Advocates Act (Respondent)

TMLS-03
TEERTHANKER MAHAVEER NATIONAL
MOOT COURT COMPETTITION, 2019
IN THE HONOURABLE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. -____OF 2019
IN THE MATTER OF:

THE ADVOCATE……………………………………………………………..……PETITIONER
v.
BAR COUNCIL OF INDIA AND UNION OF INDIA…………………………...RESPONDENT
________________________________________________________________
UPON SUBMISSION TO THE SUPREME COURT OF INDIA U/A 32 OF

THE CONSTITUTION OF INDIA
~ Memorial for the Respondents ~
I
TEERATHANKER MAHAVEER NATIONAL MOOT COURT COMPETITION,
2019
TABLE OF CONTENTS
LIST OF ABBREVIATIONS III
INDEX OF AUTHORITIES V
STATEMENT OF JURISDICTION VIII
STATEMENT OF FACTS IX
ISSUES RAISED X
SUMMARY OF ARGUMENTS XI
PLEADINGS 1
[1.] THERE IS A BREACH OF CONTRACT OR TRUST BETWEEN THE PETITIONER AND HIS
CLIENT 1
[1.1] There is a Breach of trust 1
[1.2] The breach is in contravention of Advocates Act, Bar Counsel Rules and Legal
Professional Ethics 2
[1.3] Non appearance in the Court amounts to Wilful Misconduct 3
[2.] That to strike is a not a constitutional right and is not in consonance with the
fundamental right to freedom of speech and expression 6
[2.1] The lawyer has a duty and obligation to cooperate with the court in the orderly and
pure administration of justice 6
[2.2] The members of the legal profession have social obligations towards the poor and the
underprivileged 7
[2.3] Right to strike is not a fundamental 8
[2.4] Right to go on strike will infringe the fundamental rights of the litigants for speedy trial
9
[2.5] The right of appearance in courts is within the control and jurisdiction of the
Courts 9
[3]. The right to continue profession or occupation will not include any right to
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abstain appearing in court 10
[3.1] Reasonable restrictions in the interest of general public 10
[3.2] Strike – not a justifiable ground 12
[3.3] The impugned rule is in consonance with the principles of natural justice and has been
brought with the purpose of dispensation of justice 15
PRAYER XIII
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LIST OF ABBREVATIONS
A.I.R. All India Reporter

Anr. Another
Cal Calcutta
Cri LJ Criminal Law Journal
CrPC Code of Criminal Procedure
E.R. England Reporter
Ed. Edition
F.I.R. First Information Report
Hon’ble Honourable
I.P.C. Indian Penal Code
K.B. Kings Bench
Ltd. Limited
M.P. Madhya Pradesh
Mad Madras
NCT National Capital Territory
Ors. Others
P&H Punjab & Haryana
Pat Patna
Pvt. Private
Raj Rajasthan
S.C. Supreme Court
S.C.C. Supreme Court Cases
S.C.R. Supreme Court Reporter
Sec. Section
UOI Union of India
v. Versus
W.B. West Bengal
W.P. Writ Petition
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INDEX OF AUTHORITIES
S.NO. SUPREME COURT CASES CITATION PARA. PAGE

NO.
1. Anita Kushwaha v. Pushap Sudan SCC 772 (2016). 37 p9
2. Common Cause v. Union of India 5 SCC 557 (1994). 37 p9
3. Common Cause, A Registered AIR 4442 (2005). 41,5,28 p10,2,6

Society and others v. Union of
India
4. Communist Party of India v. 1 SCC 201 (1998). 26,35 p6,8
Bharat Kumar
5. Dr. Rash Lal Yadav v. State of 5 SCC 267 (1994). 59 p15

Bihar
6. Executive Engineer, Bhadrak v. 1 SCC 763 (1993). 57 p15

Rangadhar
7. Harish Uppal v. Union Of India AIR 239 (2003). 1,23,26 p1,5,6,8,9,13

34,35,37,
38,50
8. Himalayan Coop. Group Housing AIR 2867 (2015). 1 p1

Society v. Balwan Singh
9. Hussainara Khatoon (I) v. Home AIR 1360 (1979). 33,37 p8,9

Secy., State of Bihar
11. In re Sanjeev Datta and ors. v. 3 SCC 619 (1995). 56 p15
Unknown
12. Indian Council of Legal Aid and AIR 691 (1995). 32 p7
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Advice v. Bar Council of India
13. Jacob Mathew v. State of Punjab 6 SCC 1 (2005). 4 p2
14. K. John Koshy v. Tarakeshwar 8 SCC 624 (1998). 26,40 p6,10

Prasad
15. Karnataka Public Service AIR 952 (1992). 58 p15
Commission v. B.M. Vijaya

Shankar
16. Mahabir Prasad Singh v. Jacks 1 SCC 37 (1999). 7,20 p3,5

Aviation (p) Ltd
17. Maneka Gandhi v. Union of India. 1 SCC 248 (1978). 58 p15
18. Ministry of Information & 3 SCC 619 (1995). 30 p7

Broadcasting, In Re
19. Mohinder Singh Gill v. Chief 1 SCC 405 (1978). 58 p15

Election Commissioner
20. Ramon Services Pvt. Ltd. v. AIR 207 (2001). 1,27,31 P1,6,7
Subhash Kapoor
21. ShranikUttarsh Sabha v. 3 SCC 378 (1995) 27 p6

Raymond Wollen Mills. Ltd. and
ors.
22. State of Orissa v. Mohd. 1 SCC 275 (2006). 16 p5

Illiyassbdjdshfjsd
23. State of Rajasthan v. Surendra 14 SCC 77 (2014). 31 p7
Mohnot
24. Sudha v. President, Adv. Assn. 14 SCR 289 (2014). 31 p7

Chennai &Ors.
25. Union of India v. Tulsi Ram Patel AIR 1416 (1985). 60, 62 p15
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S.NO. HIGH COURT CASES CITATION PARA. PAGE
NO.
1. B. L Wadhera v. State (NCT of Delhi) AIR 266 (Del.: 42,43, 24 p10, 5

2000).
2. Bharat Kumar K. Palicha v. State of AIR 291 27,41 p6,10

Kerala (Ker.:1997).
3. Civil Court, Patna City v. Gopal SCC 8041 (Pat.: 7 p3

Prasad dghvhvhgh 2014).
4. Courts of their motion v. Bansi Lal AIR 96 (P & H: 5 p2

1979).
5. K.S. Iyer v. Bar Council Madras AIR 390 (Mad.: 44 P11

1964).
6. Mulchand Gulabchand v. Mukund AIR 296 44 p11

ShivRam Bhide (Bom.:1952).
7. Om Prakash v. Murti Devi SCC 1322 (Del.: 5 p2

2007).
8. Rajasthan Rajya SahakariUpbhokta SCC 2343 (Raj.: 28 P6

Sangh Ltd. v. Kamdhenu Construction 2013).
Pvt. Ltd.
S.NO. COMMISSION & TRIBUNAL CITATION PARA. PAGE

