Right of Lawyers to Strike in India
Right of Lawyers to Strike in India
1. The Advocates Act, 1961.
The right to strike is one of the fundamental corollaries of the right to freedom of association. This right of association provides individuals the means to organise themselves into groups for the purpose of upholding mutual interests, and in general terms, it has come to mean the right of workers to organise themselves into autonomous and representative groups for demanding their basic rights from their employees. Workers dissatisfied with the existing conditions of work require a legitimate means of protest so as to sensitise the authorities towards their problems, with the expectation that these problems will be solved. One such common means of protest is the ‘strike’, defined by the Committee of Experts of the International Labour Organisation as “Any work stoppage, however brief and limited.”
Almost every country in the world allows for some form of protest in context of the freedom of association. However, the right to strike is not unlimited. There are certain categories of workers who are not permitted to strike on grounds that they perform vital services, without which the basic rights of other citizens (e.g. personal safety, health, life, etc.) will be obstructed. In the Indian context, there are numerous cases in which the right to strike has been prohibited for certain groups. One such case is the Ex- Capt. Harish Uppal v. The Union of India and anr., which is based on the issue of whether lawyers have the right to strike.
Lawyers, in context of popular perception, are considered part of a profession that is expected to uphold justice; hence, their services may be considered essential to the functioning of the system of law and order. However, as with any other class of workers, they themselves will very rightly have grievances which also need to be addressed. This paper thus looks into the exemptions to the right to strike, with focus on whether the interests of lawyers ought to be protected in context of the freedom of association, or whether lawyers ought to be denied the right to strike in the interest of greater public good.
What is the right to strike and why do we need it?
The right to freedom of association, i.e. the freedom of organisation by people looking to promote common interests, has been acknowledged as a basic human right. For workers, in particular, the right to freedom of association is of importance as it allows them a platform through which they can put forward their grievances in an institutionalized manner. A vital off shoot of this right is the Right to Strike. Strike, at the basic level, is defined as “a cessation of work by a combination of employed persons in consequence of a dispute, done as a means of inducing their employer or any other employed persons accept or refute their terms of employment.” It is expected that by withdrawing their services altogether, the workers would be able to highlight the intrinsic importance of these services.
Alternatively, the inconvenience caused by a strike could force the concerned authority to concede to the demands of the worker. Thus, strike becomes a means by which workers may effectively voice their concerns with regard to protecting their overall economic as well as social interests. Three different categories of strike have been defined by the International Labour Organisation (hereinafter “ILO”): 1. Occupational: These strikes are called to make improvements among the existing working conditions of the workers.
2. Trade Union: A trade union is defined as a group of workers in an industry, who come together to protect their rights and uphold specific interests (such as labour standards and social protection) before the employers. A trade union strike provides a means to the workers of effectively demonstrating to the employer the urgency of fulfilling their demands. 3. Political Strikes: Political strikes can be understood as the strikes imposed with a political motive, for instance, bandhs called by political parties, etc. Generally, such strikes are not included within the ambit of the right to freedom of association. Exceptions:
Despite the acknowledgement of the right to strike in the international community, it cannot be said that this right is universal. Certain categories of workers are denied this basic right based on the importance of their service to the public at large. These “essential services” include professions without which the life and safety of society at large would be threatened, for instance, hospital, electricity etc. It is believed that these services are so important that the right of strike for the workers working in these sectors must either be regulated or absolutely abolished for the general welfare of society. Thus, restrictions on the right to strike can be placed when it is prescribed by the law of the country in the interest of upholding national security, public order, or rights and freedoms of others.
However, in order to compensate for this impingement on the right to strike, the workers providing essential services must necessarily be given the added guarantee that their concerns will be swiftly looked into. In the Indian context, the right to strike has been described as a statutory right, but not a fundamental one. Moreover, different cases have outlined the different contexts in which the right to strike has been curtailed at various points of time – government employees have been banned from strikes, political parties from calling bandhs, lawyers from going on strike, etc. This restriction stems from the need for preserving what the judiciary has described as “public order”.
