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TMI Blog2011 (3) TMI 1755X X X X Extracts X X X X X X X X Extracts X X X X ..... ouncil of India and Mr.Elephant G.Rajendran, the fourth defendant appearing in person. 3. To recapitulate, the last election to the Bar Council of Tamil Nadu was held on 20.9.2005 and the Council was constituted on 12.10.2005. The term of office of the State Bar Council expired on 11.10.2010, in terms of the provisions of Section 8 of the Advocates Act, 1961. By virtue of a resolution bearing Resolution No. 77/2010, passed by the Bar Council of India, in its meetings held on 22nd and 23rd August 2010, the term of office of the Bar Council of Tamil Nadu was extended for a period of 6 months with effect from 12.10.2010, in terms of the Proviso to Section 8. 4. On the strength of the said extension, the State Bar Council convened a meeting on 23.12.2010 and passed 4 resolutions, bearing Resolution Nos.373, 374, 375 and 376. By the first resolution, an election schedule was finalised and the Secretary of the State Bar Council was appointed as the Returning Officer. 5. By the second resolution, a Special Committee comprising of 5 Senior Advocates of this Court were appointed to scrutinise and monitor the conduct of the ensuing election with power to issue suitable instructions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2011 respectively for (i) an interim injunction restraining the first respondent/defendant from proceeding with the electoral process and (ii) the appointment of a retired Judge of this Court to conduct the election of Members to the Bar Council of Tamil Nadu right from the preparation of electoral rolls upto the announcement of the successful candidates within the time limits. 11. Upon finding in the course of arguments that the previous elections to the State Bar council were marred by serious allegations of large scale rigging and corrupt practices and after taking painful note of the fact that the Bar Council has been in the limelight, in the recent past, for wrong reasons, I made a few suggestions, in the course of hearing of the applications, on 11.1.2011, to ensure the conduct of free and fair elections, so that persons of integrity and commitment are persuaded to inter the fray and also have a chance to get elected. Fortunately, the learned counsel for the plaintiff and the learned counsel for the State and Indian Bar Councils agreed to all the suggestions and consented to an order being passed on those lines. 12. Therefore, the following order was passed on 12-1-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court Bench and Polling Booth No.166 which relates to Chennai are concerned, the ballot papers shall be sent to the Registrar (Judicial) of the Madurai High Court Bench and the Registrar (Vigilance) of the Principal Bench. (v) In respect of all Polling Booths, except Booth Nos.53 and 166, the Presiding Officers of the Courts to which the ballot papers are sent, shall keep them in safe custody. On the morning of the polling date, the Presiding Officers shall hand over the ballot papers to the Polling Officer. After the polling is completed in the evening, the Presiding Officers shall collect all the ballot papers, both polled and unused and put them in covers/cartons/boxes and seal them and send them directly to the Commissioner. The expenses incurred for carrying this task shall be charged to the State Bar Council. In respect of Polling Booth No.53, the Registrar (Judicial) of the Madurai High Court Bench shall carry out this task. Similarly, in respect of Polling Booth No.166, the Registrar (Vigilance) of the Principal Bench shall carry out this task. (vi) The Presiding Officers of the Courts to whom the task of receiving the ballot papers and sending them back are ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner from time to time, to ensure the conduct of the elections in a free and fair manner. These Polling Officers shall abide by the advice/orders of the Commissioner. (xiii) The Commissioner as well as the Judicial Officers in control of the Courts in which the Polling Booths are located, are at liberty to seek appropriate police protection. Since the learned Advocate General of this Court is also the Ex-officio member of the Bar Council and also since the Bar Council itself has passed a resolution, handing over the administration to him, the learned Advocate General shall ensure that adequate police protection is provided in all Polling Booths, on the date of the poll, as per the request of the Commissioner as well as the Judicial Officers concerned. (xiv) The Commissioner shall be paid an initial remuneration of ₹ 1,00,000/- by the State Bar Council, within a week. (xv) Advocates who have migrated to different towns/cities, from the place indicated in the list/Register maintained by the Bar Council, shall make a request in writing, to the Commissioner, for permitting them to vote in a station other than the one in which their names find a place in the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... monitoring the entire election process. Therefore, all other functions of the Bar Council, such as enrolments, signing of cheques etc., may be carried out by the learned Advocate General as per the resolution passed by the Bar Council. (xxii) The Registrar-General is directed to communicate a copy of this order to the Judicial Officers to whom the tasks of nominating an independent Observer, receiving the ballot papers and sending them back are entrusted. The Secretary of the State Bar Council shall also communicate a copy of this order to the Bar Associations/Advocates Associations, so that all the members are put on notice of the directions issued hereunder. 