Friday, July 9, 2010

Article: Right to strike

Right to strike

Jayant Sriram

First Published: 10 Jul 2010 10:38:00 AM IST

The route to finding justice in Tamil Nadu's courts has become increasingly circuitous. It is one in which litigants are up - not just against opposing counsel, but against a host of factors they cannot control. Jayant Sriram puts light on some of them:

R Ramachandran filed a case in 2007 — and underwent a prolonged sense of exasperation: not by the verdict but by an inordinate delay in the proceedings of the court at his native Chengalpattu in upstate Tamil Nadu. The case stalled because the opposite party had not appeared for a long time. When they did start to attend the case, the advocates began a boycott. Eventually, when the court resumed work, Ramachandran found the case had got transferred to the Tambaram court, some 40 km from his residence. And not too late after that, advocates again started a strike because of a violent clash they had with the police early last year — the episode ensured that the court did not function for six months.

Ramachandran, meanwhile, had to quit his job in West Asia and returned to South India. To excerpt a quote of his in the Internet, "When the case finally came up, the new judge said she would not accept the power of my father since my presence was required (I was working in Muscat). I left my job and came back from Muscat in February. Again the opposing party was not appearing and the case was postponed to April. When I went in April I got the shocking news that the judge was transferred on promotion and the case was postponed again and by this time it was summer vacation."

Of course, there's little one can do about some of these factors, but stories of litigants losing time and money to strikes and boycotts by lawyers are becoming increasingly frequent. And it's a problem that has a complicated history. Back in 2002, in a landmark judgment, the Supreme Court had declared strikes by lawyers to be illegal. Only in cases where the integrity of the bar or judiciary were compromised was a one-day token strike permitted.

The numbers in Tamil Nadu, however, tell a different story. According to reports, a total of 3,978 working hours had been wasted since this year because of lawyers' boycott. Thiruvallur district topped the list with 64 days of boycott, followed by Madurai with 51 days, Thiruvannamalai 45 days, Dharmapuri 38 days, Sivaganga, Thiruchi and Thoothukudi with 34 days each and Dindigul 17 days.

On the surface at least, this would appear to be a problem of mixing politics with the bar, another trend has been on the upswing. As Madras High court lawyer and political commentator V Krishna Ananth describes, the structure of the bar associations as a microcosm of the political setup. "Most of them are very fragmented along party lines — there's a DMK wing, AIADMK wing, PMK wing etc. Even appointments to posts like prosecutors and pleaders are made along political lines."

Another senior lawyer points out that this creates a problem of trying to gain leadership. "They have to be seen as doing something useful. It's like this indefinite fast that happened at Madurai recently. Everyone knows that those lawyers belonged to the AIADMK." The problem, he says in all seriousness, has descended to such a level that you'll often find that most strikes are called on Fridays in order to get an extended weekend.

A very vocal minority, Krishna Ananth adds, calls most strikes, and the problem is that nobody opposes them because they have nothing to lose. "If there's a bank strike for instance, employees lose wages for the days in which they go on strike. But if I were to go on a strike, say, then nothing will change. I'll still get clients, who are unfortunately stuck with me, from whom I'll collect fees up-front. It's only the litigants who suffer and the small lawyer, the guy who has one-and-a-half cases and has to continually put up with it getting delayed and chasing after it."

At the same time, he says that if there is a serous issue on which lawyers really do need to come together to protest, it probably won't happen. "For instance, the high court might be clamping down on public interest litigation, and that's a serious issue. But something like this will never be taken up at an association meeting. It's usually a political issue or it's about a lawyer being beaten up."

Isaac Mohanlal, a senior lawyer at the Madurai bench of the court, goes one further, saying that there's often not even a definite reason to go on strike. "If a bar meeting is called, it inevitably ends up in a boycott. The reasons will be invented later." According to him, this stems from a larger problem. "There are too many junior lawyers in the court who don't have work to do and they are the ones who join the bar associations in big numbers and are very vocal. Because of this, the senior lawyers don't turn up and the real leaders of the profession lose control of the bar." Mohanlal says it is the responsibility of the senior lawyers to both pay their juniors well as well as to ensure that they are kept in work.

The fact is the problem only gets worse in the lower courts where, combined with politics, equations between lawyers, judges and the police seem to be at breaking point.

R Sunder, a senior lawyer from Ooty, points to two major areas of dispute: the first between lawyers and presiding officers, and, secondly, the manner in which they behave toward lawyers and clients. Going on strike because judges have spoken 'arrogantly' is not uncommon. Lawyer A Gandhi Raj, who is a former Pondicherry minister, points out that this usually results in a one-day token strike, but then could be extended because judges may pass ex-parte orders — and then it turns into an indefinite strike. But the lines here are hard to draw. Mohanlal says that since the majority of the bar is in criminal law, there could often be issues with individual judges. "If the judge is not liberal and doesn't easily give orders for bail or anticipatory bail, then his court may be boycotted," he explains.

The second problem, by far the larger, is conflict between lawyers and the police. Perhaps not on the scale of incidents in the Madras High Court on February 19, 2009, but again, a problem with a long history. According to Sunder, this is because lawyers don't keep within their boundaries. "It's like a nexus between criminal lawyers and the police. They work very closely together and this should never happen. A lawyer might go to the police station demanding to speak to his client and this will lead to an altercation. The next day, an association meeting will be called and that will end up in a boycott."

What then of corrective measures? The 2002 law specifies that grievance redressal committee's are to be set up in order to avert conflict, but it's a step that's never been pursued. At the district level, there are supposed to be bench and bar meetings where lawyers and judges can meet to discuss problems and in case of police conflict, a committee comprising the district judge, the superintendent of police and president of the bar association is supposed to step in. Sunder confirms that both seldom happen. "A good district judge is the best redressal system but they have to show an interest for this to work," he adds.

There's an irony, of course, in the state's courts being the worst affected by the fact that they can't work out grievances. All of which leads to one to the conclusion that such strikes are never actually resolved — but are just left to peter out.


Rule against calling strikes

A landmark Supreme Court judgement, delivered in December 2002, in the ex-Captain Harish Uppal versus Union of India & Anr case states 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 and peaceful protest marches outside and away from court premises"

It also states 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.

The law adds further provisions. First, if lawyers go on strike, they will have to compensate courts and litigants for injury. Second, there will be no adjournments if lawyers are on strike. Third, advocates who don't participate in strikes cannot be penalised by Bar Associations. Fourth, that there should be grievance redressal committees to resolve disputes.

The only exception to this law reads that lawyers have no right to strike except for a day when "the dignity, independence or integrity of the bar or bench" has been lowered. This decision is to be taken by the bar association president and the district judge.

Days lost to boycott

According to a newspaper report, lawyers in Chennai had abstained from attending court proceedings for 32 days, those in Coimbatore did so for 56 days, Dharmapuri 76, Dindigul 53, Nagercoil 82, Madurai 44, Ramanathapuram 46 and Salem 46 days in 2009 alone.

The report goes on to say that lawyers in Madurai had boycotted the courts for 58 days in 2006, 61 in 2007 and 47 in 2008. Similarly, in 2008 alone, Gudiyatham lawyers abstained from courts for 79 days, Villupuram 68 days, Pudukottai 68, Ariyalur 87, Namakkal 82 and Kanyakumari 58.

Courtesy_

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