Fiat Justicia, The Peoples Movement for Empowering Rule of Law and Justice v. Bar Council of India and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE TUESDAY, THE 26TH DAY OF NOVEMBER 2013/5TH AGRAHAYANA, 1935 WP(C).No. 17514 of 2012 (R) --------------------------------------------- PETITIONER: FIAT JUSTICIA, THE PEOPLES MOVEMENT FOR EMPOWERING RULE OF LAW AND JUSTICE, REG. NO. ER 417/2008, HAVING REGISTERED OFFICE AT SAMATHA BUILDINGS, POWER HOUSE EXTENSION ROAD, KOCHI - 682 018 REPRESENTED BY ITS DIRECTOR, SRI.M.L. GEORGE, S/O. LATE M.A. LONA, AGED 65 YEARS, RESIDING AT AVE MARIA, ACHANVEETIL ROAD, PACHALAM.P.O., KOCHI - 682 012. BY ADV. SRI.BASIL ATTIPETTY RESPONDENTS: 1. BAR COUNCIL OF INIDA REPRSENTED BY ITS SECRETARY, 21, ROUSE AVENUE INSTITUTIONAL AREA, NEW DELHI - 110 002. 2. BAR COUNCIL OF KERALA REPRESENTED BY THE SECRETARY, NEAR HIGH COURT OF KERALA, KOCHI - 682 031. 3. UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF LAW AND JUSTICE, NEW DELHI - 110 001. 4. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF LAW, SECRETARIAT, THIRUVANANTHAPURAM. 5. HIGH COURT OF KERALA, REPRESENTED BY THE REGISTRAR GENERAL, HIGH COURT OF KERALA, KOCHI- 682 031. 6. KERALA HIGH COURT ADVOCATES' ASSOCIATION REPRESENTED BY ITS SECRETARY, HIGH COURT BUILDING, KOCHI - 682 031. 7. TRIVANDRUM BAR ASSOCIATION REPRESENTED BY ITS SECRETARY, VANCHIYOOR.P.O., THIRUVANANTHAPURAM - 695 035. R1 BY ADV. SRI.LEO GEORGE R2 BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.GEORGE MATHEWS R3 BY ADV. SRI.P.PARAMESWARAN NAIR R4 BY SPL.GOVT. PLEADER SMT.GIRIJA GOPAL R5 BY ADV. SRI.ELVIN PETER P.J. R6 BY ADVS. SRI.M.P.ASHOK KUMAR SRI.P.C.GOPINATH SRI.S.A.ABDUL SALEEM SRI.M.R.DHANIL SRI.S.NANDAGOPAL R7 BY ADV. SRI.T.K.ANANDA KRISHNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX IN WPC 17514/2012 ## PETITIONER'S EXHIBITS: EXT. P1 TRUE COPY OF LETTER NO.BCI:D:2113/2012 DATED 27.5.2012 ALONG WITH THE MINUJTES DATED 19.5.2012 OF THE FIRST RESPONDENT EXT. P2 TRUE COPY OF NOTICE ISSUED BY THE SEVENTH RESPONDENT EXT. P3 TRUE COPY OF REPORT OF THE BOYCOTT WHICH APPEARED IN THE DECCAN CHRONICLE ON 12.7.2012 EXT. P4 TRUE COPY OF REPRESENTATION DATED 16.7.2012 SUBMITTED BEFORE THE HOINOURABLE CHIEF JUSTICE OF INDIA EXT. P5 A TRUE COPY OF THE LETTER NO.PIO 336/2012 DATED 14.8.2012 ISSUED BY THE PUBLIC INFORMATION OFFICER RESPONDENT'S EXHIBITS: NIL. /TRUE COPY/ P.A. TO JUDGE Manjula Chellur, C.J. & A.M.Shaffique J. ------------------------------------------------------------ W.P.(C) No.17514 of 2012 R -----------------------------------------------------------Dated this the 26[th] day of November, 2013 ## **JUDGMENT** ## **Manjula Chellur, C.J.** The present public interest litigation is filed seeking the following reliefs, impleading Bar Council of India and others as parties to the proceedings: - i) To declare that the boycott of the courts/strike of advocates called by the respondents 1, 2, 6 and 7 or any other organizations is illegal and unjust; - ii) To issue a writ of mandamus or other appropriate writ order or direction commanding the respondents 1, 2, 6 and 7 not to make any further calls for boycott of the courts or strikes by advocates; - iii) To issue a writ of mandamus or other appropriate writ order or direction commanding the respondents 1 and 2 to take stringent action against any advocate who boycott courts or proceed on strike and against any advocates' organizations and its office bearers who call for such strikes/boycott of courts. - iv) To issue a writ of mandamus or other appropriate writ order or direction commanding the respondents 1, 2, 6 and 7 to WP(C) 17514/12 2 compensate the loss caused by the boycott of courts organized by them on 11[th] and 12[th] July, 2012, by paying damages of 1,00,00,000 (Rupees One Crore Only) to the Kerala State Legal Services Authority; - v) To issue a writ of mandamus or other appropriate writ order or direction commanding the 5[th] respondent to issue a direction to all the courts and tribunals under its administrative superintendence to take action as directed by the Honourable Supreme Court in Ramon Services (P) Ltd. v. Subhash Kapoor, (2001) 1 SCC 118 and Harish Uppal (Ex-Capt) v. Union of India, (2003) 2 SCC 45 to compensate the parties who suffer/suffered damage due to the boycott/strike of advocates; - vi) To direct the 1[st] respondent and the 3[rd] respondent to constitute grievance redressal committees at various levels as resolved by the first respondent in its joint meeting held on 28.9.2002 and 29.9.2002 for redressal of grievance of advocates;” 2. According to