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Judicial Delays, Mounting Arrears and Lawyers’ Strikes

Khagesh Gautam (kgautam@jgu.edu.in) teaches at the Jindal Global Law School, O P Jindal Global University, Sonipat, Haryana.

Report No 266 of the Law Commission of India, published on 17 March 2017, touches upon several aspects and issues regarding the state of the legal profession in India. The problem of lawyers’ strikes and consequent wastage of judicial time is discussed vis-à-vis the report. Lawyers’ strikes in India contribute to the problem of judicial inefficiency and the Law Commission recommends taking strong institutional actions to end these.

The Supreme Court has time and again stressed the importance of the legal profession in a country that is governed by a written constitution based on the idea of the rule of law.1 The importance of the legal profession in India can be gauged by the fact that it is the only profession mentioned by its name in the Constitution.2 Constant delays and pendency in courts in India have been a pressing concern for quite a while now. The extent to which lawyers’ strikes contribute to the problem of judicial delays and mountingarrears has been underscored once again, and most forcefully, by Report No 266 of the Law Commission of India, published on 17 March 2017.

The report touches upon several aspects and issues regarding the state of the legal profession in India. This article focuses on one particular issue, that is, the problem of lawyers’ strikes and consequent wastage of judicial time. It argues that lawyers’ strikes in India contribute to the problem of judicial inefficiency and result in wastage of valuable judicial time. It supports the Law Commission’s recommendations to end the problem of lawyers’ strikes by taking strong institutional actions.

Wastage of Judicial Time

The Law Commission of India (2017: 15) has noted in its 266th report that about 2.5 crore cases are pending in the lower courts. It has emphasised that wastage of judicial time on account of lawyers’ strikes is one of the leading reasons behind rising pendency and delay in courts. However, this is not the first time that lawyers’ strikes have been criticised. In 1995, Justice J S Verma had already noted the “adverse effects of a lawyers’ strike on the course of administration of justice and the hardship caused to the litigants for whom the courts are meant” (1995: 1–15). He had pointed out that

In Delhi, the subordinate courts remained closed on account of lawyers’ strikes for one day out of every four days during the last four years; on each day of strike 10,000 cases are pushed back by at least four months. (Verma 1995)

A few days of a lawyers’ strike in New Delhi had resulted in 35,000 cases being adjourned in December 1994. The irony behind this strike was that it was conducted in response to a Supreme Court order passed in the same month in a public interest litigation brought to challenge the lawyers’ right to go on a strike (Verma 1995).

Just the numbers noted by Justice Verma present an incredibly worrisome picture, enough to send chills down the spine of any self-respecting Indian citizen who believes in the Constitution and the rule of law. If this is not enough to make the reader contemplate hard on the state of the rule of law in our republic, recent data reported by the Law Commission certainly will.

As per the report, for the years 2012–16, in Dehradun district in Uttarakhand, lawyers were on strike for an average of 91 days every year (that is, 455 days in total), and in Haridwar for 103 days every year (that is, 515 days in total). The Rajasthan High Court’s Jodhpur Bench was closed for 142 days during this period, while the Jaipur Bench was closed for 30 days. In Uttar Pradesh, the situation was worse. Out of the total 265 judicial working days every year, the eight worst-affected districts saw strikes on 115 days every year on an average, cutting down judicial time approximately in half. Out of the total 220 judicial working days in Tamil Nadu, during 2011–16, the five worst-affected districts saw 109 striking days by the lawyers on an average (Law Commission of India 2017: 14).3

The Law Commission found that the reasons for these lawyers’ strikes had no relevance to the working of the courts (Law Commission of India 2017: 14). Some of the reasons were a bomb blast in Pakistan, amendments to the Sri Lankan Constitution, interstate river water disputes, attacks on lawyers, earthquake in Nepal, condolence of death of near relatives, showing solidarity to advocates of other states’ bar associations, moral support to social movements, heavy rains, religious occasions, and even poetry recitals (Law Commission of India 2017: 14). Depressingly, history repeated itself in March 2017 when lawyers in India decided to go on a strike to protest a proposed legislation, the Advocates (Amendment) Bill, 2017 that prevented them from going on a strike, much like the lawyers’ strike in December 1994 (Tribune 2017; Hindustan Times 2017).

That the reasons for lawyers’ strikes in our republic are unacceptable, and some of them downright ridiculous, is an argument that makes itself.4 We may compare these reasons with the famous 10-week strike staged by the staff attorneys of the New York Legal Aid Society to protest low salaries and heavy caseloads (Arthur 1985: 376–77).

