“Money, liquor power exhibited to woo voters”, the Madras HC’s scathing indictment of Bar Council elections

“Bribery, Corruption, Money Power, Caste card, Violence, Selling and Buying votes, Malpractice” are synonyms of Indian election process. The ensuing Bar Council elections to be held on 28.03.2018 is not an exception.”.With these opening remarks, the Madras High Court on Friday passed a detailed order with instructions aimed at ensuring the free and fair conduct of elections to the Bar Council of Tamil Nadu and Puducherry (BCTN), scheduled to be held on March 28..The order was passed in a batch of petitions filed before the Bench of Justices N Kirubakaran and R Tharani. The petitions were filed following allegations that the forthcoming Bar Council elections may be tainted by rampant malpractices..The writ petitions prayed, inter alia, for the Court to quash the BCI’s order deferring its decision to approve amendments proposed to the state Bar Council election rules, by the special committee of the BCTN..The Court observed that the vital functions of Bar Council representatives required that they possess extraordinary legal knowledge, wide exposure to various laws and sufficient years of standing in the Bar. However,.“…the reality is something shocking and disturbing. Mostly, persons, who make money through real estate business and not practising in Courts, having communal backing, distributing free gifts, spending in lakhs and even more than a crore, without any practice in law, much less any good practice, are elected..If this is the quality of the members elected, one can imagine as to how they would discharge their functions as members of the statutory body which prescribes standards of legal education, professional conduct and etiquette for advocates.”.The order also makes note that the practices contributing to the criminality of the legal profession are more pronounced in the State of Tamil Nadu. This has been attributed to the mushrooming of law colleges, selling of law degrees to the criminal elements and persons without basic qualifications. It was observed,.“[The] Bar Council is solely responsible for this situation, as it had given approval to as many as 1400 law colleges, without even considering the requirement of lawyers in the country, which resulted in making of 3 to 4 lakhs law graduates every year.”.In this context, the Court opined that the proposed election rule amendments would certainly take care of the present situation viz., preventing the criminal elements, non-practising advocates, advocates with insufficient experience, advocates with political background from contesting the ensuing elections..While the First Bench upheld the power of the BCTN to frame the said rules earlier this month, it had also emphasised that the rules could only come into effect after the BCI gave its approval. These rules had been communicated to the BCI on the same day that they were framed i.e. January 24..The BCI had been expected to take a decision on whether these rules would be approved or not on February 4. However, the body preferred to defer the decision for a later date, citing that the elections had already been notified..This deferral also provoked challenge from certain sections of the Bar, including petitions that were pending consideration before the Bench of Justices Kirubakaran and Tharani. On February 10, the BCI informed the Court that the agenda would be taken up in its General Council meeting scheduled for February 18..The Court on Friday unequivocally held that the BCI cannot defer its decision regarding its approval for the proposed amendments on the ground that the election notification was already issued. The Bench, therefore, quashed the BCI’s resolution to defer the issue, after noting,.“If no decision is taken by the Bar Council of India, then the efforts taken by the Special Committee members to prevent the criminal elements with money and muscle power from contesting the election would become futile. The consequence of election of those elements would be very dangerous and the hold of those elements over the profession and the Bar Council cannot be prevented.”.The Court also directed the BCI to make its decision in the next scheduled General Council meeting on February 18..In light of the numerous apprehensions raised, the Court also deemed it appropriate to issue detailed instructions to the BCI, the Income Tax Department as well as police authorities..In addition to the election rule amendments proposed by the BCTN, the Court also directed the BCI to consider whether it is possible to appoint a few more retired judges of High Court as to oversee the conduct of the Bar Council elections..The Court also directed the Returning Officer to accept only those candidates to contest elections who have,.“(a) (i)10 reported judgments, or (ii) 5 contested judgments for each year in the previous five years to the election year 2018 or 25 contested judgments in toto;.if they are High Court practitioners, to prove their continuous practice and their contribution to the development of law;.(b) atleast 5 contested judgments for each year in the preceding five years to the election year 2018 or 25 contested judgments in toto, if they are practitioners before the Subordinate Courts, to prove their continuous practice and their contribution to the development of law.”.In addition, the Court has also recommended that the Returning Officer be instructed to:.Direct the candidates to disclose their assets, including all bank accounts of the candidates, family members and to file their income tax returns at least for immediate five years.Direct the candidates to disclose criminal cases including pending Criminal cases against them and the failure to disclose the pending criminal cases should automatically debar the candidates, if brought to the notice of the Returning Officer.Forward the names of the contestants to the Director General of Police on or before 19.02.2018 and to get a report about the antecedents of the contestants on or before 26.02.2018 and thereafter finalize the nomination papers.Upload all the details of the candidates in the website of Bar Council of India.Reject the candidatures of advocates who hold profit making posts like MP’s, MLA’s, Government Pleaders, Prosecutors etc.,Ensure that the candidates are prohibited from making advertisements by putting up posters, banners and distribution of pamphlets etc., as the voters belong to the learned and noble profession.Disqualify the candidates who are found to be using communal, religious, linguistic cards and indulging in money, gift, liquor distribution to woo the voters (Advocates).Seek the assistance of the CISF as far as polling booths in High Court campus, Chennai and Madurai High Court campus, Madurai are concerned, so as to deploy sufficient forces to give security from previous day of election till results are declared. The CISF shall frisk the voters and allow the persons who have identity cards.Nominate three senior counsels or reputed members of the Bar from outstation to each of the polling booths as observers.Ensure that the entire process of voting is videographed, as a precautionary measure, using two cameras, one inside each polling booth and the other outside each polling booth.Prohibit the voters from using electronic devices, including cellphone during voting..The Director General of Police has been issued detailed instructions to verify names of candidates forwarded by the BCI, to provided appropriate armed protection for the dispatch of ballot papers, and to take necessary steps against those indulging in violence and malpractices during the conduct of the elections. Action taken reports are to be furnished on specific dates before the Court..The Income Tax department has been ordered to provide special communication channels to receive information regarding malpractices in the Bar Council elections..Further, the Court has also directed that separate, exclusive teams be tasked with conducting raids in places including the Court campus, where money is stated to be stashed and distributed by the candidates and their supporters, and to investigate the source of income. Reports of action taken in this regard have also been directed to be furnished by the IT department before the Court..Concluding the comprehensive order, it has been remarked,. “Every advocate needs to introspect about the position of legal profession and shun bribery in the interest of legal profession, society, above all justice delivery system for better days to come. If not, even God cannot save the Legal Profession.”.The case has been posted for compliance on March 2, 2018..Apart from this case, the First Bench is yet to hear a petition filed earlier praying for the appointment of judge commissioners to monitor the conduct of the Bar Council elections. In the meanwhile, the Bench of Justices CT Selvam and N Sathish Kumar has also issued notice in another petition praying to quash the BCI’s deferral resolution passed on February 4..Read Order: