BCI's Draft Rules Inadequate In Preventing Advocates' Strikes : Common Cause Tells Supreme Court

The Supreme Court today (December 10) directed that suggestions on the Draft Rules submitted by the Bar Council of India in regard to preventing and prohibiting advocates' strikes could be made by the petitioner along with the amicus and Chairperson of the BCI. After a report is submitted within 4 weeks, the same will be finalised by the Court.

A bench of Justices Sudhanshu Dhulia and Ahsanuddin Amanullah was hearing a contempt petition filed by Common Cause inter-alia alleging that the BCI is not taking steps to prevent advocate's strikes and is not looking effectively into its disciplinary control side. It was hearing on the Draft Rules which was submitted by the BCI's Chairman and Senior Advocate Manan Kumar Mishra in January this year. While submitting, he stated that any suggestions upon the same shall be accepted without any condition.

Advocate Prashant Bhushan (for the petitioner) submitted that pursuant to the Court's order, the BCI submitted Draft Rules. Based on this, the amicus Senior Advocate Dr. S. Muralidhar submitted a 46-page report giving suggestions.

Reading the report, Bhushan pointed out that there are major omissions in the Draft Rules in regards to the fact that there is no prohibition on the participation of the advocates in strikes. It only asks for advocates to refrain from participating in unlawful and prolonged strikes. 

He stated that the Ex-Capt. Harish Uppal vs Union Of India & Anr (2002) judgment of the Supreme Court categorically bars advocates from participating in strikes. 

Bhushan specifically pointed out: "Draft Rules permits legitimate calls for abstention, strikes and boycotts from recognised Bar Associations. Such States like Delhi-whose Rules are under challenge, Haryana, Punjab, Bihar, and Uttar Pradesh have a system of registration and recognition. However, not all States have such a mechanism. The Objects and Reasons of the Draft Rules states that it would be imperative for all Bar Associations throughout the country to register with the respective Bar Councils. At present, there is no such provision in the Advocates Act that envisages such registration of Bar Associations with BCI..The Draft Rules have to be accordingly reexamined."

Strikes on rarest of rare occasion

Bhushan added that as for the legitimate calls for abstention, the Draft Rules state that a prior approval of the BCI or the State Bar Council would be required. On the contrary, he pointed out, Harish Uppal's judgment stated that in "rarest of rare" there could be legitimate calls for abstention of work that would require consent of the Court after consultation with the President of the Bar and the Chief Justice of the District Court.

He added that the judgment however says that in rarest occasion, a strike could take place with the approval of the Chief Justice of the High Court. On this, Justice Dhulia questioned how could the Chief Justice of the High Court give permission to advocates to abstain from work. He said: "Permission of the Chief Justice of the High Court?! Which Chief Justice will give you approval?"

On this, Bhushan responded that the Chief Justice can give permission if the same pertains to the independence of the judiciary. Illustrating with an example, he said: "Suppose, if Government does something which strikes at the root of the independence of the judiciary, then possible.."

However, Dhulia interjected and inquired how the rarest occasion would occur when it had been stated that there should be a complete bar on strikes. 

Bhushan explained that the law laid down in Harish Uppal is clear in regards to the fact that strikes can amount to professional misconduct or could be contempt of court. 

Counsel for BCI at this juncture prayed that "some practicalities" may have to be considered in terms of the fact that in rarest occasions, strikes may be permitted.

Duration of strikes

As for the duration of the strikes, the Draft Rules confers powers to the BCI and State Bar Councils to permit the extension of strikes beyond the period of 1 day. Bhushan said: "There is no outer limit. This too is inconsistent with the law laid down in Harish Uppal."

On reprisal 

Bhushan submitted that the Draft Rules offer no protection to advocates and litigants not willing to participate in the strikes or abstention from the Court's work. He stated that often when judges continue to hear the matter despite the calls for abstention, there is vandalism. 

Sharing his experience, Bhushan said: "I dealt with one case in the Delhi High Court where the President of the Bar Association said that anybody who does not participate in the strike will be visited with disciplinary action."

To this, Justice Dhulia remarked: "In Allahabad, a lawyer may be beaten up." 

Adding to this, he said: "In District Court in Uttar Pradesh, everyday monkey used to come, when monkey disappeared or died or something, there was a strike!"

The hearing concluded with Justice Dhulia stating that every strike is documented because when there is a strike in the District Court, the matter will go to the High Court. There it will be recorded with reasons.

Case Details: COMMON CAUSE v. ABHIJAT AND ORS., CONMT.PET.(C) No. 550/2015 In W.P.(C) No. 821/1990 

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