- Editorial Column*
Introduction
“On the slightest pretense 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,” stated a three-judge bench of the Supreme Court in Ex-Capt. Harish Uppal vs Union of India (2002). The SC ultimately held in this case that lawyers have no right to strike, engage in a boycott, or even call for a token strike with the sole exception of a circumstance where the Bar or the Bench's dignity, integrity, and independence were in jeopardy. This position of law, which imposes a strict ban on lawyer’s strikes, has been repeatedly reaffirmed by courts throughout the country as such strikes have a tremendous impact on the judicial system.
However, lawyer’s strikes have continued unabated despite the various judicial pronouncements on the issue. This dire situation was examined by the Law Commission of India in its 266th report, which, after presenting its observations regarding the number of days wasted due to strikes and their reasons, recommended an amendment to the Advocates Act, 1961. The amendment aimed to penalize any strikes by lawyers and made them liable for losses suffered by their clients during the pendency of the strike. The report was not well received by the Bar Council of India (‘BCI’), which termed it “draconian, anti-lawyer and undemocratic.” Therefore, the ban on strikes by lawyers remains un-codified and exists only in Judicial pronouncements, which by themselves are rarely enforced.
The recent strike in Sambalpur district of Odisha, which took a violent hue and ultimately led to suspension of license of 29 lawyers and paved way for the reprimand by the Supreme Court, is a glaring reminder of the need for a balanced approach that adequately addresses the issues of the striking lawyers while maintaining the efficient working of the judicial system. Alternative Dispute Resolution provides a way out of this dilemma through quick and efficient dispensation of justice. The authors have relied on the strike model prescribed by labour codes to propose a solution that minimizes disruptions. A detailed analysis of the various reasons why lawyers have held strikes has also been done.
Taking a Balanced Perspective: ADR’s potential to curb strikes
Arbitration, coupled with other Alternative Dispute Resolution (‘ADR’) mechanisms, has the potential to solve the above-mentioned problem. Since the previous judgements alone in this regard could not resolve the issue, a different approach must be taken, i.e., codifying the rules and regulations regarding strikes in the Advocates Act. The BCI may act as the drafting authority, and within the rules, there must exist a hybrid/multi-tiered Arbitration clause wide enough to cover all or any disputes that may lead to a strike by lawyers. The proposed dispute resolution process, as provided for in the clause, shall work in the following way:
First, taking inspiration from Section 62 of the Industrial Relations Code, 2020 the lawyers must serve a notice of strike to the other party that provides in detail, the dates, concerns, and reasons behind the strike. The notice must be served within the time limit provided for in the rules and immediately after serving the same, the parties are mandatorily referred to a Mediation/Negotiation/Conciliation. Any strike during the pendency of adjudication proceedings would be prohibited. If an agreement is reached, it shall be binding upon the parties, and the dispute resolution process shall come to an end.
Nevertheless, if a resolution is not reached within a prescribed time limit, then we shall move to the second step, i.e., referring the dispute to Arbitration, whose award shall be final and binding upon the parties. The arbitration clause in the Advocates Act, which will be inserted through an amendment along with the other relevant rules, shall clearly provide the necessary details such as the mode of appointment of arbitrators (that ensures impartiality), the number of arbitrators, and the seat of Arbitration, which can be the place where the cause of action arose. If the lawyers fail to give reasonable notice or abide by the process, their strike would be illegal, and they shall be liable to pay the requisite fine with compensation to aggrieved persons. Therefore, a strike would be held as legal and justifiable only when reasonable notice of strike was given and the other party refused to initiate or cooperate in the adjudication proceedings.
To strike or not to strike: Addressing the limitations
Unfortunately, the above-mentioned process faces certain practical difficulties as one crucial question needs to be addressed before it is implemented: Are all disputes that lead to strikes by lawyers capable of being resolved through Arbitration or any other ADR mechanism?
To answer this question, various reasons why strikes have been organized in the past must be closely examined.
According to the law commission, “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.” Heavy rains, a bomb blast in a Pakistan school, amendments to Sri Lanka’s constitution, and inter-state river water disputes were further cited by the commission as some of the reasons why lawyers previously conducted strikes. Clearly, the dispute resolution process, as discussed here, is not meant to deal with the aforementioned issues. Any such strike must be strictly prohibited, and a ban on the same ensures the protection of the clients' interests.
Similarly, a strike against a judgement or a particular legislation cannot be held reasonable as appropriate legal remedies are available to the lawyers. The Allahabad High Court, while dealing with the issue of frequent strikes by lawyers in Uttar Pradesh in Manoj Kumar and others v. Civil Judge (Junior Division), Deoria and others (1997), has rightly observed that:
“[T]he judiciary and Bar are both accountable to the public, and they must behave in a responsible manner so that cases are decided quickly and thus the faith of the public in the judiciary is maintained…... The lawyers must realize that litigants, witnesses, etc., often come from distant places at heavy expense and it is most improper that they have to go away because of strikes by lawyers. The judiciary exists for the people and not for lawyers or Judges.”
However, strikes are justifiable in some instances even where the judicial system's dignity, integrity, or independence is not at stake. For instance, a strike due to a notice issued by the government that impacts the interests of the lawyers, working conditions of the district court, low wages, long hours and unsatisfactory work conditions and environment for Legal Aid Counsels and Public Prosecutors, and the like.
In 2019, BCI, Bar Council of Delhi (BCD) and District Bar Association organized a strike after an altercation between lawyers and police personnel at Delhi’s Tis Hazari Court Complex escalated and resulted in grave violence, including a lawyer getting shot. The Delhi High Court suggested that the responsible members of the Bar and the police conduct a joint meeting to resolve their differences amicably, and subsequently, the strike was called off. Though criminal matters are not adjudicated through ADR, this situation clarifies that resolving disputes amicably through discussion and dialogue can help deal with the issue of strikes. Furthermore, Gujarat High Court Advocates’ Association strike over the transfer of Justice Nikhil Kariel was withdrawn peacefully on a meeting with members of the Supreme Court Collegium, including CJI DY Chandrachud, who promised a thorough examination into the issue. If such dialogue does not work, the matter can be finally settled through Arbitration, provided that the dispute is arbitrable.
It is of paramount importance that legitimate concerns of lawyers be swiftly addressed to not pose hindrances in administration of justice. The Allahabad High Court's order in Suraj Pasi v. State of U.P has highlighted the dire and direct impact of strike on the fundamental rights of the accused persons-prisoners right to a speedy trial.
Conclusion
In the situations mentioned above, where the traditional legal remedies do not work or are not available, strikes are the only way to pressure the concerned authorities. A blanket ban on any strikes by lawyers, labelling all strikes as unjustifiable and setting a very high threshold for a justifiable strike as the Court did in Harrish Uppal, renders the lawyers with genuine grievances in exploitative positions. Thus, a hybrid/multi-tiered Arbitration clause in the Advocates Act offers a much-needed balanced perspective on the issue. Meticulous drafting and planning can iron out any inconsistencies or practical difficulties. In sum, such a clause can go a long way in resolving a problem that results in direct denial of justice to the country's citizens.