EX CAPTAIN HARISH UPPAL

UNION OF INDIA

Submitted to- Submitted by-

Mrs. Trisha Dhriti Sharma
Sec A, Roll no. 14/15
BALLB (HONS.), UILS, PU
 ACKNOWLEDGEMENT

I would like to start my Professional Ethics project based on landmark case of Ex- Captain
Harish Uppal v. Union of India by expressing gratitude to my Professor Mrs. Trisha for
giving me the opportunity to present my research on my assigned topic before the whole
class.

I would also like to thank my parents, family and my friends for constantly encouraging me
during the course of this project, which I could not have completed without their support
and continuous encouragements.

DHRITI SHARMA

2
 INDEX

Page no.
S NO. PARTICULARS

1. Facts of the case 4

2. Issues Involved 4
3. Arguments Advanced 4-7
4. Judgement 7-8
5. Constitutional Mandate of Right to Strike by Lawyers 9
6. Conclusion 10
7. Bibliography 11

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 EX- CAPTAIN HARISH UPPAL V UNION OF INDIA

Case No.: Writ Petition (Civil) 132 Of 1988

Petitioner: Ex-Capt. Harish Uppal

Respondent: Union Of India

Date of Judgment: 17/12/2002

Bench: CJI Doraiswamy Raju, S. N. Variava, D. M. Dharmadhikari

1. FACTS OF THE CASE-

All the petitions have been clubbed together by the Hon’ble Supreme Court as all of
them raise a common question as to whether lawyers have a right to strike or give a call
for boycott of Courts.

In all these Petitions, a declaration was sought that such strikes or call for boycotts were
illegal. As the questions vitally concerned the legal profession, public notices were issued
to Bar Associations and Bar Councils all over the country. Pursuant to those notices
some Bar Associations and Bar Councils had filed their responses and had appeared and
made submissions before the Court.

2. ISSUES INVOLVED

 Whether lawyers had right to go on a strike or call for boycott of Court?

 Whether a litigant should suffer a penalty because his advocate had boycotted
the Court pursuant to a strike call made by the Association of which the advocate
was a member.

3. ARGUMENTS ADVANCED

 Mr. Dipankar Gupta, learned amicus curiae of the Court submitted that the law was
well established. He pointed out that the Court has already declared strikes are
illegal. He submitted that even a call for strike was bad. He further submitted that it
was time that the Bar Council of India as well as various State Bar Councils monitor
strike within their jurisdiction and ensure that there were no call for strikes or

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 boycotts. He stated that in all cases where redressal can be obtained by going to a
Court of law, there should be no strike.

 Mr. Nigam, on behalf of Petitioner1, submitted that strike as a mean for collective
bargaining is recognised only in industrial disputes. Lawyers who are officers of the
Court cannot use strikes as a means to blackmail the Courts or the clients. The Courts
must take action against the Committee members for giving such calls on the basis
that they have committed contempt of court. Law is that a lawyer who has accepted
a Vakalatnama on behalf of his client must attend Court and if he does not do so, it
would amount to professional misconduct and also contempt of court. He submitted
that it should now be held that even if a requisition for a meeting to consider a strike
is received, the Committee members of a Bar Association or the Bar Council should
refuse to call a meeting for that purpose.

 Mr. Prashant Bhushan, for the Petitioner2, supported Mr. Dipanker Gupta and Mr.
Nigam. He further submitted that the Court should also declare that lawyers who do
not want to participate in a strike should not be coerced by other lawyers or
Committee members. Such coercion amounts to interference with the
administration of justice and is therefore clearly contempt of court. He submitted
that this coercion need not necessarily be by physical prevention from appearance
but could also be by a threat to withdraw facility or to terminate the membership of
the Association to which he is a member. If any such threats are given or any such
coercion is used then the Court must punish for contempt the party so coercing.

 Submissions were made before the Supreme Court by the Bar Councils of Delhi,
U.P., Maharashtra, Goa, West Bengal, Andhra Pradesh and Tamil Nadu and also
made on behalf of Bar Associations of Madras, Kerala, Calcutta, Nainital and the
Supreme Court Bar Association. Counsels for the Bar Councils and Bar Associations
submitted that they were not in favour of strikes or call for strikes. Many of them
stated that their Associations had not gone on strike at all or only on token strikes of
not more than one day. The consensus at the Bar was that lawyers cannot and
should not resort to strike in order to vent their grievances where a legal remedy
was available. The consensus at the Bar was that even where a legal remedy was not
available strike should be resorted to in the rarest of rare cases like when the dignity
of the Court or the Bar was at stake. 

The consensus was that other methods of protests must be resorted to, viz. passing
of resolutions, making representations, taking out silent processions without causing
disturbance to Court work, holding dharnas or relay fast and wearing white ribbons.
The consensus of the Bar was that there must be a mechanism for redressing the
grievances of the lawyers. It was suggested that the Committees be set up to whom
grievances can be submitted.