The Ex-Capt. Harish Uppal v. Union of India case focuses on the issue of whether lawyers have the right to call for a strike. In this case, writ petitions were filed against the undertaking of strikes by lawyers. These strikes were instituted under the aegis of Bar Associations across the country, for protesting against various issues that affected lawyers, which included, inter alia, confrontation with the police and/or the legal administration, grievances against judgments of courts, corruption of judicial authorities, clash of interest between groups of lawyers, legislation without consulting the Bar Council, and other general issues involving the “dignity, integrity and independence of the judiciary”. The petitioners wanted that such strikes be declared illegal, as they lead to a breach of the contract between the client and the lawyer, which violates the fundamental right of the client to justice.
They submitted that “no Association or Bar Council can have a legal or moral right to call a meeting to consider a call for an illegal act.” The Bar Council of India had (in 1994), passed a resolution stating that excepting the “rarest of the rare cases involving the dignity and independence of the judiciary as well as the Bar”, strike was not to be supported, and if it became inevitable, it would be ensured that the strike remained short and peaceful so as to avoid inconvenience to the public. This provision of ‘rarest of the rare cases’ was defined by the Attorney General as occurring when there is a “direct assault on the independence of the judiciary or a provision is enacted nullifying a judgment of a Court by an executive order or in case of supersession of judges by departure from the settled policy and convention of seniority.”
The Bar Associations of most states as well as the Supreme Court Bar Associations concurred, with the exception of the U.P. Bar Council, which submitted that lawyers could call for a strike – the Court did not have the right to control the conduct of lawyers as this power had been vested only in the Bar Councils. The Court ultimately held that lawyers did not have the right to obstruct the functioning of a judiciary already “overburdened with pending litigation”, nor could any Bar Council/Bar Association permit the calling of a meeting for the purpose of launching such a strike. Grievances could be raised through other means (press statements, interviews, peaceful protests, or through the setting up of Grievance Redressal Committees etc.), but in general, it would be for the court to decide which issues involved the dignity and independence of the Bar (that is, which issues merited an actual boycott by lawyers).
The judgement stated that while strikes were a weapon used by the downtrodden who knew no better means of redressing their grievances, lawyers, as members of an elite class, were not justified in calling for a strike. Therefore, the judges held that it was the duty of all courts to carry on functioning even in the absence of lawyers, and any damages incurred by a client because of the lawyer abstaining from court would have to be borne by the advocate concerned.
The first issue that arises in this context is that of whether lawyers have a higher moral obligation than other service providers who adopt striking as a means of protest. The standards for the expected conduct of lawyers in India are, by and large, determined by the Bar Council of India. Law has traditionally been considered a noble profession where the contract between the client and the advocate involves the popularly perceived moral ideal of achieving justice. In this context, The Bar Council of India calls for the advocate’s duty towards the common man to be “compassionate, moral and lawful” , over and above it being a contractual obligation of service rendered in return for payment. An institution is defined to a great extent by the people who constitute it.
Therefore, if the lawyer himself, as a part of the judicial structure, takes a step towards interfering with the fundamental right of the litigants for a fair and speedy trial, it can be considered a violation of the dignity and integrity of the judicial profession as a whole. It thus appears that lawyers, while not being denied their right to freedom of association, have been curtailed from using the related provision of strike on grounds that they have a moral obligation to uphold the normative standards of their profession. In the researcher’s opinion, lawyers adopt the means of strike as and when they feel that the pre-requisites of their working conditions are not fulfilled, as discussed in the case. The main reason as to why the lawyer is expected to adhere to a code of conduct is by the nature of the profession and the perception of the public with regard to the institution of the judiciary. Moreover, the meaningful preservation of the rule of law requires that the confidence of the public in the authority of the court remain stable. However, a valid point may be raised as to which interests in context of the lawyer are to be given greater consideration – as a representative of an institution, or as a worker who needs a means of putting forward grievances.
