Objection, Overruled : The Legal Tug-Of-War Over The Advocates Bill

*Kashish Malhotra

Introduction

On February 13, the legal fraternity was confronted with a less than ideal revelation as news broke of the Union Ministry of Law and Justice putting forth a contentious draft Advocates (Amendment) Bill, 2025. In this bold legislative move, the ministry, through an amendment to the Advocates Act, 1961,  sought to recalibrate the regulatory framework of the legal profession      within the Indian landscape, and recommended an array of reforms with the intention to “modernise” archaic practices within the profession. This consisted of provisions allowing for the Centre to govern the entry of foreign firms (Section 49A) and having a greater influence over the functioning of the Bar Council of India (“BCI”) (Section 49B) while expediting the delivery of justice by imposing blanket bans on strikes, protests and boycotts (Section 35A). However, it received great uproar shortly after, with people accusing the legislature of undermining judicial independence; this compelled the Central Government to withdraw the draft bill. 

This was not the first time the legal fraternity resorted to such a tactic. The Tis Hazari Court incident in 2019 led the Bar Council of India and the Delhi Bar Council to announce a strike due to violence between lawyers and police; the Delhi High Court intervened and facilitated discussions that led to a peaceful resolution. In another case, the Gujarat High Court Advocates' Association called off its protest in defiance to the transfer of Justice Nikhil Kariel after discussions with the Supreme Court Collegium. The necessity of a well-defined dispute resolution framework became evident from such instances. 

In this article, the author assesses the legal rationale vis-à-vis the social implications of the much disputed Section 35A of the Advocates (Amendment) Bill. The author does so by, firstly, understanding the government’s stand on enhanced efficiency in trials and accessibility of legal aid through a two-pronged approach: analysing judicial pronouncements such as Ex-Capt. Harish Uppal v. Union of India And Another, and reviewing the conundrum in light of the prevailing judicial backlog. Secondly, the author criticises the stringent ban with regards to a possible compromise on the spirit of the Constitution as well as erosion of the judiciary’s power. Lastly, the author presents a greater discourse on the freedom of expression, particularly the right to peaceful protest for lawyers, and suggests feasible solutions to the quandary.

The Evolution of the Right to Protest in India

In the Indian context, the idea of protest and peaceful assembly, as governed by Article 19(1)(a) and 19(1)(b), of the Constitution is not a modern conception; it is a legacy from the freedom struggle. In Anita Thakur v. Union of India, the Supreme Court emphasized, 

“One cherished and valuable aspect of political life in India is a tradition to express grievances through direct action or peaceful protest. Organised, non-violent protest marches were a key weapon in the struggle for independence, and the right to peaceful protest is now recognised as a fundamental right in the Constitution.” 

Conversely, the Court differentiated between historical and contemporary forms of dissent, stating, “Erstwhile mode and manner of dissent against colonial Rule cannot be equated with dissent in a self-ruled democracy.” Despite variance within judicial interpretations regarding the centrality of protests in a democratic society, the prevailing view remains that every individual, irrespective of profession, retains this right—albeit subject to reasonable restrictions under Article 19(2) and Article 19(3). In Ram Manohar Lohia v. State of Bihar, the Supreme Court refined this framework by conceptualising three concentric circles: law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents the security of the State.

As both participants in democracy and custodians of justice, lawyers’ protests are fundamentally distinct from other professional demonstrations since they directly impact court proceedings and timely delivery of justice. Thus comes the claim that there must be a distinct blueprint that governs how the rights of legal practitioners are interpreted within Article 19. It would involve creating a structured legal framework that governs when, how, and why lawyers can protest unlike general regulations applicable for all.

The Government's Perspective on Curtailing Lawyer Strikes

“On the slightest pretence strikes and/or boycott calls are resorted to. The judicial system is being held to ransom. Administration of law and justice is threatened. The rule of law is undermined,” opined the Honourable bench of the Supreme Court, sympathising with Harish Uppal’s grievances regarding the inefficient handling and alarming delays in the case involving him and many cases alike. In 2002, with the legal community drowning in strife and dissatisfaction, lawyer strikes lasting days and weeks became frequent. This perilous situation was again taken up in the 266th report of the Law Commission of India whose findings revealed the pendency of about 2.5 crore cases in subordinate courts in the year it was published. Thus, to protect the integrity of the Right to Fair Trial, the three-judge bench in the aforementioned case declared strikes to be illegal, explaining that the call for strike by lawyers is, in effect, a call to breach the contract which lawyers have with their clients. If a lawyer does not attend Court it would amount to professional misconduct and also contempt of Court. This decision, as well as the report, was not warmly welcomed by the BCI which called it “draconian, anti-lawyer and undemocratic.” Thus, this prohibition on lawyer strikes still remains uncodified, existing only through judicial rulings which are seldom enforced. After examining the multiple reports and decisions of the Court, though, one fact becomes staggeringly clear and goes on to form this paper’s strongest criticism— that the Court focused on the disruptive impact of these strikes rather than probing the underlying causes such as insufficient infrastructure, overwhelming caseloads and delayed salaries.