13.Thereafter two modifications were ordered to the said order on the same day at the request of the parties. One was that in paragraph 16(viii) of the order dated 12-1-2011, instead of the words left hand index finger , the words right hand index finger shall be substituted. The other was that in paragraph 16(ix), the words hand bills shall stand deleted. However, it was made clear that it shall be the responsibility of the contesting candidates to clear the campus of the hand bills printed and distributed in thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst 3 suggestions, relate to the involvement of the local Judicial Officers in the polling process. There are two difficulties in accepting these suggestions. They are:- (i) There are 172 polling booths. The date of the election viz., 4.3.2011, falls on a working day. Therefore, it is not possible or feasible to involve 172 Judicial Officers, by making all of them forego a working day. Judicial work of 172 officers cannot be suspended even for a day. Though Mr.Elephant Rajendran contended that several working days were already lost in several Courts, due to unnecessary boycotts and that therefore, there is no harm in involving Judicial Officers in the election process for just one day, I do not think that it will be in the right perspective. The fact that many working days were already lost for unjustifiable reasons, is no ground to loose one more working day for 172 Officers. (ii) Moreover, every election process always leads to some controversies, raised by the unsuccessful against the successful candidates. If Judicial Officers are involved, it is possible that they are also dragged unnecessarily into such controversies. To the extent possible it is better to keep them out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse. 10. Suggestion Nos.(vii) and (viii) will be taken care of by the learned Judge appointed to oversee the elections. 11. On the question of video graphing the counting of votes, it is stated by the first respondent that video graphing of counting is always done. 12. Therefore, in view of the above, the following directions are issued, in addition to those issued on 12.1.2011:- (i) On the date of the election, the Judicial Officers to whom the ballot papers are sent, shall open the seal of the covers/boxes in the presence of the Polling Officer and the Poll Observer and the representatives of the candidates, empty the boxes and again lock and seal the boxes and hand over the ballot papers to the Polling Officer, before the poll begins. After the polling is over, the Judicial Officers shall collect the ballot boxes, check up that the lock and the seal are intact. (ii) After the polling, the ballot boxes shall be handed over by the Judicial Officers to the Deputy Superintendent of Police within whose jurisdiction the polling booth is located. The learned Advocate General, who is now in charge of the entire administration of the Bar Council and who is also the Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Bar Associations or the Bar Council Enrolment Certificate. 18. Thereafter, Mr.Elephant G.Rajendran came up with a few more applications in A.Nos. 1205 of 2011 and 1244 to 1246 of 2011 seeking various directions, one of which pertained to the acceptance of the nomination of the former Chairman of the Bar Council of Tamilnadu. Arguments were heard in those applications on 2-3-2011, but orders could not be passed for paucity of time. 19. However, the elections were held on 4-3-2011 throughout the State, in accordance with the directions issued as above. Apart from the Polling Officers nominated under the statutory rules, by the Returning Officer (Secretary to the Bar Council) to each of the 172 booths, the Presiding Officers of the respective courts also nominated one senior and respectable member of each of the local Bar as independent Poll Observers in each of the 172 booths. Apart from these regular Polling Officers (172) and the independent Poll Observers (172), the learned Judge Commissioner also sent about 40 Special Observers to certain places which were considered as sensitive, by virtue of past experience. 20. After the conclusion of the polls, the learned Judge Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... videographers, the undersigned learnt were asked to remain in one position and in one spot at the entry far away from the polling area. Videographers were merely covering the activity wherein the voters were given these tokens to enable them to receive the ballot papers at the polling area. The volunteers who were in charge of issue of tokens to the voters never properly checked the identity of the voters as per the election specifications. Tokens were given for the asking. The videography had been deliberately kept out of the polling area, as otherwise, the farcical exercise of voting which took place would have got exposed in no uncertain terms. Out of 921 votes polled, there were only handful of voters (not more than half a dozen) who exercised their franchise independently. Even these voters came under severe pressure from the volunteers more particularly, the so called local observer that they should vote for Sri Padmanaban. In fact, the said local observer who was supposed to oversee fair conduct of the election was loudly chiding one of the voters for inadvertently marking his vote invalidly at serial No.90 by saying that he should have been more responsible having conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voting 7 or 8 times. He had stated that lawyers from Thackalay and Kuzhithurai came to the polling booth and cast votes. He had noticed one particular woman lawyer voted 3 times. He had recommended for repoll. At the time of counting, it was noticed that out of 1120 votes, 837 voters had cast their votes and all the votes went in favour of a particular local candidate. 