It is most significant to note that in a most major development, we see that the Allahabad High Court has in a learned, landmark, laudable and latest judgment titled Jang Bahadur Kushwaha vs State of UP and 5 Others in Public Interest Litigation (PIL) No. – 1951 of 2023 that was pronounced as recently as on January 24, 2024 has observed in no uncertain terms without mincing any words most unequivocally that courts are not industrial establishments and bar associations cannot bargain for their demands like trade unions as it expressed its most serious concerns and reservations over the ongoing strike that is taking place at the Tehsil Bar Association, Rasra, in Uttar Pradesh’s Ballia district. We must also bear in mind that the court also very rightly directed the Bar Council of Uttar Pradesh to bring on record the guidelines that have been framed by it, if any, on the observance of condolences and other instances under which lawyers abstain from work and whether any action has been taken by it in the particular case or not. The court also directed the Bar Council of Uttar Pradesh to bring on record the guidelines that have been framed by it, if any, on the observance of condolences and so also other instances under which lawyers abstain from work and whether any action has been taken by it in the particular case or not. We need to note here that while hearing a PIL that had been filed by one Jang Bahadur Kushwaha, a Division Bench of Acting Chief Justice Manoj Kumar Gupta and Justice Kshitij Shailendra of Allahabad High Court directed to list the case on February 5 for further hearing. So the case is yet to be concluded fully!
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Division Bench of Allahabad High Court comprising of Hon’ble Mr Justice Manoj Kumar Gupta who is the Acting Chief Justice and so also Hon’ble Mr Justice Kshitij Shailendra sets the ball in motion by first and foremost putting forth in para 1 that, “This writ petition, filed in public interest, highlights an alarming situation which not only relates to disruption of functioning of courts at Tehsil Rasra, District Ballia but also raises serious concerns which immediately need to be addressed by the State Bar Council of Uttar Pradesh.”
To put things in perspective, the Division Bench then envisages in para 2 that, “The prayer, inter alia, made in the writ petition is to issue a direction commanding the competent authorities to take necessary, effective and immediate action against the concerned lawyers/concerned office bearers of Tehsil Bar Association, Rasara, District Ballia, who are responsible for calling strike, which is still continuing since 31.01.2023 till date, against the several verdicts of Hon’ble Apex Court, so that judicial functioning of concerned courts of Tehsil Rasara, District Ballia is restored immediately.”
Do note, the Division Bench then notes in para 3 that, “Although, on 19.01.2024, a statement was made by the learned counsel representing the Bar Council of Uttar Pradesh that now there is no strike and usual work is being transacted, this Court directed the respondent no.3, i.e. the President/Chairman of Bar Council of Uttar Pradesh, to disclose as to what action has been taken in respect of strike by the Tehsil Bar Association, Tehsil Rasara, District Ballia which was continuing since 31.01.2023.”
Further, the Division Bench then observes in para 4 that, “Learned counsel for the Bar Council of Uttar Pradesh has placed written instructions on record and the stand taken there is that as of date there is no strike, however, it has not been disclosed as to how many days the advocates were on strike in the concerned Tehsil.”
As we see, the Division Bench then points out in para 5 that, “It is admitted in the own letter of Tehsil Bar Association, Rasara, Ballia that the lawyers remain on strike when any advocate dies or the U.P. Bar Council sends request for abstainment from work, however, the said statement does not appear to be correct.”
While lamenting on the prevailing state of affairs, the Division Bench specifies in para 6 that, “On record, there is a supplementary affidavit filed on behalf of the petitioner, which is supported by voluminous evidence disclosing that lawyers abstain from work even if any family member of an advocate dies or for various other reasons totally unconnected with the profession. On 04.12.2023, on account of death of elder brother of the grand father of an advocate and death of uncle of another advocate, lawyers abstained from work and the condolence meeting was called at 1.00 p.m. with a decision to abstain from work for the whole day. On the next day on 05.12.2023, lawyers again abstained from work on account of death of mother of one Stamp Vendor and condolence meeting was held at 12.00 noon. On 20.11.2023, lawyers decided not to work due to death of mother of another advocate. Similar thing happened on 21.11.2023. The situation went to the extent that on 26.12.2023, the Bar Association passed a Resolution that the lawyers were very sad due to death of Ex-Chairman of Samajwadi Party and present District President of Samajwadi Party and abstained from work due to this reason. Material on record further suggests that recourse to strike was taken on other dates also due to directions issued by Bar Council of Uttar Pradesh.”
Be it noted, the Division Bench notes in para 7 that, “We may note that ‘STRIKE’, in common parlance, is considered as a temporary withdrawal of services by a group of an organisation with an aim to express the grievance or push some bargaining demand. Such an action may incur some temporary benefits but, ultimately, poses adverse effects all-around. In our judicial system, strike brings the wheels of justice to a standstill, bringing cheer and happiness amongst enemies of justice. Their whips get thicker, sticks more brutal to deepen bleeding wounds day-by-day, their apathy to listen the cry stronger and their sleep against call for justice turning into a deep slumber, so long as the saviours of justice, i.e. the lawyers and the Judges, do not come for rescue of the victims of injustice.”