CASES NO.
1. D.K.Gandhi v. M. Mathias Revision Petition 13 p3

No. 1392(NCDRC)
2. Kanpur Plastipack Ltd. v. Income Tax SCC 3965 (ITAT: 43 p10

2013).
Officer
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3. Riaz Ahmad Sharif khan v. Babu III CPJ 559 (Mah. 13 p3
Mustafa Khan SCDRC: 1998).
S.NO. FOREIGN PRECEDENTS CITATION PARA. PAGE

NO.
1. Silver and Drake v. Baines 1QB 396 (1971). 5 p2
S.NO. BOOKS REFERRED PARA. PAGE

NO.
1. B.C. Sharma, Fair Hearing and Access to Justice (1st ed. 59 P15
2012)
2. Black’s Law Dictionary 14 P4
3. Halsbury’s law of England ( 4th ed. 1983) 7 P3
S.NO. STATUTES REFERRED PARA. PAGE

NO.
1. Bar Council of India Rules (1975) 9,10,11,36 p3,7
2. Constitution of India (1950). 37,45,43 p8,10
3. Indian Contract Act (1872) 4,5 p2
4. The Advocates Act (1961). 43 p10
5. The Consumer Protection Act (1986). 13 p3
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S.NO. WEB RESOURCES
1. www.jstor.org (JSTOR)
2. www.judis.nic.in (SUPREMECOURT OF INDIA OFFICIAL)
3. www.legal.un.org (UNITED NATIONS)
4. www.manupatrafast.com (MANUPATRA)
5. www.scconline.com (SCC ONLINE)
6. www.westlaw.india.com (WEST LAW INDIA)
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STATEMENT OF JURISDICTION
The Respondent herein humbly submits to the Writ Jurisdiction of this Honourable Court
under Article 32 of the Constitution of India. Article 32 read as-
“32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part
(3) Without prejudice to the powers conferred on the Supreme Court by clauses ( 1 ) and
(2), Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution”
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STATEMENT OF FACTS
BACKGROUND
1. The Bar Council of India, under its assigned powers, in 2009, inter alia, added
the following provision:-
"An advocate who browbeats and / or abuses a judge or judicial officer or uses
unbecoming language in the Court or refuses to attend Court as a tool of protest
shall, on preliminary inquiry be suspended from practicing for an indefinite
period and the decision of the Disciplinary Committee shall be final."
VOICE OF PROTEST B Y THE LAWYERS COMMUNITY
2. In the protest of the above mentioned rule, the Paschim Pradesh Bar Association called
for a State-wide strike of advocates. The protest included, inter alia, demonstrations,
TV interviews, preventing judges from entering the Courts, and boycott of Courts.
REACTION FROM THE B AR AND THE B ENCH
3. The Bar Council of India, in exercise of its powers under the Advocates Act, 1961 and
the Rules there under suspended, on preliminary inquiry, 50 advocates involved in the
strike on the grounds of professional misconduct.
4. On a separate occasion, the Hon'ble HC in a civil case, passed an ex parte order

imposing costs upon the petitioner's client and directing the half of such cost to be paid
by the petitioner himself, for not appearing the case due to the strike call. The Hon'ble
HC also instituted a contempt proceeding against him.
EPILOGUE
5. Being aggrieved by the said order, the Petitioner has filed the instant writ petition
before the Hon'ble Supreme Court.
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ISSUES RAISED
I.
WHETHER THERE IS A BREACH OF CONTRACT OR BREACH OF TRUST

BETWEEN THE PETITIONER AND HIS CLIENT?
II.
WHETHER STRIKE IS A CONSTITUTIONAL RIGHT AND IN

CONSONANCE WITH THE FUNDAMENTAL RIGHT TO FREEDOM OF
SPEECH AND EXPRESSION?
III.
WHETHER RIGHT TO FREEDOM OF PROFESSION AND

OCCUPATION INCLUDES DISCONTINUING THE PROFESSION OR
OCCUPATION?
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SUMMARY OF ARGUMENTS
[1]. THERE HAS BEEN BREACH OF CONTRACT OR BREACH OF TRUST

BETWEEN THE PETITIONER AND HIS CLIENT.
In the instant case, there has been a breach of trust between the lawyer and the client. The
lawyer shares a fiduciary relationship with a client .Henceforth, accepting a vakalatnama or
a brief and not appearing in the court is a breach of trust or contract. Right to strike and
right to discontinue the profession or occupation in relation to the facts of the case has not
been recognised as fundamental right in the Indian jurisprudence. There is no violation of
fundamental right under Art. 14, 19 & 21 of the Indian Const. Moreover, the rule has been
amended to discipline, control and conduct the nefarious and unconstitutional activities of
the lawyers.
[2]. STRIKE IS NOT A CONSTITUTIONAL RIGHT AND IS NOT IN

CONSONANCE WITH THE FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH
AND EXPRESSION.
It is a well established and settled fact that right to strike is not a fundamental right.
Lawyers have no right to abstain from appearing in the court and using it to blackmail the
bench and the litigant is ex-facie unconstitutional and against public interest and public
policy.
[3]. RIGHT TO FREEDOM OF PROFESSION AND OCCUPATION DOES NOT

INCLUDE DISCONTINUING THE PROFESSION OR OCCUPATION.
It is submitted that right to discontinue profession or occupation will not include any right
to abstain from appearing in the court. In addition to this, the right to practice and plead in
the court is not a fundamental right but a privilege which is subjected to conditions laid
down in Advocates Act and Rules. It is the submitted that the greater public interest is an
exception to the principles of natural justice and there existed a necessity for a prompt
action to curb the disturbance of the public order and to uphold the integrity of the
machinery of Justice. Further, the opportunity of personal hearing is not a mandate in all
circumstances neither it is an accepted principle that a rule can be invalidated for omitting
the essentials of the concept of natural justice.
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ARGUMENTS ADVANCED
[1] THERE IS A BREACH OF CONTRACT OR TRUST BETWEEN THE