the petitioner, respondent authorities who have a statutory obligation must discharge its statutory obligations to stop strikes and boycotts of courts by the advocates, as it lead to gross miscarriage of justice. According to the petitioner, with a stern hand the court must restrain respondent organisations from making similar calls for strikes and boycotts. The entire petition refers to WP(C) 17514/12 3 two dates when the first respondent resolved to boycott courts all over India, i.e., on 11[th] and 12[th] July, 2012. In the writ petition, petitioner refers to judgment in the case of **Common Cause, a Registered Society and others v. Union of India and others** ((2006) 9 SCC 304) so also **Harish Uppal (Ex-Capt) v. Union of India** ((2003) 2 SCC 45) with regard to payment of compensation to the parties by the lawyers, who call for strikes. 3. During the course of proceedings, this court on 15.01.2013 directed the petitioner to take necessary steps to implead necessary and proper parties to the proceedings in order to do justice, as the petition is filed as a public interest litigation. Till date, no such steps are taken and on the other hand, I.A.No.16164/2012 is filed seeking indulgence of the court to accept the affidavit and Exhibit P5 as part of record. Learned counsel for petitioner Mr.Basil Attipetty brings to our notice paragraphs 4 and 5 to contend that the petitioner is restricting its relief only to WP(C) 17514/12 4 the parties impleaded in the Writ Petition and not others. First respondent is the Bar Council of India and second respondent is the Bar Council of Kerala, apart from Union of India, State of Kerala, High Court of Kerala, Kerala High Court Advocates' Association and Trivandrum Bar Association are made as parties to the proceedings. Across the Bar, learned counsel appearing for Bar Council of Kerala Mr.Gracious Kuriakose submits, State Bar Council is not a controlling authority of any of the Bar Associations in the State of Kerala and each Bar Association has its own bye-laws upon which they function and administer the affairs of the Association. Learned Counsel Mr.Asok Kumar representing sixth respondent submits, Kerala High Court Advocates' Association has nothing to do with the affairs of Ernakulam Bar Association and also Trivandrum Bar Association, which is the 7[th] respondent. 4. So far as the controversy raised before us, in **ExCapt.Harish Uppal's case** (supra), Constitution Bench of WP(C) 17514/12 5 the Apex Court was dealing with the question as to whether lawyers have a right to call for strike and/or boycott of courts? A declaration was sought before Apex Court that calling for strike/boycott is illegal. Honourable Justice Sri.Variava, at paragraph 35, opined as under: “In conclusion, it is held that lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The protest, if any is required, can only be by giving press statements, TV interview, carrying out of court premises banners and/or placards, wearing black or white or any colour armbands, peaceful protest marches outside and away from court premises, going on dharnas or relay fats etc. It is held that lawyers holding vakalats on behalf of their clients cannot attend courts in pursuance of a call for strike or boycott. All lawyers must bodily 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, if any, for such meeting must be ignored. It is held that only in the rarest of rate cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. It is being clarified that it will be for the court to WP(C) 17514/12 6 decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before advocates 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 vakalat of a client, abstains from attending court due to a strike call, he shall be personally liable to pay costs which shall be in addition to damages which he might have to pay his client for loss suffered by him.” At paragraphs 40 and 41 other two Judges, writing a concurrent opinion, observed as under: **40** . However, by merely holding strikes as illegal, it would not be sufficient in the present-day situation nor serve any purpose. The root cause for such malady is required to be cured. It is stated that resort to strike is because the administration is having deaf ears in listening to the genuine grievances and even if grievances are heard appropriate actions are not taken. To highlight, therefore, the cause call for strike is given. In our view, whatever be the situation in other fields lawyers cannot claim or justify to go on strike or give a call to boycott the judicial WP(C) 17514/12 7 