23. Apart from the report of the Special Observers of the present elections (2011) and the report of the Special Observer of the previous elections(2005), the Judge Commissioner had also received a complaint before the date of the poll, from one member of the local Bar about the intentions of the Naercoil Bar Association. When the Commissioner sent a copy of the complaint to the President of the Nagercoil Bar, he gave a reply denying the allegations. Therefore, in his report filed on 7-3-2011, the learned Commissioner pointed out the following, in paras 3 and 5 :- 3. The report relating to Nagercoil is very dismal and depressing and I may be permitted to refrain from referring to the details which I request, may be perused to avoid repetition. I wish to say nothing about the shocking nature of the misconduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. The total number of voters : 292 The total number of votes polled: 218 25. Therefore, taking into account (i) the report of the Special Observers sent to Nagercoil (ii) the report of the Special Observers sent to Padmanabhapuram (iii) the report of the Special Observer sent to Nagercoil in the 2005 elections and (iv) the complaint received by the commissioner before the elections and forwarded to the Nagercoil Bar in advance, I passed an order on 8-3-2011, the operative portion of which reads as follows:- 39. Rules 20 and 25(2) of The Bar Council of Tamil Nadu Election Rules read as follows:- 20. PROCEDURE FOR PERSONS VOTING IN PERSON: A voter who has received a voting paper under Rule 19 shall retire to a place screened from outside view and mark his preference in the manner prescribed. The voter shall then put it in a sealed box kept for the purpose. 25. VOTING PAPERS WHEN INVALID: (1) .. .. .. .. .. (2) Whenever the Returning Officer is satisfied that the Ballot Boxes have not been delivered as expeditiously as possible and there was unreasonable delay in delivering the Ballot Boxes or if the Returning Officer is satisfied that there was tampering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptions available namely (i) to countermand the poll in these 2 booths and order re-poll or (ii) to declare the votes polled in these 2 booths as invalid. In normal circumstances, the first option should be taken. But the situation on hand is of extraordinary and grave nature. We have seen --- (i) that the Nagercoil Bar has repeated what they did with impunity in the previous elections (ii) that they deliberately violated the code of conduct prescribed both by the rules and by this court (iii) that they consciously violated the instructions issued by the Commissioner for ensuring a free and fair poll (iv) that despite a complaint having already been lodged against them, (forwarded to them by the Commissioner), they proceeded to tamper with the entire election process and (v) that they made a mockery of the whole democratic process, not out of ignorance but out of a wilful and defiant attitude. Therefore, I have no alternative than to take the second option. I know that it is a very hard option. But I am in the position of a Surgeon today. When a patient had consistently and deliberately violated all prescriptions and warnings given at a time when the earliest sympt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng was allowed and the application A.No.1628 of 2011 for recalling the order was also taken up along with the application of the Nagercoil Bar. A.No.1600 of 2011 (Nagercoil) 28. Mr.V.Selvaraj, learned counsel appearing for the President of the Nagercoil Bar Association, submitted (i) that the plaintiff has no locus standi to maintain the above suit in view of the provisions of Section 20 of the Tamil Nadu Societies Registration Act, 1975; (ii) that since the suit was filed after the issue of the election notification, it was not maintainable; (iii) that since the suit was not instituted as a representative suit under Order I, Rule 8, CPC, any decision rendered in the suit may not bind persons other than those who are parties; (iv) that the question as to whether there was tampering or not, is a matter to be decided only after conclusion of trial; (v) that the votes cast by members of the Bar who unanimously resolved to elect a local candidate so as to voice their grievances, cannot be said to amount to tampering and (vi) that in any case, at least a re-polling ought to have been ordered. 29. At the outset, the first contention that a Society cannot file a suit, is wholly u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore. Therefore, the contention that the suit is not maintainable at the instance of a society, is unsustainable. 