Lawyers indefinite strike ‘illegal’ as per SC guidelines: J&K HC

Advocates conduct tantamounts to criminal contempt, notices issued

Mohinder Verma
JAMMU, Dec 11: In an unprecedented development, Division Bench of High Court comprising Chief Justice Gita Mittal and Justice Rajesh Bindal today took suo-moto cognizance of the situation that has erupted due to indefinite agitation by the Jammu and Kashmir High Court Bar Association and declared the same as ‘illegal’. Besides, the conduct of the striking lawyers has been viewed from the angle of criminal misconduct in terms of the laws laid down by the Supreme Court of India.
Moreover, notices have been issued to a number of advocates to show-cause as to why they should not be proceeded against under Jammu and Kashmir Advocates (Regulation of Practice in the High Court and Subordinate Courts) Rules, 2003 as well as proceeded against for the acts which are punitive under the provisions of Indian Penal Code (IPC).
Also, senior advocates have been cautioned to strictly abide by the Rules as their conduct in a manner unbecoming of the honour bestowed on them would warrant review by the High Court.
Even the Jammu and Kashmir Police came under sharp criticism from the Division Bench of the High Court for either reluctance to engage with the lawyers, who have taken law into their hands, or not able to control the situation to ensure access to the courts by the litigants. The High Court has directed the administration to take urgent steps for ensuring security of all courts in Jammu and Kashmir and Ladakh to ensure free access to the courts of all citizens at all the times.
While referring to numerous pronouncements of the Apex Court of the country, the DB observed, “the mere call for meeting, or the very decision to proceed on strike; remaining absent from the court and boycott of judicial proceedings, locking the courts, preventing entry to those wanting to enter are completely illegal rendering all persons responsible for the same for appropriate action as mandated by the Supreme Court of India”.
“This conduct tantamount to criminal contempt of court in terms of the law laid down by the Apex Court”, the DB further observed, adding “we have no manner of doubt that such conduct as is in blatant violation of the mandate of law, in the clear pronouncements of the Supreme Court of India, cannot be countenanced or condoned”.
“As observed by the Apex Court, we would become party to such violations if we continue to ignore such actions which have been held by the Supreme Court to be clearly contumacious and falling under the serious category of criminal contempt of court, professional misconduct and even criminal offences”, the DB further observed.
Hoping that given the reminder of the legal position good sense and conscience of the members of the Bar would prevail and they would conduct themselves in accordance with law ensuring the rights of the public guaranteed under the Constitution of India, the DB said, “we would take a view on this on the receipt of further reports from the Registrar General. However, the conduct of those who have indulged in provoking the contumacious conduct as also the obstruction of access to the District Courts is unpardonable and must invite stringent action in accordance with the law”.
Accordingly, the DB has issued notices to the advocates namely Baldev Singh, Nitin Bakshi, Azhar Usman Khan and Mahinder Singh Palli for spearheading the protesters and locking the gates of the courts along with their associates with the direction to show cause as to why they should not be proceeded against for criminal contempt of court.
“They shall also show-cause as to why they should not be proceeded against under J&K Advocates (Regulation of Practice in the High Court and Subordinate Courts) Rules, 2003 as well as proceeded against for acts which are punitive under the provisions of IPC”, the DB directed, adding “the response shall be filed within two weeks along with date wise list of cases wherein these lawyers were engaged by litigants between November 1, 2019 till date and the courts where these cases were listed”.
The DB also directed Registrar General to procure from Registrar Judicial as also from the Principal District and Sessions Judge Jammu up to date reports regarding the position with regard to the obstructions to access to the courts as well as CCTV video coverage recorded and photographs thereof, if any, and place the same before the court.
“The Registrar General shall circulate the judgments of the Supreme Court to all Bar Associations in the Union Territories of Jammu and Kashmir and Ladakh and to all Principal District and Sessions Judges for circulation and compliance”, the DB further directed, adding “the Registrar General shall conduct an inquiry and collect all postings on the social media, tweets, messages, interviews and speeches etc by any counsel in violation of the judgments of the Supreme Court inciting violence/abstention from the court etc and place the same before us”.
Taking serious view of locking of main gate from November 4, 2019 by the striking lawyers, the DB said, “the act of the advocates has actually pushed back the criminal justice system in the District Courts Jammu irretrievably and consequential delays would be unsurmountable and grave prejudice would have resulted to several litigants who are in dire need of immediate justice”.
“Some of the most sensitive cases in the country are being tried in Jammu District Courts—from the designated NIA Court alone, information has been received that some extremely sensitive cases involving national security had to be adjourned on account of the conduct by these lawyers. For the reason that complete list of cases would make this order extremely unwieldy, we are noticing some of the critical trials which would not proceed and had to be adjourned on account of contumacious and criminal conduct of the lawyers”.
Stating that senior advocates are expected to promote the highest standards of advocacy and assistance in maintaining the rule of law in the legal system, the DB said, “senior counsels are expected to lead the younger members of the Bar by example so far as following law is concerned. Therefore, use of social media to incite young advocates and members of the Bar into abstaining from work, boycotting courts, leading sloganeering within the premises of court, locking courts etc by any senior counsel would not be acceptable conduct from persons who have been honoured by the High Court in awarding them the special status”.
Pointing towards Rule 8 which deals with criteria for designating senior counsel and provides for withdrawal of designation of senior advocate by the court in the event of violation of Rules, the DB said, “in case it is verified before us that any person has conducted in a manner unbecoming of the honour bestowed on them, review in terms of Rule 8 may be warranted”.
The DB also took serious note of series of reports received from Registrar Judicial and the Principal District and Sessions Judge Jammu. As per these reports, the main entrance of District Courts complex was blocked on November 4, 2019 by certain striking lawyers and on the intervention of the Principal District Judge, the lawyers permitted few under-trial prisoners and ladies to enter the court complex but the same was blocked again.
On November 5, 2019, the Principal District Judge had to personally remain present at the entry gate to facilitate entry into the District Courts of lawyers willing to work, appear in courts as also under trial prisoners, litigants and public. However, at 11.30 am on the same day the main gate was again locked by the striking lawyers and once again Principal District Judge had to intervene.
On November 6, 2019, the striking lawyers illegally started physically checking identity cards of those who wanted to enter into court building. As a result of the main gate being locked, the judges, staff and those who were inside the District Courts were confined therein by these striking lawyers.