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Critical Analysis


LIST OF CASES.................4
OBJECTIVE OF PROJECT....................5
CHAPTER -1- RIGHT TO STRIKE..............6
CHAPTER -2- VERDICT OF THE APEX COURTS.......................................9
CHAPTER - 3 - REASONS FOR BANNING STRIKES........................10
CHAPTER - 4 - CASE REVIEW.............................................................15

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The successful completion of any task would be, but incomplete, without the mention
of people who made it possible and whose constant guidance and encouragement
crowned my effort with success.
I would like to thank my course teacher Dr. DIPAK DAS sir for providing me the
topic of my interest.
Secondly, I would like to thank our Vice Chancellor for providing the best possible
facilities of I.T and library in the university.
I would also like to extend my warm and sincere thanks to all my colleagues, who
contributed in numerable ways in the accomplishment of this project.

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All India Judges Association vs. Union of India (AIR 1992 SC 165)
B.L. Wadehra vs. State AIR 2000 Delhi 266
Bar Council of India vs. M.V. Dabholkar AIR 1976 SC 242)
Bharat Kumar K. Palicha v. State of Kerala, 1998 (1) SCC 202.
Communist Party of India (M) v. Bharat Kumar and others (AIR 1992 SC 7548
Rondel v Worsley (1967) 3 All ER 993, 998
Ex-Capt. Harish Uppal vs. Union of India & Another (2003) 2 SCC 45
Harish Uppal vs. UOI (2003) 2 SCC 45
Ikm Investors Services Ltd. vs Kiranpal Kapoor
Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd ,(1999) (1) SCC 37
Maharashtra v. M. V. Dabholkar
Ramon Services Pvt. Ltd. vs. Subhash Kapoor [ (2001) 1 SCC 118]
U.P. Sales Tax Service vs. Taxation Bar Association, 1996 AIR 98

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The `strike' is a weapon of social justice for the powerless against the powerful to be used
as a last resort when no other option is available. Used by the trade union movement to
withhold their `labour' power to get `just' terms and by Gandhi as a non- violent protest
against imperial rule, it is not a trivial pursuit to be used by the powerful to demonstrate
their strength or as a weapon of blackmail or to perpetuate injustice. Even if judges are
legally but not always morally right, judicial pronouncements are a useful moral prelude
to introduce a public discussion on controversial matters. Over the last century and a half,
High Court and Supreme Court judges have evolved various principles in relation to
lawyers' strikes both by judicial administrative practice.


To analyze whether lawyers can go on strike or not.

Whether right to strike is available to lawyers or not.


This is a descriptive & analytical research paper. My research paper is largely based on
the critical review of secondary and electronic sources of information. References used as
guided by the faculty of Professional ethics were of great use in completing this project.

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The Supreme Court has ruled that workers have no moral or equitable right to go on
strike. In a recent case the Court has cited, not always in context, various judgments to
the effect that employees have no fundamental right to strike, that there is no
constitutionally guaranteed right to effective collective bargaining, that strike cannot be
justified in the present-day situation either for a just or unjust cause and that the strike
weapon does more harm than any justice.
Now consider this: Article 19(c) concerning protection of certain rights regarding
freedom of speech etc. specifically guarantees the right of a citizen to form associations
or unions; what does the right to form a union imply? A `union is not a club where
people gather to play cards or badminton. A union is formed to fight for certain rights by
all legal means possible, including going on strike. But now we are told that there is no
such right.
In a different sense doctors should not be permitted the right to strike. Or, for that matter,
lawyers, though over the past decade lawyers too have gone on strike, on one occasion
for no greater reason than a policeman manhandling one of them who allegedly jumped a
red light. Actually, in the year 2003, a Constitution Bench of the Supreme Court
categorically announced that lawyers have no right to go on strike. A former Additional
Solicitor General of India, K. N. Bhat has noted however, that even before the ink on the
Supreme Courts decision could dry, the Bar Council of India, the apex statutory body
that controls the legal profession, had given a call for all-India strike by lawyers.
If the Bar Council can thumb its nose at a Supreme Court judgment, what is there left to
argue? And just consider what the Supreme Court had said: A lawyer cannot refuse to
attend court because a boycott call is given by the Bar Association. It is unprofessional as
well as unbecoming for him to refuse to attend court even in pursuance of a call for strike
or boycott by the Bar Association or the Bar Council... If a resolution is passed by Bar
Associations expressing want of confidence in judicial officers, it would amount to

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scandalizing the courts to undermine its authority and thereby the advocates would have
committed contempt of court.

A Right Curtailed: In its judgment delivered on December 17, 2002, in Ex-Capt. Harish
Uppal vs. Union of India & Another 1, the Supreme Court's five-member Constitution
Bench has held that strikes by lawyers are illegal and that courts must now take a very
serious view of strikes and calls for boycott.
The Bench comprising Chief Justice G.B. Pattanaik (who has since retired), Justices
Doraiswamy Raju, S.N. Variava, D.M. Dharmadhikari, and M.B. Shah, (the last two have
given a separate concurring judgment) ruled that only in the rarest of rare cases, where
the dignity, integrity and independence of the Bar and/or the Bench are at stake, may
courts ignore (turn a blind eye to) a protest abstention from work for not more than one
The main judgment, delivered by Justice Variava, clarified that it was for the Court to
decide whether or not the issue involved the dignity or the integrity or the independence
of the Bar and/or the Bench. "Therefore, in such cases the President of the Bar must first
consult the Chief Justice or the District Judge before the advocates decide to absent
themselves from Court. The decision of the Chief Justice or the District Judge would be
final and have to be abided by the Bar," the Bench ruled.
Lawyers (barring those in the Supreme Court and in a few High Courts) struck work on
December 18 in response to the call from the Bar Council of India to protest against the
amendments introduced to the Legal Services Authority Act to set up Permanent Lok
Adalats (people's courts) and to transfer 80 per cent of the cases from the regular courts to
these adalats, whose decisions would be binding.

Narimans View:
Ironically, the legal community seems to have missed the far-reaching import of the
judgment. Eminent advocate, Fali S. Nariman, suggested in a newspaper article that a
concerted attempt by lawyers to prevent courts from carrying out their function of
administering justice a boycott of courts amounts to a deliberate and wanton negation of
(2003) 2 SCC 45

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both the fundamental right to practice, guaranteed under the Constitution, and the
statutory right, as conferred by the Advocates Act, 1961. By collectively refusing to
appear in courts for clients, lawyers do disservice to both the legal profession and to the
persons by whom they are engaged, he wrote.
Nariman's fears seem to have been answered by the judgment. The Bench assumes that
advocates have obligations and duties to ensure the smooth functioning of the court.
Observers say this generalization is obviously applicable to any organized section of
society, although the Bench does not expressly say so. Doctors, industrial workers,
government servants and employees in a private organization have similar obligations
and duties to ensure the smooth functioning of the organizations they belong to.

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The lawyers, the Bench noted, cannot thus disrupt court proceedings and put the interest
of their clients in jeopardy. The Bench noted that even if the Bar Councils, on a complaint
from a client, do not take disciplinary action against an advocate for non-appearance
owing to a call for strike or boycott, the Supreme Court, on an appeal, can and will. Apart
from this, the Bench cited the Supreme Court's judgment in Ramon Services Pvt. Ltd. vs.
Subhash Kapoor2and said every court should and must mulct, with costs, advocates who
hold vakalats (power of attorney) but do not attend courts in response to a strike call.
Such costs would be in addition to the damages the advocates may have to pay for the
loss suffered by his or her client because of his or her non-appearance. There are
remedies available to a client, if he or she feels that the advocate has violated the contract
by going on strike.
The right of the advocate to practice, the Bench says, envelops a lot of acts to be
performed by him in discharge of his professional duties. They include consultation by
his clients, giving legal opinion whenever it is sought, drafting instruments, pleadings,
affidavits, or other documents, participating in any conference involving legal
discussions, working in any office or firm as a legal officer, appearing for clients before
an arbitrator and so on. A call for a strike and boycott of courts, it would appear, affects
only one aspect of the lawyer's professional duties, that is, his appearance in court.
On the grievance that strikes interfere with administration of justice, the Bench held that
courts are under no obligation to adjourn matters because lawyers are on strike. "On the
contrary, it is the duty of all courts to go on with matters on their boards even in the
absence of lawyers. In other words, courts must not be privy to strikes or calls for
boycotts," the Bench ruled.
More important, the Bench made it clear that no threat or coercion of any nature,
including the threat of expulsion from the Bar Council or any lawyers' association, can be

[ (2001) 1 SCC 118]

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held out against an advocate who defies a strike call. With such safeguards against the
misuse of the call for strike, was it necessary for the Bench to ban strikes by lawyers?


