Wednesday 25 May 2022

Does Judge adjourn a case because the Advocate's strike amounts to misconduct?

 The Principal Judge owes an explanation to this Court why he had adjourned the case acknowledging a probable strike by Advocates on 20.05.2022. The adjournment by the Principal Judge prima facie amounts to misconduct. No Court ought to take notice of a strike or a probable strike by the Advocates. The directions of the Supreme Court in District Bar Association., Dehradun through its Secretary v. Ishwar Shandilya and others, (2020) 17 SCC 672 read:

"6.6. In spite of the law laid down by this Court in the aforesaid

decisions, this Court time and again deprecated the lawyers to go

on strikes, the strikes were continued unabated.

Once this is the position, the action of the Trial Judge in adjourning the case on 21.05.2022 to 08.07.2022 requires to be explained by him, which he shall do through a report for the time being before any further orders are passed. Even otherwise, in a Family Court, the presence of an Advocate is not a necessity, though this Court is mindful of the fact that no meaningful justice can be done in the absence of the learned Counsel for parties.

ALLAHABAD HIGH COURT

Case :- MATTERS UNDER ARTICLE 227 No. - 2850 of 2022

Petitioner :- Premraj Pratap Singh

Respondent :- Alka Singh @ Meenu

Hon'ble J.J. Munir,J.

Order Date :- 23.5.2022

Perused the report dated 21.05.2022 submitted by the Principal Judge,

Family Court, Hathras. It is gratifying to note that the trial has progressed

a lot. The Principal Judge owes an explanation to this Court why he had

adjourned the case acknowledging a probable strike by Advocates on

20.05.2022. The adjournment by the Principal Judge prima facie

amounts to misconduct. No Court ought to take notice of a strike or a

probable strike by the Advocates. The directions of the Supreme Court in

District Bar Association., Dehradun through its Secretary v. Ishwar

Shandilya and others, (2020) 17 SCC 672 read:

"6.6. In spite of the law laid down by this Court in the aforesaid

decisions, this Court time and again deprecated the lawyers to go

on strikes, the strikes were continued unabated. Even in the

present case, the advocates have been boycotting the courts on all

Saturdays, in the entire district of Dehradun, in several parts of

the District of Haridwar and Udham Singh Nagar District of the

State of Uttarakhand. Because of such strikes, the ultimate

sufferers are the litigants. From the data mentioned in the

impugned judgment [Ishwar Shandilya v. State of Uttarakhand, 2019

SCC OnLine Utt 976] and order, things are very shocking. Every

month on 3-4 Saturdays, the advocates are on strike and abstain

from working, on one pretext or the other. If the lawyers would

have worked on those days, it would have been in the larger

interest and it would have achieved the ultimate goal of speedy

justice, which is now recognised as a fundamental right under

Articles 14 and 21 of the Constitution. It would have helped in

early disposal of the criminal trials and, therefore, it would

have been in the interest of those who are languishing in the jail

and waiting for their trial to conclude. When the institution is

facing a serious problem of arrears and delay in disposal of

cases, how the institution as a whole can afford such four days'

strike in a month.

