Is the Right to Practise a Fundamental Right, and May Advocates Strike?
Chapter Sixteen
Syllabus topic 1.6 Right to Practice
Pages 78 to 82 of 355
In one line
The right to practise is a statutory right exercised in a profession that Article 19(1)(g) protects, and it does not include a right to withhold the service.
In exam wording: the right to practise conferred by section 30 of the Advocates Act 1961 is a statutory right, the profession of law being one that Article 19(1)(g) of the Constitution protects subject to reasonable restrictions under Article 19(6); and in Ex-Capt. Harish Uppal v. Union of India, AIR 2003 SC 739, the Supreme Court held that lawyers have no right to go on strike or to give a call for boycott, not even a token strike.
The first question: statutory or fundamental?
A student meets this in the first month and the confusion is understandable, because both answers are partly right. The precise position has three steps.
The right to practise law is conferred by statute. It comes from section 30 of the Advocates Act, it belongs to an advocate whose name is on a State roll, and it can be taken away by a disciplinary committee under section 35(3)(c) or (d). A fundamental right is not conferred by an Act of Parliament and cannot be removed by a disciplinary committee.
But the profession is protected by Article 19(1)(g). That Article guarantees to all citizens the right to practise any profession, or to carry on any occupation, trade or business. So the State cannot arbitrarily shut the legal profession, and a law regulating entry to it must satisfy Article 19(6).
Article 19(6) permits reasonable restrictions, and expressly saves any law relating to the professional or technical qualifications necessary for practising any profession. That clause is what makes the whole of Chapter III of the Advocates Act constitutional: prescribing a degree, an age, a fee and an examination is exactly what Article 19(6) contemplates.
So the accurate sentence is: the right to practise is a statutory right, exercised in a field which Article 19(1)(g) protects and which Article 19(6) allows to be regulated. That is why an advocate cannot claim that a suspension under section 35 violates his fundamental right: the suspension is an operation of a law regulating professional qualification and conduct.
The point was live in Gaurav Kumar v. Union of India, 2024 INSC 558, where the Supreme Court held that a State Bar Council charging an enrolment fee beyond section 24(1)(f) violates Article 14 and Article 19(1)(g). The reasoning depends on the same idea: a charge levied without authority of law at the threshold of the profession is not a restriction imposed by law and therefore cannot be a reasonable restriction under Article 19(6).
Is the Right to Practise a Fundamental Right, and May Advocates Strike?
The second question: may advocates strike?
Ex-Capt. Harish Uppal v. Union of India, AIR 2003 SC 739, (2003) 2 SCC 45, was decided on 17 December 2002 by a Constitution Bench headed by the Chief Justice with Doraiswamy Raju, S.N. Variava and D.M. Dharmadhikari JJ, the judgment being delivered by S.N. Variava J.
Facts. The petition raised the legality of strikes and boycotts called by Bar Associations and Bar Councils, and asked what a court should do when lawyers abstain from work in answer to such a call.
Held. The Court's conclusions were unusually specific, and because they are specific they are what an examiner is looking for.
Lawyers have no right to go on strike or to give a call for boycott, not even a token strike.
Protest may take other forms. The Court listed them: press statements, television interviews, carrying banners or placards outside court premises, wearing black or white or any colour arm bands, peaceful protest marches outside and away from court premises, dharnas or relay fasts.
A lawyer holding a vakalat cannot stay away. Lawyers holding vakalatnamas on behalf of their clients cannot fail to attend court in pursuance of a call for strike or boycott, and all lawyers must boldly refuse to abide by any call for strike or boycott.
No lawyer who refuses may be punished for refusing. No adverse consequence may be visited on him by the Association or the Council, and no threat or coercion of any nature, including that of expulsion, may be held out.
A Bar body may not even meet to consider a strike. No Bar Council or Bar Association may permit the calling of a meeting for the purpose of considering a call for strike or boycott, and a requisition for such a meeting must be ignored.
The single narrow exception. Only in the rarest of rare cases, where the dignity, integrity and independence of the Bar or of the Bench is at stake, may courts turn a blind eye to a protest abstention of not more than one day. It is for the court to decide whether the issue involves dignity, integrity or independence, and in such a case the President of the Bar must first consult the Chief Justice or the District Judge, whose decision is final and must be abided by.
Courts must not adjourn. Courts are under no obligation to adjourn matters because lawyers are on strike. It is the duty of every court to go on with the matters on its board even in the absence of lawyers, because courts must not be privy to strikes or calls for boycott.
Why the Court reached that result
The reasoning is worth being able to state, because a question often asks for justification rather than for the rule.
Is the Right to Practise a Fundamental Right, and May Advocates Strike?
The client is the person who suffers. An advocate holding a vakalatnama has undertaken to conduct a case. A strike does not inconvenience the government or the court; it postpones a decision on a person's liberty, land or maintenance.
A strike is not an exercise of the right to practise. The right in section 30 is a right to appear. There is no correlative right to refuse to appear in a matter already accepted; rule 12 of the Bar Council of India Rules forbids an advocate to withdraw from an engagement once accepted without sufficient cause and reasonable notice, and Module II deals with rules 11 and 12 on accepting and withdrawing from a brief.
Other means of protest exist, and the Court listed them rather than merely saying so.
The court's own duty is independent of the Bar. If the court adjourns because the Bar has struck, the strike has succeeded in stopping the administration of justice, which is the very thing the Bar exists to serve.