The Bench felt it had no option but to ban strikes for two reasons:
One, strikes were resorted to on the slightest pretence. Lawyers contended that the
response should have been to limit the grounds and duration of a strike, rather than
deprive the lawyers their right to strike. Merely because a demand of the lawyers is found
to be not legally valid lawyers do not lose their right to pursue the demand any further,
they felt.
Secondly, the Bench cited the failure of the Bar Council of India (BCI) to incorporate
certain clauses for self-regulation in their disciplinary rules to ensure that the call for
strikes is not abused. The Court had suggested these norms in an Interim Order (I.O.) it
had issued in another related case in 1995. In that order, the Court had sought to protect
the right of a lawyer not to participate in a strike, and appear in the Court during the
strike, without fear of any adverse or penal consequences from those who issued the call
for a strike. The Court had then made it clear that other forms of protest such as wearing
of arm bands by the lawyers in the courtroom, which would not disrupt the court
proceedings, should not be precluded. The December 17, 2002 judgment goes far beyond
the I.O., and negates the exercise of a democratic right, in a peaceful manner.
The Bar Council of India, which described the judgment as impractical, had filed a
petition in the Supreme Court for its review. But, the Supreme Court in its judgement on
September 30, 2005, reiterated that lawyers do not have a right to go on a strike or give a
call for boycott. The Court further asked the Bar Council of India to take immediate
action against advocates who give a call for strike.

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In Harish Uppal vs. UOI 3On this, fortunately, the law is very clear. , the Supreme Court
lashed out at lawyers for going on strike. One cant do better than to quote from what the
judges said:

The lawyers have no right to go on strike or give a call for boycott, not even on a token
strike. The protest, if any as required, can only be by giving press statements, T.V.
interviews, carrying out-of-Court premises banners and/or placards, wearing black or
white or any colour arm bands, peaceful protest marches outside and away from Court
premises; going on dharnas or relay fasts, etc. The lawyers holding vakalats on behalf of
their clients cannot refuse to 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 Bar Association or the Bar Council and
no threat or coercion of any nature including that of expulsion can be held out. No Bar
Council or Bar Association can permit calling of a meeting for purposes of considering
a call for strike or boycott and requisition, if any, for such meeting must be ignored.
Courts are under no obligation to adjourn matters because lawyers are on strike. On the
contrary, it is the duty of all Courts to go on with matters on their boards even in the
absence of lawyers. In other words, Courts must not be privy to strikes or calls for
boycotts. If a lawyer, holding a vakalat of a client, abstains from attending Court due to a
strike call, he shall be personally liable to pay costs which shall be in addition to
damages which he might have to pay his client for loss suffered by him.

In Ramon Services Pvt. Ltd vs Subhash Kapoor 4 This sentiment was echoed where it
was observed Abstaining from the courts by the Advocates, by and large, does not only
affect the persons belonging to the legal profession but also hampers the process of
justice sometimes urgently needed by the consumers of justice, the litigants. Legal
(2003) 2 SCC 45
[ (2001) 1 SCC 118]

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profession is essentially a service oriented profession. The relationship between the

lawyer and his client is one of trust and confidence. With the strike by the lawyers, the
process of court intended to secure justice is obstructed which is unwarranted under the
provisions of the Advocates Act. Law is no trade and briefs of the litigants not

In Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd5, the Court used stark language to
drive home the point: It said Judicial function cannot and should not be permitted to be
stonewalled by browbeating or bullying methodology, whether it is by litigants or by
counsel. Judicial process must run its even course unbridled by any boycott call of the
Bar, or tactics of filibuster adopted by any member thereof.

In Ramon Services Pvt. Ltd vs Subhash Kapoor,6 the Court put the profession to notice
that in future the advocate would also be answerable for the consequence suffered by the
party if the non-appearance was solely on the ground of a strike call. It also pulled up
the judiciary for sympathising with the Bar during the strikes or boycotts and warned
them to rise from the slumber and not show any leniency to the defaulting party and
award exemplary costs to the adversary. Inaction will surely contribute to the erosion
of ethics and values in the legal profession warned the Court and threatened that The
defaulting courts may also be contributory to the contempt of this Court.

In B.L. Wadehra vs. State7 .This was reiterated in where it was held .. 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 breach of
trust and he will be liable to suffer all the consequences thereof. There is no
fundamental right, either under Article 19 or under Article 21 of the Constitution, which
permits or authorises a lawyer to abstain from appearing in Court in a case in which he

(1999) (1) SCC 37
[ (2001) 1 SCC 118]
AIR 2000 Delhi 266

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holds the vakalat for a party in that case. On the other hand a litigant has a fundamental
right for speedy trial of his case.

