Ex-Capt. Harish Uppal v Union of India (2003)

This is the strike case, and the one authority on this paper where the examiner is not asking your opinion. "Can lawyers go on strike?" looks like a debating question and is not one. A Constitution Bench has answered it: no, and not even a token strike. It also fixes the personal liability of an advocate who holds a vakalatnama and stays away, and draws the line that runs through Module 4 — the right to practise belongs to the Bar Councils, the right to appear inside a particular court is controlled by that court.

A group of petitions, the lead one by Ex-Capt. Harish Uppal, sought a declaration that strikes by lawyers and calls for boycott of courts are illegal. Because the question concerned the whole profession, public notices went to Bar Associations and Bar Councils across the country.

The Court had already tried a softer route. In Writ Petition (C) No. 821 of 1990 it had passed an interim order, reported as Common Cause, A Regd. Society v Union of India [(1995) 1 SCALE 6]. It recorded the Bar Council of India's own stated position — that it was against strikes "excepting in rarest of rare cases involving the dignity and independence of the judiciary as well as of the Bar" — and made four clauses the order of the Court: any individual member must be free to appear "without let, fear or hindrance"; no member who appears may suffer any penal consequence or expulsion; non-disruptive protest such as armbands remains open. The Council's counsel undertook to suggest that those clauses be written into its own Conduct and Disciplinary Rules so that they would carry statutory force.

The Council never did. The Court recorded the result bluntly: "The phenomenon of going on strike at the slightest provocation is on the increase. Strikes and calls for boycott have paralysed the functioning of courts for a number of days."

During the hearing the Bar Council of India filed the minutes of a joint meeting of the Chairmen of the State Bar Councils held on 28 and 29 September 2002, which analysed the usual triggers for strikes — disputes with the police, misbehaviour of judicial officers, unfilled vacancies, absent infrastructure, withdrawal of jurisdiction, legislation passed without consulting the Bar — and resolved to constitute Grievance Redressal Committees at taluka, district, High Court and Supreme Court level.

1. Do lawyers have a right to strike or to call for a boycott of courts?
2. May a Bar Council or Bar Association entertain a requisition for a meeting to consider such a call?
3. Must a court adjourn because lawyers are on strike?
4. What is the consequence for an advocate holding a vakalatnama who abstains?
5. Where does power over appearance in court sit as between the Bar Councils and the courts?

The conclusions in paragraph 35 should be learned close to the words used.

• "Lawyers have no right to go on strike or give a call for boycott, not even on a token strike."
• Lawyers holding vakalatnamas "cannot refuse to attend courts in pursuance of a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike or boycott." No lawyer who appears may be visited with adverse consequences by the Association or the Council, and no threat or coercion, "including that of expulsion", may be held out.
• "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" — such requisitions "should be consigned to the place where they belong viz. the waste-paper basket."
• "Courts are under no obligation to adjourn matters because lawyers are on strike... courts must not be privy to strikes or calls for boycotts."
• An advocate holding a vakalatnama who abstains "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."
• The one exception. "Only in the rarest of rare 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." Whether the issue is of that character is for the court to decide, and "the President of the Bar must first consult the Chief Justice or the District Judge... The decision of the Chief Justice or the District Judge would be final."
• Permissible protest instead: press statements, television interviews, banners or placards outside the court premises, armbands, peaceful marches away from the court, dharnas or relay fasts.

By paragraph 37 the Court directed that all Bar Associations implement the Bar Council of India's resolution of 29 September 2002, and that the High Courts frame rules under s. 34.

Lawyers have no right to strike or to give a call for boycott of courts, not even a token strike; an advocate who holds a vakalatnama and abstains on such a call breaches his professional duty and is personally liable to pay costs, and courts are under no obligation to adjourn.