 Counsel on behalf of U. P. Bar Council struck a discordant note. He submitted that

lawyers had a right to go on strike or give a call for boycott. He submitted that Courts
1
Writ Petition (C) No. 406 of 2000
2
W. P. (C) No. 821 of 1990

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 had no power of supervision over the conduct of lawyers. He submitted that Section
50 of the Advocates Act, 1950 repealed earlier provisions which had permitted
Courts to control rights of Advocates to practice in Courts. He submitted that there
are many occasions when lawyers require to go on strike or gave a call for boycott.
Court laying down that going on strike amounts to misconduct is of no consequence
as the Bar Councils have been vested with the power to decide whether or not an
Advocate has committed misconduct. Court cannot penalise any Advocate for
misconduct as the power to discipline is now exclusively with the Bar Councils. It is
for the Bar Councils to decide whether strike should be resorted to or not.

 The learned Attorney General submitted that strike by lawyers cannot be equated
with strikes resorted to by other sections of society. The basic difference is that
members of the legal profession are officers of the Court. They are obliged by the
very nature of their calling to aid and assist in the dispensation of justice. He
submitted that strike or abstention from work impaired the administration of justice
and that the same was thus inconsistent with the calling and position of lawyers.
Even in cases where the action eroded the autonomy of the legal profession, e.g.
dissolution of Bar Councils and recognized Bar Associations or packing them with
government nominees a token strike of one day may be resorted to. Even in the
above situations the duration of abstention from work should be limited to a couple
of hours or at the maximum one day. The purpose should be to register a protest
and not to paralyse the system.

He suggested that alternative forms of protest can be explored, e.g., giving press
statements, TV interviews, carrying banners and/or placards, wearing black arm-
bands, peaceful protest marches outside court premises etc. He submitted that
abstention from work for the redressal of a grievance should never be resorted to
where other remedies for seeking redressal are available. He submitted that all
attempts should be made to seek redressal from the concerned authorities.

The learned Attorney General relied upon the following observations of a Full Bench
of the Kerala High Court in the case of Bharat Kumar K. Paricha v. State of Kerala3:

"No political party or organization can claim that it is entitled to paralyse the industry
and commerce in the entire State or nation and is entitled to prevent the citizens not
in sympathy with its viewpoint, from exercising their fundamental rights or from
performing their duties for their own benefit or for the benefit of the State or the
nation."

He pointed out that the judgment of the Kerala High Court has been approved by the
Hon'ble Supreme Court in the case of Communist Party of India (M) v. Bharat
Kumar & Ors.4 

3
(1998) 1 SCC 201 at 204, para 17]
4
(1998) 1 SCC 201 at 202

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 4. JUDGMENT

The Supreme Court referred to a no. of judgments to reach to the conclusion which are
reiterated as follow-

 In the case of Lt. Col.  S. J. Chaudhary vs. State (Delhi Administration)5, the High
Court held that it is the duty of every advocate who accepts a brief in a criminal case
to attend the trial day to day. It was held that a lawyer would be committing breach
of professional duties if he fails to so attend.

 In the case of K. John Koshy & Ors. vs. Dr. Tarakeshwar Prasad Shaw6, one of the
questions was whether the Court should refuse to hear a matter and pass an Order
when counsel for both the sides were absent because of a strike call by the Bar
Association. The Court held that it could not refuse to hear the matter as otherwise it
would tantamount to Court becoming a privy to the strike.

 In the case of Koluttumottil Razak vs. State of Kerala7, counsel did not appear in
Court as advocates had called for a strike. As the appellant was languishing in jail this
Court held that an adjournment would not be justified. This Court held that it is the
duty of the Court to look into the matter itself.

 In the case of B. L. Wadehra vs. State (NCT of Delhi) 8, one of the questions was
whether a direction should be issued to the lawyers to call off a strike. The Delhi High
Court noted certain observations of the Hon’ble Court which were reproduced by
the bench-

In Indian Council of Legal Aid and Advice v. Bar Council of India 9, it was observed by
the Supreme Court that it is generally believed that members of the legal profession
have certain social obligations, e.g., to render "pro bono publico" service to the poor
and the underprivileged. Since the duty of a lawyer is to assist the court in the
administration of justice, the practice of law has a public utility flavour and,
therefore, he must strictly and scrupulously abide by the Code of Conduct behoving
the noble profession and must not indulge in any activity which may tend to lower
the image of the profession in society. That is why the functions of the Bar Council
include the laying down of standards of professional conduct and etiquette which
advocates must follow to maintain the dignity and purity of the profession.