PETITIONER AND HIS CLIENT.
[1.1] THERE IS BREACH OF TRUST
It is humbly submitted that the relationship between the lawyer and his client is one of trust
and confidence.1On the basis of such a relationship, the lawyer owes fiduciary duties to their
client. As a part of such duties lawyers assume all the traditional duties that agents owe to
their principals and, thus have to respect the client’s autonomy to make decisions at a
minimum, as to objectives of the representation. 2 Fiduciary relationship in law is ordinarily a
confidential relationship.3It is founded on the trust and confidence reposed by one person in
the integrity and fidelity of the other and likewise it precludes the idea of profit or advantage
resulting from dealings by a person on whom the fiduciary obligation is reposed. 4
In this context reference can be made to the judgment in Kokkanda B. Poondacha's case5,
“the analysis of the Rules demonstrate an integral duty imposed upon an Advocate is
upholding the interest of the client strictly adhering to fair and honourable means. An
advocate cannot ordinarily withdraw from engagement without sufficient cause and without
giving reasonable and sufficient notice to the client.”
In another case,6A.P. Sen, J., “Any act done by any member of the legal fraternity which
might tend to lessen in any degree the confidence of the public in the fidelity, honesty and
integrity of the profession is considered bad in the eyes of law. Lord Brougham, said in
speech, in 1864 about the paramount of the client's interest', is equally true today. The
relation between a lawyer and his client is highly fiduciary in its nature and of a very delicate,
exacting, and confidential character requiring a high degree of fidelity and good faith. It is
purely a personal relationship, involving the highest personal trust and confidence which
cannot be delegated without consent. A lawyer when entrusted with a brief is expected to
follow the norms of professional ethics and try to protect the interests of his clients, in
relation to whom he occupies a position of trust. The appellant completely betrayed the trust
1
Ramon Services Pvt. Ltd. v. Subhash Kapoor, AIR 207 (2001); Harish Uppal v. Union Of India , AIR 239
(2003).
2
Himalayan Coop. Group Housing Society v. Balwan Singh, AIR 2867 (2015).
3
Shri D. R. Dhingra v. Department of Personnel & Training (DoPT), (2010).
4
S.C Saxena v. Union of India, ACJ 436 (1983).
5
AIR (Civil) 386 (2011).
6
V.C. Rangadurai v. D. Gopalan, 1 SCC 308 (1979).
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reposed in him by the complainants." Hence, the relation between the advocate and his client
is purely personal involving the highest personal trust and confidence. 7
Under the Indian Contract Act, 18728 an agreement (including an agreement of service)
becomes a contract only when it is enforceable by law. 9 An agreement is an act of both
parties where a legal obligation is incurred by one or by both of them. 10 In most of the
circumstances attorney-client agreement is an implied contract.11 It is a contract for service
and bound to create a claim for privilege of confidentiality under Sec. 126 of the Indian
Evidence Act.12
A contract is said to be breached in case of contravention with the terms of the contract or
when the promise made is broken.13In furtherance, an anticipatory breach is said to have been
committed when a party refuses to perform, or has disabled himself from the performance of
the promise in its entirety. 14Since, a lawyer is in a privilege as an officer of the court.15It is
the duty of every Advocate who has accepted a brief to attend trial, even though it may go on
day to day for a prolonged period. 16Therefore, a lawyer who has accepted a brief cannot
refuse to attend Court because a boycott call is given by the Bar Association. 17 The instant
case, proposes an obligation on part of the Counsel to appear on behalf of his client, his mere
abstinence by virtue of a strike is constitutes a breach of trust.
[1.2] IN CONTRAVENTION OF ADVOCATES ACT, BAR COUNSEL RULES AND LEGAL

PROFESSIONAL ETHICS
In India any person who seeks an advice from a practicing advocate, registered under the
Advocates Act, would have the benefit of the attorney-client privilege. 18 The rules framed
under Sec. 49 (1) (c) of the Advocates Act, 1961 clearly prohibit a counsel directly or
indirectly from committing breach of the obligation. 19
7
id. At 6.
8
Indian Contract Act, Sec. 2(h) (1872).
9
Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 101 (1991).
10
Sunnam Sattiah v. State of Andhra Pradesh, AIR 18 (AP: 1980).
11
Jacob Mathew v. State of Punjab, 6 SCC 1 (2005).
12
Memon Hajee Haroon Mohomed v. Abdul Karim 3, 91(Bom.: 1878).
13
P Radhakrishna Murthy v. NBCC Ltd. 3 SCC 747 (2013).
14
Indian Contract Act, Sec. 73 (1872).
15
Courts of their motion v. Bansi Lal, AIR 96 (P & H: 1979); Silver and Drake v. Baines 1QB 396 (1971).
16
Om Prakash v. Murti Devi, SCC 1322 (Del.: 2007).
17
Common Cause, A Registered Society and others v. Union of India, AIR 442 (2005).
18
Kalikumar Pal v. Rajkumar Pal, 58, 1379 (1931).
19
The Public Prosecutor Office v. V.Vijayaprakash (2010).
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The services rendered by the advocates to their clients are regulated by a contract between the
two besides statutory limitations, restrictions and guidelines incorporated in the Advocates
Act20, the rules made thereunder and rules or procedure adopted by the Hon’ble SC and the
HCs. It is the execution of a retainer by a client either express or implied, creates a contract
for service between him and a lawyer.21
Chapter II of the Bar Council of India Rules made under Sec. 49(1) (c) of the Act read with
the proviso thereto deals with standards of professional conduct and etiquette. 22
Preamble of Chapter II 23
reads: “Without prejudice to the generality of the foregoing
obligation, an Advocate shall fearlessly uphold the interests of his client and in his conduct
confirm to the rules hereinafter mentioned both in letter and in spirit."
Rule 1524 provides that it shall be the duty of an advocate fearlessly to uphold the interests of
his client by all is fair and honourable means without regard to any other.
Rule 2425 makes it clear that an advocate shall not do anything whereby he abused or takes
advantage of the confidence repost on him by his client.
Lapses in services in the nature of absence when the matters are called out, the failure to take
steps to serve the parties are not merely professional omission. They amount to positive dis-
service to the litigants.26
The Maharashtra State Commission observed in the case of Riaz Ahmad Sharif khan27that
once the advocate is engaged by the client and he receives fees in part or full, he is duty
bound to attend to the interest of his client. In the famous case of D.K. Gandhi28 , the national
commission made it clear that all professionals including lawyers comes within the purview
of COPA29 and the definition of service in Sec. 2(o)30 is very wide to include lawyers under
contract of service. 31In the instant scenario all legal practitioners enrolled under Paschim
20
Mahabir Prasad Singh v. Jacks Aviation (p) Ltd., 1 SCC 37 (1999).
21
Halsbury’s law of England, 63 (4th ed. 1983).
22
The Public Prosecutor Office v. V.Vijayaprakash (2010).
23
Bar Council Association of India Rules (1975).
24
id. At 23.
25
id. At 24.
26
Bhola Singh And Etc. v. The Prescribed Authority, AIR 242 (1999).
27
In Riaz Ahmad Sharifkhan v. Babu Mustafa Khan, III CPJ 559 (Mah. SCDRC: 1998).
28
D.K.Gandhi v. M. Mathias, Revision Petition No. 1392 (National Consumer Disputes Redressal Commission:
2006).
29
The Consumer Protection Act (1986).
30
The Consumer Protection Act, Sec. 2 (o) (1986).
31
Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 101 (1991) .
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Pradesh Bar Council are duty bound to uphold the statutory law and rules made thereby in
furtherance of professional conduct.
[1.3] NON-APPEARANCE IN COURT PROCEEDINGS AMOUNTS TO WILFUL MISCONDUCT
Misconduct has been defined in Black's Law Dictionary32as:-
"A Transgression of some established and definite rule of action, a forbidden act, a
dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour,
it synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety,
mismanagement, offense, but not negligence or carelessness".
Misconduct in offence has been defined as:-
"Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in
character. Term embraces acts which the office holder had no right to perform, acts
performed improperly and failure to act in the face of an affirmative duty to act"33
In usual parlance, misconduct means a transgression of some established and definite rule of
action, where no discretion is left, except what necessity may demand and carelessness,
negligence and unskillfulness are transgressions of some established, but indefinite, rule of
action, where some discretion is necessarily left to the actor.34Misconduct in office may be
defined as unlawful behaviour or neglect by a public official, by which the rights of party
have been affected.35
In a case36 following two tests have been laid down to determine professional misconduct:-
a) The conduct of the advocate is such that he must be regarded as unworthy to remain a
member of the honourable profession.
b) The conduct of the advocate is such that he must be regarded as unfit to be entrusted
with the responsible duties that an advocate is called upon to perform.
These two tests have been interpreted as disjunctive and therefore the fulfilment of
any one of the said conditions would be sufficient to treat the conduct as misconduct.
In the case of Smt. P. Pankajam v. B.H. Chandrashekhar37the Disciplinary Committee of

