Amendments to Bar Council Election Rules challenged in Madras High Court

There seems to be no end to the controversies surrounding the upcoming Bar Council of Tamil Nadu and Puducherry (BCTN) elections, the latest being a challenge made in the Madras High Court to recent amendments proposed to the BCTN election rules..The amendment proposes qualification criteria with respect to candidates seeking to stand for the State Bar Council elections. A resolution to this effect was passed on January 24 by members of the Special Committee of the Bar Council and Returning officer for the elections, Justice (Retd.) GM Akbar Ali..Hearing on January 31, 2018.The First Bench of the Court, Chief Justice Indira Banerjee and Justice Abdul Quddhose heard arguments on two petitions filed challenging the said resolution and the proposed rules..The primary ground for challenge presented by the petitioners is that the State Bar Council Committee exceeded its jurisdiction in passing the said resolution..It was contended that the proposed rules touch on subjects that are within the exclusive jurisdiction of the Bar Council of India (BCI). In this regard, reference has been made to Sections 3, 15 and 49 (1) (a) and (ab) of the Advocates Act, 1961, read with Part III, Chapters I and II of the BCI Rules..Whereas Section 15 of the Act refers to rules introduced by State Bar Councils, the same cannot take effect without the approval of the BCI under sub-clause (3). It has been argued that the impugned rules were intended to take effect from the date on which the resolution was passed, i.e. January 24, even though no BCI approval has been given so far..A narrower challenge made pertains to a particular rule proposed in the impugned amendment. Under the proposed Rule 7A of the election rules, a candidate is barred from contesting the BCTN elections unless he is an advocate who has been practicing continuously for atleast ten years..This rule has been challenged as being arbitrary. One of the petitioners aggrieved by this rule argued that he would be barred on this count, given that he has been practicing only for nine years..Further, the petitioner argued, the resolution was passed and notified within a very short period of time and, more importantly, shortly before the last date for filing nominations. The original deadline for filing nominations, as announced last week, was to be February 1. In turn, he argued, the impugned rules have caused confusion among the members of the bar..Reference was made to the proviso to Section 3 (2) (b) of the Advocates Act which lays down that as nearly as possible, one half of the State Bar Council members should be persons who have been on the State Roll as an advocate for 10 years..Accordingly, the BCTN election notification had also indicated that out of 25 members, 13 of the those elected would have to have at least 10 years’ experience as an advocate. However, the impugned resolution, which was passed after this notification proposes that all 25 members should be advocates who have minimum 10 years’ experience. The petitioner has argued that the reservation scheme under the Central Act cannot be so altered by the State Bar Council..It was further argued that the phrasing of the proposed rule also suffers from lacunae in that it appears to allow advocates from other state bars to contest the BCTN elections, provided they have ten years’ of practice as an advocate..However, Senior Advocate R Singaravelan, one of the members of the BCTN Special Committee, referred to Sections 6 (1) (g), 8A and 15 of the Advocates Act to argue that the BCTN authorities did not exceed their jurisdiction in passing the said resolution..He pointed out that the BCI is expected to meet on February 4, 2018 to decide on whether the resolution should be approved or not. He also informed the Court that the last date for filing nominations for the BCTN elections has been extended to February 15, and that the date could be further extended by a day or two if required..As regards the challenge made to the rule proposing ten-years practice as a qualifying criterion, he argued that the rule was arrived at after appreciating a host of factors. This includes guidelines laid down in judgments of the Supreme Court and the High Court. He pointed out that Bar Council members are vested with serious powers, including disciplinary powers as laid down under Section 42 of the Advocates Act..While making note of the serious responsibilities accompanying the Bar Council office, he informed that at the time of his assuming office, there were around 600 complaints of misconduct against erring advocates pending disposal before the disciplinary committee. While the number has now come down to around 400, these include serious charges such as illegal real estate transactions, bribery etc..In this background as well, the authorities had felt that some reforms should be introduced. After its publication in 1975, no significant provisions had been introduced in the BCI rules regarding the eligibility and conduct of advocates..It was emphasised that it is not the case that younger lawyers are unclean or ill equipped. However, it was opined that ideally those contesting the elections should have some maturity and experience. Singaravelan pointed out that the statutory voting rights of the bar are not being interfered. However, in the matter of the right to represent the bar, the Bar Council wanted to be more careful..Furthermore, there is no positive provision in the Advocates Act which mandates that those having less that ten years’ experience should be allowed to contest the Bar Council elections. The proviso to Section 3 (2) (b) was a safety provision. It should not be mischievously interpreted to mean that advocates with less than ten years should be allowed to contest the elections..On a general note, Singarevelan also argued that the rules were proposed in public interest. It followed various representations made, including in Court, calling for free and fair elections. He argued that efforts were being directed at ensuring that the elections are not delayed..On hearing initial submissions, the Court found that there were two broad issues to be considered, i.e..Whether the BCTN had the power to pass the impugned resolution with the proposed amendments?Whether the rules in question were arbitrary and illegal?.In the course of hearing the case, the Bench expressed the prima facie view that the cut-off of 10 years experience for contesting elections did not appear unreasonable. It agreed that the role of a Bar Council member required persons with some level of maturity to occupy the post..However, the broader point that seemed to emerge from the Court’s observations was that all cut-offs or ceiling limits may involve a certain level of arbitrariness that cannot be helped. For instance, the Court observed, there were very many competent judges who could not make it to the High Court bench because of the age criterion..On the question of jurisdiction, the Court made note that there were precedents to indicate that the BCI had exclusive jurisdiction to implement rules under Section 49 (1) (a) of the Advocate’s Act, dealing with the voting rights of advocates during Bar Council elections. Therefore, the Court observed, analogically this may mean that the BCI would also assume exclusive jurisdiction to frame rules pertaining to Section 49 (1) (ab), which deals with qualifications for membership of a Bar Council and the disqualifications for such membership..The Court, however, emphasised that these were only prima facie observations and that it had not made up its mind on the issue. It was also made clear that regardless of the Court’s stance on the issue, there would be no obstruction to the conduct of the elections..Today’s Hearing.When the matter was taken up today, Senior Advocate R Singaravelan forwarded the proposition that, the general powers of the BCI under Section 49 of the Act do not prevent the State Bar Council from framing rules on specific issues, provided there are no contrary provisions already existing in the Act or the rules..As regards voting rights of members, for example, there is a specific provision besides Section 49 (1) (a) under Section 3 (4) of the Act acknowledging specific powers conferred on the BCI..In the absence of such specific provisions, it cannot be said that the State Bar Council should not frame any rules. This particularly so in light of the State Bar Council’s powers concerning the conduct of Bar Council elections in Sections 6, 8 and 15 of the Act..Among other arguments forwarded to counter this stance, it was contended by the petitioners that the Act only enables the State Bar Council enough powers to conduct elections. The role of the State Bar Council in this regard is comparable to that of an election commission. The Act does not confer any rule making powers for the same..On the ten-year experience criterion, it was lamented that it is only in Tamil Nadu that such a ceiling has been imposed. It was argued that in most other states, the state bars are eager to welcome young lawyers. The imposition of this criterion was contended to be unreasonable, motivated and biased against young lawyers..Following arguments made today, the Bench has posted the case for Orders tomorrow..This case adds to a list of matters currently pending before the Court touching upon the BCTN elections. This includes a PIL filed recently calling for the appointment of one or more judge commissioners to oversee the free and fair conduct of the elections. Last Monday, the Madurai Bench reportedly admitted a petition alleging that candidates were engaging in cash-for-vote malpractices.