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 Petitioner ~

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS II
INDEX OF AUTHORITIES III
STATEMENT OF JURISDICTION VIII
STATEMENT OF FACTS IX
ISSUES RAISED X
SUMMARY OF ARGUMENTS XI
ARGUMENTS ADVANCED 1
[1.] There is no breach of contract or breach of trust between the petitioner and his
client 1
[1.1] There is no injury incurred upon the client 1
[1.2] There is a fiduciary relationship between Petitioner and his client 1
[1.3] Mere non appearance with sufficient cause does not amount to breach of trust or
contract of service 3
[2.] Strike is a constitutional right and in consonance with the fundamental right to
freedom of speech and expression 5
[2.1] Strike as a weapon against oppression 6
[2.2] Reciprocal duty of the BCI towards lawyers 7
[2.3] Fundamental right as a basic structure of the constitution and the rule is infected with
the vice of arbitrariness. 8
[2.4] Principles of natural justice have been violated. 9
[2.5] No opportunity of hearing was given prior to suspension of 50 advocates. 10

[3]. Right to freedom of profession and occupation includes discontinuing the

profession or occupation 10
[3.1] Impugned rule inconsistent with the Constituion of India 10
[3.2] Violation of Fundamental Rights due to Impugned Rule 11
[3.3] Impugned Rule Inconsistent with the Doctrine of Reasonable Restrictions 12
PRAYER XII

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LIST OF ABBREVATIONS

A.I.R. All India Reporter

Anr. Another
Cal Calcutta High Court
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
I.P.C. Indian Penal Code
K.B. Kings Bench
M.P. Madhya Pradesh
Mad Madras High Court
NCT National Capital Territory
Ors. Others
P&H Punjab & Haryana Court
Pat Patna
Raj Rajasthan High Court
S.C. Supreme Court
S.C.C. Supreme Court Cases
S.C.R. Supreme Court Reporter
Sec. Section
Supp. Supplementary
UOI Union of India
v. Versus
W.B. West Bengal
W.P. Writ Petition
WLR Weekly Law Reports

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INDEX OF AUTHORITIES

S. NO. SUPREME COURT CASES CITATION PARA. PAGE

NO.
1. Common Cause, A Registered 9 SCC 295 (2006). 27 p6
Society and Ors. v. Union of India
2. Dalpat Rai Bhandari v. President of AIR 1 (1993). 45 p11
India
3. Dr. Rash Lal Yadav v. State of Bihar 5 SCC 267 (1994). 41 p10
4. E.P. Royappa v. State of Tamil Nadu AIR 555 (1974). 36 p9
5. Gill v. Chief election commissioner AIR 851 (1978). 38 p9
6. Harish Uppal v. Union of India AIR 45 (2003). 20,23,27 p5,6,
7. I.J Rao, Asst. Collector of Customs v. 3 SCC 202 (1989). 40 p10
Bibhuti Bhusan Bagh
8. I.R Coelho v. State of Tamil Nadu 7 SCC 550 (1998). 35 p8
9. Indian Airlines Ltd. v. Prabha D. 11 SCC 67 (2006). 36 p9
Kanan
10. Indian legal and Economic forum v. 10 SCC 728 50 p13
(1997).
Union of India
11. Indru Ramchand Bharvani v. Union 4 SCC 1 (1988). 38 p9
of India
12. Kesavananda Bharati v. State of 4 SCC 225 (1973). 35 p8
Kerala
13. Maneka Gandhi v. Union of India AIR 597 (1978). 36 p9
14. Moni Shankar v. Union of India 3 SCC 484 (2008). 36 p9
15. Naveen Jindal v. Union of India 4 SCC 510 (2004). 23 p6
16. Pratap Singh v. State of Punjab AIR 72 (1964). 24 p6
17. R.D Shetty v. The International AIR 1628 (1979). 36 p9
Airport
18. Rabindra Nath Bose and others v. AIR 470 (1970). 2 p10
Union of India and others
19. Ramon Services (P) Ltd. v. Subhash AIR 207 (2001). 27 p6

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Kapoor

20. S.A. Kini v. Union of India AIR 893 (1985). 49 p12

21. S.R Bommai v. Union of India 3 SCC 2 (1994). 50 p12
22. Satish Chandra v. Union of India AIR 250 (1953). 45 p11
23. Smt. Indira Nehru Gandhi v. Raj Supp. SCC 1 35 p8
Narain (1975).

24. State of M.P v. Hazari Lal 3 SCC 273 (2008). 36 p9

25. State of Orissa v. Binapani Dei AIR 1269 (1967). 45 p11
26. Suresh Chandra Nanhorya v. 7 SCC 800 (2006). 38 p9
Rajendra Rajak

27. Swadeshi Cotton mills v. Union of AIR 818 (1981). 38 p9

India
28. Waman Rao v. Union of India 2 SCC 362 (1981). 35 p8

S. NO. HIGH COURT CASES CITATION PARA. PAGE

NO.

1. B.L Wadehra v. State (NCT of Delhi) AIR 266 (Del.: 27 p6

2000).

2. Bal Kissen Kejriwal v. Collector of AIR 460 38 p9

Custom (Cal.:1962).

