Madras HC continues to hear concerns regarding State Bar Council Elections

It would appear that the dust is yet to settle on the controversies surrounding the Tamil Nadu and Puducherry State Bar Council elections, 2018, as more petitions raising concerns regarding its conduct continue to arise at both the Principal Bench, as well as the Madurai Bench of the Madras High Court..The Bench of Justices N Kirubakaran and R Tharani at Madurai is currently in the midst of hearing various related petitions, including those alleging rampant bribery and cash-for-votes malpractices being indulged in by election hopefuls..These developments persist even after the Principal Bench of the Madras High Court upheld the concurrent powers of the State Bar Council to frame amending rules for the qualification of electoral candidates. The proposed amendments in question had been expected to address some of the concerns raised previously, regarding the possibility of malpractices tainting the conduct of elections..However, the Court’s observation that these proposed amendments would only take effect after the approval of the Bar Council of India (BCI) appears to have stoked even more conflict..As the Court was dictating the above verdict, it was informed that the BCI had deferred taking a decision on the approval of these proposed amendments. Consequently, the Court had observed that those advocates who do not clear the proposed 10-year experience criterion could also file their nominations for the 2018 Bar Council elections, without prejudice to the consequences that may follow the BCI’s approval of the amended rules on a later date..It would now appear that the BCI approval may not come through in time for the proposed amendments to take effect before the conduct of the 2018 elections. The BCI had been due to take a call on whether the Rules should be approved last Sunday. However, in an extract of the meeting’s minutes, it has been recorded as follows:.“After consideration, the Council is in opinion that since the elections have now been declared, notification has already been issued, it won’t be proper to make or approve any rule with regard to modification or disqualification of the candidates. The matter is therefore deferred for the present. It will be considered at appropriate time.”.In light of these developments, Advocate General for Tamil Nadu Vijay Narayan appears to have written to the Secretary of the Bar Council of Tamil Nadu, to pass orders informing that the old election rules would apply for the conduct of the elections this year..In his letter, the AG notes that the High Court had held that the proposed election rules would only take effect subject to BCI approval. However,.“Since the Bar Council of India has not granted approval and has deferred the matter to be considered at the appropriate time, it is clear that the proposed rules made by the Special Committee, Bar Council of Tamil Nadu and Puducherry will not come into force in respect of the ensuing elections.”.Therefore, he had written that the Secretary “may issue an order, making it clear that the old rules or the existing rules will apply to the present election.”.The nomination rules issued by the Returning Officer, as notified on the Tamil Nadu Bar Council’s website have also intimated that nominations made in conformity of the previous rules would be accepted. It has been notified:.“…the Returning Officer shall receive the prescribed Nomination Form in conformity of both the old rules and as well as the proposed amended rules. Kindly note that at the time scrutiny, if the Bar Council of India approves the new rules the nominations in conformity with new rules will be considered and if the Bar Council rejects or modifies the proposed rules, the scrutiny will be done accordingly.”.Protesting these developments, a writ petition was filed at the Madurai Bench, praying that the Court quash the AG’s communication and further direct that the amended rules would have to be strictly adhered to for the conduct of the 2018 State Bar Council elections..The petitioner, Advocate LS Ravichandran, has contended that after the High Court found that the State Bar Council has concurrent powers to frame the election rules, BCI approval for the amended rules is a mere formality that need not be complied with. Placing reliance on GP Singh’s treatise, Interpretation of Statutes, the petitioner has contended that,.“…it is construed that if the higher court held, both the entity has concurrent power in a subject, then getting consent or approval from another authority is mere formality not mandatory. Hence the rules amended by the Special Committee of the bar council of Tamilnadu & Puducherry should be implemented in the interest of safegaurding the legal profession from the intruders. [sic]”.The petitioner has also specifically objected to the following direction in the AG’s letter:.“Further the finding in Paragraph-60 of the judgement that a candidate will be disqualified on the ground of misconduct after it is placed before the Disciplinary Committee will also no apply for the present elections. A clarification to this effect may be issued under the signature of the Secretary, Bar Council of Tamil Nadu and Puducherry.”.Arguing that such a communication has been made on a wrong interpretation of the judgment, the petitioner has submitted,.“In order to facilitate some persons who are facing disciplinary proceedings to contest the elections, the 3rd respondent has passed this impugned communication in a hurried manner without applying his minds. [sic]”.The petitioner has also found fault on the part of the AG for having drastically changed his view on the matter, after having framed the rules in public interest. He has argued that the communication has been made without the concurrence of the majority of the members of the Special Committee, and is therefore illegal and arbitrary..It has been submitted that by the AG’s letter, the State Bar Council is being pressured with malafide intention by the AG “and his men.” The petitioner further goes on to argue that if the AG’s communication is implemented, it would result in great injustice to the entire legal fraternity..In the meanwhile, the Principal Bench of the High Court is due to hear another petition calling for the appointment of one or more Judge Commissioners to oversee the conduct of free and fair elections..The matter had been adjourned previously to obtain clarification on whether the High Court could hear the matter, given that there appeared to be similar matters pending before the Supreme Court. The matter had been listed to be heard last Monday as well as today, but could not be heard due to paucity of time..The First Bench of Chief Justice Indira Banerjee and Justice Abdul Quddhose did however hear a petition calling for the inclusion of a NOTA (i.e. None of the Above) option in the ballot for the upcoming elections. In his petition, Advocate S Arumugam, has opined that since none of the contesting candidates are fit or suitable for the post they contest for, the only option left would be not to go to the polling booth..Following brief arguments however, the Bench disposed of the petition, directing the Special Committee of the Bar Council to consider the said representation..Read Writ Petition filed for inclusion of NOTA option for voters:.Read Extract of Minutes of BCI meeting held on February 4, 2018:.Read copy of AG’s communication dated February 7, 2018: