Petitioner in person.

Amir Javed, Addl. Attorney General, Sehrish Munawar Bukhari, A.A.G. and Sadiq Ali Mohmand for respondents.

       Date of hearing: 24^th January, 2023.

JUDGMENT

SHAKEEL AHMAD J.— Petitioner is the advocate, and has initiated these proceedings under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, in the public interest for guidelines to be set down to curb frequent calls of strike issued by the respondent No.2 at National level or vice versa, challenging vires of the rule 175-B and 175-E of the Pakistan Legal Practitioners and Bar Council Rules, 1976. The relief the petitioner seeks is a mandamus declaring that:-

(i)     Rule 175-B to the extent of non- observance/defiance of decisions/ instructions Pertaining to call of strike/protest issued/ by respondent No.2 at national level or vice versa as well as rule 175-E of the Pakistan Legal Practitioners and Bar Council Rules, 1976 as ultra-vires of the Constitution of Islamic Republic of Pakistan, 1973, law and jurisprudence in vogue.

(ii)    Directing that the respondent No.2 and 3, not to prevent or cause hindrances to the petitioner/ advocates/public appearing before the Coutts.

(iii)   Declaring that issuance of instructions/directions by the respondents No.2, 4 and 5 to observe strike/protest as illegal, without jurisdiction authority.

(iv)   Directing the respondents No.3 and 6 to issue directions/instructions to the Bar Associations/Courts throughout Khyber Pakhtunkhwa for doing the needful in this regard.”

2.    In order to support the plea with factual details, the petitioner pleaded that Pakistan is the Islamic Republic. It has a written constitution, which is an organic document designed and intended to cater the needs of all times to come. It provides right of access to justice, which includes the right to be treated according to law, the right to have a fair and proper trial and right to have an impartial Court and Tribunal. Provisions of Article 199 of the Constitution have been introduced to correct actions of government/public functionaries, which suffer either from lack of jurisdiction or excess of jurisdiction and to declare the laws and rules, which are inconsistent with or in derogation of fundamental rights to be void. It was pleaded in the petition that due to frequent calls of strikes issued by the respondents No.2, 4 and 5, the litigants are deprived of access to Courts for redressal of their grievances. He averred that being an advocate he is under legal obligation to appear and plead the case of his clients in the Courts of law. The said respondents are creating hindrance on his way to appear and plead the case of his clients in the Courts of law on the day, they observe strike. According to him, provisions of rule 175-B to the extent of non-observance/defiance of decisions/instructions of the Pakistan Bar Council by any Bar Council or Bar Association or any member of the Bar/Advocate shall be deemed to be gross professional misconduct, and rule 175-E of the Pakistan Legal Practitioners and Bar Council Rules, 1976, permitting to issue call of strike/protest at national level by the Pakistan Bar Council in this regard is illegal, ultra-vires and violative of Article 18 of the Constitution, inter alia on the following grounds:-

“A. That rule 175-B to the extent of non- observance/defiance of decisions instructions per to call of strike/protest issued by respondent No.2 as well as rule 175-E of the Pakistan Legal Practitioners and Bar Council Rules, 1976 is ultra-vires of the Constitution of Islamic Reptid/ic of Pakistan; law and jurisprudence in vogue.

B.     That call of strike/protest presents advocates from performing their duty and that too to the detriment of people of Pakistan.

C.     That the stated law violates the provisions of the Constitution guaranteeing fundamental rights.

D.     That it is settled that, where conflict between the act and the rule is irreconcilable, he rule will have to be declared ultra-vires.

E.     That law did not permit an individual to arrogate unto himself the roles of a complainant, prosecutor, Judge and executioner.

F.     That discretion without a uniform yardstick or a formula was a loose jumble of haphazard human subjectivity, which was inescapably susceptible to error and indubitably arbitrary, ex-facie discriminatory, highly irrational and illogical.

G.     That if is the duty of the judiciary to examine vires of legislation at the touchstone of the Constitution.

H.     That “Expressio Unis Est Exclusio Alterius”, commanding that when law requires a thing to be done in particular manner then, it should be done in that manner as anything done in conflict of the command of law shall be unlawful being prohibited.