In U.P. Sales Tax Service vs. Taxation Bar Association,8 the Court rued that It has ben
a frequent spectacle in the recent past to witness that advocates strikes work and boycott
the courts at the slightest provocation overlooking the harm caused to the judicial system
in general and the litigant public in particular and to themselves in the estimate of the
general public. An advocate is an officer of the court and enjoys a special status in the

In Ikm Investors Services Ltd. vs Kiranpal Kapoor was an unfortunate case which
shows how the adverse consequences of an irresponsible lawyers actions have to be
borne by the unfortunate client. The Petitioners s. 138 complaint was dismissed because
the lawyer did not appear as he was on strike. An appeal against that order was
dismissed by the High Court by stating that the Court could not be a party to the strike
call and was duty bound to proceed with the matter. The Court held that the non-
appearance of the advocate in the court on the date when case is fixed, on the pretext or
ground of strike amounts to breach of faith and trust reposed in the advocate by the
client, who engaged him and paid his fees. The consoling factor was that it was observed
that the litigant could recover the loss from the concerned advocate. Of course, whether
any advocate would own up the responsibility and compensate the poor litigants loss is
another matter altogether.

1996 AIR 98

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The unseemly controversy about the age of the Chief Justice of India raised by some
members of the Bar at Chennai and the conduct of an advocate resulting in suo motu
contempt proceedings in the Madras High Court, warrants a study on the role of
advocates who take oath to uphold the provisions of the Constitution while getting
enrolled as members of the Bar and also regarding some of the important provisions of
the Contempt of Courts Act in the interest of the public, for upholding the majesty of law
and the dignity of the noble profession. Any advocate should know that the President of
India is the highest authority to decide on the age of the judges and there cannot be
further arguments over the same.

The Advocates Act 1961 has repealed a host of enactments including Indian Bar Council
Act. When the new Bar Council of India came into existence, it framed rules called the
Bar Council of India rules as empowered by the Advocates Act. Such rules contain a
provision specifically prohibiting an advocate from adjusting the fees payable to him by a
client against his own personal liability to the client. As a rule, an advocate shall not do
anything whereby he abuses or takes advantage of the confidence reposed in him by his
client (vide Rule 24). Misconduct envisaged in Section 35 of the Advocates Act is not
defined. The section used the expression ``misconduct professional or otherwise''. The
word ``misconduct'' is a relative term. It has to be considered with reference to the subject
matter and the context wherein such term occurs. It literally means wrong conduct or
improper conduct (2001(1) L.W. 284). Members of legal fraternity are guardians of the
rights of the individual and society at large (1997(1) L.W. 297).

The relationship between advocate and client is based only on confidence and trust. If an
advocate is allowed to give advice to one party and appear for the opposite party in court
the confidence reposed in him will be lost and his conduct will amount to prostitution of
the profession. Counsel appearing for one party is not expected to please both his party

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and the opposite party and if he does so, it will amount to professional misconduct and
breach of trust.

The Supreme Court in the decision in All India Judges Association vs. Union of India
has observed that the administration of justice and the part to be played by the advocates
in the system must be looked into from the point of view of litigant public and the right to
life and liberty guaranteed under Article 21 and right to grant legal aid as contemplated
under Article 39A of the Constitution. The Supreme Court and various landmark
decisions upheld the legal profession as a noble profession.

The law is the embodiment of everything that is excellent and the members of the Bar
who have a vast reservoir of wisdom, strength and courage are its torchbearers. Krishna
Iyer. J., in the Bar Council of India vs. M.V. Dabholkar 10 observed that the vital role of
the lawyer depends upon his probity and professional lifestyle. The central function of the
legal profession is to promote the administration of justice. As monopoly to legal
profession has been statutorily granted by the nation, it obligates the lawyer to observe
scrupulously those norms which make him worthy of confidence of the community in
him as a vehicle of social justice. ``Law is not trade, nor briefs merchandise.'' Law is
universally described as an `honourable' profession and is distinguished by its rules of
ethics without which advocacy would degenerate into a trade or mere sordid pursuit for
livelihood and accumulation of wealth.

Misapplication of Harish Uppal case and Bharat Kr. Palicha case

The Rangarajan case relies on a number of case laws dating back to the 1960s
(Kameshwar Prasad & AIBE Association). The only recent judgments that the Court
relied upon - namely, Harish Uppal11 and Bharat Kr. Palicha 12 to demonstrate that there
is no right to strike seem to have been misapplied, contrary to their letter and spirit.

(AIR 1992 SC 165)
(AIR 1976 SC 242)
Ex. Capt. Harish Uppal v. Union of India, AIR 2003 SC 43
Bharat Kumar K. Palicha v. State of Kerala, 1998 (1) SCC 202.
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In Harish Uppal the court held that advocates have no right to strike. However the court
also opined "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". The court, therefore, acknowledges that
the right to strike exists and which can be exercised if a rare situation demands so. The
apex court has only tried to restrict the right to strike of advocates with regards to the
significant role they play in the administration of justice. For all others' this sacred right
holds good force. The judgment especially recognizes the right with regard to industrial
workers where it states that advocates do not have a right to strike as "strike was a
weapon used for getting justice by downtrodden, poor persons or industrial employees
who were not having any other method of redressing their grievances".