proceedings. It is rightly pointed out by the Attorney-General that by the very nature of their calling to aid and assist in the dispensation of justice, lawyers normally should not resort to strike. Further, it had been repeatedly held that strike is an attempt to interfere with the administration of justice. **41** . It is no doubt true that the Bar should be strong, fearless and independent and should be in a position to lead the society. These qualities could be and should be utilized in assisting the judicial system, if required, by exposing any person, whosoever he may be, if he is indulging in any unethical practice. It is hoped that instead of resorting to strike, the Bar would find out other ways and means of redressing their grievances including passing of resolutions, making representations and taking out silent processions, holding dharnas or to resort to relay fast, having discussion by giving TV interview and press statements.” ## Ultimately, directions at paragraphs 45 and 46 were granted, which read as under: **45** . Further, appropriate rules are required to be framed by the High Courts under Section 34 of the Advocates Act by making it clear that strike by advocate/advocates would be considered interference with the administration of justice and advocate/ advocates concerned may be barred from practising before courts in a district or in the High Court. WP(C) 17514/12 8 **46** . Hence, it is directed that (a) all the Bar Associations in the country shall implement the resolution dated 29.9.2002 passed by the Bar Council of India, and (b) under Section 34 of the Advocates Act, the High Courts would frame necessary rules so that appropriate action can be taken against defaulting advocate/advocates. 5. Reading of the entire judgment in **Harish Uppal's case** (supra) indicates the opinion expressed by Justice Variava and also Justice Dharmadhikari and Shah (concurring) factually do not express divergent opinions. Both opinions supplement and complement each other. How one has to have a practical and pragmatic approach was discussed and then directions were given. This is the leading case of the Apex Court so far as strike/boycott given by any Association of Advocates. 6. Earlier, in the case of **Mahabir Prasad Singh v. Jacks Association Pvt. Ltd.** ((1999) 1 SCC 37) it was held that whenever strike call is given by any association of advocates or a resolution was passed by advocates either in general or against a particular court, no court is obliged to WP(C) 17514/12 9 adjourn a case because every court has a solemn duty to proceed with the judicial business during court hours. Courts are not expected to yield to pressure tactics or boycott calls. 7. Subsequent to this judgment, in the case of **Dr.B.L.Wadehra v. State (NCT of Delhi) and others** (AIR 2000 Delhi 266) again their Lordships emphasised on the duty of lawyers to appear in court in which they hold vakalath for parties and therefore, they have no right to strike even if it is in response to or in compliance with the resolution of any association or body of lawyers. They further opined that strike interferes with administration of justice, thereby it infringes the fundamental right of litigants, particularly under trials as they have a right for speedy trial which comes within the purview of Article 21 of Constitution of India. They further referred to the duties of lawyers to the community as such being a privileged member of the community and reminds the lawyers' WP(C) 17514/12 10 community of their duties and responsibilities. 8. After **Harish Uppal's case** (supra), other notable judgment is **Common Cause, a Registered Society and others v. Union of India and others** ((2006) 9 SCC 304). In this case, their Lordship, after referring to earlier judgment of the Apex Court in **Harish Uppal's case** (supra), they reiterated that in case any association calls for strike/boycott by the concerned Bar Council and on their failure, Bar Council of India must immediately take action against the person who called for strike/boycott. They further opined that Bar Council and Bar Association can never accept any association calling for a meeting to consider a call for strike or boycott. 