I.      That “lgnorantia Juris non exaust”, commanding that ignorance of the law excuses not.

J.      That it is cardinal principle of law and justice that what cannot be done directly cannot be done indirectly.

K.     That the petitioner has no other adequate, efficacious and alternate remedy but to approach the Hon’ble Court against stated law in vogue in the Province of Khyber Pakhtunkhwa.

L.     That further necessary grounds will be raised during the course of arguments.”

3.    After service of summons, the respondents No. 1 and 2 put their appearance, contested the lis by filing their comments, separately, raising therein many legal and actual objections qua maintainability of the writ petition.

4.    We have heard the learned counsel for the parties at           length, we were ably assisted by the learned counsel for the respective parties, who took us through relevant documents and provisions of the Constitution and Pakistan Bar Council Rules, 1976. We must appreciate the exhaustive arguments advanced by the learned counsel for the parties relating to every aspect of the case.

5.    Our analysis, therefore, must focus on the legal aspect emanating from the arguments advanced at the bar.

6.    In this backdrop, we may first advert to the main question as to whether rule 175-B to the extent of non- observance/defiance of decisions/instructions of the Pakistan Bar Council relating to call of strike/protest is a professional misconduct and whether rule 175-E, allowing call of strike/protest at national level or vice versa by the Pakistan Bar Council is illegal and ultra-vires of the Constitution or not?

7.    There is no denial of the fact that lawyers are the officers of the Courts. They always fight for restoration of democracy, rule of law and independence of judiciary in the country. They are tongue of those people who cannot speak themselves. They fight for their rights and redressal of grievances of the oppressed class of the society. Under old cliché they are deemed to be wheels of the same chariot, therefore, for its smooth running, they are expected to conduct the cases and act in a dignified and respectful manner both inside and outside the Court. Even when protesting on legal points they are bound to have modest and polite attitude by using decent language. Worthy and learned Advocates by virtue of their professional obligations are required to protect and safeguard the prestige and dignity of the Courts and fight against unwarranted onslaughts.

8.    The lawyers are not only attached to the noblest profession on earth but also endeavour in protecting rights of oppressed and play a key role in safeguarding the fundamental rights guaranteed under the Constitution, therefore, they are

expected to display tolerance and distinctive behaviour in the society as well as in the Courts of law.

9.    Adverting to arguments of the petitioner on the validity of impugned rule 175-B and 175-E of the Pakistan Legal Practitioners and Bar Council Rules, 1976, though the arguments before us ranged over a very wide field, however, the attack on the validity of the rules was vested on two grounds (i) that the impugned rules contravene the fundamental right guaranteed under Article 18 of the Constitution i.e. freedom of trade, business or profession (ii) that it violates Articles 4 and 8 of the Constitution.

10.  We shall consider these two points in that order: First as to whether the impugned provisions are obnoxious to, or in contravention of Article 18 of the Constitution. Under this Article, the constitution gives the fundamental right of freedom of trade, business or profession and permits the right to do the lawful business. The only restriction which can be placed on trade or business or profession is to conduct the business in accordance with law of the land. It is not denied that the right of the petitioner to appear and plead before the Court in routine on its literal meaning has been denied to him by the impugned rules. The arguments, however, was that it would not be a proper construction of the content of this guaranteed freedom to read the text literally, but the freedom should be so understood as to cover not merely a right, but of placing no impediments or restrictions on appearance of the lawyers even on the day when call of strike is issued or strike is observed.

Article 17(2) of the Constitution guarantees the right to the citizens in general, lawyers and workers in particular to form associations and unions subject to reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan or public order or morality. In this context, it is pointed out that the expression association formed in this Article refers to associations formed by workmen for trade union purposes or bar associations constituted by lawyers, whereas the word union being specifically chosen to designate labour or trade unions.

11.  The right to form associations in the sense of forming a body carries with it as a concomitant right, a guarantee that such associations shall achieve the object for which they were formed. If this concomitant right were not conceded, the right guaranteed to form an association would be an idle right, an empty shadow lacking all substance.

12.  Bar Associations with sufficient membership and strength are able to bargain more effectively with the state functionaries. This bargaining power would be considerably reduced, if it is not permitted to demonstrate in a peaceful manner. Strike in the given situation is only a form of demonstration. There are different modes of demonstration i.e. go slow, sit-in, boycott, passing resolutions, taking out silent processions without causing disturbance to Court work, making representations, holding dharnas or relay fast and wearing black ribbons or non-appearance before the Courts of law as a

protest, and strike is one such mode of demonstration by lawyers for their rights. The Bar Associations use this right as an important weapon in the armoury of the associations. This right has been recognized by almost all democratic countries. Though not raised to the high pedestal of a fundamental right, it is recognized as a mode of redress for resolving the grievances of the lawyer’s community. It is under these circumstances the impugned rules were framed. However, it is the duty of every advocate, who has accepted a brief to attend trial or proceedings of the Court, even though it may go on day-to-day and for a prolonged period. However, no force or coercion should be employed against the lawyers who are not in agreement with the strike call and want to discharge their professional duties. In this behalf, reference may be made to the case of “Bharat Kumar K. Paricha & Anr. Vs. State of Kerala & Ore.” [(1998) (1) SCC 201 at 204, para 17], wherein it was held that;

“No political party or organisation can claim that it is entitled to paralyse the industry and commerce in the entire State or Nation and is entitled to prevent the ’citizens not in sympathy with its view point, from exercising their fundamental rights or from performing their duties for their own benefit or for the benefit of the State or the Nation.”

13.  In the case of “Lt. Col. S. J. Chaudhary Vs. State (Dehli Administration)” reported in (1984) 1 SCC 722, the High Court had directed that a criminal trial go on from day-to- day. Before the Court, it was urged that the Advocates were not willing to attend day-to-day as the trial was likely to be

prolonged. It was held that it is the duty of every advocate who accepts a brief in a criminal or civil case to attend the trial day- to-day. It was held that a lawyer would be committing breach of professional duties if he fails to so attend.

14.  In the  case  of “K.  John  Koshy  &  Ore.  Vs.  Dr.

Tarakeshwar Prasad Shaw” reported in (1998) 8 SCC 624, one of the questions was whether the Court should refuse to hear a matter and pass an Order when counsel for both the sides were absent because of a strike called by the Bar Association. The Supreme Court of India held that the Court could not refuse to hear the matter as otherwise, it would tantamount to Court becoming a privy to the strike.

15.  In the case of “Mahabir Prasad Singh Vs. tacks Aviation Pvt. Ltd.” reported in (1999) 1 SCC page 37, an application had been made to the trial Court to suo moto transfer the case to some other Court as the Bar Association had passed a resolution to boycott that Court. It was stated that the lawyers could not thus appear before that Court. The trial Court rightly rejected the application. In a revision petition, the High Court stayed the proceedings before the trial Court. The Supreme Court of India held that the High Court had committed grave error in entertaining the revision petition and passing an Order of stay. Following the ratio laid down in “Lt. Col. S.J. Chaudhary’s case“, the Supreme Court of India again held as follows:

“15. This is not a case where the respondent was prevented by the Additional District Judge from addressing oral arguments, but the respondent’s counsel prevented the Additional District Judge from hearing his oral arguments on the stated cause that he decided to boycott that Court forever as the Delhi Bar Association took such a decision. Here the counsel did not want a case to be decided by that Court. By such conduct, the counsel prevented the judicial process to have flowed on its even course. The respondent has no justification to approach the High Court as it was the respondent who contributed to such a situation.

16.   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. But retaining the belief 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. No Court is obliged to adjourn a case because of the strike call given by any association of advocates or a decision to boycott the courts either in general or any particular court. It is the solemn duty of every court to proceed with the judicial business during court hours. No court should yield to pressure tactics or boycott calls or any kind of browbeating.”

16.  In the case of “Koluttumottil Razak Vs. State of Kerala” reported in (2000) 4 SCC 465, counsel did not appear in Court as advocates had called for a strike. As the appellant was languishing in jail, the Court held that an adjournment would not be justified. The Supreme Court of India held that it is the duty of the Court to look into the matter itself.