3. Jagpati Mudaliar v. Ekambara 8 M.L.J. 40 10 p2

Mudaliar (Mah.:1897).

4. Lakhi Narayan Sonowal v. State of 2 GLR 25 2 p1

(Guj.:2004).
Assam and others

5. Madan Sharma v. B.S.E Board AIR 371 38 p9

(Pat.:1971).

6. Revision v. Employee Proceeded CRP. No. 682 1,38 p1,9

Against (2009).

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S. NO. FOREIGN PRECEDENTS CITATION PARA PAGE

NO.

1. Abbitt v. Gregory 160 S.E. 896, 906 4 p1

(1931).

2. Berner Cheese Corp. v. Krug N.W.2d 800, 752 6 p2

(2008).
3. Green v. Freeman 367 N.C. 136. 15 P3

4. Liversidge v. Anderson AC 206 (1942). 36 P9

5. R. v. British Broadcasting Corporation 2 All ER 977 (2003). 36 p9

6. R. v. Customs and Excise 1 All ER 1068 39 p10

Commissioner ex parte Cooke and (1970).
Stevenson

7. Russel v. Duke of Norfolk 1 All ER 109 (1949) 40 p10

8. Selvarajan v. Race Relations Board 1 All ER 12 (1976). 40 p10

9. Vail v. Vail 63 S.E.2d 202 3 p1

(1951).
10. White v. Consol Planning Inc 166 N.C. App. 283. 5 p1

S. NO. BOOKS REFERRED PARA PAGE

NO.

1. C.K.Takwani, Civil procedure with Limitation Act (7th ed., 5 p2

1963)

2. Lewin on Trusts (John Mowbray, Lyton Tucker, Nicholas Le 1 p1

Poidevin, Edwin Simpson, James Brightwell, 18th ed., 2008)

3. MP Jain & SN Jain‟s Principles of Administrative Law (7th 38 p9

ed., 2011)

4. Oswald’s Contempt of Court, 54 (3rd Ed. George Stuart). 30 p7

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5. Oxford Dictionary & Thesaurus 36 p8

6. Advanced Law Lexicon 9, 11 p2, 3

S. NO. NEWSPAPER PARA PAGE

NO.

1. Rajeev Dhavan, The Right to Strike, The Hindu (10/01/2003) 25 p6

S. NO. STATUTES REFERRED PARA PAGE

NO.

1. The Advocates Act, 1961 ¶ 21,40,43 p5,10,11

2 2. The Constitution of India, 1950 ¶ 22, 36, p5,9,10,11

41, 42

3 3. Indian Contract Act, 1872 2,7,10,11, p 2, 3

1 12,14

4. Civil Procedure Code, 1908 16, 19 p4

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S. NO. WEB RESOURCES

1. www.westlaw.india.com(WEST LAW INDIA)

2. www.manupatrafast.com(MANUPATRA)

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

4. www.jstor.org(JSTOR)

5. www.scconline.com(SCCONLINE)

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

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STATEMENT OF JURISDICTION

The Petitioner herein has invoked 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 IS NO BREACH OF CONTRACT OR BREACH OF TRUST BETWEEN

THE PETITIONER AND HIS CLIENT.
In the instant case, there has been no breach of contract or trust between the petitioner and
his client. There has been no legal injury caused to the client. Moreover the absence of the
petitioner was on justified grounds.
In the present case, there have been gross violations of fundamental rights viz. Art. 14 & 21
of Indian Const. The impugned rule is arbitrary and against the principles of natural justice.
Henceforth the Hon’ble SC of India has the power to entertain proceedings for the
enforcement of fundamental rights.

[2]. STRIKE IS A CONSTITUTIONAL RIGHT AND IN CONSONANCE WITH

THE FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH AND EXPRESSION.
Right to strike is a facet of the rights guaranteed under Art. 19(1)(a) of the Indian
Constitution. Strikes empower the disempowered to fight injustice in cases where there is no
option left and serve as hard – fought weapons against oppressive and authoritative forces in
democracy.

[3]. RIGHT TO FREEDOM OF PROFESSION AND OCCUPATION INCLUDES

DISCONTINUING THE PROFESSION OR OCCUPATION.
It is submitted that right to freedom of profession and occupation under Art. 19(1)(g)
includes the right to discontinue the profession or occupation. In the instant case, their
abstention is justified on the ground that it was for a legitimate cause and a justified purpose.
In an adversarial system, all the parties must be given an opportunity of being heard. In the
instant case, the authorities have swung away from the principles of natural justice, since
there was no opportunity of a fair and reasonable hearing given to the 50 advocates before
their suspension. Further, the provision that the decision of the Disciplinary Committee shall
be final is arbitrary in nature and is against the principles of Natural Justice.

