The Rajasthan High Court has asked the Bar Council of India (BCI) to respond to a plea challenging a rule that empowers the BCI to allow elected members of State Bar Councils to continue in office beyond the term prescribed under the Advocates Act, 1961, in certain contingencies [Shyam Bihar v. Bar Council of India and anr].
In focus is Rule 32 of the Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015 (2015 rules), which was amended in June 2023.
The amended rule essentially grants the BCI authority to extend the tenure of the elected members of State Bar Councils beyond the maximum term set under Section 8 of the Advocates Act, 1961.
A Bench of Chief Justice Manindra Mohan Shrivastava and Justice Ashutosh Kumar has asked the BCI to explain how a rule could be framed in contradiction to the provisions of the parent statute (the Advocates Act, in this case).
"Respondent No.1 (BCI) shall respond to the submission as above as to how in exercise of rule making power, a rule could be framed in violation of the provisions contained in the parent statue seeking to extend the term of the office of the members beyond maximum period prescribed under the enabling Act," the Court observed in its October 22 order.
The Court also said it would consider the question of interim relief during the next hearing on November 14.
As interim relief, the petitioner has urged the Court to restrain those whose terms have ended from continuing as members of the State Bar Council.
The petitioner before the Court has contended that the amended Rule 32 of the 2015 Rules goes beyond what is permitted by its parent statute, namely the Advocates Act, 1961.
Notably, Section 8 of the Advocates Act sets a five year term for State Bar Council members. However, this term may be extended by six months for reasons to be recorded in writing by the BCI, if the ensuing bar polls are delayed.
The amended Rule 32 of the 2015 Rules adds that if State Bar Council elections are delayed for reasons such as the delays in identifying lawyers eligible to vote during the bar polls, the term of the existing State Bar Council members can be extended further.
This extension is given "to complete the process of verification and in order to ensure that no non-practicing Advocate becomes a voter or a member of any State Bar Council."
The Rule further says that the verification process is to be completed within eighteen months from the date of extension, and that the elections must be carried out within six months thereafter.
If this is not done within such a timeframe, the BCI may dissolve the State Bar Council and constitute a special committee.
The petitioner before the High Court has now challenged Rule 32 insofar as it allows BCI to extend the terms of State Bar Council members beyond what is provided for under the Advocates Act.
His counsel, Advocate Sunil Samdaria, contended that if elections are not held within the prescribed period, the only lawful course is to establish a special committee as outlined in Section 8A of the Advocates Act.
Therefore, the petitioner has urged the Court to quash a BCI letter dated December 19, 2023 which allowed the extension of tenure for members of the State Bar Council in Rajasthan beyond the term set by Section 8 of the Advocates Act.
The petitioner has also called on the Court to declare any decision taken by such members of the Rajasthan Bar Council after January 16, 2024 as invalid since their tenure has expired.
Further the petitioner has urged the High Court to order the conduct of State Bar Council elections in Rajasthan without further delay.
[Read Order]