Striking Disservice

For 5000 years, we have believed that the individual is defined, not by his rights, but by his duties. How this has transformed into an environment of rights and entitlements is quite the untold story.

On most days of the week, the Supreme Court of India undoubtedly does very brave things. Let’s face it; outside the gate of the court building, any judge howsoever high is very vulnerable. He has no dedicated administrative machinery to enforce his will and no screaming hoard of rented supporters to ‘protect’ him from those he acts against. Still, the Supreme Court manages to regularly confront and defeat the forces of evil, so to speak, some of whom make the laws that he interprets. Curiously, that same bravery frequently fails the judiciary when it comes to dealing with its own. Consider the grim facts.

When I joined law practice in 1980, Delhi’s trial courts could not try cases of a value greater than Rs. 50,000. Over the thirty five years since, this limit has progressively been pushed up till it has in recent years stood at Rs. 20 lakhs. In 2014, the government proposed to increase it to Rs 2 Crores, but did not leave lawyers breathless with the speed of its legislative progress.  Finally, after a succession of muscle flexing one-day strikes, district lawyers struck work indefinitely on 22ndApril, 2015 demanding action on the issue asap, complete with dozens of sms messages to every lawyer extolling calls to action to the sound of rousing metaphorical bugles[As an aside, no one spams my phone like my brother lawyers. Generally I get about three or four invitations to funerals and uthalas every day]. This strike continued till 8th May 2015, when the Lok Sahba obliged by passing the amending legislation. That didn’t mean the end of the strikes though. It meant the High Court lawyers went on strike instead!

Now, you may ask why the litigant, who is the consumer of this service, would care where his case is conducted. It is true that trial courts decide cases somewhat faster than the High Court but conversely, the sagacity of the judge may well be superior in the High Court. At the end of the day though, these strikes aren’t about improving systems, or speeding up processes, or providing more effective justice. To put it bluntly, this little battle within the legal community is all about who gets to seize the revenue stream of cases valued between Rs 5 Lakhs and 2 Crores. But guess who the first victim of this family war is? More’s the pity because every service industry ought to be structured around quality of service, and not the enrichment of the service provider. For sure, that is more or less the unstated premises on which the Bar Council of India Rules were set up under Section 49(1)(c) of the Advocates Act 1961.

Make no mistake, Chapter II, Part VI of the Rules make it clear that lawyers are expected to “uphold the interest of the client” and not “misuse or takes advantage of the confidence reposed in him by his client”. Even the courts have had no feelings of ambiguity on this subject. In UP Sales Tax Service Association v. Taxation Bar Association, Agra [(1995)5 SCC 716], Agra’s Tax lawyers went on strike demanding the transfer of the Deputy Commissioner (Appeals), Sales Tax, Agra, who they claimed was corrupt. The issue wound its way up to the Supreme Court which ruled that “lawyers should not resort to the strike or boycott the court or abstain from court except in serious, rarest of rare cases; instead, they should resort to peaceful demonstration so as to avoid causing hardship to the litigant public.”

That didn’t work. Within five years, the Supreme Court was compelled to reiterate its message. In Ramon Services (P) Ltd. v. Subhash Kapoor [(2001) 1 SCC 118], a trial court decreed a case without hearing the defence because its lawyer was on strike that day and did not show. Could an appeal court wind the case back to the status on the day before the strike? The court said that “strikes by professionals including advocates cannot be equated with strikes undertaken by the industrial workers in accordance with statutory provisions.” It said that the relationship between lawyer and client was one of trust and confidence and besides abstaining from work hampers justice too. It ruled that striking lawyers “fail in their contractual and professional duty to conduct cases for which they are engaged and paid.”

Even this didn’t make the slightest difference. Two years later, the issue was up before the Supreme Court again in Ex. Capt Harish Uppal v. Union of India[(2003) 2 SCC 45] compelling the court to repeat itself. It said that “It is the duty of every Advocate who has accepted a brief to attend trial, even though it may go on day to day for a prolonged period. …a lawyer who has accepted a brief cannot refuse to attend Court because the Bar Association gives a boycott call.” It also said 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 interviews carrying out of the Court premises banners and/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 facts etc. That was by no means the last of it. It added for good measure 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 warned defaulters of dire consequences thus: “if a lawyer… 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. Can any message be clearer than this?

Significantly, the court made one exception. It condoned strikes “only in the rarest of rare cases where the dignity, integrity and Independence of the Bar and/or the Bench are at stake”. It said that only the court could decide whether any issue fit this category of rarity, for which purpose, the President of the Bar must first consult the Chief Justice before the call to strike can be given.

Given the forthright nature of the ruling, we could have expected the reality on the ground to change. No such luck. Strikes continued from time to time, till PIL activists Common Cause decided to do something about it. The facts were plain enough. The Bar Association called a strike. Some lawyers said they would not abstain from work. Bar Association officers threatened these lawyers with suspension of their memberships to the Bar. Was this contempt of court? The Supreme Court had its opportunity to change the history of India’s Bar.

In Common Cause v. Union of India [(2006) 9 SCC 295], the Supreme Court reiterated the legal position, but did not then pull the trigger. Instead it passed the buck, ruling that it is for the Bar Council of India (which regulates lawyers) to take disciplinary action against lawyers. It said it was the duty of every advocate to bodily ignore a call for a strike. Finally, it ordered that “a committee be constituted in that behalf to suggest steps to be taken to prevent such boycott or strike”. I need not tell you why commissions of inquiry and committees are appointed or what happens to their recommendations, if such recommendations ever do get made. A potentially defining moment ended in a tragic damp squib. The cynic could credibly argue that the legal community is considerably better at delivering honour-and-probity homilies to other than it is at putting its house in order.

For my money though, what leaves me most flummoxed is the radical transformations that has occurred in our society in the way we view our relationship to our fellowmen. For 5000 years, we have believed that the individual is defined, not by his rights, but by his duties, or more properly his path of righteousness a.k.a dharma. How this has transformed in less than 50 years into an overwhelming environment of rights and entitlements is quite the untold story. Perhaps our quest for a society grounded in liberal humanism is at the heart of it. When we wrote our constitution, we conferred rights on individuals, rights that we had thus far never publicly acknowledged. Laudable as these goals were, what we have actually achieved is a kind of “transfer of traditional paradigms” into our new liberal landscape. All at once, the caste based war for privilege we have witnessed throughout our long history has manifested itself in the attitudes of these new communities our constitutional structure has helped created. Lawyers are merely one such powerful community. But then, that is another train of thought, with its own devil in the Fineprint.

Originally published on May 20, 2015 in Businessworld


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