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ARGUMENTS ADVANCED

[1]. THERE IS NO BREACH OF CONTRACT OR BREACH OF TRUST BETWEEN

THE PETITIONER AND HIS CLIENT

[1.1] THERE IS NO INJURY INCURRED UPON THE CLIENT

1. It is well-established fact that trusts warrants to provide protection of the interests of

the person who confides in Trustee1and in such jural relation between the trustee and
the beneficiary has been accounted as “fiduciary relation”2. It is submitted that in the
instant case no implication relating to causing injury to the interests of the client has
not been reported nor by the order it is implied so.
2. The Court has a duty to proceed with the judicial business the day on which it is
fixed. The court should take the decision not in a hurry so as to dismiss the case just
because of the non appearance of the counsel3. If the court is dealing with the ex
parte order, it must be considerate if a justifiable reason has been given by the
counsel for his non appearance. In the instant case, the absentation was justified with
a sufficient cause and the court in a hurry gave ex-parte order which leads to suffer
the petitioner along with the counsel. It is not mandatory for a lawyer to be a part of
administration of justice.

[1.2] THERE IS A FIDUCIARY RELATIONSHIP BETWEEN PETITIONER AND HIS CLIENT

3. In common parlance, a fiduciary relation is said to exist wherever confidence on one

side results in the superiority and influence on the second side. 4
4. The Court explained that ‘the fiduciary relation not only includes legal relations such
as attorney and client, broker and principal etc but also it extends to any possible case
in which the fiduciary relation exists and where there is a confidence reposed on one
side and influence on other.’5
5. It is submitted that when the fiduciary relation has arisen for the breach of the same it
must satisfy the ingredients. In the case of White v. Consol. Planning, Inc.6,the court

1
3, John Mowbray,Lyton Tucker, Nicholas Le Poidevin, Edwin Simpson, James Brightwell, Lewin on Trusts,
(18th ed.,2008).
2
Revision v.Employee Proceeded Against, 682 CRP. (Ker.: 2017).
3
Lakhi Narayan Sonowal v. State of Assam and ors. 2 GLR 25 (2004).
4
Vail v. Vail, 63 S.E.2d 202 (1951).
5
Abbitt v. Gregory, 160 S.E. 896, 906 (1931).
6
166 N.C.App.283 (2004).

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was of the opinion that to prove breach of a fiduciary duty it must be shown that the
defendant failed to “act in good faith and with due regard to plaintiff’s interests”
which in the instant case was not true since the situation was devoid of wilful
misconduct to abstain from the proceeding. Moreover, the strikes of advocates have
been held to be sufficient for the absence of the advocate.7
6. In the case of Berner Cheese Corp v Krug 8, it was held that the lawyer owes a
fiduciary duty to his client. The question here arises that whether the breach has been
occurred of their fiduciary relationship. The elements for the breach includes:1) that
the advocate owe a fiduciary duty 2) that duty has been breached and 3) that breach
caused damage to the client. In the instant case, it is correct to say that there exists a
fiduciary duty but his mere absentation does not breach his duty. 9
7. Hence, in this case, only the fiduciary duty is existing towards client. So, the terms of
services and terms of contract were not breached as there was no intention to cause
injury to the client. The strike non appearance was on justifiable grounds. No doubt,
there existed an agreement between the petitioner and his client that has been
breached; even then the claim for breach of contract will not succeed unless his client
can prove that there has been a damage occurred as a result of breach.
8. Further, the strike for which the counsel didn’t appear for the case was done in his
personal capacity. Vakalatnama is a document of authorization given to an advocate
to represent on the behalf of the client. It clearly includes the terms regarding fees of
a counsel. If the counsel absents himself and no damage has been occurred to the
client then how does it effects the administration of justice and what does the BCI
has an issue if the client has not suffered any damage. His absence was on justifiable
grounds because there was no other remedial mechanism left to them.
9. Vakalatnama10 is a ‘Memorandum of Appearance which empowers a lawyer to plead
before any authority/ Court / Tribunal.’ The Court interprets it as a Power of
Attorney.
10. In the case of Jagpati Mudaliar v. Ekambara Mudaliar11, it was held that a
vakalatnama empowered a pleader to conduct a suit in the manner which he deems fit
and signifies that the client agreed to accept, all acts done by the pleader in a Court

7
C.kTakwani, Civil procedure with Limitation Act, 284 (7th ed.,1963).
8
N.W.2d 800, 752 (2008).
9
Id. At 8.
10
P. Ramanatha Aiyar, Advanced Law Lexicon.
11
Jagpati Mudaliar v. Ekambara Mudaliar , 8 M.L.J. 40 (1897).

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concerning the suit. Since the vakalatnama imposed contractual obligation on the
client and nothing was done to violate the terms of agreement, 12 there was no breach
of contract for service. The client suffered no personal injury due to absentation of
the counsel on the said date. As a result there was no impediment caused in
administration of justice on the account. So, the ex-parte decision of the Court should
be set aside and the civil case of the client should be restored. The cost which was
imposed on the counsel and client should be obviate i.e. Rs. 75, 000, half of which is
to be paid by the counsel.
11. Vakalatnama13 is a ‘Memorandum of Appearance which empowers a lawyer to plead
before any authority/ Court / Tribunal.’ The Court interprets it as a Power of
Attorney.
12. Hence, there is no breach of contract between the petitioner and his client. Although
the advocate holds a vakalat of his client as such no question of breach of contract or
breach of trust arises between the parties.
13. (Order 9 Rule 13 CPC) talks about ex-parte orders. A person against whom ex-parte
decree is passed, he may apply to court to set it aside. The person has to satisfy the
court that either summons were not duly served on him or he was prevented by
sufficient cause or has a justified reason to not, to attend the court, when suit was
called for hearing.
14. And here in the instant case the Counsel- Petitioner was absent on justified grounds
from attending the court. He did not commit any breach of his professional
obligations much less the breach of contract or breach of trust.

[1.3] MERE NON APPEARANCE WITH SUFFICIENT CAUSE DOES NOT AMOUNT TO BREACH
OF TRUST OR CONTRACT OF SERVICE

15. One of the major requirements to prove breach is to show that the damages were
proximately caused due to the act and the question regarding the existence of
fiduciary relationship also put further which was breached or not and whether
damage has been caused with respect to the duty owed or not, wherein in the instant
situation, if abstention would have been the sole cause, the imposition of the cost

12
Moot Problem, TEERATHANKER MOOT COURT COMPETITION, 2019.
13
P. Ramanatha Aiyar, Advanced Law Lexicon.

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could have been imposed on the advocate itself but there, the cost has been put on the
plaintiff also by giving ex parte order against the plaintiff. 14
16. Order IX of the Code enacts the law with regard to the appearance of the counsels to
the suit and the consequences of their non-appearance. 15 It provides a remedy for
setting aside an order of dismissal of the suit as also the setting aside of an ex-parte
decree passed against the defendant.

17. In general parlance, in case a counsel fails to appear for a hearing with a reasonable
justification or a “sufficient cause” 16, the case cannot be disposed off in favour of the
opposite party merely on the basis of absentation from the proceedings. It was held in
the case Bijay Kumar .v. Kamalabai17 the words “sufficient cause” must be liberally
construed to enable the court to exercise powers ex debito justitiae. 18 A party should
not be deprived of hearing unless there has been something equivalent to misconduct
or rash negligence on her part.19 Necessary materials should be placed on record to
show that the appellant was acting with utmost reasonability and care. 20 The test to be
applied is whether the party honestly intended to remain present at the hearing of the
suit and did his best to do so.21

18. In the case of Diwalbai v. Jail Kumar,22 the Supreme Court upheld the view that
when the application to set side ex-parte decree is made by the party, who has
refrained appearance in court, the court should consider whether they had a
sufficient cause for non-appearance before the court when the suit was called out for
hearing. If the court finds that there was sufficient cause for non-appearance, it is
bound to set-aside the decree. This right and this duty is a sine qua non of judicial
procedure. An order setting aside ex-parte decree is judicial and it must be supported
by reasons. 23
19. “Sufficient cause” is a question of fact.24 The burden of proof that there was
“sufficient cause” for non-appearance is on the defendant. But, it is enough if he

14
Green v. Freeman, 367 N.C.136, 145 (2013).
15
CPC. Order IX (1908).
16
G.P.Srivastava v. R.K.Raizada and ors. 3 SCC 54 (2000).
17
6 SCC 148 (1995).
18
Ġ.P. Sribastaba.v. R.K.Raizada, 3 SCC 54 (2000).
19
Sudhadevi .v. M.P.Narayanam, AIR 1381(1988).
20
Vijay Kumar .v. Kamalabai, 6 SCC 148 (1995).
21
Payal Ashok Kumar .v. Cpt. Ashok Kumar, 3 SCC 116 (1992).
22
AIR 393(Bom.: 1969).
23
Mahesh Yadav .v. Rajeswar Singh, 2 SCC 205 (2009).
24
CPC (1908).

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proves that he attempted to remain present when the suit was called on for hearing.
There may be many proceedings in a court wherein his personal presence may not be
necessary. 25
20. The strike of advocates have been held to be sufficient for the absence of the counsel
in S.P.Kaveri Achi v. C.T.Ramasamy26 that when a matter is decided ex parte in view
of non-appearance of counsel on the date fixed in view of the strike by the advocates
and when an application is made for setting aside that ex parte order, the Court should
set aside the ex parte order inasmuch as sufficient cause is made in view of the non-
appearance of the counsel on the day of strike. The expression sufficient cause should
be liberally construed and the explanation in Order 9 Rule 13 application should be
considered from the point of view whether on the date the ex parte decision was
passed there was sufficient cause for non-appearance. Moreover, there has been no
breach of legal duty and the absence of the advocate was on justified grounds. This
was justified in the sense that even in a case of Harish Uppal27 it has been said the
court will turn a blind eye for one day. So, to have a strike where the independence of
judiciary is hampered was on justified grounds.