The catalogue of permissible protest is guidance, not law. The warning that courts "may now have to consider framing specific rules debarring advocates, guilty of contempt and/or unprofessional or unbecoming conduct" is obiter. The observation that s. 30 had not been brought into force was a supporting reason expressly not relied on as the foundation: even if s. 30 were in force, "control of proceedings in court will always remain with the court." The "rarest of rare" concession is part of the operative holding, but read it precisely — it confers no right on the Bar. It says a court may turn a blind eye.

Most of it was already settled. Paragraph 20 collects the earlier law. Lt. Col. S.J. Chaudhary v State (Delhi Admn.) [(1984) 1 SCC 722] — an advocate who accepts a brief in a criminal case must attend day to day. K. John Koshy v Dr Tarakeshwar Prasad Shaw [(1998) 8 SCC 624] — a court cannot refuse to hear a matter because both counsel are absent on a strike call, since that "would tantamount to the court becoming a privy to the strike". Ramon Services (P) Ltd. v Subhash Kapoor [(2001) 1 SCC 118] — advocates are answerable for the consequences their clients suffer from a strike-call absence. What Harish Uppal added was the declaration and the enforcement machinery.

The Advocates Act does not authorise a strike. The argument from the Act was disposed of in a sentence: "Section 7 of the Advocates Act provides for the functions of the Bar Council of India. None of the functions mentioned therein authorise paralysing of the working of courts in any manner. On the contrary, the Bar Council of India is enjoined with the duty of laying down standards of professional conduct and etiquette for advocates." A body whose statutory function is to stop advocates behaving unprofessionally cannot itself organise the most unprofessional act available to the profession. From that the Court reasoned that where an Association calls a strike, the State Bar Council — and on its failure the Bar Council of India — "must immediately take disciplinary action" against the advocates who gave it and against committee members who permitted the meeting. Paragraph 26 supplies the sanction: even if the Bar Councils do not act, "on an appeal the Supreme Court can and will." That is s. 38, and it is the seed of what the Court did thirteen years later in Mahipal Singh Rana.

The two powers, separated. Paragraph 34 is the one to carry into Module 4. The right to practise is the genus — filing a vakalatnama, advising, drafting, conferences, arbitration work, work as a legal officer — and the Bar Council controls it through rules under s. 49. The right to appear and conduct cases in court is a species, and over that the court "must and does have major supervisory and controlling power", exercised through Art. 145 rules in the Supreme Court and s. 34(1) rules in a High Court. So a rule debarring from appearance an advocate guilty of contempt or unbecoming conduct is valid, has nothing to do with the Bar Councils' disciplinary jurisdiction, and cannot be overruled by them.

One textual slip. Paragraph 23 says "Section 48-A gives a right to the Bar Council of India to give directions to the State Bar Councils." On the bare Act, s. 48A is revision and s. 48B is the "power to give directions". Cite s. 48B, and say the judgment refers to it as 48A.

The section 30 point is now historical, and you must say so.

Where the law stands. Section 30 gives every advocate on a State roll the right to practise throughout India, in all courts including the Supreme Court. It was enacted in 1961 but left un-notified for fifty years, and was brought into force with effect from 15 June 2011. The statement in Harish Uppal that s. 30 "has not been brought into force" was correct in 2003 and is now historical; do not repeat it as current law. Older texts, including the 2023 university compilation used for this paper, reproduce the judgment as delivered and still carry that sentence. The holding is unaffected: the Court said expressly that "even if Section 30 were to be brought into force control of proceedings in court will always remain with the court."

The case has been treated as settled since. In Mahipal Singh Rana v State of U.P. (Supreme Court, 2016) the Court relied on it while recording the inaction of both Bar Councils and itself suspending an advocate's licence under s. 38. In R. Muthukrishnan v Registrar General, High Court of Madras (Supreme Court, 2019) it held that the s. 34(1) power Harish Uppal affirmed does not extend to framing what is in substance a disciplinary code: a High Court may punish for contempt and debar in that exercise, but it cannot usurp the Bar Council's disciplinary control. Harish Uppal validates a rule about appearance; Muthukrishnan forbids a rule about discipline. The Grievance Redressal Committees resolved on in 2002 are the constructive half of the answer.