9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (2) TMI 2125 - HC - Indian LawsChallenge to Resolution No.117 of 2018 dated 24.1.2018 of the Special Committee constituted by the Bar Council of India under Section 8-A of the Advocates Act 1961 to discharge the functions of the Bar Council of Tamil Nadu and Puducherry whereby the Bar Council of Tamil Nadu and Puducherry Conduct of Election Rules 1975 have been amended - condition of eligibility of ten years of legal practice as an advocate to contest the election for membership of the Bar Council of Tamil Nadu and Puducherry. HELD THAT - The power conferred on the Bar Council of India under Section 49 of the Advocates Act 1961 does not denude the State Bar Council of power to frame rules. However the power of the State Bar Council to frame rules is subject to the condition that the Rules made by a State Bar Council are to have effect only if they have been approved by the Bar Council of India and in case of any inconsistency and/or repugnancy between the rules framed by the State Bar Council and the Bar Council of India the rules framed by the Bar Council of India are to prevail. Both in Bar Council of Delhi and Bar Council of Maharashtra and Goa the Supreme Court set aside rules disqualifying voters upon reference to Section 3(4) of the Advocates Act 1961 which provides that an advocate shall be disqualified from voting at an election under sub-section (2) or for being chosen as and for being a member of a State Bar Council unless he possesses such qualifications or satisfies such conditions as may be prescribed by the Bar Council of India and subject to any such rules that may be made an electoral roll shall be prepared and revised from time to time by each State Bar Council. Rule 1 of Chapter I of Part III provides that every advocate whose name is on the electoral roll of the State Bar Council shall be entitled to vote at an election. The name of an advocate appearing in the State Roll can only be excluded from the electoral roll in circumstances specified in Rule 2. Rule 3 makes it clear that subject to the provision of Rule 2 the name of every advocate entered in the State roll shall be entered in the electoral roll of the State Council. The rules framed by the concerned Bar Councils prescribing rules disqualifying votes was found to contravene Section 49 read with Section 3(4) of the Advocates Act 1961. In Pratap Chandra Mehta v. State Bar Council of Madhya Pradesh and others 2011 (8) TMI 1228 - SUPREME COURT given a wide scope. The Court should give such statutory provision a purposive construction to perpetuate the object of the Act while ensuring that such rules framed were within the field circumscribed by the parent Act. A perusal of Section 8-A of the Advocates Act 1961 makes it abundantly clear that the Special Committee constituted under the said Section has all powers of the State Bar Council mentioned in sub-sections (a) to (c) of sub-section (2) of Section 8-A of the Advocates Act 1961 - This proposition finds support from the decision of a Division Bench of Kerala High Court in Bar Council of Kerala v. T.D.Parameswaran Unni 2010 (3) TMI 1291 - KERALA HIGH COURT . The Division Bench held that merely because earlier resolution had been taken by the Special Committee the subsequent elected Committee of the Bar Council had no authority to discard such decision. Petition dismissed.
Issues Involved:
1. Validity of Resolution No.117 of 2018 amending the Bar Council of Tamil Nadu and Puducherry Conduct of Election Rules. 2. Authority and jurisdiction of the Special Committee constituted under Section 8-A of the Advocates Act, 1961. 3. Requirement of ten years of continuous practice and filing of vakalats for eligibility to contest elections. 4. Disqualification of advocates facing disciplinary proceedings or holding positions in political parties. 5. Concurrent rule-making powers of the Bar Council of India and State Bar Councils. 6. Approval of rules by the Bar Council of India under Section 15(3) of the Advocates Act, 1961. Detailed Analysis: 1. Validity of Resolution No.117 of 2018: The petitioner challenged the resolution amending the election rules of the Bar Council of Tamil Nadu and Puducherry, arguing that the amendments were arbitrary and discriminatory. The court examined the amendments, which introduced eligibility criteria such as ten years of continuous practice and the filing of at least ten vakalats annually. The court found these criteria to be reasonable, emphasizing the need for experienced advocates in the Bar Council to maintain high standards of integrity and discipline. The court held that the amendments were neither arbitrary nor illegal, as they aimed to ensure that only practicing advocates of integrity could contest elections. 2. Authority and Jurisdiction of the Special Committee: The petitioner questioned the Special Committee's power to amend the election rules, arguing that it was a temporary body with limited functions. The court clarified that the Special Committee, constituted under Section 8-A of the Advocates Act, 1961, had all the powers of a State Bar Council, including the power to frame rules. The court referred to a decision by the Kerala High Court supporting the competence of the Special Committee to exercise such powers. However, the court noted that any rules framed by the Special Committee would require approval from the Bar Council of India to take effect. 3. Requirement of Ten Years of Continuous Practice and Filing of Vakalats: The court addressed the petitioner's grievance against the requirement of ten years of practice and the filing of vakalats as eligibility criteria for contesting elections. The court found these requirements to be justified, as they ensured that candidates were actively practicing and had sufficient experience. The court noted that the filing of ten vakalats annually was a minimal requirement to demonstrate active practice. The exclusion of Senior Advocates from the vakalat requirement was also upheld, as their designation was based on experience and recognition by the High Court. 4. Disqualification of Advocates Facing Disciplinary Proceedings or Holding Positions in Political Parties: The court upheld the disqualification of advocates facing disciplinary proceedings or holding official positions in political parties from contesting elections. It emphasized that such disqualifications were not arbitrary or discriminatory, as they were necessary to maintain the integrity and independence of the Bar Council. The court noted that similar conditions existed for membership in other professional bodies and employment. 5. Concurrent Rule-Making Powers of the Bar Council of India and State Bar Councils: The court examined the concurrent rule-making powers of the Bar Council of India and State Bar Councils under Sections 15 and 49 of the Advocates Act, 1961. It held that while both bodies could frame rules, the rules made by a State Bar Council required approval from the Bar Council of India. The court clarified that the State Bar Councils had the power to prescribe eligibility criteria for elections, provided there was no inconsistency with rules made by the Bar Council of India. 6. Approval of Rules by the Bar Council of India: The court highlighted that the impugned resolution required approval from the Bar Council of India under Section 15(3) of the Advocates Act, 1961. It noted that the resolution had been forwarded to the Bar Council of India for approval, which had not yet been granted. The court allowed candidates with less than ten years of practice to file nominations without prejudice, pending the Bar Council of India's decision. It emphasized that the filing of nominations would not confer any rights if the rules were ultimately approved. In conclusion, the court dismissed the writ petition, affirming the validity of the amendments subject to approval by the Bar Council of India. The court emphasized the importance of maintaining high standards in the legal profession and ensuring that experienced and practicing advocates constituted the Bar Council.
|