[2]. STRIKE IS A CONSTITUTIONAL RIGHT AND IN CONSONANCE WITH

THE FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH AND EXPRESSION.
21. Sec. 7(d)28 explains the functions of BCI to safeguard the rights, privileges and
interests of the advocates. Therefore, as per this provision the grievance and the
problems of lawyers must be heard and should give suggestions to tackle their
issues they are facing.
22. The rule amended by the Bar Council of India which states for the suspension of
advocates for an indefinite period is violative of the Fundamental Right to protest
under Article 19 of the Constitution, the freedom of speech and expression under
Art. 19 (1) (a)29 which states about the expression of one’s own convictions and
opinions freely. This amended Rule also infringed right to practice profession under
the Art. 19 (1) (g) and moreover, the right to practice in the legal profession refers
to the exclusive right of persons engaged in practice of law before Court. So,

25
Rampati Devi v. Chandrika Devi, AIR (1979).
26
4 LW 681 (2000).
27
Harish Uppal v. Union of India, AIR 239 (2003).
28
Advocates Act (1961).
29
Indian Const. (1950).

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because of the suspension of 50 advocates, it adversely affected the working the
Courts as because of this, the clients as well as working of the courts suffered. It is
right to say that the proper delivery of justice is the priority of the advocates but if
the courts expect advocates to not to stop or refrain from work of court by doing
strikes, then courts should take into consideration the redressal part of the
advocates. If the court accepts the demands of the advocates then they will be do
their job appropriately without having any issues.
23. In the case of Ex. Capt. Harish Uppal v. UOI30 and another case, the Apex Court
held that in ‘rarest of rare cases, the lawyers can call for a strike where the dignity
and independence of the judiciary is involved.
[2.1] STRIKE AS A WEAPON AGAINST OPPRESSION
24. Art. 19 (1) (a) confers on all citizens the right to freedom of speech and expression. 31
25. By the mere fact that a person enters the lawyer profession does not disentitle him to
claim the freedoms guaranteed to every citizen. A majoritarian democracy becomes
autocratic if it abjures discontent and tries to discipline the many forms of "free
speech and expression" through `proper channels'. 32 Strikes and demonstrations are a
democracy's hard-fought weapons against oppression. They cannot be wished away
by this Hon’ble SC, which has hitherto supported their disciplined use. Strikes
empower the disempowered to fight injustice in oppressive cases when no
constructive option is left. This cannot be wiped out in this manner and henceforth,
this needs urgent review by the Hon’ble SC itself. 33
26. The word "strike" has been defined under Sec. 2(q) of the Industrial Disputes Act,

1947. Strike is the act of stopping work by a body of workmen for the purpose of
coercing their employer to accede to some demands they have made upon him.
27. It is humbly submitted before the Hon’ble court that in the famous case Harish
Uppal v. Union of India34 the court held that advocates have no right to strike and
they cannot even do a token strike. However the court also opined "in the rarest of

30
AIR 239 (2003).
31
Naveen Jindal v. Union of India, 4 SCC 510 (2004); Pratap Singh v. State of Punjab, AIR 72 (1964)
32
Rajeev Dhavan, The Right to Strike, The Hindu (Jan10, 2003),
http://www.thehindu.com/2003/01/10/stories/2003011000421000.htm.
33
Id. At 32.
34
AIR 239 (2003); See B.L Wadehra v. State(NCT of Delhi), AIR 266 (Del. HC.: 2000); Ramon Services (P)
Ltd. v. Subhash Kapoor, AIR 207 (2001); Common Cause, A Registered Society and Ors. v. UOI, 9 SCC 295
(2009).

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rare cases where the dignity, integrity and independence of the Bar and/or the Bench
are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work
for not more than one day". The court, therefore, acknowledges that the right to strike
exists and can be exercised if a rare situation demands so. The apex court has only
tried to restrict the right to strike of advocates with regards to the significant role they
play in the administration of justice. Restriction will not mean denial in any
circumstances and moreover, restriction can only be in a relation to the existence of a
right. Furthermore, in case of rarest of rare cases, where the strike can happen when
it comes to the dignity and independence of the judiciary, then the said judgment
gave only a one day strike permission which is not sufficient enough. So, in the
instant case, where the facts are silent about the strike going to be for how many
days, we are considering here to be of one day only. If it cannot be assumed to be of
one day, then we cannot even assume it to be of more than one day strike.
[2.2] RECIPROCAL DUTY OF THE BCI TOWARDS LAWYERS
28. Bar Council of India has also framed rules in exercise of its rule-making power under
the Advocates Act, 1961. Chapter II of Part VI of these "Rules Governing
Advocates" prescribe standards of professional conduct and etiquette for lawyers.
29. Out of various duties which the advocates have to discharge, one of such duties is to
maintain respectful attitude towards the court and BCI considering the dignity of the
court or judicial office which is vital for the independence of judiciary and the
government.
30. On the other hand, the BCI must also perform its reciprocal duty towards lawyers and
should not only not be discourteous to a lawyer and also try to maintain respect in the
eyes of his clients and the general. Hypersensitiveness on the one side and rudeness
on the other side must be avoided at any costs. Both the Bench and the Bar are the
two weapons of the same working system and unless they work in coordination,
justice cannot be administered properly. The need for mutual understanding and
respect between the Bench and the Bar was focused by many writers on the subject. 35
31. The BCI in 1994 passed a resolution ‘excepting the rarest of rare cases’ for strike of
lawyers which involves the dignity and independence of judiciary as well as of Bar.
The Attorney General in this regard defined the ‘rarest of rarest case’ which means
the direct assault on independence and integrity of the judiciary.

