At, Supreme Court of India
By, THE HONOURABLE MR. JUSTICE SANJAY KISHAN KAUL & THE HONOURABLE MR. JUSTICE K.M. JOSEPH
For the Petitioner: Kavin Gulati, Sr. Advocate, Kaushik Poddar, Isha Singh, Advocates. For the Respondents: Sibo Sankar Mishra, Shibashish Misra, S. Debabrata Reddy, Advocates.
Sanjay Kishan Kaul, J.
We have the benefit of hearing learned Attorney General for India as we have issued notice as also learned counsel appearing for the Orissa High court.
2. We are informed that both in the High Court and practically all districts the working has been brought to a stand still by the strike of the advocates. This means that the access to justice for a common man is not available. Learned counsel appearing for the State of Orissa assures that all police assistance as may be required will be made available both for the High Court and for the district courts to ensure that egress and ingress in all court premises is available so that the willing advocates and litigants can go and appear in their cases. We will expect the courts to perform their task to the best of their abilities even if lawyers refuse to assist the courts. The litigants cannot be without access to justice and one wonders if an alternative would have to be explored in adjacent states for access to justice, if the advocates continue to be on strike.
3. We are informed that the origination of the strike, though as usual subsequently many other issues are added, was over a decision of collegium clearing the names of some candidate (who practices in this court) and not clearing the name of other candidates. This can hardly be a ground for the lawyers to abstain from work.
4. Learned Attorney General points out that the perennial issue of strikes has received attention of this court in many cases including of the Constitution Bench in Harish Uppal v. Union of India (2003) 2 SCC 45. The judgments of this Court in Hussain v. Union of India (2017) 5 SCC 702 and Krishnakant Tamrakar v. State of Madhya Pradesh (2018) 17 SCC 27 have again been brought to our notice apart from the Report of the Law Commission (Report No.266) wherein Chapter-VII Loss of Courts' Working Days in an aspect discussed. The Law Commission has opined that there is staggering number of working days lost due to strike by advocates without any justifiable reasons.
5. We have asked learned counsel appearing for the Orissa High Court to file an affidavit setting out the grounds for going on strike and abstaining from work in the year 2018-19 both in the High Court and in each of the district courts, giving a chart of the number of working days for each district and the number of working days lost which will give a clearer picture. Affidavit in this behalf qua the High Court and subordinate courts be filed on or before 6th November, 2019.
6. We may usefully refer to observations of the last judgment in paragraphs 49 and 50 which read as under:
"49. Since the strikes are in violation of law laid down by this Court, the same amount to contempt and at least the office-bearers of the associations who give call for the strikes cannot disown their liability for contempt. Every resolution to go on strike and abstain from work is per se contempt. Even if proceedings are not initiated individually against such contemnors by the court concerned or by the Bar Council concerned for the misconduct, it is necessary to provide for some mechanism to enforce the law laid down by this Court, pending a legislation to remedy the situation.
50. Accordingly, we consider it necessary, with a view to enforce fundamental right of speedy access to justice under Articles 14 and 21 and law laid by this Court, to direct the Ministry of Law and Justice to present at least a quarterly report on strikes/abstaining from work, loss caused and action proposed. The matter can thereafter be considered in its contempt or inherent jurisdiction of this Court. The Court may, having regard to the fact situation, hold that the office-bearers of the Bar Association/Bar Council who passed the resolution for strike or abstaining from work, are liable to be restrained from appearing before any court for a specified period or until such time as they purge themselves of contempt to the satisfaction of the Chief Justice of the High Court concerned based on an appropriate undertaking/conditions. They may also be liable to be removed from the position of office-bearers of the Bar Association forthwith until the Chief Justice of the High Court concerned so permits on an appropriate undertaking being filed by them. This may be in addition to other action that may be taken for said illegal acts of obstructing access to justice. The matter may also be considered by this Court on receipt of report from the High Courts in this regard. This does not debar report/petition from any other source even before the end of a quarter, if situation so warrants."
7. We thus consider it appropriate to issue notice to the Bar Council of India through the Chairman requesting the Chairman to be in Court to assist us.
8. We also consider it appropriate to issue notice to the Chairman of the Orissa State Bar Council and the President of the Orissa High Court Bar Association.
9. We have a little doubt that conduct of the lawyers really falls within the domain of contempt in view of the law enunciated aforesaid. However, before proceeding to take action in that behalf, we deem it appropriate to simply issue notice to explain their conduct. We would specifically desire the Bar Council of India to inform us as to what steps they propose to take in respect of the conduct of the advocates who have violated the directions of this Court as enunciated in the aforesaid judgments.
10. The Chairman of the Orissa State Bar Council and President of the Orissa High Court Bar Association will also appear in person.
11. We are informed by the learned counsel appearing for the High Court, Shri Sibo Sankar Misra that some resolutions have been passed by the Co-ordination Committee headed by the President of the Orissa High Court Bar Association to the effect that: (i) his suspension from the Bar Association, (ii) a letter written to the Bar Council of Orissa to initiate action against him and (iii) letter to the State Government to remove him from the panel of lawyers apart from initiating contempt proceedings. In doing so, we have not the least doubt that the said conduct of the lawyers amounts to interfering with the proceedings of this court. As to what consequences should follow for this would also be considered on the next date. In the meantime, all of the aforesaid three decisions are stayed as also the local Bar Association and Bar Council are denuded of the authority to take any action in future also against the counsel in question.
12. Now coming to the last aspect, the grievance of the petitioner about the facilitation of his representation be
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fore the High Court. Learned senior counsel states even if a counsel is engaged from outside Orissa or the party decides to appear in person, security must be ensured. 13. We are in full agreement and learned counsel for the Orissa High Court assures this Court in that behalf. It will be open for the counsel to appear or the party going to appear in advance intimate the Registrar for making specific security arrangements for their presence and the police department of the State Government will also render full assistance in this behalf. 14. List on 8th November, 2019. 15. We desire the learned Attorney General to again assist us on the next date. 16. A copy of the order be given dasti today itself.