Bar Council of India held that the advocates conduct in not appearing before the court
32
Black's Law Dictionary, 999 (6th ed.).
33
State of Punjab and Others v. Ram Singh Ex. Constable, 4 SCC 54 (1992).
34
P.Ramanath Aiyar, Law Lexicon, 821 (1987).
35
Noratanmal Chaurasia v. M.R. Murli, Appeal (civil) 5476 (1999).
36
Tulsidas Amanmal v. Karani, 43 BOMLR 250 (1941).
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was an intentional and deliberate act. The committee held the respondent advocate guilty
of profession misconduct and ordered that he be suspended from practice for a period of
two years.
It is the duty of every advocate who accepts a brief in a criminal case to attend the trial day to
day. It is established that a lawyer will be committing a breach of professional duties if he
fails to so attend the proceeding.38 Retaining the brief of his client and at the same time
abstaining from appearing in that Court, that too, not on any particular day on account of
some personal inconvenience of the counsel but as a permanent feature, is unprofessional as
also unbecoming of the status of an advocate.39
According to Sec. 2 (u) of The Advocates Welfare Fund Act, 2001, “Vakalatnama” includes
memorandum of appearance or any other document by which an advocate is empowered to
appear or plead before any court, tribunal or other authority.
Where petitioner who has accrued a vakalatnama on behalf of his client, voluntarily abstains
himself from attending the court without a reasonable cause, is a violation of the terms of
contract mentioned in the vakalat.40
The act of abstinence by the counsel from the court while holding a vakaltnama qualifies for
breach of contract or breach of trust.41As long as a lawyer holds the vakalat for his client and
has not been duly discharged, he has no right to abstain from appearing in Court even on the
ground of a strike called by the Bar Association or any other body of lawyers. If he so
abstains, committing professional misconduct, a breach of professional duty, a breach of
contract and also a breach of trust and he will be liable to suffer all the consequences
therefore.42
The fact in the instant case clearly shows that it was a case of wilful misconduct wherein
holding the vakaltnama the lawyer abstained from appearing before the court.
37
Smt. P. Pankajam v. B.H. Chandrashekhar, 86 (BCI Tr.: 1992).
38
Lt. Col. S.J. Chaudhary v. State, AIR 618 (1984).
39
Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd., 1 KLJ 530 (1999).
40
Sri C.V Sudhindra and Ors. v. M/s Divine Light School or Blind &Ors., ILR (Kar.: 2008).
41
Harish Uppal v. Union of India, AIR 239 (2003).
42
B. L. Wadehra v. State (NCT of Delhi) &Ors., AIR 266 (Del.: 2000).
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[2]. THAT TO STRIKE IS A NOT A CONSTITUTIONAL RIGHT AND IS NOT IN
CONSONANCE WITH THE FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH
AND EXPRESSION.
It is submitted that the law regarding the right to strike of lawyers is well established and
settled.43 The Hon’ble Court in a catena of cases 44 has declared that strikes are illegal. Strikes
as a means for collective bargaining is recognised only in industrial disputes.45 Adding to
this, lawyers who are officers of the court cannot use strikes to blackmail the courts or clients.
Moreover, they cannot claim to go for a strike or abstain from performing their duties for
their own benefit.46
[2.1] THE LAWYER HAS A DUTY AND OBLIGATION TO COOPERATE WITH THE COURT IN THE
ORDERLY AND PURE ADMINISTRATION OF JUSTICE.
It is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to
attend Court even in pursuance of a call for strike.47
It is the duty and obligation of Courts to go on with matters or otherwise it would tantamount
to becoming a privy to the strike. 48 It is known to the lawyers’ community since Mahabir
Singh's case49 that if they participate in a boycott or a strike, their action is ex facie bad in
view of the declaration of law by this Court. A lawyer's duty is to boldly ignore a call for
strike or boycott of Courts.50 It must also be remembered that an Advocate is an officer of the
Court and enjoys special status in society. They have obligations and duties to ensure smooth
functioning and cannot thus disrupt Court proceedings and put interest of their clients in
jeopardy.51
43
Harish Uppal v. Union of India , AIR 239 (2003).
44
Ramon Services (P) Ltd. v. Subhash Kapoor , 1 SCC 118 (2001); K. John Koshy v. Tarakeshwar Prasad, 8
SCC 624 (1991); B. L Wadhera v. State (NCT of Delhi), AIR 266 (Del.: 2006); Community Party of India v.
Bharat Kumar, 1 SCC 201 (1998).
45
Shranik Uttarsh Sabha v. Raymond Wollen Mills. Ltd. and ors., 3 SCC 378 (1995).
46
Communist Party of India (M) v. Bharat Kumar, 1 SCC 201(1998); Bharat Kumar K. Palicha v. State of
Kerala, AIR 291 (Ker.: 1997).
47
Rajasthan Rajya Sahakari Upbhokta Sangh Ltd. v. Kamdhenu Construction Pvt. Ltd, SCC 2343 (Raj.: 2013).
48
49
1 SCC 37 (1999).
50
Civil Court, Patna City v. Gopal Prasad, SCC 8041 (Pat.: 2014).
51
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If any counsel does not want to appear in a particular court, that too for justifiable reasons,
professional decorum and etiquette require him to give up his engagement in that court so
that the party can engage another counsel. 52
[2.2] THE MEMBERS OF THE LEGAL PROFESSION HAVE SOCIAL OBLIGATIONS TOWARDS THE
POOR AND THE UNDERPRIVILEGED.
The legal profession is a solemn and serious occupation. 53 The honour of a legal professional
has to be maintained by the legal professionals by their exemplary conduct both in and
outside the court.54The society has a right to expect of him such ideal behaviour.55The duty of
a lawyer is to assist the court in its administration of justice. 56
The legal profession is different from other professions in that what the lawyers do, affect not
only an individual but the administration of justice which is the foundation of the civilised
society. It is high time for the legal profession to join heads and evolve a code for themselves
in addition to the mandate of the Advocates Act, rules made thereunder and the rules made by
the various High Courts and the Supreme Court, for strengthening the belief of the common
man in the institution of the judiciary in general and in their profession in particular. 57 If such
a noble profession were to be infected by the malaise of strike therefore provisions were
made to provide voluntary insulation against strikes. 58
Since the duty of a lawyer is to assist the court in the administration of justice, the practice of
law has a public utility flavour and, therefore, he must strictly and scrupulously abide by the
Code of Conduct behoving the noble profession and must not indulge in any activity which
may tend to lower the image of the profession in society59
According to the Bar Council of India Rules, 1975 "an Advocate shall, at all times, compose
himself in a manner befitting his status as an officer of the Court, a privileged member of the
community and a gentleman, bearing in mind that what may be lawful and moral for a person
52
Lt. Col. S.J. Chaudhary v. State, AIR 618 (1984).
53
Sudha v. President, Adv. Assn. Chennai and Ors., 14 SCR 289 (2014).
54
Ramon Services Pvt. Ltd. v. Subhash Kapoor, 1 SCC 118 (2001).
55
In re Ministry of Information & Broadcasting, 3 SCC 619 (1995); State of Rajasthan v. Surendra Mohnot, 14
SCC 77 (2014).
56
Indian Council of Legal Aid and Advice v. Bar Council of India, AIR 691 (1995).
57
R.D. Saxena v. Balram Prasad Sharma, 7 SCC 264 (2000).
58
id. At 57.
59
Indian Council of Legal Aid and Advice v. Bar Council of India, 2 SCT 185 (1995).
7
2019
who is not a member of the Bar or for a member of the Bar in his non-professional capacity,
may still be improper for an Advocate".60 It is unprofessional and unethical to do so.61
[2.3] RIGHT TO STRIKE IS NOT A FUNDAMENTAL RIGHT.
It is humbly submitted that there is no fundamental right, either under Art. 1962 or Art. 2163 it
is merely a constitutional right, which permits or authorises a lawyer to abstain from
appearing in Court in a case in which he holds the vakalat for a party in that case. 64
“Strike” means, concerned stoppage of work, done with a view of giving a vent to a
grievance or making a protest in support of such individuals on strike. 65 Although in the legal
profession, suspension of court work or strikes are clearly illegal and the legal fraternity owes
a duty to society which is the foremost66that lawyers have no right to strike i.e. to abstain
from appearing in the court in cases in which they hold the vakalat for their parties even if it
is in response to or in compliance with Bar Association or body of lawyers. 67 The exercise of
the right to protest by the lawyers cannot be allowed to infract the litigant’s fundamental right
for speedy trial or to interfere with the administration of justice. The Supreme Court has
deprecated the call for enforcing a bandh. 68 The moment concept of hartal, is not in
consonance with, strictly so-called and seeks to impinge on the rights of others, it ceases to be
a hartal in the real sense of the term and actually becomes a violent demonstration affecting
the rights of others.69
It is further submitted, that the right to strike is legal or justified is a question of fact to be
decided with the help of evidence on record.70 In the instant case, the state- wide strike of
advocates purported not only abstinence from practice and public demonstrations but also
resulted in incurrence in non- administration of justice by preventing judges and other legal
60
Bar Council of India Rules (1975).
61
Hussainara Khatoon v. Home Secretary, State of Bihar, 1 SCC 81 (1980).
62
Indian Const. Art. 19 (1950).
63
Indian Const. Art. 21 (1950).
64
65
Morgan v. Fry, 2 QB 710 (1968).
66
Hussain v. UOI, 5 SCC 702 (2017).
67
68
Communist Party of India (M) v. Bharat Kumar, 1 SCC 201 (1998).
69
Vyapari Vavasayi Ekopana Samithi v. State of Kerala, AIR 291 (Ker.: 1997).
70
Bank of India v. I.S Kalewala, (2009).
8
2019
fraternity from entering the Court premises. 71 This action constitutes serious paralysis in the
proper functioning of the Courts hence, deemed to be an illegal demonstration. 72
[2.4] RIGHT TO GO ON STRIKE WILL INFRINGE THE FUNDAMENTAL RIGHTS OF THE LITIGANTS
FOR SPEEDY TRIAL.
“Access to justice” as a constitutional value will be mere illusion if justice is not speedy
justice. 73A litigant has a fundamental right for speedy trial is an integral and essential part of
Art. 21.74 Strike by lawyers will infringe the abovementioned fundamental right of the
litigants and such infringement cannot be permitted. 75If cases get adjourned time and again
due to cessation of work by lawyers it will in the end result in erosion of faith in the justice
delivery system which will harm the image and dignity of the court as well. 76
It is being contended by the petitioner that right to strike is in consonance with Art. 1977 But
the exercise of the right under Art. 19 (1) (a) will come to an end when such exercise
threatens to infringe the fundamental right of another. Such a limitation is inherent in the
exercise of the right under Art. 19 (1) (a).78The exercise of the right to protest by the lawyers
cannot be allowed to infract the litigant’s fundamental right for speedy trial or to interfere
with the administration of justice. The lawyer has a duty and obligation to cooperate with the
Court in the orderly and pure administration of justice 79.
Strike infringes the litigant’s fundamental right for speedy trial which is an integral and
essential part of the fundamental right to life and liberty enshrined in Art. 21 of the
Constitution and such infringement cannot be permitted.80Henceforth, the lawyers cannot go
on strike infringing the fundamental rights of the litigants for speedy trial.
71
.Moot Problem,TEERATHANKER MOOT COURT COMPETITION, 2019.
72
73
.Anita Kushwaha v. Pushap Sudan, SCC 772 (2016).
74
.Hussainara Khatoon (I) v. Home Secy., State of Bihar, AIR 1360 (1979).
75
.Harish Uppal v. Union of India , AIR 239 (2003).
76
.Common Cause v. Union of India, 5 SCC 557 (1994).
77
78
.Ex-Capt. Harish Uppal v. Union of India &Anr., 2 SCC 45 (2003).
79
.id. At 78.
80
.Hussainara Khatoon (I) v. Home Secy., State of Bihar, AIR 1360 (1979).
9
2019
[2.5] THE RIGHT OF APPEARANCE IN COURTS IS WITHIN THE CONTROL AND JURISDICTION OF
THE COURTS.
It is submitted that Sec. 3081 has not been brought into force and rightly so control of
conduct in Courts can only be within the domain of Courts. Art. 14582 gives to the Apex
Court and Sec. 34 of the Advocates Act gives to the Hon’ble HC power to frame rules
including rules regarding condition on which a person (including an Advocate) can practice
in the SC and/or in the HC and Courts subordinate thereto. Although, should refuse to hear a
matter and pass an order when counsel for both the sides were absent because of a strike call
by the Bar Association, held that the Court cannot refuse to hear the matter as otherwise it
would tantamount to Court becoming a privy to the strike. 83The call for and holding "bandh"
violated the fundamental rights of the citizen and the court could step in to protect such
rights.84
The Bar Council lays down rules which advocates must follow to maintain the dignity and
purity of the profession.85A rule made by Courts would be valid and binding on all. If framed
would not have anything to do with the disciplinary jurisdiction of Bar Councils. It would be
concerning the dignity and orderly functioning of the Courts.86
[3]. RIGHT TO FREEDOM OF PROFESSION AND OCCUPATION DOES NOT