6.7. Now, so far as the submission on behalf of the petitioner

that to go on strike/boycott courts is a fundamental right of

freedom of speech and expression under Article 19(1)(a) of the

Constitution and it is a mode of peaceful representation to

express the grievances by the lawyers' community is concerned,

such a right to freedom of speech cannot be exercised at the cost

of the litigants and/or at the cost of the justice delivery system

as a whole. To go on strike/boycott courts cannot be justified

under the guise of the right to freedom of speech and expression

under Article 19(1)(a) of the Constitution. Nobody has the right

to go on strike/boycott courts. Even, such a right, if any, cannot

affect the rights of others and more particularly, the right of

speedy justice guaranteed under Articles 14 and 21 of the

Constitution. In any case, all the aforesaid submissions are

already considered by this Court earlier and more particularly in

the decisions referred to hereinabove. Therefore, boycotting

courts on every Saturday in the entire district of Dehradun, in

several districts of Haridwar and Udham Singh Nagar District in

the State of Uttarakhand is not justifiable at all and as such it

tantamounts to contempt of the courts, as observed by this Court

in the aforesaid decisions. Therefore, the High Court is

absolutely justified in issuing the impugned directions. We are in

complete agreement with the view expressed by the High Court and

the ultimate conclusion and the directions issued by the High

Court. Therefore, the present special leave petition deserves to

be dismissed and is accordingly dismissed. We further direct all

concerned and the District Bar Associations concerned to comply

with the directions issued by the High Court impugned in the

present SLP in its true spirit. It is directed that if it is found

that there is any breach of any of the directions issued by the

High Court in the impugned judgment [Ishwar Shandilya v. State of

Uttarakhand, 2019 SCC OnLine Utt 976] and order, a serious view

shall be taken and the consequences shall follow, including the

punishment under the Contempt of Courts Act.

7. As observed hereinabove, in spite of the decisions of this

Court in Harish Uppal [Harish Uppal v. Union of India, (2003) 2

SCC 45] , Common Cause [Common Cause v. Union of India, (2006) 9

SCC 295 : (2006) 2 SCC (Cri) 493] and Krishnakant Tamrakar

[Krishnakant Tamrakar v. State of M.P., (2018) 17 SCC 27] and

despite the warnings by the courts, time and again, still, in some

of the courts, the lawyers go on strikes/are on strikes. It

appears that despite the strong words used by this Court in the

aforesaid decisions, criticising the conduct on the part of the

lawyers to go on strikes, it appears that the message has not

reached. Even despite the resolution of the Bar Council of India

dated 29-9-2002, thereafter, no further concrete steps are taken

even by the Bar Council of India and/or the other Bar Councils of

the States. A day has now come for the Bar Council of India and

the Bar Councils of the States to step in and to take concrete

steps. It is the duty of the Bar Councils to ensure that there is

no unprofessional and unbecoming conduct by any lawyer. As

observed by this Court in Harish Uppal [Harish Uppal v. Union of

India, (2003) 2 SCC 45] , the Bar Council of India is enjoined

with a duty of laying down the standards of professional conduct

and etiquette for the advocates. It is further observed that this

would mean that the Bar Council of India ensures that the

advocates do not behave in an unprofessional and unbecoming

manner. Section 48 of the Advocates Act gives a right to the Bar

Council of India to give directions to the State Bar Councils. It

is further observed that the Bar Associations may be separate

bodies but all the advocates who are members of such associations

are under disciplinary jurisdiction of the Bar Councils and thus,

the Bar Councils can always control their conduct. Therefore,

taking a serious note of the fact that despite the aforesaid

decisions of this Court, still the lawyers/Bar Associations go on

strikes, we take suo motu cognizance and issue notices to the Bar

Council of India and all the State Bar Councils to suggest the

further course of action and to give concrete suggestions to deal

with the problem of strikes/abstaining the work by the lawyers.

The notices may be made returnable within six weeks from today.

The Registry is directed to issue the notices to the Bar Council

of India and all the State Bar Councils accordingly.”

Once this is the position, the action of the Trial Judge in adjourning the

case on 21.05.2022 to 08.07.2022 requires to be explained by him,

which he shall do through a report for the time being before any further

orders are passed. Even otherwise, in a Family Court, the presence of

an Advocate is not a necessity, though this Court is mindful of the fact

that no meaningful justice can be done in the absence of the learned

Counsel for parties.

Lay this petition as fresh again on 27.05.2022 along with the learned

Trial Judge's explanation.

Let a copy of this order be furnished to Mr. Sudhir Mehrotra, learned

Special Counsel for the High Court, whose name shall be printed on the respondent's side on the next date of listing.

Order Date :- 23.5.2022


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