None of the provisions of the Act confers power on the statutory body to call the members to abstain from judicial work which is a responsibility of every member of the Bar in terms of the provisions of the Act itself, the bench said.
Holding that call to abstain from judicial work is a violation of fundamental right of an advocate, the Madhya Pradesh High court observed that the decision of the State Bar Council calling upon the advocates in the state to observe the ongoing week-long protest and to abstain from all judicial works and court proceedings, is illegal and unconstitutional.
We direct the Advocates in the State to resume the work forthwith so that the poor, needy, under-trials, convicts and numerous other persons desiring to seek justice from the Courts do not suffer on account of lack of legal assistance for the reason that the members of the Bar are not available to work in the Court, the bench headed by the Chief Justice Hemant Gupta said while disposing of a public interest litigation filed by a lawyer practicing in the high court.
Advocate Praveen Pandey had challenged the call to all the advocates in the state by the State Bar Council to abstain from court work from 9th April 2018 to 14th April, 2018. The demands raised by the Bar Council were regard to the appointment of high court judges, enactment of Advocates' Protection Act and seating arrangement for advocates in the high court premises.
Initially, the Bar Council argued that there is only voluntary abstaining from work by the members of the Bar. The bench took note of the fact that the lawyer representing Bar Council could not appear for the hearing of this case, and said: “None of the members of the Bar appeared for hearing though in few cases, on mention memo by the Members of the Bar, the writ petitions were listed for hearing on the same day. Therefore, it is not a voluntary act but a call given by a statutory body which is competent to take disciplinary action against the Advocates enrolled with it and is compelling the members of the Bar to abstain from work.”
The bench further observed that none of the provisions of the Act confers power on the statutory body to call the members to abstain from judicial work which is a responsibility of every member of the Bar in terms of the provisions of the Act itself. It said: “If an Advocate does not appear at the time of hearing of the cases, he can be proceeded against for misconduct for negligence in defending the interest of his client. The call of the Bar Council to Advocates of the State to abstain from work, does not fall within the four corners of the Act and the role assigned to the Bar Council.”
The bench also quoted in approval a Calcutta High Court judgment in Arunava Ghosh case, wherein it held that that the Advocates Act does not confer any power or jurisdiction on the State Bar Council to take away the right of an advocate to practice as of right either temporarily or permanently or to compel him not to practice even for a day or affect his right to practice in any manner whatsoever except by way of exercising disciplinary jurisdiction under Section 35 of the Act.
The bench further remarked: “The so-called object to abstain from work is that there are huge arrears. There is no doubt about it. But, the abstaining of work is not addressing the issue of reducing the arrears but is increasing the same. One can understand if the State Bar Council has to request the Courts to work extra to address the problem of arrears or the members of the Bar decide not to seek adjournments and to avoid repetitive arguments so that the disposal could be much better.”
With respect to demands made, the bench observed that it cannot be said there is an acute shortage of the judicial officers and that disposal of the cases at the high court level has not deteriorated but has substantially improved in the year 2017.
For further proceedings, the bench has posted the matter today (11th April 2018).
Recent SC observation about lawyers’ strike
Recently, a Supreme Court bench headed by Justice AK Goel had observed that court(s) may direct having regard to a fact situation, that the office bearers of the Bar Association/Bar Council who passed the resolution for strikes or abstaining from work or took other steps in that direction are liable to be restrained from appearing before any court for a specified period or till they purge themselves of contempt to the satisfaction of the Chief Justice of the concerned high court based on an appropriate undertaking/conditions. “They may also be liable to be removed from the position of office bearers of the Bar Associations forthwith until the Chief Justice of the concerned High Court so permits on an appropriate undertaking being filed by them.” the bench had said.