Section 35 Of Advocates Act | Impeding Witness Examination By Striking Lawyers Is Professional Misconduct And Contempt: Allahabad High Court
Contempt
The Allahabad High Court held that striking lawyers who obstruct the examination of witnesses will face severe consequences, including professional misconduct charges and contempt of court.
The Court expressed concerns over the growing problem of lawyers striking and causing delays. The Court instructed the Bar Council to act swiftly to punish lawyers who violate these rules and take necessary measures to prevent such incidents from happening again.
The Bench of Justice Ajay Bhanot observed, “Lawyers who strike work and impede the process of court by failing to examine or preventing the examination of a witness who is present in the court commit professional misconduct. The Bar Council is duly empowered under Section 35 of the Advocates Act to take appropriate action for misconduct”.
Advocate Kumar Parikshit appeared for the Applicant, Advocate Ashok Kumar Tiwari appeared for the Bar Council of Uttar Pradesh and Additional General Advocate Paritosh Kumar Malviya appeared for the State.
The Applicant had filed three bail applications, all applications were rejected. The High Court ordered expediting the trial in the first two applications, but lawyers' strikes impeded witness examination, delaying the process. Despite the Applicant's cooperation, the Trial has not concluded, and they remain imprisoned since 2017. The Applicant contended that lawyers' strikes are directly responsible for this delay, violating their right to a prompt trial.
The status report from the Trial Court reveals that the delay is attributed to lawyers repeatedly striking work, which hindered the examination of witnesses. This obstruction disrupted the court process and resulted in a failure to comply with the court's orders.
In bail determinations, the Court affirmed its constitutional standing as a court of record, independent of jurisdiction. Operating as a constitutional court, the High Court noted that it functions within legal frameworks, and the right to bail is grounded in both statutory and constitutional principles. Rooted in the fundamental liberty guaranteed by Article 21 of the Indian Constitution, the High Court observed that it holds the authority to issue orders in bail jurisdiction, ensuring equitable justice and upholding the accused's fundamental rights. The Court acknowledged that legal issues affecting justice in bail hearings, arising from a combined jurisdiction of statutory and constitutional powers, necessitate attention to the fair administration of justice in bail proceedings.
Moreover, the Bench observed that the right to a speedy trial is a fundamental right in constitutional law, as exemplified in Hussainara Khatoon and others v. Home Secretary, State of Bihar [(1980) 1 SCC 81]. Implicit in Article 21 of the Constitution, this right aligns with the mandate in Section 309 of the Criminal Procedure Code (CrPC), directing proceedings to be conducted expeditiously, with witness examinations continuing daily until completion.
“The right to a speedy trial has been exalted as a fundamental right in constitutional law. Hussainara Khatoon and others (I) v. Home Secretary, State of Bihar6 recognized the right of speedy trial of a prisoners flowing from Article 21 of the Constitution of India “to be implicit in the broad sweep” of Article 21 of the Constitution. The Courts while deciding bail applications are also factor in the period spent in the jail and status of the trial”, the Bench noted.
In the present case and related bail applications, the Bench observed that fair justice in bail jurisdiction is impeded by trial delays caused by lawyers' recurrent strikes. These strikes, marked by lawyers refusing or preventing witness examinations, disrupt the trial process, resulting in prolonged incarceration for the accused. Addressing this concern, the Bar Council of Uttar Pradesh is called upon to tackle the issue of non-examination of witnesses and the ensuing delays due to strikes by various lawyer groups.
The Bench added, “Strikes by lawyers have emerged as a major menace in the judicial system. Striking lawyers impede the process of the courts and threaten the rule of law. Common man bears the brunt as usual. Witnesses are harassed as they have to repeatedly attend the court proceedings with no end in sight. Strikes by lawyers delay trials indefinitely and denude the capacity of the courts to administer fair justice in bail jurisdiction. Besides they also violate FRs of accused persons to a speedy trial. In summation strikes by lawyers impair the credibility of the process of the court and shake the faith of the common man in the judicial system to uphold the law and dispense justice”.
The Court further noted that safeguarding constitutional liberties necessitates continuous vigilance and activism to perpetuate the rule of law. The Bench emphasized that the survival of liberty depends on delivering the justice promised in the Constitution. Recognizing lawyers as pivotal figures in the freedom struggle and Constitution drafting, the Bench observed that lawyers are the primary guardians of liberty.
“Lawyers were at the frontline ranks in the struggle for freedom, and had a significant role in the drafting of the Constitution. Lawyers are the foremost sentinels of liberty guaranteed under the Constitution”, the Court added.
Furthermore, the Bench observed that operating under the Advocates Act, the Bar Council of Uttar Pradesh serves as a disciplinary body overseeing lawyers' professional conduct, ethics, and morality. Lawyers engaging in strikes that disrupt court proceedings are deemed to commit professional misconduct, and the Bar Council is empowered to take action under Section 35 of the Advocates Act.
Accordingly, the Court allowed the Bail Application.
Cause Title: Noor Alam v State Of UP (2023:AHC:225703)