Even though their cause might have been just, in response to this strike, the Committee on Professional and Judicial Ethics of the Association of the New York Bar issued the Ethical Opinion 82–75 and declared as unethical any strike by a legal aid lawyer, who had assumed professional responsibility for a client. Refusing to prepare a case that is pending before a court was also declared unethical.

In India, the fact remains that lawyers continue to go on strikes for the most mundane reasons and these strikes do result in wastage of valuable judicial time. So far, no bar association in India has come up with any declaratory statement like Ethical Opinion 82–75, even though a unanimous constitution bench of five judges of the Supreme Court has spoken on the issue decisively:

In conclusion it is held that, lawyers have no right to go on a strike or give a class for boycott, not even on a token strike … It is held that lawyers holding vakalats on behalf of their clients cannot refuse to attend courts in pursuance of a class for strike or boycott … 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 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. (Ex-Captain Harish Uppal v Union of India 2003)

In any case, lawyers in India seem to know that they do not have any right to strike (Chandra 2017: 79). But, they also know that there is no effective recourse available to the litigants and other affected parties under the Bar Council of India’s Rules on Professional Standards and Etiquette (Chandra 2017: 83).

Urgent efforts are needed to arrest this problem. Judicial time is precious and should not be wasted for any reasons. Independent of whether wastage of judicial time results in mounting arrears or increasing delays, it itself is a reason so compelling that any self-respecting member of the Indian bar who takes the practice of law and the legal profession seriously would be morally compelled to not engage in such practices.

Contribution to Mounting Arrears

The problem of judicial wastage resulting in mounting arrears of pending cases is a problem that is eroding our judicial system from within. In 1985, the problem of mounting arrears made Justice Bhagwati declare that “the judicial system in India is on the verge of collapse” (Krishnamani 2004). More than three decades after Justice Bhagwati’s declaration, our judicial system is still not any better than it was in 1985. To put this judicial wastage of time in perspective, as a case study, let us examine how much judicial work is pending in Uttarakhand, where its two districts combined wasted 970 days of judicial time.

Table 1 shows the pendency of cases in the subordinate judiciary in Uttarakhand. Since 2002, in Uttarakhand, the pendency of cases has been consistently increasing, with an exception in 2011 when it went down, but shot up again in 2012. This is in a state where the subordinate judiciary is working much below its sanctioned strength. As of 2012, against the sanctioned strength of 170, the state only had 108 judges serving in its subordinate judiciary. In fact, the subordinate judiciary in Uttarakhand has never operated at its full judiciary strength since 2002.

To give the problem some more perspective, let us examine another bit of useful data, collected by the newly set-up Centre for Research and Planning of the Supreme Court. The sanctioned strength for the subordinate judiciary in India is 20,558. The total population of India, as per the 2011 Census is 1,210.6 million. This puts the judges per million (JPM) at 18. In China, the JPM ratio is 147, in the United States it is 102, in England and Wales it is 56, and in Australia it is 48 JPM. If we take 50 JPM as a standard benchmark,5 as it is we are short by 39,972 judges (Supreme Court of India 2016: 11).

However, if we take the recommendations of the 120th Report of the Law Commission as a benchmark, we need 1,36,794 judges in the subordinate judiciary. Note, however, that the 120th Report was made in 1987. Thus, even by 1987 standards, we are 1,16,236 judges short. This is a startling, even depressing, state of affairs in a country that prides itself as a republic based on a written constitution and the rule of law.

In a state like Uttarakhand, where the total number of pending cases before the subordinate judiciary stands at 1,43,947 in 2012, and in a country where on aggregate more than two crore cases are pending in all the courts combined, and in a country that has abysmally low JMP ratios, for the lawyers to go on a strike of even one day is, in the name of public service and service to the cause of the rule of law, an unacceptable practice. The Supreme Court on multiple occasions has observed and held that lawyers cannot go on strike because of the peculiar nature of their profession. Yet, the Indian bar seems to observe this principle only in breach.

An Existential Question

The Indian bar needs to ask itself a very serious existential question: who is being served as a result of these strikes? As far as the ethical question over lawyers going on strike is concerned, we have already noted the New York Bar’s Ethical Opinion 82–75 that declared striking by lawyers as unethical. Even though we do not have an equivalent of the Ethical Opinion 82–75 in India, we do have a unanimous five-judge bench opinion of the Supreme Court in Harish Uppal v Union of India (2003) that fills this gap. Despite this, the situation is bad.