17.  In the case of “U.P. Sales tax Service Association Vs. Taxation Bar Association” reported in (1995) 5 SCC 716, the question was whether the High Court could issue a writ or direction prohibiting a statutory authority from discharging quasi-judicial functions i.e. direct the State Government to withdraw all powers from it and transfer all pending cases before the officer to any other officer and whether advocates would be justified to go on strike as a pressure group. In that context, the Supreme Court of India observed as follows:

“11. It is fundamental that if rule of law is to have any meaning and content, the authority of the court or a statutory authority and the confidence of the public in them should not be allowed to be shaken, diluted or undermined. The courts of justice and all tribunals exercising judicial functions from the highest to the lowest are by their constitution entrusted with functions directly connected with the administration of Justice. It is that expectation and confidence of all those, who have or are likely to have business in that court or tribunal, which should be maintained so that the court/tribunal perform all their functions on a higher level of rectitude without fear or favour, affection or ill-will. Casting defamatory aspersions upon the character, ability or integrity of the Judge/judicial officer/authority undermines the dignity ‘of the court/authority and tends to create distrust in the popular mind and impedes the confidence of the people in the courts/tribunals which is of prime importance to the litigants in the protection of their rights and liberties. The protection to the judges/judicial officer/authority is not personal but ‘accorded to protect the institution of the judiciary from undermining the public confidence in the efficacy of Judicial process. The protection, therefore, is for fearless “curial process. Any scurrilous, offensive, intimidatory or malicious attack on the judicial officer/authority beyond condonable limits, amounts to scandalising the court/tribunal amenable to not only conviction for its contempt but also liable to libel or defamation and damages personally or group libel. Maintenance of dignity of the court/judicial officer or quasi-judicial authority is, therefore, one of the cardinal principles of rule of law embedded in judicial review. Any uncalled for statement or allegation against the judicial officer/statutory authorities, casting aspersions of court’s integrity or corruption would justify initiation of appropriate action for scandalising the court or tribunal or vindication of authority or majesty of the court/tribunal. The accusation of the judicial officer or authority or arbitrary and corrupt conduct undermines their authority and rudely shakes them and the public confidence in proper dispensation of justice. It is of necessity to protect dignity or authority of the judicial officer to maintain the stream of justice pure and unobstructed. The judicial officer/authority needs protection personally. Therefore, making wild allegations of corruption against the presiding officer amounts to scandalising the court/statutory authority. Imputation of motives of corruption to the judicial officer/authority by any person or group of persons is a serious inroad into the efficacy of judicial process and threat to judicial independence and needs to be dealt with the strong arm of law.”

18.  Before parting with the judgment, it is observed that in the name of strike, no person has any right to cause inconvenience to any other person or to come in any manner a threat or any apprehension of risk to life, liberty and property of any citizen or destruction of life and property, and the least to any government or public property. It is added that taking out noisy and disorderly demonstrations for instance throwing stones by the demonstrators would not obviously be within the meaning of Articles 18 and 19 of the Constitution. However, the right to strike or the right to declare strike may be restricted to appropriate cases or rarest of rare cases where the dignity, integrity and independence of the bar or the Bench are at stake. Therefore, the validity of impugned rule 175-B relating to non- observance/defiance of the decisions/instructions of the Pakistan Bar Council by any Bar Council or Bar Association or any member of the Bar/Advocate relating to strike, restraining the lawyers from making appearance in the Courts of law in discharge of their professional obligations considering appearance of the lawyers in the Courts of law on the day of strike as gross professional misconduct, making them liable for disciplinary action, when tested with reference to the provisions laid down in Articles 4, 8 and 18 of the Constitution, we are of the view that it offends the provisions of Articles 4, 8 and 18 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, the same is struck down to that extent only.

19.  As we have stated earlier, though the arguments before us ranged on a very wide ground, we have not thought it necessary to deal with all of them because in view of our discussion made hereinabove on the crucial points in the case the others which were subject of debate before us did not arise for consideration. Hence, this writ petition is allowed in the light of observations made hereinabove.

Petition allowed