Strike it down

by Talha Abdul Rahman | September 18, 2011

The question of why recent generations of graduates from law schools do not opt for a career in litigation and dispute resolution has not yet found satisfactory answers. Better financial compensation and the more comfortable lifestyle that comes along with an exclusive retainer with a law firm or a corporate house is a plausible explanation. While there may be several factors that could dissuade one from joining a firm or a corporate house, the true depth of such dissuading factors in the context of litigation are yet to be fathomed and go beyond remuneration and lifestyle. These hidden challenges, or dampening factors as I shall call them, include waiting eternally for your matter to reach because there are not enough judges, the lack of professionalism, the lack of judicial probity, the quality of judges, and lawyers’ going on strike. Therefore, while idealism (in form and in substance) may be desirable among lawyers, the current state of the legal profession does not seem to have sufficient room for it and many young advocates find their determination shaken.

Recently, I had to confront one such dampening factor. I was assaulted for adhering to the ethical rules of professional conduct. At the law school, we had learnt that advocates do not have any right to strike or boycott work in courts, and therefore abstaining from appearing in court is contrary to the norms of this great and noble profession. The Supreme Court of India had unambiguously stated this legal position in Harish Uppal v. Union of India.

Little did I know then that the chasm between the law as we read in law school and the one applied at the Bar is actually next to irreconcilable. Having graduated from one of the better law schools and in search of a more adventurous life, I had recently joined counsel practice. I knew that life would be less comfortable and the wallet substantially thinner, but I had not factored in the dampening factors that are more difficult to deal with than the law itself.

On September 5, 2011, I had traveled to a small town in Uttar Pradesh to assist a counsel briefed especially for final arguments in a murder trial. Incidentally, the day before the case was listed, two lawyers had passed away during incidents of violence in Lakhimpur Kheri. It was only after we had reached the local court in the morning that we learnt that the local lawyers were striking to oppose the violence. We went to the courtroom to assess the situation, but soon after we reached, the court was swarmed by a group of lawyers, members of the local Bar association I was told, who manhandled us and shoved us out. What was even more shocking was that these acts had the tacit support of the judicial machinery. While I was walking away from the court premises, another ‘mob’ of lawyers gheraoed and assaulted me. In the process, they broke my spectacles and attempted to tear my robe and jacket. Thankfully, I managed to get out with no further damage than a broken pair of spectacles and a couple of bruises. While this did not deter me, this ‘culture’ of lawlessness acts as a dampening factor for a number of young lawyers who have to decide whether to join active practice or to take up a job where their capability and individuality would be respected; and where time would not be wasted because of an otherwise illegal strike.

The author's broken spectacles witnessed the culture of lawlessness.

For those young lawyers whose ambitions in litigation are dampened after reading this, let me remind you that even Gandhiji was thrown off a train.

Since advocates do not have the right to strike, there are no legal means to enforce a diktat (sometimes even resolutions passed by Bar associations) that is conceptually illegal. Much to my surprise, violence is a known strategy adopted to ensure ‘compliance’ with Bar associations’ (or their patriarchs’) calls for strike. What was curious in this case is that lawyers had adopted violence towards their colleagues to express their solidarity with other lawyers who had been subjected to violence in Lakhimpur Kheri.

Similarly, lawyers in Patna recently went on strike to protest against the blasts outside the Delhi High Court. Such strikes, even with valid objectives, hurt the interests of justice because cases get adjourned and clients are left to bear the escalating costs of litigation. In some trial courts in Uttar Pradesh, there has been practically no work in the week that commenced on September 5, 2011. One can only imagine the inconvenience caused to litigants who travel from their villages to attend to the court hearings. Further, if the strikes continue, since there is little or no pay in litigation without work, they can raises sustenance issues for fledgling advocates.

The situation would have been different if a strike had been the only means available to achieve an objective. Lawyers however, unlike ordinary citizens, have the entire paraphernalia of the legal system available to them to have their demands heard. For instance, the demands of the lawyers who went on strike against the violence in Lakhimpur Kheri included enhanced compensation for the families of the deceased lawyers and the immediate suspension of the erring officials. These concerns could have been suitably addressed by remaining within the precincts of the rule of law. When lawyers abjure the means available to them and indulge in activities that subvert the rule of law, the loss of faith in the judicial system is understandable.

It is appalling that Bar associations pass resolutions resolving to go on strike with impunity and that superior courts rarely take judicial notice of them. Absent any pro-active supervision by the Bar councils, the law in Harish Uppal is good only in the law reports.

In view of the ‘culture’ of lawlessness, many young lawyers prefer to be engaged in mechanisms involving alternative methods of dispute resolution. Such mechanisms have evolved as ‘alternative’ only because the primary mode of dispensation of justice is failing. Unless these systemic deficiencies are not set right, even the best law schools will produce better lawyers but not necessarily good advocates and the law would not be able to attract or retain the best brains.

Talha Abdul Rahman, Shell Centenary Chevening Scholar at University of Oxford (2008-2009), is an advocate based in Lucknow.