the administration of justice and the reputation of the legal profession. It is the duty and obligation of the Bar Council of India to now incorporate clauses as suggested in the interim Order. No body or authority, statutory or not, vested with powers can abstain from exercising the powers when an occasion warranting such exercise arises. Every power vested in a public authority is coupled with a duty to exercise it, when a situation calls for such exercise. The authority cannot refuse to act at its will or pleasure. It must....
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....se can be had by way of legal remedy. So far as problems concerning Courts are concerned we see no harm in setting up Grievance Redressal Committees as suggested. However, it must be clear that the purpose of such Committees would only be to set up a forum where grievance can be ventilated. It must be clearly understood that recommendations or suggestions of such Committees can never be binding. The deliberations and/or suggestions and/or recommendations of such Committees will necessarily have to be placed before the appropriate authority viz. the Chief Justice or the District Judge concerned. The final decision can only be of the Chief Justice concerned or the District Judge concerned. Such final decision, whatever it be, would then have to be accepted by all and no question then arises of any further agitation. Lawyers must also accept the fact that one cannot have everything to be the way that one wants it to be. Realities of life are such that, in certain situations, after one has made all legal efforts to cure what one perceives as an ill, one has to accept the situation. So far as legislation, national and regional issues are concerned, the Bar always has recourse to l....
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....other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for clients before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts done by an advocate during his practice. He may even file Vakalat on behalf of client even though his appearance inside the court is not permitted. Conduct in Court is a matter concerning the Court and hence the Bar Council cannot claim that what should happen inside the Court could also be regulated by them in exercise of their disciplinary powers. The right to practise, no doubt, is the genus of which the right to appear and conduct cases in the Court may be a specie. But the right to appear and conduct cases in the Court is a matter on which the Court must and does have major supervisory and controlling power. Hence Courts cannot be and are not divested of control or supervision of conduct in Court merely because it may involve the right of an advocate. A rule can stipulate that a person who has committed contempt of Court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appe....
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....itions laid down by Courts just as practice outside Courts would be subject to conditions laid down by Bar Council of India. There is thus no conflict or clash between other provisions of the Advocates Act on the one hand and Section 34 or Article 145 of the Constitution of India on the other. 35. 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 protect marches outside and away from Court premises, going on dharnas 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 purp....
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....t class, cannot have any justification for remaining absent from their duty. The law laid down on the subject is succinctly referred to in the judgment rendered by Brother Variava, J. 40. However, by merely holding strikes as illegal, it would not be sufficient in the present-day situation nor serve any purpose. The root cause for such malady is required to be cured. It is stated that resort to strike is because the administration is having deaf ears in listening to the genuine grievances and even if grievances are heard appropriate actions are not taken. To highlight therefore, the cause call for strike is given. In our view, whatever be the situation in other fields lawyers cannot claim or justify to go on strike or give a call to boycott the judicial proceedings. It is rightly pointed out by the Attorney-General that by the very nature of their calling to aid and assist in the dispensation of justice, lawyers normally should not resort to strike. Further, it had been repeatedly held that strike is an attempt to interfere with the administration of justice. 41. It is no doubt true that the Bar should be strong, fearless and independent and should be in a apposition to....