35
J.F. Oswald, Oswald’s Contempt of Court, 54 (3rd Ed. George Stuart).

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32. If the BCI has its point, so do the lawyers. The Advocates asked for the legitimate
action in their favor to be taken and when these conditions didn’t fulfilled, they
decided to go on strike. The BCI is correct in its sense that the justice suffers when
lawyers do this, however, when they grievances are unheard, what else they can do?
There is no other option.
33. A Division Bench of the same High Court has in Rajinder Singh v. Union of
India36 observed:
34. "The primary function of the Court is to administer justice to and between the parties
approaching Courts. The Courts would be failing in their duties in not performing
such a function merely on the ground that lawyers choose to abstain from appearing in
Courts. The Judges are supposed to train themselves to decide cases by studying the
pleas and the law on the subject even if unaided either by the parties or their counsel.
There is no legal impediment in the way of the Court not to administer justice when
lawyers abstain from appearing in Courts or they appear but refuse to assist the Court
in the administration of justice. Code of Civil Procedure contains provisions for
proceeding with cases where parties fail to appear."
[2.3] Fundamental Right As A Basic Structure Of The Constitution And The Rule Is
Infected With The Vice Of Arbitrariness.
35. It is submitted that Part III of the Constitution which deals with “Fundamental rights”
is regarded as the basic structure of the Constitution37. The doctrine of basic structure
not only applies against the amendments under the exercise of constituent power but
also against exercise of legislative 38 and executive power39. Therefore, the said rule is
within the ambit of application of basic structure.
36. It is humbly submitted that the word “Browbeat” in general entails bullying,
intimidation, badger etc.40 In the instant case, “browbeat”, “abuse” or “unbecoming
language” are all a matter of individual & subjective unraveling and decoding
rather than reasonable comprehension and intelligibility. The impugned rule41 here
in the instant case confers subjective discretion42 on the BCI to suspend an Advocate

36
Rajinder Singh v. UOI (2016).
37
IR Coelho v. State of Tamil Nadu, 7 SCC 550 (1998).
38
Kesavananda Bharati v. State of Kerala, 4 SCC 225 (1973); Smt. Indira Nehru Gandhi v. Raj Narain, Supp.
SCC 1 (1975).
39
Waman Rao v. Union of India, 2 SCC 362 (1985).
40
Oxford Dictionary & Thesaurus, 86 (2007).
41
Moot Problem,TEERATHANKER MOOT COURT COMPETITION, 2019.
42
Liversidge v. Anderson, 1942 AC 206 (1941).

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based on unmentioned and objective parameters. This leads to arbitrariness 43 and is
in contravention of the principles of Art. 1444. In addition to this, the impugned rule
mentions that in case of violation of the rule, the delinquent Advocate will be
suspended from practicing for an indefinite period, which is ex-facie in violation of
Doctrine of Proportionality45.
37. In the instant case, the impugned amended rule46 constitute a serious threat to the
independence of the legal profession and will prevent advocates from discharging
their duties without the constant fear that any emphatic and assertive argument will
result in a judge terming it as browbeating” leading to their debarment.
[2.4] PRINCIPLES OF NATURAL JUSTICE HAVE BEEN VIOLATED.

38. Natural justice has been held as an inseparable ingredient of fairness and

reasonableness.47 Fair hearing has the following two elements viz the opportunity of
hearing being given [1] and that such opportunity is reasonable [2].48 Preliminary
enquiry is not a substitute for full-fledged enquiry. 49 There is no rule regarding any
discretion as „absolute‟ 50, vesting of power in a high authority does not ipso facto
exclude natural justice.51 It is necessary that the courts avoid drawing unnecessary
technical and artificial distinctions just to deny procedural safeguards to the people.52
Non-observance of natural justice is itself prejudice to any man and proof of denial of
natural justice is unnecessary. 53 In addition to this, where conclusions are
controversial, howsoever slightly, and penalties discretionary, natural justice is a
must.54
39. According to the facts of the case, the 50 advocates were suspended directly without

giving them the right to demand solutions of their grievances. No opportunity of

43
E.P. Royappa v. State of Tamil Nadu, AIR 555 (1974); Maneka Gandhi v. Union of India, AIR 597 (1978);
R.D Shetty v. The International Airport, AIR 1628 (1979).
44
Indian Const., Art. 14 (1950).
45
R v. British Broadcasting Corporation, 2 ALL ER 977 (2003); See Moni Shankar v. Union of India, 3 SCC
484 (2008); State of M.P v. Hazari Lal, 3 SCC 273 (2008); Indian Airlines Ltd. v. Prabha D. Kanan, 11 SCC 67
(2006).
46
Moot Problem, TEERATHANKER MOOT COURT COMPETITION, 2019.
47
Suresh Chandra Nanhorya v. Rajendra Rajak, 7 SCC 800 (2007).
48
Indru Ramchand Bharvani v. Union of India, 4 SCC 1 (1988); Bal Kissen Kejriwal v. Collector of Custom,
AIR 460 (Cal.:1962).
49
Revision v. Employee Proceeded Against, 682 CRP. (Ker.:2017).
50
MP Jain and SN Jain, Principles of Administrative Law, 406 (7th ed. Dr. Shakil Ahmad Khan, 2011).
51
Gill v. Chief election commissioner, AIR851(1978).
52
Madan Sharma v. B.S.E Board, AIR 371 (Pat.:1971).
53
Swadeshi Cotton Mills v. U.O.I, AIR 818 (1981).
54
Moot Problem, TEERATHANKER MOOT COURT COMPETITION, 2019.