The consequences for an individual advocate
Abstaining can be professional misconduct. Because an advocate who holds a vakalatnama and stays away in answer to a strike call is breaching his duty to the client and to the court, the conduct is capable of attracting section 35. Module III deals with how such conduct is treated.
Refusing to strike cannot be. Harish Uppal expressly holds that no adverse consequence, threat or coercion, including expulsion, may be visited on a lawyer who refuses to abide by a strike call. So a Bar Association that expels a member for appearing during a strike is acting contrary to a binding decision of the Supreme Court.
A worked example
The Bar Association at a District Court resolves to abstain from work for three days to protest against the transfer of a judge. Nikhil holds vakalatnamas in two matters listed on the second day, one of them an application for interim maintenance by a woman with no income.
What Harish Uppal requires of him.
He must attend. He holds vakalatnamas, and lawyers holding vakalatnamas cannot fail to attend in pursuance of a call for strike or boycott. He must boldly refuse to abide by the call.
Is the exception available? No, on two independent grounds. The protest is against a transfer, which is not a matter going to the dignity, integrity or independence of the Bar or the Bench; and the abstention is for three days, whereas the exception extends to not more than one day. Even if the subject had qualified, the President of the Bar would have had to consult the District Judge first, and that consultation's outcome would have been final.
Is the Right to Practise a Fundamental Right, and May Advocates Strike?
What the court should do on the second day. Take up both matters. Courts are under no obligation to adjourn because lawyers are on strike, and it is the duty of the court to go on with the matters on its board even in the absence of lawyers.
What happens to Nikhil afterwards. If the Association expels him or threatens him for having appeared, that is precisely what Harish Uppal forbids: no threat or coercion of any nature, including expulsion, may be held out to a lawyer who refuses to abide by a strike call.
Change one fact. Suppose Nikhil holds no vakalatnama in any listed matter and simply does not come to court that day. He is not in breach of a duty to a client. But the Association's resolution was itself impermissible, since no Bar Association may even permit a meeting to be called to consider a strike, and a requisition for such a meeting must be ignored.
What beginners get wrong
The right to practise is not a fundamental right, although the profession is protected by Article 19(1)(g).
The exception is not a right to strike for one day. It applies only in the rarest of rare cases where dignity, integrity or independence is at stake, only for not more than one day, only where the court so regards the issue, and only after the President of the Bar has consulted the Chief Justice or District Judge, whose decision is final.
Harish Uppal did not ban protest. It listed the permitted forms.
A court may not adjourn out of sympathy with a strike. Its duty is to proceed.
There are two Harish Uppal cases. The one on strikes is of 17 December 2002; a case of 27 November 1972 with a similar name concerns a court martial and is a different matter altogether.
Quick revision
- The right to practise is statutory, conferred by section 30 and removable under section 35(3). The profession is protected by Article 19(1)(g), subject to reasonable restrictions under Article 19(6), which expressly saves laws on professional or technical qualifications.
- Ex-Capt. Harish Uppal v. Union of India, AIR 2003 SC 739, decided 17 December 2002, Constitution Bench, S.N. Variava J.
- No right to strike or to give a call for boycott, not even a token strike.
- Permitted: press statements, television interviews, banners or placards outside court premises, arm bands, peaceful marches away from court premises, dharnas, relay fasts.
- A lawyer holding a vakalat must attend, and all lawyers must boldly refuse a strike call. No adverse consequence, threat or coercion, including expulsion, may be visited on one who refuses.
- No Bar Council or Bar Association may permit a meeting to consider a strike; a requisition must be ignored.
- Exception: rarest of rare cases where the dignity, integrity or independence of the Bar or Bench is at stake, abstention of not more than one day, the court decides whether the issue qualifies, and the President of the Bar must first consult the Chief Justice or District Judge, whose decision is final.
- Courts are under no obligation to adjourn and must go on with matters on the board even in the absence of lawyers.
Is the Right to Practise a Fundamental Right, and May Advocates Strike?
Test yourself
1. Is the right to practise law a fundamental right? No. It is a statutory right conferred by section 30 of the Advocates Act and removable by a disciplinary committee under section 35(3). The profession of law is protected by Article 19(1)(g), subject to the reasonable restrictions permitted by Article 19(6), which expressly saves laws prescribing professional or technical qualifications.
2. State the rule in Harish Uppal on strikes. Lawyers have no right to go on strike or to give a call for boycott, not even a token strike; lawyers holding vakalatnamas cannot fail to attend court in pursuance of such a call; and all lawyers must boldly refuse to abide by one.
3. What forms of protest did the Court hold permissible? Press statements, television interviews, carrying banners or placards outside court premises, wearing arm bands, peaceful protest marches outside and away from court premises, dharnas and relay fasts.
4. State the single exception and its four conditions. Only in the rarest of rare cases where the dignity, integrity and independence of the Bar or the Bench is at stake; abstention for not more than one day; the court decides whether the issue involves dignity, integrity or independence; and the President of the Bar must first consult the Chief Justice or the District Judge, whose decision is final and must be abided by.
5. May a Bar Association expel a member who appears during a strike? No. The Court held that no adverse consequence may be visited on such a lawyer by the Association or the Council, and no threat or coercion of any nature, including that of expulsion, may be held out.
6. Should a court adjourn its board because the Bar is on strike? No. Courts are under no obligation to adjourn matters because lawyers are on strike; it is the duty of all courts to go on with the matters on their boards even in the absence of lawyers, because courts must not be privy to strikes or calls for boycott.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself for the same subject.