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TMI Blog2018 (2) TMI 2125X X X X Extracts X X X X X X X X Extracts X X X X ..... cil 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Resolution No.117 of 2018, dated 24.1.2018, is set out herein below for convenience: RESOLUTION NO.117 OF 2018 DATED 24.01.2018 :- Resolved to amend the Bar Council of Tamil Nadu and Puducherry Conduct of Election Rules by bringing the following amendment :- In exercise of the powers conferred under Sec.8-A, Sec. 15 and all other enabling provisions, the following amendment is made to the Bar Council of Tamil Nadu and Puducherry conduct of Election Rules :- 1. These amendments shall come into force with effect from 24.01.2018. 2. After Rule 7, the following rule shall be inserted. 7-A. Eligibility to contest elections 1) Only advocates, who have been in practice for a continuous period of 10 years as an advocate are entitled to contest in the election. 2) The advocate should have filed at least 10 vakalats every year for the previous 5 years prior to the date of filing the nomination to be eligible to contest for any post in the Bar Council of Tamil Nadu and Puducherry. For designated Senior Advocates, the filing of vakalat is not required. 3) Any advocate, who is punished for contempt of court is not entitled to contest for election to any post in the Bar Counc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 61 by placing the candidate under suspension of practice immediately." 3. The object of the Advocates Act, 1961 is to amend and consolidate the law relating to legal practitioners and to provide for, inter alia, the constitution of Bar Councils, one for the whole of India and one for each State. One of the main features of the Advocates Act, 1961 is the integration of the bar into a single class of legal practitioners known as Advocates with the division of Advocates into Senior Advocates and Advocates based on experience and merit. 4. The Advocates Act, 1961 aims to regulate and streamline the legal profession through a hierarchical machinery of the Bar Council of India and the State Bar Councils. Respondent No.1 has been constituted under Section 4(1) and Respondent No.2 under Section 3(1)(cc) of the Advocates Act, 1961. Respondent Nos.1 and 2 are body corporates under Section 5 of the Advocates Act, 1961 having perpetual succession and a common seal with power to acquire and hold property, both movable and immovable, to contract, and to sue or be sued by the name by which they are known. 5. Some of the relevant provisions of the Advocates Act, 1961 are set out herein below fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any member elected before the commencement of the Advocates (Amendment) Act, 1964 (21 of 1964), but every election after such commencement shall be held in accordance with the provisions of the rules made by the Bar Council of India to give effect to the said proviso. Section 4. Bar Council of India. - (1) There shall be a Bar Council for the territories to which this Act extends to be known as the Bar Council of India which shall consist of the following members, namely:-- (a) the Attorney-General of India, ex officio; (b) the Solicitor-General of India, ex officio; (c) one member elected by each State Bar Council from amongst its members. (1A) No person shall be eligible for being elected as a member of the Bar Council of India unless he possesses the qualifications specified in the proviso to sub-section (2) of section 3. (2) There shall be a Chairman and a Vice-Chairman of the Bar Council of India elected by the Council in such manner as may be prescribed. (2A) A person holding office as Chairman or as Vice-Chairman of the Bar Council of India immediately before the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977), shall, on such commencement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. (2) A State Bar Council may constitute one or more funds in the prescribed manner for the purpose of-- (a) giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates; (b) giving legal aid or advice in accordance with the rules made in this behalf; (c) establishing law libraries. (3) A State Bar Council may receive any grants, donations, gifts or benefactions for all or any of the purposes specified in subsection (2) which shall be credited to the appropriate fund or funds constituted under that sub-section. Section 7. Functions of Bar Council of India.-- (1) The functions of the Bar Council of India shall be-- (b) to lay down standards of professional conduct and etiquette for advocates; (c) to lay down the procedure to be followed by its disciplinary committee and the disciplinary committee of each State Bar Council; (d) to safeguard the rights, privileges and interests of advocates; (e) to promote and support law reform; (f) to deal with and dispose of any matter arising under this Act, which may be referred to it by a State Bar Council; (g) to exercise general supervision and control over State Bar Councils ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mongst advocates on the electoral roll of the State Bar Council, to discharge the functions of the State Bar Council until the Bar Council is constituted under this