MP HC To Debar Members/Office Bearers Of Bar Council/Assns From Appearing Before Courts In Case They Give Strike Calls [Read Order]
“The litigant has a right to get justice. He will get justice only if the Courts are functioning in the country but the members of the Bar cannot make the third pillar of democracy non-functional by deciding to withdraw from work. Their action is antitheses of democratic life of the country.”
The first bench of Madhya Pradesh High Court has issued significant directives against the call of a strike by State Bar Council and Bar Associations, including debarring members/officials of the Bar Council/Association which gives a call for a strike, from appearing before courts.
The bench comprising Chief Justice Hemant Gupta and Justice Vijay Kumar Shukla also directed the high court administration to frame rules to the effect that the members of the Bar, who abstain from work shall stand debarred from appearing in courts and the conditions thereof. The bench also observed that the State Bar Council, which is a statutory authority created to enrol and impart discipline in the members enrolled with it, fails to discharge its role as warranted under the law then the severe action is warranted against the disciplinary authority itself.
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 to 14th April 2018. In an earlier order in April, the bench had 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. The bench had also observed that call to abstain from judicial work is a violation of the fundamental right of an advocate.
In continuation of the earlier order, the following directives were issued by the bench yesterday.
If the call for abstaining from work is given by the State Bar Council
- If the State Bar Council gives call to the members/advocates enrolled with it to abstain from the court work, without the consent of the Chief Justice even for a day, the office bearers of the State Bar Council will be debarred to appear before any court for one month or till such time the office bearers direct resumption of court work;
- If the decision is taken to strike or to abstain from work within one year of an earlier decision, leading to debarment of the office bearers to appear in court, then the State Bar Council itself shall stand suspended from the day of call of strike or decision to abstain from work by whatever name called. Such suspension shall be initially for a period of one month or till such time, the decision is recalled;
- During the above said period, the affairs of the State Bar Council shall be conducted by the Advocate General as an ex officio member of the Bar Council in terms of Section 3 of the Advocates Act; and
- Any further call for strike or abstaining from work shall entail supersession of the State Bar Council. The Advocate General shall manage the affairs of the State Bar Council and conduct the elections of the State Bar Council within six months. In such elections, the defaulting members of the State Bar Council, as per the above directions, shall not be eligible to contest the election for a period of three years.
If call for abstaining from work is given by HC/District Court Bar Association(s)
- If the call for abstaining from work is given by any High Court Bar Association or District Court Bar Association, the State Bar Council shall intervene and forthwith declare such strike as illegal unless such strike has been resorted to in consultation with the Chief Justice and/or the district judge, as the case may be;
- As a consequence of declaring the action of the Bar Association(s) as illegal, the State Bar Council shall appoint an ad hoc committee to manage the affairs of such Bar Association(s) for a period of one month superseding the elected office bearers. The elected office bearers shall not be permitted to appear before any court for a period of one month. If the Bar Association resolves to resume work so as to not to resort to strike or from abstaining from work, the elected office bearers of the Bar Association shall resume their office;
- If the office bearers of the Bar Association again call for strike or to abstain from work, the State Bar Council shall conduct fresh elections to such Bar Association, in which, all office bearers of the Bar Association shall not be eligible to contest the election for a period of three years either of Bar Associations or the State Bar Council; and
- If the State Bar Council fails to act in terms of the above directions, the members of the State Bar Council shall be deemed to have vacated their office and the fresh elections will be conducted in the manner mentioned in clause A(iv) above.
The bench also directed the high court administration to examine and incorporate in the High Court of Madhya Pradesh (Conditions of Practice) Rules, 2012, the consequences of the members of the Bar, the office bearers of the Bar Association(s) and/or the State Bar Council of not appearing in the court including the action of the debarment of such erring members and the period thereof.
Bar Association is not a Trade Union
The court made several remarks on the issue of the strike call by lawyers. It observed: “The strike or abstention from work impairs the administration of justice and is inconsistent with the duties of an Advocate. The Bar Association is not a Trade Union under the Trade Union Act, 1926. The Trade Union has a right to demonstrate as a mode of redress for resolving the grievances of the workers but the Advocates though are members of Bar Association but are professionals engaged by the litigants for the redressal of their grievances by intervention of the Court. By abstaining from work, the members of the Bar do not help anybody.”
The bench further said: “The members of the Bar are protectors of independence of the judiciary. They must rise to maintain independence of judiciary by being an active participant in the administration of justice and not by withdrawing from the pious duty enjoined on them in terms of the Advocates Act, 1961…. The litigant has a right to get justice. He will get justice only if the Courts are functioning in the country but the members of the Bar cannot make the third pillar of democracy non-functional by deciding to withdraw from work. Their action is antitheses of democratic life of the country.”
Read the Order Here