INCLUDE DISCONTINUING THE PROFESSION OR OCCUPATION.
It is submitted that the right to practise any profession under Art. 19 (1) (g)87 may include the
right to continue such profession or occupation but it will not include any right to abstain
from appearing in the Court while holding a vakalat in the case. 88 The exercise of the right to
protest by the lawyers cannot be allowed to infract the litigant's fundamental right for speedy
trial or to interfere with the administration of justice. 89
In addition to this, the right to practice and plead in a court is not a fundamental right 90 but a
privilege91. It’s a statutory right subject to conditions laid down in Advocates Act and Rules.
81
The Advocates Act, Sec. 49 (1961).
82
Indian Const., Art. 145 (1950).
83
K. John Koshy and others v. Dr.Tarakeshwar Prasad Shaw, 8 SCC 624 (1998).
84
Bharat Kumar K. Palicha v. State of Kerala, AIR 291 (Ker.: 1997).
85
B.L. Wadehra v. State (NCT of Delhi) and ors., AIR 266 (Del.: 2000).
86
87
Indian Const., Art. 19 (1) (g) (1950).
88
B.L. Wadehra v. State (NCT of Delhi) and ors., AIR 266 (Del.: 2000).
89
Kanpur Plastipack Ltd. v. Income Tax Officer, SCC 3965 (2013).
90
K.S. Iyer v. Bar Council Madras, AIR 390 (Mad.: 1964).
10
2019
[3.1] REASONABLE RESTRICTIONS IN THE INTEREST OF GENERAL PUBLIC
Freedom of profession, trade, business means that every citizen has the right to choose his
own employment or to take up any trade or calling, subject only to the limits as may be
imposed by the state in the interests of the public welfare, and the other grounds mentioned in
Cl. (6).Art. 19 (1) (g) employs four expressions viz., profession, occupation, trade and
business. Their fields may overlap, but each of them does have a content of its own. Where
the right to carry on any profession is created by a statute, the exercise of that right is subject
to the terms and conditions, e.g., the right to practice before a Court of law, 92 or a tribunal93
or to get an import license. 94
In the present case, the Bar Council Of India who has been entrusted with the function to lay
down standards of professional conduct and etiquette for advocates passed a law with regard
to such conduct and thus it is expressly states that the right to advocacy is a statute right and
thus can be controlled by the Bar Council of India. There is no fundamental right of a citizen
to carry on business wherever he chooses, e.g., on the street 95, or at any time96 and his right
must be subject to any reasonable restriction imposed by the executive in the interest of
public convenience. 97
Art. 19 (6) is in two parts: Firstly, it empowers Parliament and the State Legislation to impose
reasonable restrictions on the exercise of the right conferred by Art. 19 (1) (g) of the
Constitution in the interest of the general public. The Second part of the said provision
provides that in particular, nothing therein shall affect the operation of an existing law in so
far as it relates to or prevents the State from making any law inter alia relating to the
profession or technical qualifications necessary for practicing any profession or carrying on
any occupation, trade, or business.
By virtue of Art. 19 (6), a statute law can lay down qualifications inter alia for practicing any
profession or carry on any occupation. In the instant case, such qualification had been laid
down by the Bar Council of India. If by reason of a Central Act, a higher qualification has
been laid down, the same would prima facie be presumed to have been enacted in the interest
91
Mulchand Gulabchand v. Mukund ShivRam Bhide, AIR 296 (Bom: 1952).
92
Devata Prasad Singh, Chaudhari v. Chief justice, High court of Patna, AIR 201 (Pat.: 1962).
93
Rangaswami A.N. v. Industrial Tribunal, AIR 553 (Mad.: 1954).
94
Deputy Asst. Iron and steel Controller v. Manik Chand, AIR 935 (1972).
95
Pyare Lal Etc v. New Delhi Municipal Committee & anr., AIR 133 (1968).
96
Krishna Kumar Narula Etc v. The State Of Jammu And Kashmir & Ors.,AIR 1368 (1967).
97
T. B. Ibrahim v. R.T.A. Tanjore, SCR 290 (1953).
11
2019
of the general public. 98In order to constitute a reasonable restriction under Clause (6), both
the law as well as any order made thereunder must satisfy the test of reasonableness.99
Restrictions on Fundamental Freedoms can be imposed by legislation, question frequently
arises whether a wrong choice is made by the administrative for imposing restriction or
whether the administrator has not properly balanced the fundamental right and need for the
restriction or whether he has imposed the least of restrictions or the reasonable quantum of
restriction etc? In such cases, the administrative action has to be tested on the Principle of
100
Proportionality just as is done in the case of the main legislation. Reasonableness of the
restriction would differ from trade to trade and no hard and fast rule concerning all the trades
can be laid down.101
The phrase “In the interests of the general public” is the phrase of a definite connotation and
a known concept and it is not vague or of a very wide amplitude. 102 A restriction in public
interest cannot be said to be unreasonable merely because in a given case, it operates harshly
on a person or some persons.103 Restrictions imposed on the right to carry on a profession, in
the interest of purity in the public life, or other grounds of public interest, e.g., that a legal
practitioner who is employed on behalf of or against a municipality shall not be entitled to
stand as a candidate for election as a counsellor of that municipality; 104 or that no legal
practitioner shall appear in the proceedings for annulment of transfer of property made by
tribal people in favour of a non tribal; 105 or that taking away the right of existing veterinary
practitioners with lower qualifications to continue to practice and prescribing higher
qualification for the same. 106
98
Udai Singh Dagar v. UOI, 10 SCC 306 (2007).
99
AIR 1970 SC(1970).
100
Om Kumar v. Union of India, AIR 3689 (2000).
101
AIR 517 (2002).
102
2 SCC 578(2002), AIR 597 (1978), AIR 2233 (1994).
103
Kakkanth v. Government of Kerala and Others, AIR 128 (1(997).
104
Sakhawant Ali v. State of Orissa, AIR 166 (1955).
105
AIR 389 (1955).
106
Udai Singh Dagar v. UOI, 10 SCC 306 (2007).
12
2019
[3.2] STRIKE NOT A JUSTIFIABLE GROUND
The right to strike of an advocate is illegal. The first priority of the advocates is to deliver
justice to the people. By going on strike, they paralyzed 107 the working of the Courts which is
not in the favour of the general public’s interest. So, mere absentation on the ground of strike
is not justifiable. Profession of lawyers is different from employees working in Industries.
Advocates have the other mechanisms to resolve their grievances in a peaceful manner such
as TV interviews etc. They can have the Redressal Committee also for dealing with their day
to day issues. Going on strike thus leads to professional misconduct and the suspension is
justified in that sense. Hence, the petition should be dismissed.
In the case of Ex Capt. Harish Uppal v. Union of India,108 the Supreme Court held that in
order to determine whether total prohibition would be reasonable, the Court has to balance
the direct impact on the fundamental right of the citizen thereby against the greater or social
interest sought to be ensured.
In order to determine the reasonableness of the restriction imposed upon the right guaranteed
by Art. 19 (1) (g), the Court must have regard to the nature of business, besides the other
factors mentioned under the substantive and procedural reasonableness. Reasonableness of
restriction is to be determined in an objective manner and from the standpoint of interest of
the general public and not from the standpoint of interest of persons upon whom the
restrictions have been imposed or upon abstract consideration. A restriction cannot be said to
be unreasonable merely because in a given case, it operates harshly. 109 Fixation of
professional standards is a constitutional requirement. 110 The restrictions which may be
imposed by any of the authorities who are included in the definition of ‘State’ in Art. 12, who
are competent to make law.111 The determination by the legislature of what constitutes a
reasonable restriction is not final or conclusive; it is subject to supervision of the court. 112
It is the effect of a law which constitutes the test of its reasonableness; its object, whether
good or bad, is immaterial for this purpose, the scheme of the act should be taken together. 113
In a matter as fundamental and grave as preserving the purity of Judicial Proceedings, the Bar
Council would be free to exercise the powers vested in it under Sec. 49 of the Act
107
Moot Problem, TEERATHANKER MOOT COURT COMPETITION, 2019.
108
Harish Uppal v. Union of India, AIR 739 (2003).
109
Bannari Amma Sugars Ltd. v. Commercial Tax Officer, 1 SCC 625 (2005).
110
Dr. Mukhtiar Chand v. State of Punjab, 7 SCC 579 (1998).
111
Oudh Sugar Mills Ltd., Etc. v. Union Of India, AIR 1070 (1970).
112
Chintamanrao & Anr. v. State of Madhya Pradesh, AIR 118 (1951).
113
D.K. Trivedi and Sons v. State of Gujarat, AIR 1323 (1986).
13
2019
notwithstanding the fact that rules prescribing the manner of exercise of power have not been
framed. The council most humbly pleads that in the case of Krishnan Kakkanth v.
Government of Kerala, the State HC held that “A restriction cannot be said to be
unreasonable merely because in a given case, it operates harshly... In determining the
infringement of the right guaranteed under Art. 19 (1) (g), the nature of the right alleged to
have been infringed, the underling purpose of the restriction imposed, the extent and urgency
of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing
condition at the time, enter into judicial verdict. ”
Interestingly, in Sivani114, the SC provided criterion to evaluate the reasonableness of

restriction under Art. 19 (6). The court has to take into account such factors as nature of the
right enshrined, underline purpose of the restriction imposed, evils sought to be remedied by
law, its extent and urgency, how far the restriction is or is not proportionate to the evil and the
prevailing condition at the time.
Thus, in the instant case, the rules framed by the Bar Council may not only be perceived in
regard to the advocates concerned. But, other considerations as elaborately discussed in
Sivani115, must be taken into account. The reasonableness of the rules must be seen in relation
to the implications which it shall have on the society at large, needs to be considered.
In Jamshed Ansari v. High Court of Judicature at Allahabad116, it has been held that right of
an Advocate to appear in cases is a matter on which the court must and does have major
supervisory and controlling power and it cannot be and are not divested of control or
supervision of conduct in court merely because it involves the right of an Advocate. It also
held that the conduct in court is a matter concerning the court. It was also the opinion of the
Court that keeping in mind the administration of justice and regulating the court proceedings
and right to practise and right to appear before the Hon’ble High Courts and the Subordinate
Courts, power is conferred on the Hon’ble High Courts, to frame rules. Further, the Hon’ble
HC keeping in mind, several relevant factors like the purity of administration of justice, the
interest of the litigant public and easy availability of the Advocates to assist the court for
proper adjudication of the dispute pending before it or expeditious disposal of such
proceedings or for any other valid or good reasons which the High Court may consider117,
may consider to frame rules. Thus, in the instant case, the appearance of an Advocate in the
114
M.J. Sivani v. State of Karnataka, 6 SCC 289 (1995)
115
id. At 114.
116
Jamshed Ansari v. High Court of Allahabad, 10 SCC 554 (2016).
117
Sanjeev Datta & Ors. v. Unknown, 3 SCC 619 (1995).
14
2019
court leads to administration justice. The non appearance of the Advocate considered to be
prejudicial to the interest of the parties and preventing judges from entering the Courts118 and
paralyzing the work of the Courts resulted in the delay or denial of the justice to them and it
amounts to professional misconduct as the first and foremost priority of the Advocates is to
impart justice.
[3.3]. THE IMPUGNED RULE IS IN CONSONANCE WITH THE PRINCIPLES OF NATURAL JUSTICE
AND HAS BEEN BROUGHT WITH THE PURPOSE OF DISPENSATION OF JUSTICE.
It is the humble sub- contention that the rule of fair hearing does not recognize the necessity
of affording the personal hearing in all cases.119 It has been held in the case of State of
Orissa v. Mohd. Illiyas120 that as the act of suspension is a preventive action, there is no
necessity of affording an opportunity of hearing. Therefore, if the principle of affording
personal hearing is extended whenever the statutory authorities are vested with power to
exercise discretion in connection with statutory appeals, it shall lead to chaotic situations. 121
It is well settled that, larger public interest is considered as an exception to affording of