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being heard before making them liable was given. The Audi Alterum Partem rule 55of
Natural Justice has been violated.
[2.5] NO OPPORTUNITY OF HEARING WAS GIVEN PRIOR TO SUSPENSION OF 50
ADVOCATES.
40. It is a settled provision of law that a pre-decisional notice forms the part of a
fair hearing.56 In the landmark case of Russel v. Duke of Norfolk,57 the
Hon’ble Court held that the standard of natural justice is that the person
concerned should have a reasonable opportunity of presenting his case. Thus, it
is the humble contention that if a person is subjected to pains or penalties, it is
the fundamental rule that he should be informed of the case against him and
afforded a fair opportunity of answering it. 58 In addition to this, the rule is in
direct contravention with sub- sec. 35 and 36 (B)59of the Advocates Act.

[3]. RIGHT TO FREEDOM OF PROFESSION AND OCCUPATION INCLUDES

DISCONTINUING THE PROFESSION OR OCCUPATION.

[3.1] IMPUGNED RULE INCONSISTENT WITH THE CONSTITUION OF INDIA

41. The petitioner most respectfully submits that the rules framed by the Bar Council of
India under the Advocates Act, 1961 are inconsistent and it imposes unreasonable
restrictions on the fundamental right of the advocates. It is humbly submitted that
right to freedom of profession and occupation under Art. 19 (1) (g) 60 includes the
right to discontinue the profession or occupation. In the instant case, the lawyer
community had no other option other than to stop appearing in the court as the strike
was being carried for a justified purpose61 Moreover, in the absence of any redressal
mechanism, they had no option other than to stop appearing in the courts to fight for
the cause of the independence and integrity of the bar and for their own rights.
42. It is humbly submitted by the council before this Hon’ble Court that, the power can be
exercised by the Bar council which may also frame rules under Sec. 49 (a) of the

55
Rabindra Nath Bose and ors. v. UOI, AIR 470 (1970).
56
I.J Rao, Asst. Collector Of Customs v. Bibhuti Bhusan Bagh, 3 SCC 202 (1989).
57
1 ALL ER 109 (1949).
58
Selvarajan v. Race Relations Board, 1 ALL ER 12 (1976.).
59
The Advocates Act, Sec. 35 and Sec. 36 (b) (1961).
60
Indian Const., Art. 19(1)(g) (1950).
61
Dr. Rash Lal Yadav v. State of Bihar, 5 SCC 267 (1994)

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Advocates Act. The Bar Council does have the power to frame rules under Sec. 49 of
the act, but in such a manner that the right to practice is not taken away.
43. Hence the rules framed by the Bar Council did not satisfy the test of law and are in
conflict with Art. 19(1) (g)62 of the Constitution of India and Sec. 30 of the act 63, apart
from being unreason viable, oppressive and discriminatory and are accordingly liable
to be set aside.
44. The petitioner therefore pleads that the rules are very subjective in nature and are
open to varied interpretations which can lead to a situation where the delivery of
justice is questionable.
45. Also, in regard to the Sec. 49 of the Advocates Act, 1961 which empowers the Bar
Council to make rules thereby laying down conditions subject to which an advocate
shall be permitted to practice in the HC and in the subordinate courts64, The
petitioners most humbly contend that the Bar Council of India in framing rules that
guide the conduct of the advocates is inappropriate65. The contention that the
Advocates Act of 1961 empowers the Bar Council to frame rules and that the rules
that have been framed in relation to the said provision, is a total abuse of power and is
violative in nature.66
46. It is most humbly submitted that the rules that have been framed by the Bar Council
of India under Sec. 49 of the Advocates Act, 1961 are inconsistent with Art. 19 (1) (g)
in the Constitution of India wherein the Art. 19 (1) (g) guarantees to its citizen, right
to practice any profession, or to carry on any occupation, trade or business. These
rules in an arbitrary fashion violated the fundamental right of advocates to practice,
his/her profession.
[3.2] VIOLATION OF FUNDAMENTAL RIGHTS DUE TO IMPUGNED RULE
47. Under the recent amendment the Bar Council has prescribed that ‘An advocate who
browbeats and /or abuses a judge or judicial officer or uses unbecoming language in
the court or refuses to attend the 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." Here, the word suspended shall be construed
to mean that an advocate cannot appear before the HC once s/he has been suspended

62
Indian Const. (1950).
63
The Advocates Act (1961).
64
State of Orissa v. Binapani Dei, AIR 1269 (1967)..
65
Dalpat Rai Bhandari v. President of India, AIR 1 (1993).
66
Satish Chandra v. UOI, AIR 250 (1953)