One study found that several lawyers practising in Allahabad and Lucknow had not even been taught a course of legal ethics in law school, and the ones who had, were having difficulty in recalling what they had been taught (Chandra 2017). This is, indeed, a disappointing state of affairs in a country whose code of legal ethics makes it a duty of every lawyer to “fearlessly uphold the interest of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other.”6

Only twice has the Supreme Court Bar Association gone on a strike to protest against supersession of judges in the Supreme Court and that of the Chief Justice of the Delhi High Court (Krishnamani 2004:J–6). Independence of the judiciary was at stake and it was a serious existential question that had prompted the Supreme Court bar to come together and protest what Nani A Palkhiwala had famously called the “defacement and defilement” of the Constitution. The Supreme Court also approved of such extreme circumstances, where a strike by lawyers was justified:

It is held that 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. It is being clarified that it will be the court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. (Harish Uppal v Union of India 2003)

The fact remains that a lawyer going on strike does not serve any purpose, not even to the organisers of and the participants in the strikes—the lawyers. It places the lawyers as a community on a low moral ground. To conclude, let us engage in a quick thought experiment. Would it be ethical for a medical doctor to go on a strike when his patient is in urgent need of a heart transplant? Obviously not, because the value of a life saved by this doctor’s work is far outweighed by whatever might be achieved by that doctor going on a strike. Then how can a lawyer engaged to argue a criminal case listed for final arguments, or a habeas corpus petition before a high court refuse to argue his brief?

Surely, the value of an innocent person’s liberty being secured is far more important than the reasons for which lawyers in India have gone on strike; reasons that a former president of the Supreme Court Bar Association has himself publicly called “trivial” on a day no less momentous than the Law Day itself.

Notes

1 The Supreme Court has noted that, “In a democracy governed by the rule of law under a written constitution, judiciary is the sentinel on the qui vive to protect the fundamental rights and to poise the scales of justice between the citizens and the State and the States inter se” (C Ravichandran Iyer v Justice A M Bhattacharjee 1995: 468–69).

2 Constitution of India, Article 22(1): “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”

3 On account of striking lawyers, the five worst-affected districts are Kancheepuram (687 lost days; 137.4 days per year), Kanyakumari (585 lost days; 117 days per year), Madurai (557 lost days; 115.4 days per year), Cuddalore (461 lost days; 92.2 days per year), and Sivagangai (408 lost days; 81.6 days per year).

4 The then president of the Supreme Court Bar Association, M N Krishnamani (2004) noted that strikes by Indian lawyers are “mostly impulsive” and are “taken on small and trivial issues.”

5 The 50 JPM benchmark is taken from the Law Day speech by Krishnamani (2004).

6 Bar Council of India, Rules on Professional Standards and Etiquette, Rule 15.

References

Arthur, Randy Lee (1985): “The 1982 New York Legal Aid Strike: Ethical Implications Under the Code of Professional Responsibility,” Hofstra Labor Law Journal, Vol 2, pp 376–77.

Chandra, Sushant (2017): “Indian Regulation on Ethics and Their Impact on Court Case Backlogs,” BRICS Law Journal, Vol 4, p 79.

C Ravichandran Iyer v Justice A M Bhattacharjee (1995): SCC, SC, 5, p 457.

Ex-Captain Harish Uppal v Union of India (2003): SCC, SC, 2, p 45 (Justice Variava, majority opinion; Justice Shah concurring).

Hindustan Times (2017): “Mumbai Lawyers Strike Work over Law Commission’s Recommendations,” 1 April.

Krishnamani, M N (2004): “Law Day Speech,” Supreme Court Cases Journal, Vol 1, p J–5.

Law Commission of India (2014): “Arrears and Backlog: Creating Additional Judicial (wo)manpower,” Government of India, http://lawcommission ofindia.nic.in/reports/Report_No 245.pdf.

— (2017): “The Advocates Act, 1961 (Regulation of Legal Profession),” Government of India, 6 October, http://lawcommissionofindia.nic.in/reports/Report_No 266.pdf.

Tribune (2017): “Lawyers across Country to Strike Work Tomorrow,” 30 March.

Supreme Court of India (2016): “Subordinate Courts of India: A Report on Access to Justice,” Report of Centre for Research and Planning, Supreme Court of India.

Verma, J S (1995): “Justice Shankar Prasad Bhargav Memorial Lecture: The Role of the Bar in Preservation of the Rule of Law,” Supreme Court Cases Journal, Vol 1, p J–15.

Updated On : 11th Aug, 2017

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