32. It is contended by Mr.V.Selvaraj, learned counsel for the applicant that the above suit is not a public interest litigation, but a civil suit and that therefore, the course of a litigation before a civil court, is confined by the boundaries established by statutes such as the Code of Civil Procedure and the Specific Relief Act. But I do not agree. It is a misconception to think that public interest litigations are the exclusive prerogative of constitutional Courts. Public interest litigations have their origin to Order I, Rule 8, CPC. Section 91 CPC is also an important tool for remedying the grievances of a large number of individuals who cannot file independent suits. Therefore, the first contention is rejected. 33. The second contention that a suit challenging a process of election is not maintainable after the issue of the election notification, cannot also be accepted. It is true that the election notification was issued on 29.12.2010 in the Tamil Nadu Government Gazette. The suit was instituted on 3.1.2011. But the prayer in the suit was not exactly c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I also directed the copy of the order passed on 12.1.2011 to be communicated to the President of all the local Bar Associations. These directions have been complied with and the Presiding Officers of the Courts in which the 172 booths are located, have nominated members of the local Bar to be independent Poll Observers. Even the Presiding Officers of Nagercoil and Padmanabapuram Courts have nominated members of the local Bar as independent Observers. There is no dispute about the fact that an independent Poll Observer was nominated by the District Court, Nagercoil and an independent Poll Observer was nominated at Padmanabapuram. These nominees were actually present on the date of the poll, in pursuance of their nominations. Therefore, it is clear that even by the third week of January, 2011, all the Bar Associations functioning in various Courts where 172 polling booths are located, have been put on notice (i) of the above suit (ii) of the interim orders passed and (iii) of the fact that this Court would be monitoring the elections. Therefore, the requirements of Order I, Rule 8, CPC, have otherwise been complied with, in spirit, if not in letter, in a formal way. In other words, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Nagercoil Bar has not chosen either to make a general denial or to make a specific denial, of the contents of the report of the Special Observers. The applicant may not be in possession of a copy of the report of the Special Observers. But there was no prohibition for the applicant at least to seek a copy of the report and then file an affidavit containing a denial. In any event, a major portion of the report of the Special Observers adverse to the applicant and his brother members, has been extracted by me in the order dated 8.3.2011. It is only with reference to the said order that the above application has been filed. Therefore, the applicant ought to have at least made an averment that the report of the Special Observers is false. But the applicant did not choose to do so. (ii) Moreover, the Commissioner had issued instructions to all the independent Poll Observers of all the 172 booths, to send their reports along with the video recording, immediately after the polls are over. The polls were held on 4.3.2011. Even till date the Polling Officer as well as the independent Poll Observer from Nagercoil had not sent their reports. The CD of the videograph taken at the time of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Special Observer sent to Nagercoil at that time was Mr.K. Chandru, who was then a Senior Advocate of this Court and who is now a sitting Judge. His report filed in 2005, which I have extracted in the order dated 8.3.2011, also shows that this is not the first time that such things had happened at Nagercoil. Therefore, I do not know what more is required by way of a roving enquiry or trial, for the Returning Officer or this Court to invoke Rule 25 (2). 41. The next contention of the applicant is that the Nagercoil Bar always stood for certain cherished values and that they always had the habit of electing a local candidate, so as to have a representation for the District in the Bar Council. It is their contention that if a Bar Association decides unanimously to vote for their own candidate and if they do not obstruct individuals from casting their votes in a different manner, the same cannot be faulted with. 42. I have no difficulty in accepting the position that all the members of the Bar in a particular locality are entitled to and may even decide unanimously to vote for a candidate of their choice. But such an unanimous decision cannot be brought forth either by way o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... identity card, received the ballot paper, went to the enclosure and cast their votes in secrecy. So long as this has happened and so long as there are no reports about the payment and receipt of money in those booths, it has to be presumed that the election was free and fair in those booths. 47. But in so far as the booth at the District Court Campus at Nagercoil is concerned, it is stated by the Special Observers that the voters were never allowed to exercise their franchise freely. They were not even given the ballot papers. Therefore, there was no free and fair poll, though there was total transparency. This has made the case fall under the second category. 