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Kanishk Jain

  Abstract –

The “right to work” is defined by Charles Fourier (1772-1837) a Frenchman who observes that “Politics extol the rights of men and do not guarantee the prime and only useful right, the right to work.”

In my views ‘right to work” is active involvement of physical and mental body which either benefits the nation or destroys it. The word “STRIKE “is defined under Section 2(q) of said Act defines the term strike, it says, “strike” means a cassation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal, under a common understanding of any number of persons who are or have been so employed to continue to work or accept employment.  Section 22(1) of the Industrial Dispute Act, 1947 put certain prohibitions on the right to strike. It provides that no person employed in public utility service shall go on strike in breach of contract:

(a) Without giving to employer notice of strike within six weeks before striking; or
(b) Within fourteen days of giving such notice; or
(c) Before the expiry of the date of strike specified in any such notice as aforesaid; or
(d) During the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.

Strike and right to work are at two different poles. Strike is the reason for laziness (if cause without reason) whereas work is the way to define a person and his/her attitude.

 

Introduction –

India is a country which is known by its culture, traditions, customs, religions and justice. The person is known by his work which he/she is doing in day to day routine. Work is also known as worship. Best work means best worship but if going on a long holiday without any reasonable cause or excuse is against work. In the same way advocates right to go on strike for small causes becomes an excuse for not doing the work which is against the ethics of lawyers. Lawyers are the one who are known for giving justice to innocent people. This giving of justice is a very big responsibility. This responsibility can take someone’s life or can give happiness to thief as well. This system of providing justice is not possible without lawyers. Lawyers had to first see the case issues then focus on laws available to that issues then he/she had to collect evidence and file a proper suit as per the procedure established by law in court.

After doing all of these work, lawyer have to appear on every date of that particular case given by court and if lawyers go on strike then how the cases are going to be solved and how people can live their life happily. The citizens can also fight their own case but they trust a lawyer in that position that lawyer is the hope for them who can fight for their benefit and who can by his/her pleading provides justice. Mainly lawyers go on strike because of any problem occurs either to any other lawyer(s) or court(s) or because of non-ethical behaviour by client, these all are problems related with lawyers which made them to go on strike. But problems are solved by solution, not by leaving work and shouting or protesting.

When lawyers go on strike then they not only protest but also destroye’s the public property which is earned by public taxes and lawyers are also the part of that public which means lawyers indirectly destroying their own property. If any association or union or group of people destroye’s any public property then they are given punishment but when lawyers do such act then it is their right to go on strike.

  Evolution –

Right to go on strike by lawyers or so called hard working solicitors is still in confusion from the case of Atul Chunder v/s Lakshman Chunder, (1909) to Hussain and Anr. v/s Union of India, (2017). The apex court always gave the judgment in support of ‘Right to work’ and also there are lots of pending cases in the world especially in India were lots of citizen are waiting for their true and honest decision and they have to struggle everyday in the court of law.

In Hoby v/s Built, (1832) 3 B and Ad 350: 1 LJKB 121: 110 ER 131, If the practitioner wants to withdraw from any of his/her case he/she must always give reasonable notice of his withdrawal from the case to his client.

In Emperor v. Rajani Kanta Bose ILR (1922) Cal 515, special three judge’s bench of Calcutta high court held that the legal practitioner who had a vakalatnama cannot divest its authority from boycotting the case or judge because of any irrelevant issues.

In Tarini Mohan Barar case AIR (1923) Cal 242 a decision to boycott the court was in issue. A resolution was passed by the Bar Association not to appear before the Fourth Subordinate Judge in view of the fact that insult inflicted on Pleader Shri Babu Rabindra Nath Chatterjee, was an insult to the whole Bar. It was in consequence of the resolution that the pleaders refused to appear before the Subordinate Judge. The High Court ruled:

“The pleader has duties and obligations to their clients in respect of the suits and matters entrusted to them which were pending in the Court of the learned Subordinate Judge.”

In Lt. Col. S.J. Chaudhary v/s State (Delhi Admn.), 1984 (1) SCC 722 it was observed by Supreme Court that it is the duty of every advocate to attain the court and in case of criminal case the advocate should attain each and every day of the case. Supreme Court also observed that absenting from court in pursuance of any concerted or joint movement by advocates to boycott court is amounting to professional misconduct and is against the professional ethics of advocates.