Lawyers, as paid service providers, are bound to have their own set of grievances which might not necessarily always conform to the ideals of judicial morality. A workers’ strike is generally called by the concerned trade union for putting forward their concerns; however in the context of the case, it is seen that the Bar Council of India– which is the representative body of lawyers – itself does not consider that strikes are necessary to uphold the interests of lawyers (excepting the context of “rarest of the rare” cases). Lawyers, as exceptions to the right to strike, also have been provided with an alternative means of addressing their concerns. While it is not certain that such means will be “adequate, impartial and speedy”, the judgement does allow for protest (through media attention, marches etc.) as well as the constitution of representative Grievance Redressal Commissions at different levels.
However, an issue which, in the opinion of the researcher, the judgement fails to address is that of clearly defining the boundaries of the “rarest of the rare cases” where the Court allows the lawyer the right to strike. The vague and subjective nature of the terms “dignity”, “integrity”, “independence” etc. of the judiciary leads to the larger question of whose idea of dignity can be represented as the dignity of the Court. The Attorney General’s definition narrows down the scope of what can be included in the scope of “rarest of the rare” but the ultimate power of decision has been vested by the Supreme Court unto itself. Taking into consideration the fact that the lawyer has been portrayed as an integral part of the judiciary, towards which he owes a “duty”, it does not seem unreasonable to allow the lawyer to have a voice in deciding what issues affect the integrity and independence of the judicial institution. The researcher believes that the Bar Council and Bar Associations, as the representative bodies of lawyers, too should be accorded a say in this regard.
This case brings to light many of the significant issues related to the right to strike in general, and the right to strike as exercised by lawyers in particular. It is seen that the Court, while taking into account the generally accepted principles of excluding certain categories of people from the right to strike on grounds of public order, has given more focus to whether the ideals of the institution of the judiciary are affected when the lawyer, as a “fiduciary” agent between the client and the Court, and identified by society one of its privileged members, decides to go on strike. It is evident (in this case and others) that the Supreme Court has placed greater value on preserving the structure and functioning of the judiciary, as well as “public order”. While these terms are vague and cannot be defined specifically, it is seen that in general, precedence has been accorded to the fundamental rights of the people as a whole, over the claim of only a section of the people.
The Court’s ruling does not seem unreasonable in light of the fact that the right to strike in India is a statutory, not a fundamental right, as already mentioned before. Further, the Court has also taken into account the peculiar nature of the problem caused by a lawyers’ strike, whereby the disposal of cases, and so the entire functioning of courts would be held up due to mass boycott. Its ruling that all the courts were to proceed with matters despite strikes by lawyers, as well as its decision holding the striking lawyer liable for paying damages to the inconvenienced client, may be considered as pressure on the lawyers to respond to the needs of their clients and realise the responsibility vested in them by virtue of their profession.
However, in the researcher’s opinion, the Bar Council as a representative body ought to be accorded further functions in context of upholding the interests of the lawyers. It is important to take into consideration the views of lawyers too with regard to what their interests – as workers and as members of a profession with high ethical standards – might be (which authority the Supreme Court seems to have assumed on its own accord).
In the researcher’s opinion, it would therefore not be wrong to say that it is in the interest of larger public good as well as for the preservation of the ideals of judicial integrity that the Court imposes its authority and restricts the right of the lawyer to strike; however, it is desirable that the Court take measures to accord further representation to the interests of the lawyers, so that a well-balanced perspective may be provided on both issues – the duty of lawyers to abstain from striking to uphold the expected professional standard of conduct, as well as the necessity of providing them a just means of addressing their own grievances.
1. Bernard Gernigon, Alberto Odero and Horacio Guido, ILO Principles Concerning the Right to Strike, (2000). 2. International Labour Organisation, Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, (5th edn., 2006). 3. Tonia Novitz, International and European protection of the right to strike, (2003). 4. Durga D. Basu and others, Commentary on the Constitution of India, (8th edn., 2007). 5. Lon Fuller, The Morality of Law, (2nd edn., 1969).
Subject: Human rights,
University/College: University of California
Type of paper: Thesis/Dissertation Chapter
Date: 25 October 2016
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