Most significantly, the Division Bench propounds most forcefully in para 8 that, “The institution of justice and courts of law cannot be equated with industrial establishments where concept of Trade Unions is utilized to justify strikes by industrial labourers owing to their demand from employers. Neither State Bar Council nor a Bar Association can be treated alike a Trade Union bargaining for their demands. They are well-equipped with all legal means to find out solutions to any problem. Lawyers’ strike waste not only judicial time but also cause immense loss and harm to all the social values and leads to rising pendency of cases, adversely affecting the system of justice delivery, bringing more and more hardships to the litigant(s) for whom the courts are meant. Abstainment from work for the whole day without any substantial cause also falls in the same category.”
Most remarkably, the Division Bench expounds in para 9 that, “Each case that comes before a Judge or a lawyer, has an element of a human problem concerning the life, liberty, livelihood, family business, profession, work, shelter, safety and security of the citizen. Many of the litigants belong to the downtrodden and weaker sections of society who are defenceless, poor and ignorant. Their silent cry for a civilised human solution to their grievances and problems, and for a level playing field is a call for justice, to be felt and heard by all the components of justice delivery system.”
Most worryingly and most forthrightly, the Bench puts forth in para 10 that, “If courts of law remain closed for long periods, people may take recourse to other means for redressal of their grievances, including those which may have no sanction of law, like approaching the criminals to settle their disputes, or either turning themselves into criminals and adopting all other polluted means for getting the work done. If this situation persists for a considerable period of time, the resultant effect on the society as well as individuals and the nation as a whole would be unassessable. In that eventuality, we would certainly shatter the faith reposed by us in ourselves while giving us the Constitution and its soul and that would be the most unfortunate day for all of us.”
While citing the most relevant case laws, the Division Bench underscores in para 11 that, “The Hon’ble Supreme Court, in the cases of Ex. Capt. Harish Uppal vs. Union of India and another, AIR, 2003 SC 736; Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409; Krishnakant Tamrakar vs. State of Madhya Pradesh, 2018 (17) SCC 27 and Hussain v. Union of India, (2017) 5 SCC 702, has already settled that it is unprofessional as well as unbecoming for a lawyer, who has accepted a brief, to refuse to attend the Court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council.”
It merits noting that the Division Bench then notes in para 12 that, “It is pertinent to note that in case of any genuine grievance, it is always open to the Members of the Bar to ventilate the same before the Grievance Redressal Committee constituted by this Court by order dated 06.06.2023 which comprises of-
(i) District Judge
(ii) Additional District Judge-I
(iii) CJM
(iv) DGC (Civil & Criminal)
(v) President, Bar Association of the concerned District.”
In addition, the Division Bench mentions in para 13 that, “At this stage, the Court refers to certain provisions of Advocates Act, 1961 as far as the role of Bar Council of India and the State Bar Councils is concerned.”
It cannot be glossed over that the Division Bench specifies in para 16 that, “Bar Council of India, in exercise of power under Section 49(1) (c) of the Act, has framed Rules for Standards of Professional Conduct and Etiquette” with a preamble in so many words describing the status of an Advocate as an officer of the Court, a privileged member of the community and a gentleman. Various rules incorporated therein cast an obligation on an advocate to uphold the dignity of the entire judicial system and not to indulge in any such activity by which the confidence reposed in him by his client is shaken.”
To be sure, the Division Bench points out in para 17 that, “The overall Scheme of the Advocates Act, 1961 read with the law laid down by the Supreme Court in the aforesaid judgments take this Court to reach to only one conclusion, that is to the effect that if any member of the Bar including office bearers of concerned Bar Association acts contrary to the judgments of the Apex Court or the provisions of the Act and the Rules, discussed above, the State Bar Council is competent to remove the concerned advocate/ office bearer from the State Roll of Advocates and to take any other measure(s) prescribed under the law, including against the concerned Bar Association.”
It cannot be lost sight of that the Division Bench then laments in para 18 observing that, “Before us, no guidelines have been placed by the Bar Council of Uttar Pradesh (respondent no.3) which may control the strikes by Bar Association(s) and regulate observance of condolences.”
As a corollary, the Division Bench then directs in para 19 that, “We, therefore, direct the Bar Council of Uttar Pradesh to bring on record the guidelines framed by it, if any, in respect of observance of condolences and other instances under which the lawyers abstain from work in any district or Tehsil of the State of U.P. and whether any action has been taken by it in the instant case or not.”
Finally, the Division Bench then concludes by directing in para 20 that, “List as fresh on 05.02.2024.”
All told, the Allahabad High Court has definitely a most valid point and what it has ruled must be definitely implemented. However, I would like to add a caveat here. I very strongly feel that the legitimate age-old demand of lawyers like the one for a High Court Bench in West UP must be most seriously deliberated upon by the Court as the litigants have to travel whole night and half day all the way to Allahabad to seek justice as both High Court at Allahabad and High Court Bench in Lucknow are in Eastern UP only and nowhere else even though more than half of the total pending cases are from West UP which in itself is the biggest injustice due to which lawyers of West UP have gone on strike for 6 months in 2001 and so also in 2014 and every Saturday since May 1981 till January 2024 which is most mind boggling to say the least yet Courts never address it which Courts also must accept honestly and take remedial steps in this direction most promptly! We all know that clapping cannot be ever done with just one hand alone! No doubt, the genuine grievances of lawyers must definitely be addressed at the earliest by the Judges themselves which will go a long way in ensuring that lawyers refrain from going on strike and those who still then go on strike must be most strictly punished! No denying it!
Sanjeev Sirohi