In S. Maharaj Baksh Singh v. Charan Kaur, AIR (1987) P&H 213. The Court observed, “Counsel abstaining from appearing in court is contrary to the manner and norms of this great and noble profession. Law, as Justice Holmes says, ‘a calling of thinkers’. The weapon of the Bar thus always been reason, and reason is never of more telling effect than when expressed with dignity wrapped in humility.”

In Rajinder Singh v/s Union of India, 1993 (2) SLR 450 a Division Bench of Punjab and Haryana High Court observed,

There is no legal encumbrance in the way of the Court not to administer justice when lawyers abstain from appearing in Courts or they appear but refuse to assist the Court in the administration of justice. “Code of Civil Procedure contains provisions for proceeding with cases when parties fail to appear.”

Description of Cases –

In case of Common Cause v/s Union of India and others AIR (1995) SCW1505.
The Supreme Court constituted a committee to suggest steps to be taken to prevent boycott or strike by advocates. The Committee suggested that instead of the court going into the wider question, interim arrangement be made to see whether it would be workable. The committee gave suggestions in this regard and the Supreme Court issued the following interim directions with regard to prevent and control strike by advocates.

In a case of Arunava Ghosh v/s Bar council of West Bengal and others AIR (1996) Cal 331 dated 26/9/95 the Calcutta High Court observed that bar council has no power to call a strike of lawyers and such a call will amount to contempt of court.

In Ex Capt. Harish Uppal v/s Union of India & Anr. (2003) W.P.(civil) No. 132 of 1988 a six-judge constitutional bench of the Supreme Court held that lawyers have no right to go on strike or even token strike or to give a call for boycott. It further says that nor can a lawyer while holding on behalf of clients abstain from court in pursuance of strike or boycott. The Supreme Court has further said that lawyers refusing to respond to such a call cannot be visited with any adverse consequences by the Bar Association or the Bar Council.

In Common Cause a Registered Society v/s Union of India and Others [AIR 2005 SC 4442], it was held by the Supreme Court that if any person or association who is enrolled by bar council calls for strike or for boycott a court then bar council of India must immediately   take action against that lawyer or association.

In O.P.Sharma and Others v/s High Court of Punjab and Haryana [AIR 2011 SC 2101], it was held by Supreme Court that the duty of lawyer is important as that of judge and his/her relationship with their clients is made with utmost trust. Lawyer is the one who seek justice to the citizens and thus plays important role in the society.

In Vishwanath Swami v/s Bar Council of India, (2013) W.P.No.8155/2012, it was held that lawyers have no right to go on strike or boycott the court. If it comes to integrity or sovereignty of the bar and/or the bench then one day of strike is allowed. And the allowance for one day strike should be given to the president of bar association by Chief Justice or by District Judge.
International Prospective –

The International Covenant on Economic, Social and Cultural Rights, 1966

Article 8(1)(d) states that, the States Parties to the present Covenant undertake to ensure The right to strike, provided that it is exercised in conformity with the laws of the particular country.

The Universal Declaration of Human Rights, 1948

Article 20(1) everyone has the right to freedom of peaceful assembly and association.
(2) No one may be compelled to belong to an association.

European Social Charter, 1961 (and 1996)

Article 6 – The right to bargain collectively

With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake:

(4)the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.

Charter of the Organization of American States, 1948

Article 45

The Member States, convinced that man can only achieve the full realization of his aspirations within a just social order, along with economic development and true peace, agree to dedicate every effort to the application of the following principles and mechanisms:

(c) Employers and workers, both rural and urban, have the right to associate themselves freely for the defence and promotion of their interests, including the right to collective bargaining and the workers’ right to strike, and recognition of the juridical personality of associations and the protection of their freedom and independence, all in accordance with applicable laws.

 

Charter of Fundamental Rights of the European Union, 2000

Article 28 Right of collective bargaining and action

Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.