Evaluating the Advocates (Amendment) Bill, 2025: A Step Too Far?

Ironically, an amendment bill that focused on banning strikes was met with a nationwide call for a strike of advocates by the BCI. The bill does provide for a slight exception, allowing participation in a strike “only when it does not impede the administration of justice.” However, even that is subjective and ambiguous, and is limited to symbolic or one-day strikes with due permission by relevant authority. Any violation of the limitations specified by the amendment bill would be considered misconduct, punishable under the Advocates Act, 1961 and the Bar Council of India Rules, 1975. The proponents of the bill hinge upon its necessity to protect litigants’ rights to timely justice. As per the National Judicial Data Grid, as of February 24, 2025, the Supreme Court has a backlog of 81,274 cases. So, despite the 'right of association' guaranteed by Article 19 of the Constitution being a settled principle of law (meaning that it cannot be taken away from anyone, including lawyers), those cases cannot be left in abeyance to the extent that the administration of justice is completely paralyzed. This causes severe, and at times irreversible, damage to litigants.

It is pertinent to mention that in the absence of effective legal remedies, strikes serve as the sole means to compel action from the authorities. By imposing a blanket ban on lawyer strikes, branding all as unjustified, and setting an unattainably high standard for exceptions, the authorities place lawyers with legitimate grievances in an exploitative predicament. The contours of this section suggest how completely opposing or supporting the ‘idea of strikes’ is not a feasible option for the legal profession. The question then arises whether there’s a viable path forward.

The Way Forward: Limitations and Solutions

Given that previous judicial pronouncements have failed to provide an effective remedy, an alternative approach must be considered—specifically, the codification of clear regulations on lawyer strikes within the Advocates Act. Lawyers would be encouraged to adopt non-disruptive protest methods initially, such as issuing public statements, wearing symbolic armbands, or boycotting specific courtrooms without halting proceedings. 

Alternative Dispute Resolution (“ADR”), particularly arbitration, provides a potential remedy to the issue of lawyer strikes. The framework for resolving such disputes should proceed in stages. First, drawing from Section 62 of the Industrial Relations Code, 2020, lawyers must serve a formal strike notice specifying concerns, reasons, and strike dates within a given timeline. After this, the parties would be referred to Mediation, Negotiation, or Conciliation. No strike would be permissible while these adjudication proceedings are in progress. If a resolution is reached, it would be binding, thereby concluding the dispute. If mediation fails to yield a resolution, arbitration shall commence, with its verdict being final and enforceable. The amendment to the Advocates Act must provide a detailed framework for arbitration, including the selection of impartial arbitrators, the requisite number of arbitrators, and the specified venue for proceedings. Lawyers who do not adhere to this process would face an illegal strike declaration, incurring penalties and compensation liabilities. 

For the purpose of addressing grievances and curbing disruptive strikes, a three-tier dispute resolution mechanism is proposed within the Act: Local Redressal Committees (“LRCs”) at the State Bar Council level for handling regional issues; a National Advocacy Grievance Council (“NAGC”) under the auspices of the BCI for uniform decision-making; a Judicial Mediation Panel (“JMP”) of retired Supreme and High Court judges for mediation in difficult matters. This framework ensures timely resolution with a suggested 30-day resolution deadline.

Strikes against judicial rulings or legislation lack justification, as legal remedies already exist. In Manoj Kumar & Others v. Civil Judge (Junior Division), Deoria & Others, 1997, the Allahabad High Court stated that strikes must be directed towards those genuine issues which affect lawyers such as conditions at the workplace and wages. Hence, it becomes significant to expedite the handling of all legitimate concerns that may arise from lawyers' strikes towards the absence of an obstacle in the administration of justice.

Conclusion

The Advocates (Amendment) Bill, 2025, and its stringent prohibition on lawyer strikes—justified on the grounds of ensuring uninterrupted judicial proceedings—presents a profound legal dilemma in today’s evolving landscape. Simply using the drop in efficiency of justice as a reason for outright prohibition of protests, the Bill overlooks the legitimate grievances of various legal professionals and inadvertently paves the way for legal restrictions on dissent. Along with grievance resolution mechanisms and continuous dialogue with the legal community, the judiciary, and the policymakers, it may become easier to facilitate dialogue constructively and avert strikes. Setting up independent mediation bodies to arbitrate disputes within the legal fraternity would go a long way towards minimizing disruption while preserving autonomy. Strengthening the autonomy of the legal field and preserving its dynamic spirit, this article voices for a carefully structured regulatory approach that ensures both timely delivery of justice and the preservation of democratic freedoms.

*Kashish Malhotra is a law undergraduate at the Hidayatullah National Law University.

The views expressed above are the author's alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.