Act. (2) On the constitution of the Special Committee and until the State Bar Council is constituted-- (a) all properties and assets vesting in the State Bar Council shall vest in the Special Committee; (b) all rights, liabilities and obligations of the State Bar Council, whether arising out of any contract or otherwise, shall be the rights, liabilities and obligations of the Special Committee; (c) all proceedings pending before the State Bar Council in respect of any disciplinary matter or otherwise, shall stand transferred to the Special Committee. (3) The Special Committee constituted under subsection (1) shall, in accordance with such directions as the Bar Council of India may give to it in this behalf, hold election to the State Bar Council within a period of six months from the date of its constitution under sub-section (1), and where, for any reason the Special Committee is not in a position to conduct election within the said period of six months, the Bar Council of India may, for reasons to be recorde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and revision of electoral rolls and the manner in which the result of election shall be published; (c) the manner of election of the Chairman and the Vice Chairman of the Bar Council; (d) the manner in which and the authority by which doubts and disputes as to the validity of an election to the Bar Council 4 [or to the office of the Chairman or Vice-Chairman] shall be finally decided; (f) the filling of casual vacancies in the Bar Council; (g) the powers and duties of the Chairman and the Vice Chairman of the Bar Council; (ga) the constitution of one or more funds by a Bar Council for the purpose of giving financial assistance or giving legal aid or advice referred to in subsection (2) of section 6 and sub-section (2) of section 7; (gb) organisation of legal aid and advice to the poor, constitution and functions of committees and sub-committees for that purpose and description of proceedings in connection with which legal aid or advice may be given; (h) the summoning and holding of meetings of the Bar Council, the conduct of business threat, and the number of members necessary to constitute a quorum; (i) the constitution and functions of any committee of the Bar C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticled clerks to be passed by the persons referred to in section 58AG for the purpose of being admitted as advocates on the State roll and any other matter connected therewith. CHAPTER-V (CONDUCT OF ADVOCATES) ...... Section 35. Punishment of advocates for misconduct-- (1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee. (1A) The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council. CHAPTER-VI (MISCELLANEOUS) ....... Section 49. General power of the Bar Council of India to make rules. (1) The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe-- (a) the conditions subject to which an advocate may be entitled to vote at an election to the State Bar Council including the qualifications or disqualific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceipt from the State Bar Council; (i) he has incurred any disqualification mentioned in the Act or the rules made thereunder (j) his name has been included in the lsit of nonpracticing advocates published under Rule 20.4 of the Bar Council of India Certificate of Practice and Renewal Rules, 2014. Explanation.- These amendments shall be applicable only in the cases where the Bar Council of India Certificate of Practice and Renewal Rules, 2014 apply. Explanation: If an advocate who has incurred any disqualification as referred to in rule 2 and does not furnish details about it as required in the notice under rule 4 of these rules within the time specified shall be deemed to have committed an act of other misconduct as referred to in Section 35(1) of the Act. 3. Subject to the provisions of rule 2, the name of every advocate entered in the State Roll shall be entered in the electoral roll of the State Council. 4. (1) In preparing the electoral roll, unless the State Bar Council concerned is already maintaining a list of advocates who are entitled to be voters in terms of Rule 2 of these Rules, at least 150 days before the date of election, shall publish notice issued by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of members of the State Councils shall be in conformity with the proviso to Section 3 (2) of the Act and these rules. 3. There shall be no limit to the number of candidates on the State rolls for at least 10 years that could be declared elected under these rules." 8. The proviso to Section 3(2)(b) of the Advocates Act, 1961 provides that as nearly as possible, one-half of the elected members of a State Council shall, subject to any rules that might be made in this behalf by the Bar Council of India, be persons who have for at least ten years been advocates on a State Roll. Rule 3 of Chapter II of Part III of the Bar Council of India Rules makes it clear that there is no limit to the number of candidates on the State Rolls, enrolled for atleast 10 years that could be declared elected under these Rules. 9. The judicial system is an important pillar of democracy. The basic attributes of the Judiciary are its independence, its impartiality and its endeavour to render justice to those who knock at the doors of the Judiciary. 