Drawbacks of Right –

Inefficiency in court work – The work in the court requires the knowledge of law and knowledge comes into play when an advocate has the complete knowledge about it. Lawyers and its workers are the only one who creates law and responsible for justice given to citizens of the nation and if any type of useless strike comes into existence then the instability and inconsistency in court work can be seen which leads to injustice with citizens who are dependent on their advocates and its workers.

Pending of judgments – Judgement is defined under section 2(9) of civil procedure code, 1908 which is given by court. Thus judgment is defined as a statement given by judge on the basis of order or decree given by court. If any strike due to any unreasonable cause occurs then date of judgment shifts due to which burden on court is on hikes and leads to requirement of more judges in the court of nation.

Arising of unnecessary violence – It is always well established that the court work should be done silently and patiently and if unnecessary violence occurs in court or around court areas then it is said to be unethical practice against court and if the justice seekers does such activity then it is against the ethics of their profession. A way to mediate is a way to litigate and litigation achieved by knowledge and practice and not by unnecessary violence.

Unnecessary trouble to clients – A lawyer – client relationship which given under advocates act, 1961 and also in bar council rules which is to be followed by every lawyer to achieve ethics in profession but the strike by lawyers leads to delay in judgments in case due to which clients suffers unnecessary trouble and thus citizens last trust towards court seems to diminished.

Undue advantage by any association – Supreme court always says that strike by lawyers in not allowed as it is unethical towards the law profession but in recent judgments by supreme court, gives permission for strike only if there is any reasonable reason but many associations and organisations with the help of lawyers does the strike which is nothing but taking undue advantage of court’s decision.

Violating advocates act – Advocates Act, 1961 is made for regulating proper work of law by lawyers and its workers and advocates act defines ethical behaviour of lawyer and if any type of strike without any necessary requirement occurs then lawyers are violating the advocates act and creating no way for citizen to seek justice.

Conclusion

Law is termed as ‘Noble Profession’ amongst all profession there in world because it is the only profession which leads a person to survive, seeks justice, and constitution was the first thing which was framed after Independence. Every profession in the world contains the support of one or the other laws without which professing that profession terms to be illegal.

Right to strike by lawyers is not absolute right but a conditional right. Everyone has the support of right to freedom speech and expression embedded under article 19(1)(a) of our Indian constitution but right to strike without any reasonable cause cannot be the part of the of such article as article 19 has some restrictions under article 19(2).

Right to go on strike by lawyers is allowed in very rare of the rarest cases which must be decided by the permission of Chief Justice or District Judge of the particular state. This permission is to be given to the president of the bar council of that particular state.

Supreme court judges such as A.K.Goel, U.U.Lalit and many others always wants from lawyers to have a peaceful strike without boycotting the court and such strike should be done away from court premises by advertising, T.V. interviews, black band on hand and many other ways. This strike by lawyers should be done for a day because boycotting the court work leads to lots of disturbance in providing justice to citizens on time.

There are almost 3.3 crore cases pending in supreme court of India and 2.84 crore cases in other subordinate courts of India and if lawyers go on strike then how these many cases are going to be solved and how justice is imagined by citizen of country.

There is a rule in Indore High Court that lawyers should mediate rather to litigate but if lawyers are not there then how mediation can be possible.

It should be noted that justice can be given by justifiers called as lawyers and justifiers can justify by their work and not by going on strike or protesting.

Thus an advocate plays important role in preservation of rights of citizen, creating candid society and fair judicial system. If they go for strike first think about our system , justice and about our innocent public.

Reference –

1. https://www.academia.edu/11790162/Professional_Ethics_for_Lawyers

2. https://www.ebc-india.com/lawyer/articles/95v5a3.htm#Note7

3.https://www.monash.edu/__data/assets/pdf_file/0008/1441196/Josh-Bornstein-paper.pdf

4.https://www.businesstoday.in/current/economy-politics/3-3-crore-cases-pending-indian-courts-pendency-figure-highest-cji-dipak-misra/story/279664.html

5. http://www.legalserviceindia.com/articles/dispute.htm

Author : Kanishk Jain

B.B.A. L.L.B.   SEM – VI

Bhartiya Vidyapith .

NEW LAW COLLEGE

Pune

 


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