9. Subsequent to this judgment, in **O.P.Sharma & Ors. v. High Court of Punjab & Haryana** (AIR 2011 SC 2101), their Lordships highlighted Advocate's Role and Ethical Standards and how an advocate's duty is as important as that of a Judge. Their observations are pointed WP(C) 17514/12 11 ## out at paragraphs 31 and 32, which read as under: **31** . That the list of available plots had been expanded during the period when the respondent No.4 was CEO, NOIDA and unallotted plots of various sectors including Sector 27 were also included in that list in which the respondent No.4 himself got the first conversion. It is a matter of investigation as to whether the Order dated 3.7.1992 was modified vide Order dated 27.9.1993 with ulterior purpose. **32** . Section 12 of the Act 1976 makes the provisions of Chapter VII and Sections 30, 32, 40 to 47, 49, 50, 51, 53 and 58 of the U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as the “Act 1973”) mutatis mutandis applicable to the Act 1976. Section 17 of the Act 1976 declares that the Act 1976 would have an overriding effect over the provisions of the Act 1973. Section 18 confers the power on the State Government to make rules by issuing a Notification for carrying out the purposes of the Act 1976. Section 19 of the Act 1976 provides for the framing of regulations by the NOIDA in respect of holding of meetings; defining the powers and duties of the CEO; and management of properties of the Authority etc. In view thereof, the New Okhla Industrial Development Area (Preparation and Finalisation of Plan) Regulations, 1991 (hereinafter called as 'Regulations 1991') had been framed with the prior approval of the State Government as required under Section 19 of the Act 1976 and, therefore, have statutory force. By virtue of the provisions of sub-section 2(b) of Section 6 of the Act 1976, WP(C) 17514/12 12 it is a statutory requirement that in the plan to be prepared by the NOIDA, it must necessarily provide as to for what particular purpose any area/site is to be used, namely, industrial, commercial or residential. The Authority is competent under sub-section 2(c) of Section 6, to regulate the construction etc. having regard to the nature for which the site has been earmarked. Section 8 of the Act 1976 restrains the use of any site for the purpose other than for which it is earmarked in the Master Plan. Section 9 prohibits the use of any area or erection of any building in contravention of Regulations 1991. Section 14 of the Act 1976 clearly provides for cancellation of allotment and resumption/reentry, where the allotment had been made in contravention of the Rules and Regulations. In case the Authority wants to change the user of the land, condition precedent remains to amend the Master Plan. 10. Their Lordships in the case of **R.K.Anand v. Registrar, Delhi High Court** ((2009) 8 SCC 106) while dealing with similar issue, opined that every High Court should have rules framed under Section 34 of Advocates Act in order to avoid any such controversies in future such as boycott of courts, strike, etc. They further opined that even in the absence of rules, High Court cannot be held to be helpless against such call for strike/boycott and courts must WP(C) 17514/12 13 follow the procedure in a fair and objective manner without an advocate facing contempt of court and that it should allow him to give fullest opportunity to defend himself. High Court cannot be held to be powerless in such situation. In the said case, direction was given to the High Courts to frame rules without any delay. 11. In the entire State of Kerala, there are 80 Bar Associations and 10 Advocates' Associations - total numbering 90 Associations. Except two Associations, all other Associations are not made as parties and we fail to understand how in a public interest litigation the prayer could be restricted to only parties to the present writ petition, i.e., against respondents 1, 2, 6 and 7. In spite of specific direction as early as January, 2013, no steps were taken. 12. Even otherwise, way back in 2006 the Apex Court has clearly dealt with the subject and has given directions opining what is the role of the lawyers and WP(C) 17514/12 14 strikes and boycotts should not be undertaken by them and if at all, they intend to express their displeasure on any policy decision or otherwise it has to be by putting a red band without affecting the work of the courts. In the light of above declaration, we find no necessity to declare law on the said subject once again in the present public interest litigation. The judgment of the Apex Court is binding on each and every individual concerned with the dispensation of justice. In the above circumstances, we are of the opinion, the petition deserves to be dismissed for non compliance of the directions as also other reasons stated above. Accordingly, the writ petition is dismissed. **Manjula Chellur, Chief Justice** **A.M.Shaffique, Judge** tkv