10. The members of the bar constitute an important part of the judicial system. In an adversarial system, it is the advocates who assist the Courts in render ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is only ten, which is less than one vakalatnama in a month. 16. The argument attacking the exclusion of the requirement of vakalatnama for Senior Advocates appears to us to be an argument in desperation. Even the arguing counsel, in our view, did not urge this seriously enough. Their main grievance was against the cut-off on the basis of number of years of practice. There are well settled rules for designation of advocates as Senior Advocates and it is only advocates with experience and good practice who are, as per norms devised by the High Court, designated senior advocates by the Full Court. The decision of the majority of the Judges prevails. A lawyer's standing in the bar gets legal recognition by his designation as Senior Advocate. 17. It is true as argued by one of the counsel that even before actually being designated as Senior Advocates some lawyers get briefed by other advocates on record who file their vakalatnamas, obviously because of their standing. They may not be able to show sufficient number of vakalatnamas. First of all, no such advocate intending to contest the election is before us. In any case, such advocates have remedy of an appeal to the Bar Council ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h it might in accordance with such directions as the Bar Council of India may give to it in this behalf, hold election to the State Bar Council within a period of six months from the date of its constitution under sub-section (1) and where, for any reason, the Special Committee was not in a position to conduct election within the said period of six months, the Bar Council of India might, for reasons to be recorded by it in writing, extend the said period. 24. In the instant case, it appears that the General Body of the Bar Council of India at its meeting held on 21.1.2018 declared the schedule of election for respective Bar Councils, including the Bar Council of Tamil Nadu and Puducherry. It appears that in compliance of the orders of the Supreme Court, the Council resolved and finalized the following schedule for the elections in Tamil Nadu and Puducherry: 25.01.2018 Publication of Notice in Official Gazette and two daily newspapers one in English and another in Regional Language 01.02.2018 Filing of Nominations 15.02.2018 Last date for receipt of nominations 22.02.2018 Last date for withdrawal of nominations 01.03.2018 Publication of final list of candidates 28.03.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bar Council of India. On a combined reading of Sections 15(3) and 28(3) of the Advocates Act, all rules framed by the State Bar Councils are subject to approval of the Bar Council of India. 31. Mr. Ayyathurai, learned Senior Counsel appearing on behalf of the petitioner has questioned the power of the Special Committee to effect the impugned amendments. If this Court accepts the argument of Mr. Ayyathurai that the Special Committee does not have the power to bring about the impugned amendments, the impugned amendments would be invalid, null and void. The approval of the Bar Council of India cannot cure inherent invalidity. If this Court were to hold that the impugned amendments were invalid, null and void for the reasons argued by Mr. Ayyathurai, there could be no question of giving effect to the amendments. The Bar Council of India would possibly have to frame similar rules, if it deemed it appropriate to do so. 32. Section 15 of the Advocates Act, 1961 empowers a Bar Council, that is, the Bar Council of India and State Bar Councils, to make rules to carry out the purposes of Chapter II of the Advocates Act, 1961. Such rules may provide for the matters prescribed in sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the State Bar Council cannot make the rule valid. 36. In Bar Council of Maharashtra and Goa, supra, the Supreme Court followed its earlier judgment in Bar Council of Delhi, supra, and held that approval of the Bar Council can make a rule made by the State Bar Council valid and effective, only if the State Bar Council is competent to make the rule and not otherwise. The Supreme Court held: "14. It will be clear from the language of Section 49(1)(a) of the Act that the Bar Council of India has the power to make rules prescribing the conditions subject to which an Advocate may be entitled to vote at an election to the State Bar Council, including the qualification or disqualification of voters, and the manner in which the Electoral Roll of voters may be prepared and revised by the State Bar Council. In exercise of its power the Bar Council of India has made rules in Part III, Chapter - I of the Bar Council of India Rules, 1975. 15. Rule (1) and 2(h) of these rules are quoted hereinbelow: '1. Every advocate whose name is on the electoral roll of the State Council shall be entitled to vote at an election. 