5
(1984) 1 SCC 722
6
(1998) 8 SCC 624
7
(2000) 4 SCC 465
8
AIR (2000) Delhi 266
9
AIR 1995 SC 691,

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  In Re: Sanjeev Datta10, the Supreme Court has stated that the legal profession is a
solemn and serious occupation. It is a noble calling and all those who belong to it are
its honourable members. Although the entry to the profession can be had by
acquiring merely the qualification of technical competence, the honour as a
professional has to be maintained by its members by their exemplary conduct both
in and outside the Court. The legal profession is different from other professions in
that what the lawyers do, affects not only an individual but the administration of
justice which is the foundation of the civilised society. Both as a leading member of
the intelligentsia of the society and as a responsible citizen, the lawyer has to
conduct himself as a model for others both in his professional and in his private and
public life. The society has a right to expect of him such ideal behaviour. It must not
be forgotten that the legal profession has always been held in high esteem and its
members have played an enviable role in public life."

In the light of the above discussion, it was held by the Supreme Court that the present strike
by lawyers is illegal and unethical. Whatever might have been the compelling circumstances
earlier, now there is absolutely no justification for the continuance of the strike in view of
the appointment of the Commission of Inquiry and the directions being issued in this case.

Another question raised before the Supreme Court was whether a litigant should suffer a
penalty because his advocate had boycotted the Court pursuant to a strike call made by
the Association of which the advocate was a member?

In answer to this question, it had been held 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 is unjust and inequitable to cause the party alone to suffer for
the self-imposed dereliction of his advocate. The court may further add that the litigant who
suffers entirely on account of his advocate's non-appearance in court has also the remedy to
sue the advocate for damages. The court further permitted the appellant to realise half of
the said amount of Rs. 5000 from the firm of advocates M/s B.C. Das Gupta & Co. or from
any one of its partners.

CONSTITUTIONAL MANDATE WITH RESPECT TO RIGHT TO STRIKE BY

LAWYERS
10
(1995) 3 SCC 619

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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 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, because, speedy trial, as held by the Supreme
Court in Hussainara Khatoon v. Home Secretary, State of Bihar,11 is an integral and
essential part of the fundamental right to life and liberty enshrined in Article 21 of the
Constitution.12

Strike by lawyers will infringe the above-mentioned fundamental right of the litigants and
such infringement cannot be permitted. Assuming that the lawyers are trying to convey
their feelings or sentiments and ideas through the strike in exercise of their fundamental
right to freedom of speech and expression guaranteed by Article 19(1)(a) of the
Constitution. We are of the view that the exercise of the right under Article 19(1)(a) will
come to an end when such exercise threatens to infringe the fundamental right of another.
Such a limitation is inherent in the exercise of the right under Article 19(1)(a). 

Hence the lawyers cannot go on strike infringing the fundamental right of the litigants for
speedy trial. The right to practise any profession or to carry on any occupation guaranteed
by Article 19(1)(g) may include the right to discontinue such profession or occupation but it
will not include any right to abstain from appearing in Court while holding a vakalatnama in
the case.

11
(AIR 1979 SC 1360)
12

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 CONCLUSION

Lawyers have no right to go on strike or give a call for boycott, not even on a token strike.
Right to strike by lawyers is beyond the scope of Article 19 of the Indian Constitution. The
protest, if any is required, can only be by giving press statements, TV interviews, carrying
out of Court premises banners 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.

Lawyers holding Vakalatnama on behalf of their clients cannot not attend Court in
pursuance to a call for strike or boycott. All lawyers are required to boldly refuse to abide by
any call for strike or boycott. No lawyer can be visited with any adverse consequences by
the Association or the Council and no threat or coercion of any nature including that of
expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling
of a meeting for purposes of considering a call for strike or boycott and requisition for such
meeting must be ignored. Only in the rarest of rare cases where the dignity, integrity and
independence of the Bar or the Bench are at stake, Courts may turn a blind eye to a protest
abstention from work for not more than one day.

It will be for the Court to decide whether or not the issue involves dignity or integrity or
independence of the Bar or the Bench. Therefore, in such cases the President of the Bar
must first consult the Chief Justice or the District Judge before Advocate 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. It is 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. It is held that if a lawyer, holding a Vakalatnama
of a client, abstains from attending Court due to a strike call, he shall be personally liable to
pay costs which shall be addition to damages which he might have to pay his client for loss
suffered by him.

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 BIBLIOGRAPHY

BOOKS REFERRED-

1. Krishnaswamy Iyer: Professional conduct of Advocacy

2. Kailash Rai, Accountability for Lawyers and Bench, 9th Edition 2008, Central Law
Publication.
3. Mallick: Advocates Act, Professional Ethics/ Bench and Bar relationship, 2007, Indian
Law Books
4. Durga Das Basu, Commentary on Constitution of India, Lexis Nexis Butterworths
Wadhwa (2011)

BARE ACTS REFERRED-

1. Contempt of Courts Act, 1971

2. Advocates Act, 1961
3. Constitution of India, 1949

WEBSITES REFERRED-

1. www.indiankanoon.com
2. www.manupatra.com

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