hearing.122 Where the right to prior notice is likely to obstruct the taking of prompt action,
such a right can be excluded. 123 It has been held that service of notice may not be insisted
upon if the person on whom notice is required to be served obstructs service of attempts to
avoid service of notice. 124 In the instant case such action was necessary in order to
maintain the public order situation.
If the statute has expressly or impliedly omitted the application of the rule of natural justice,
the statute will not be invalidated for this omission on the ground of arbitrariness. 125
Nor will the administrative action taken as per the provision of the said statute will be ultra
vires on the ground of arbitrariness. 126
118
Moot Problem,TEERATHANKER MOOT COURT COMPETITION, 2019.
119
Executive Engineer, Bhadrak v. Rangadhar, 1 SCC 763 (1993).
120
1 SCC 275 (2006).
121
B.C. Sharma, Fair Hearing and Access to Justice, 72 (1st ed. 2012).
122
Karnataka Public Service Commission v. B.M. Vijaya Shankar, AIR 952 (Bom.: 1992).
123
id. At 122.
124
Union of India v. Tulsi Ram Patel, AIR 1416 (1985); Maneka Gandhi v. Union of India, 1 SCC 248 (1978);
Mohinder Singh Gill v. Chief Election Commissioner, 1 SCC 405 (1978).
125
Dr. Rash Lal Yadav v. State of Bihar, 5 SCC 267 (1994).
126
Union of India v. Tulsi Ram Patel, AIR 1416 (1985).
15
2019
PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it
is humbly prayed and requested that the Hon’ble Supreme Court of India may be
pleased to adjudge and declare:
1. That the writ petition is devoid of any merit and should be dismissed
And pass any such order, judgement or direction that the Hon’ble Court deems
fit and proper in the interest of justice, equity & good conscience
For this act of kindness, the Counsel for the Respondents as in duty bound shall
forever pray.
ALL OF WHICH IS RESPECTFULLY SUBMITTED