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under the said provisions. This shall hamper the right of an advocate to practice which
amounts to infringement of the fundamental right 67.’ It has been the view of the SC
that restrictions may even amount to prohibition in a given case if the mischief to be
remedied warrants to total prohibition.
48. The council contends that the court has reiterated the right to practice of an advocate
granted under Sec. 30 of the Advocates Act, 1961 as a fundamental right which was
confirmed in N K Bajpai68. Thus it is submitted by the petitioners that, as right to
practice is seen to be a fundamental right, any violation through excessive or arbitrary
rules would amount to infringement of the fundamental right 69. The rules that have
been framed are very broad in nature and can be interpreted in a subjective manner.
49. These can be misused to penalize an advocate without a just and reasonable cause. In
accordance with the amended rule, an advocate can be suspended from appearing
before the courts for indefinite period which the Disciplinary committee may deem
fit. This might be construed as giving the Disciplinary Committee expansive powers
thereby emphasizing a much wider scope which would possibility result in an abuse
of justice.70
[3.3] IMPUGNED RULE INCONSISTENT WITH THE DOCTRINE OF REASONABLE
RESTRICTIONS
50. The petitioners humbly refer to the case of Narendra Kumar & others v. The Union of
India71 & others, wherein the SC construed the term restriction to include prohibition
and the rule that reasonableness of such restriction is to be considered in the
background of the facts and circumstances under which the order was made, taking
into account the nature of the evil that was sought to be remedied by such law, the
ratio of the harm caused to individual citizen by the proposed remedy 72, to be
beneficial effect, reasonably expected to result to the general public. Even though
total prohibition upon carrying on one’s profession can be imposed by way of
regulatory measure but for doing so such prohibition must pass through a stringent
test of public interest 73. The rules framed by the Bar Council exhibit no manifest

67
State of M.P. v. Hazari Lal, 3 SCC 273 (2008).
68
4 SCC 653 (2012).
69
AIR 1 (1993).
70
SR Kini v. UOI, AIR 893 (1985)
71
2 SCR 375 (1960).
72
SR Bommai v. UOI, 3 SCC 2(1994).
73
Indian Legal and Economic Forum v. UOI, 10 SCC 728 (1997).

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public interest. They are prohibitory in nature and impose restriction upon the
advocates.
74
51. In view of the SC as presented in the case of B.P Sharma v. Union of India total
prohibition on one’s profession should pass the test of public interest. In the present
case, this condition is not met and public interest is not served. On the contrary, the
public at large would be at the losing end if their advocates are suspended for
indefinite period. Moreover under the amended rule, on preliminary inquiry order can
be passed by the Disciplinary Committee thereby suspending an advocate for
indefinite period and with no appeal in hand. Thus, these rules fail to pass the
stringent test of public interest as laid down in B.P Sharma by this court.
52. The council for the petitioners most humbly submit that as early as in 1951, in
Chintaman Rao75, the SC laid down a test for reasonable restriction wherein the court
opined that “the phase reasonable restriction connotes that the limitation imposed on a
person in enjoyment of the right should not be arbitrary or of an excessive nature
beyond what is required in the interest of the public. The word ‘reasonable’ implies
intelligent care and deliberation that is the choice of a course which reason dictates.
Legislation which arbitrarily or excessively invades the right; cannot be said to
contain the quality of reasonableness and unless it strikes a proper balance between
the freedom guaranteed in Art. 19 (1) (g) and the social control permitted in clause 6
of Art. 19, it must be held to be wanting in that quality. The rules grant the power to
suspend an advocate to High Court and the Subordinate Courts if he engages in the
misconducts which is enlisted under the new amendment.
53. It is therefore most respectfully contended that the set provisions are clearly excessive
in nature as they grant extraordinary powers to the Bar Council against the Advocates
without creating any checks and balances in case of misuse of the said provisions.
These rules in effect gives sweeping powers to the Bar Council without adhering to
the test of reasonableness as laid down in Chintaman Rao.
54. The meaning of the word reasonable is construed to be one which signifies intelligent
care and deliberation. The rules that have been framed do not take into account as its
nature regard of being deliberative in nature. Furthermore, there has been no
intelligent care taken, which is manifest in the framing of the arbitrary rules.
Therefore, the petitioner humbly contends that the sweeping powers to debar an

74
7 SCC 309 (2003).
75
SCR 759 (1950).

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advocate, is in violation of Art. 19 (1) (g). This being a fundamental right and its
infringement brings the petitioner to this court for appropriate remedies.

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PRAYER

Wherefore, in the light of the issues raised, arguments advanced and authorities cited,it
is humbly prayed and requested thet the Hon’ble Supreme Court of India may be
pleased to adjudge and declare:
 That there is no breach of contract or breach of trust between the Petitioner and his
Client.
 That to strike is a constitutional right and in consonance with the fundamental right
to freedom of speech and expression.
 The right to freedom of profession and occupation includes the freedom
to discontinue the profession or occupation.
 The impugned amended rule by the BCI and the procedure therein is arbitrary as
well as against the principles of natural justice

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 Petitioner as in duty bound shall
forever pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

____________________________________________
Sd/-
COUNSEL FOR THE PETITIONER

XII