48. Interestingly, Mr.V.Selvaraj, learned counsel contended in the course of arguments that one of the contestents by name Mr.Isaac Mohanlal himself came and voted at the District Court campus at Nagercoil and that this showed that no one was prevented from voting freely. But alas, he was not aware of the fact that Mr.Issac Mohanlal, had already sent a complaint dated 4-3-2011 to the learned Judge-Commissioner about the denial of the freedom of choice for the voters at the District Court Campus at Nagercoil. The letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servers who have no vested interest in the outcome of the election, confirmed the contents of the letter of Mr.Issac Mohanlal. Therefore, it is clear that there was virtually booth capturing in advance at the District Court Campus at Nagercoil. In such circumstances, the contention that there was an unanimous decision is totally unbelievable. If the voters and the candidate from Nagercoil were so confident about the unanimity of the decision taken, they should have put it to test by allowing all the voters to exercise their right to vote freely in secrecy. The unanimity of decision should be achieved by consensus and not by compulsion. 50. It is relevant to point out that by the order dated 2-2-2011, I directed that the votes from 3, 4 Districts shall shuffled before counting, so that the individual Bar Associations do not come to know as to how many of their members acted in unison and how many of their members acted freely according to their conscience. Such a direction was issued in the wake of allegations that a few Bar Associations have decided to vote en bloc for a candidate for extraneous consideration. It was felt at that time that if counting was to take place booth wis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 10/11.1.1976. These rules are called the Bar Council of Tamil Nadu Election Rules. 56. Rule 18 of the said Rules prescribes that voting shall be in person at the polling booth and not by proxy. Rule 19 deals with the mode of supply of voting papers. Rule 20 makes it mandatory for a voter, who receives a voting paper, to retire to a place screened from outside view and to mark his preference in the manner prescribed and then to put it in a sealed box kept for the purpose. The Rule is mandatory and not obligatory. No Bar association can pass any resolution, which would have the effect of making a mockery of this rule. 57. Rule 21 makes it clear that once a voting paper has been handed over to a voter, a second voting paper shall not be issued to him unless he satisfies the Returning Officer or the Polling Officer that the voting paper already issued to him had been spoiled or mutilated or lost or destroyed or has not been received. 58. Rule 22 (1) indicates the method of voting. Sub rule (2) of Rule 22 prescribes that a voting paper shall not be signed or erased or obliterated or altered. If so done, it shall be defaced. Sub rule (3) makes it clear that the decision of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articular constituency traceable to Section 58A (2)(b), are conferred by the said Act only upon the Election Commission. The power is exercisable only by the Election Commission upon receipt of a report from the Returning Officer under Section 58A(1). Similarly, under Section 64A of the Representation of the People Act, 1951, the Election Commission has the power, on the basis of a report of the Returning Officer to declare the poll at a Polling Station to be void and to order fresh poll. 64. A power similar to the one available to the Election Commission under Section 58A(2)(a) or 64A (2)(a) of The Representation of The People Act, 1951, is not available under the Bar Council of Tamil Nadu Election Rules. The logic behind this is simple. In respect of elections to the Houses of Parliament and Legislatures, there is an Election Commission and the power to order fresh poll is exercised not by the Returning Officer, but by the Election Commission. But in respect of elections to Bar Councils, we do not have an Election Commission. Therefore, the Rules do not and cannot confer a power upon the Returning Officer to order fresh polls. Hence, however much I wish to give another opportu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner either directly or through the Polling Officer or Poll Observer of that booth will result in invalidating th entire polling in that booth and the votes polled in that booth shall not be counted. Despite the above instructions issued by the Election Commissioner and despite the court orders, if the Polling Officer/Poll Observer had permitted some persons to vote without showing any kind of identity, it would clearly amount to a violation of the prescriptions. 68. Another interesting contention raised by the Padmanabapuram Bar Association is that they have a membership of about 298 voters and that only 218 voters cast their votes. Therefore, the applicant has contended that there could not have been any possibility of dual voting. 69. But unfortunately, the applicant has omitted to take note of one important aspect. The independent Poll Observer nominated by the local Judicial Officer for overseeing the poll in Padmanabhapuram booth was Mr.Alwin Vethamony. The Secretary of the local Bar Association had already been nominated as the Polling Officer by the Returning Officer (Secretary of Bar Council), in terms of Rule 16 of the Bar Council of Tamil Nadu Election Rules. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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