2. The name of an advocate appearing in the state roll shall not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Advocates Act, 1961 is an enabling provision which specifically empowers the Bar Council of India to make Rules for discharging its functions under the Advocates Act, 1961, including the conditions subject to which an advocate may be entitled to vote at an election to the State Bar Council, the qualifications or disqualifications of voters and the manner in which the electoral roll of voters might be prepared and revised by a State Bar Council. It can also make rules prescribing qualifications for membership of a Bar Council and the disqualifications for such membership. However, as rightly pointed out by Mr. R.Singgaravelan, the Bar Council of India has not framed any rules prescribing qualifications for membership of State Bar Councils or disqualifications for such membership. The amendments are, therefore, not in contravention of and/or repugnant to any rules framed by the Bar Council of India. 39. As argued by both Mr. Ayyathurai and Mr. R. Singgaravelan, a judgment is a precedent for the issue of law that is raised and decided. Words and sentences in a judgment cannot be read out of context. A judgment has to be construed in the context of the facts in which the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alifying 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. 46. As stated above, 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. Be it noted that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to safeguard the rights, privileges and interest of advocates. The Bar Council of India may, under Section 7(k) of the Advocates Act, provide for the election of its members. This provision is identical to Section 6 (g) of the Advocates Act. Similarly, Sections 6(h) and 6(i) are equivalent to Sections 7(l) and 7(m) of the Advocates Act. ... 25. Section 15 of the Advocates Act is one of the most relevant provisions, which needs to be examined by this Court, as according to the contention raised by the Appellants, Rule 122A is ultra vires Section 15 of the Advocates Act. Section 15 of the Advocates Act gives power to the Bar Council to make rules to carry out the purposes of 'this Chapter'. 'This Chapter' means Chapter II of the Advocates Act. Inter alia, this Chapter deals with constitution, election and functions of the Bar Councils. ..... .... 46. As already noticed, the thrust of the challenge to the vires of Rule 122A is primarily that Section 15 of the Advocates Act does not contemplate the framing of such a Rule by the State Bar Councils. Rule 122A is stated to be ultra vires Section 15 of the Advocates Act and, it is argued, that the introduction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he name of every advocate entered in the State roll shall be entered in the electoral roll of the State Council. 51. On a conjoint reading of Rules 1, 2 and 3, every advocate entered in the State roll is, as of right, entitled to be entered in the electoral roll and to vote at an election subject to the disqualifications stipulated in Rule 2. The language and tenor of Rules 1, 2 and 3 leave no room for exclusion of an advocate from the electoral roll or from allowing him to vote under any other Rule. These Rules are mandatory. 52. In the later decision of Pratap Chandra Mehta, supra, the Supreme Court was dealing with a rule framed by a State Bar Council in relation to membership and/or removal of an elected member from the office of Chairman, Vice Chairman. The Supreme Court clearly held that there was no reason why the expression "manner of election of its members" in Section 6(1)(g) should be given a restricted meaning. The responsibility of the State Bar Councils to perform functions as per the legislative mandate was of a very wide connotation and scope. The State Bar Council had to be given wide jurisdiction to frame rules so as to perform its functions diligently and perfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite ten years of practice. He falls short of ten years by a few months. Learned counsel has very competently argued the case. Though he has practice of less than ten years, his competence appears to be exceptional. However, some experience is definitely necessary considering the importance of the functions of Bar Councils and the objects for which the Bar Councils have been constituted. There would have to be a cut-off somewhere for experience. If the cut-off were five years, those with four years of practice would feel hurt. 57. Similarly, disqualification of those convicted of offences and/or found guilty of contempt of court is also not discriminatory or arbitrary. Be it noted that such conditions are there in case of membership of many other professional bodies and also for employment. 58. Mr. P. Puhazh Gandhi submitted that the Bar Council of India has framed rules relating to electoral roll, disqualification of membership and vacation of office. Referring to Rules 8 and 9 of Chapter I of Part III of the Bar Council of India Rules, he submitted that the nomination of any person who at the date of scrutiny thereof is subject to any of the disqualifications referred in Rule 2, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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