In Communist Party of India (M) v. Bharat Kumar and others 13 the apex court has held
'bundhs' to be unconstitutional. The same is relied upon in the Rangarajan case. However
the court failed to notice that the judgment does not keep a 'bundh' and a general strike on
the same pedestal. Where, on the one hand, a 'bundh' is unconstitutional, a 'hartal' or a
general strike is very much legal. The Rangarajan case suffers from an illegality insofar
as it attempts to place a blanket ban on all kinds of strikes irrespective of whether they
are 'hartals' or 'bundhs'. The same difference was lucidly explained in Bharat Kr. Palicha,
where Justice Balasubramanyan opined: "Bundh" is a Hindi word meaning "closed" or
"locked". The expression therefore conveys an idea that everything is to be blocked or
closed. Therefore, when the organisers of a bundh call for a bundh, they clearly express
their intention that they expect all activities to come to a standstill on the day of the

A call for a bundh is obviously distinct and different from the call for a general strike or
the call for a hartal. The intention of the callers of the bundh is to ensure that no activity
either public or private is carried on on that day. Thus, it is sought to suggest that a right
to strike is a recognized legal right and the Rangarajan case is per incuriam on the above
mentioned grounds. It is indisputable that there exists a right to strike. In support of this ,
we put forth two hypothesis: 1) That the main object of the Industrial Disputes Act, 1947

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is to promote alternative mechanisms for dispute settlement as against strikes. 2) Strike is

a 'weapon of last resort' and must be sparingly used.


Legal profession is essentially a service-oriented profession. The relationship between the

lawyer and his client is one of trust and confidence.
It has to be understood that a lawyer is not an agent of his client but his dignified,
responsible spokesman. He is not bound to tell the court every fact or urge every
proposition of law, which his client wants him to do however irrelevant it may be. He is
essentially an adviser to his client and is rightly called a counsel in some jurisdictions.
Once acquainted with the facts of the case, it is the lawyers discretion to choose the facts
and the points of law, which he would advance. Being a responsible officer of the court
and an important adjunct of the administration of justice, the lawyer also owes a duty to
the court as well as to the opposite side. He has to be fair to ensure that justice is done.
From the above discussion on the decision of the Supreme Court, it is clear that Articles
19(1)(g) and 21 of the Constitution of India do not include a fundamental right to boycott
the work or go on strike.
In the opinion of an eminent jurist Dr. H. M. Seervai, in his article Lawyers Strike and
Duty of the Supreme Court, lawyers ought to know hat at least as long as lawful redress
is available to aggrieved lawyers, there is no jurisdiction for lawyers to join on illegal
conspiracy to commit a gross criminal contempt of Court thereby striking at the heart of
liberty conferred on every person by the Constitution of India. To go on strike amounts to
interference from anybody or authority in the daily administration of justice.
I want to conclude this essay by quoting some divine ancient chants which are prevalent
in our country for centuries and recently recited by Mr. M. N. Krishnamani, President,
Supreme Court Bar Association, in his address on the occasion of the Law Day. [(2004) 1

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1. Phil, Harris, An Introduction to Law, 6th Edn, Butterworth Lexisnexis.

2. Mittal, J.K, Indian Legal and Constitutional History, 14th Edn, Allahabad
Law Agency, Faridabad (2004).
3. Gandhi, B.M, V.D. Kulshreshtras Landmarks in Indian Legal and
Constitutional History, Eastern Book Company, Lucknow (1995).
4. Aiyer, P. Ramanath, Legal and Professional Ethics, 3rd Edn, Wadhwa and
Company, Nagpur (2003).
5. Pant, Prafulla C, Sanjiva Rows The Advocates Act, 6th Edn, The Law Book
Company (P) Ltd, Allahabad (2001).
The Advocates Act, 1961

Garner, Bryan A.; Blacks Law Dictionary; 7th Edn.; West Group, St. Paul
Minn. 1999.
Hornby, A.S.; Oxford Advanced Learners Dictionary, 6th Edn. Oxford
University Press, 2000.
Bakshis THE LAW LEXICON 2nd Volumes 2005 Ashoka Law House New
Delhi (India)
An English-Hindi Dictionary, Father Kamil Bulke. 3rd Edn. S. Chand and
Company, Ramnagar, New Delhi.

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