____________________________________________
Sd/-
COUNSEL FOR THE RESPONDENT
XIII

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TEERTHANKER MAHAVEER NATIONAL

MOOT COURT COMPETTITION, 2019

IN THE HONOURABLE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. -____OF 2019

IN THE MATTER OF:

BAR COUNCIL OF INDIA AND UNION OF INDIA…………………………...RESPONDENT

UPON SUBMISSION TO THE SUPREME COURT OF INDIA U/A 32 OF

~ Memorial for the Respondents ~

LIST OF ABBREVIATIONS III

STATEMENT OF JURISDICTION VIII

[1.1] There is a Breach of trust 1

[1.3] Non appearance in the Court amounts to Wilful Misconduct 3

[2.3] Right to strike is not a fundamental 8

[3.1] Reasonable restrictions in the interest of general public 10

[3.2] Strike – not a justifiable ground 12

A.I.R. All India Reporter

S.NO. SUPREME COURT CASES CITATION PARA. PAGE

1. Anita Kushwaha v. Pushap Sudan SCC 772 (2016). 37 p9

2. Common Cause v. Union of India 5 SCC 557 (1994). 37 p9

3. Common Cause, A Registered AIR 4442 (2005). 41,5,28 p10,2,6

5. Dr. Rash Lal Yadav v. State of 5 SCC 267 (1994). 59 p15

6. Executive Engineer, Bhadrak v. 1 SCC 763 (1993). 57 p15

7. Harish Uppal v. Union Of India AIR 239 (2003). 1,23,26 p1,5,6,8,9,13

8. Himalayan Coop. Group Housing AIR 2867 (2015). 1 p1

9. Hussainara Khatoon (I) v. Home AIR 1360 (1979). 33,37 p8,9

11. In re Sanjeev Datta and ors. v. 3 SCC 619 (1995). 56 p15

12. Indian Council of Legal Aid and AIR 691 (1995). 32 p7

13. Jacob Mathew v. State of Punjab 6 SCC 1 (2005). 4 p2

14. K. John Koshy v. Tarakeshwar 8 SCC 624 (1998). 26,40 p6,10

15. Karnataka Public Service AIR 952 (1992). 58 p15

Commission v. B.M. Vijaya

16. Mahabir Prasad Singh v. Jacks 1 SCC 37 (1999). 7,20 p3,5

17. Maneka Gandhi v. Union of India. 1 SCC 248 (1978). 58 p15

18. Ministry of Information & 3 SCC 619 (1995). 30 p7

19. Mohinder Singh Gill v. Chief 1 SCC 405 (1978). 58 p15

21. ShranikUttarsh Sabha v. 3 SCC 378 (1995) 27 p6

22. State of Orissa v. Mohd. 1 SCC 275 (2006). 16 p5

23. State of Rajasthan v. Surendra 14 SCC 77 (2014). 31 p7

24. Sudha v. President, Adv. Assn. 14 SCR 289 (2014). 31 p7

1. B. L Wadhera v. State (NCT of Delhi) AIR 266 (Del.: 42,43, 24 p10, 5

2. Bharat Kumar K. Palicha v. State of AIR 291 27,41 p6,10

3. Civil Court, Patna City v. Gopal SCC 8041 (Pat.: 7 p3

4. Courts of their motion v. Bansi Lal AIR 96 (P & H: 5 p2

5. K.S. Iyer v. Bar Council Madras AIR 390 (Mad.: 44 P11

6. Mulchand Gulabchand v. Mukund AIR 296 44 p11

7. Om Prakash v. Murti Devi SCC 1322 (Del.: 5 p2

8. Rajasthan Rajya SahakariUpbhokta SCC 2343 (Raj.: 28 P6

S.NO. COMMISSION & TRIBUNAL CITATION PARA. PAGE

1. D.K.Gandhi v. M. Mathias Revision Petition 13 p3

2. Kanpur Plastipack Ltd. v. Income Tax SCC 3965 (ITAT: 43 p10

S.NO. FOREIGN PRECEDENTS CITATION PARA. PAGE

1. Silver and Drake v. Baines 1QB 396 (1971). 5 p2

S.NO. BOOKS REFERRED PARA. PAGE

2. Black’s Law Dictionary 14 P4

3. Halsbury’s law of England ( 4th ed. 1983) 7 P3

S.NO. STATUTES REFERRED PARA. PAGE

1. Bar Council of India Rules (1975) 9,10,11,36 p3,7

2. Constitution of India (1950). 37,45,43 p8,10

3. Indian Contract Act (1872) 4,5 p2

4. The Advocates Act (1961). 43 p10

5. The Consumer Protection Act (1986). 13 p3

S.NO. WEB RESOURCES

2. www.judis.nic.in (SUPREMECOURT OF INDIA OFFICIAL)

3. www.legal.un.org (UNITED NATIONS)