TaxTMI 
TaxTMI 
2018 (2) TMI 2125
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....e 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. 2. The impugned 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 prev....
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....du and Puducherry, summary enquiry will be held by the Returning Officer/s and the candidate shall be disqualified from contesting in the election to the Bar Council of lndia and Bar Council of Tamil Nadu and Puducherry for a period of seven years. Apart from that, the disciplinary proceedings will also be initiated against the said advocate under Sec.35(1) and Sec.42 of the Advocates Act, 1961 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 ....
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....y be prescribed. (3A) ..... (4) 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 State Bar Council, unless he possesses such qualifications or satisfies such conditions as may be prescribed in this behalf 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. (5) Nothing in the proviso to sub-section (2) shall affect the term of office 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....
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.... sub-section (2) of this section clause (a) of sub-section (2) of section 7; (e) to promote and support law reform; (ee) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and paper of legal interest; (eee) to organise legal aid to the poor in the prescribed manner; (f) to manage and invest the funds of the Bar Council; (g) to provide for the election of its members; (gg) to visit and inspect Universities in accordance with the directions given under clause (i) of sub-section (1) of section 7; (h) to perform all other functions conferred on it by or under this Act; (i) to do all other things necessary for discharging the aforesaid functions. (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....
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....y receive any grants, donations, gifts or benefactions for all or any of the purposes specified in sub-section (2) which shall be credited to the appropriate fund or funds constituted under that sub-section. Section 8A. Constitution of Special Committee in the absence of election.- (1) Where a State Bar Council fails to provide for the election of its members before the expiry of the term of five years or the extended term, as the case may be, referred to in section 8, the Bar Council of India shall, on and from the date immediately following the day of such expiry, constitute a Special Committee consisting of- (i) the ex officio member of the State Bar Council referred to in clause (a) of sub-section (2) of section 3 to be the Chairman: Provided that where there are more than one ex officio members, the senior-most amongst them shall be the Chairman; and (ii) two members to be nominated by the Bar Council of India from amongst 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 Co....
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....bers elected by the Council from amongst its members. (2) The Bar Council of India shall constitute the following standing committees, namely:- (a) an executive committee consisting of nine members elected by the Council from amongst its members; (b) a legal education committee consisting of ten members, of whom five shall be persons elected by the Council from amongst its members and five shall be persons co-opted by the Council who are not members thereof. (3) A State Bar Council and the Bar Council of India may constitute from amongst its members such other committees as it may deem necessary for the purpose of carrying out the provisions of this Act. Section 15. Power to make rules.- (1) A Bar Council may make rules to carry out the purposes of this Chapter. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for- (a) the election of members of the Bar Council by secret ballot including the conditions subject to which persons can exercise the right to vote by postal ballot, the preparation and revision of electoral rolls and the manner in which the resul....
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....ll of a State Bar Council under section 20; (c) the form in which an application shall be made to the Bar Council for admission as an advocate on its roll and the manner in which such application shall be disposed of by the enrolment committee of the Bar Council; (d) the conditions subject to which a person may be admitted as an advocate on any such roll; (e) the instalments in which the enrolment fee may be paid. (3) No rules made under this Chapter shall have effect unless they have been approved by the Bar Council of India. CHAPTER-IV (RIGHT TO PRACTISE) ...... Section 34. Power of High Courts to make rules.- (1) The High Court may make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate thereto. (1A) The High Court shall make rules for fixing and regulating by taxation or otherwise the fees payable as costs by any party in respect of the fees of his adversary's advocate upon all proceedings in the High Court or in any Court subordinate thereto. (2) Without prejudice to the provisions contained in sub-section....
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....the State Council shall be entitled to vote at an election. 2. The name of an advocate appearing in the state roll shall not be on the electoral roll, if on information received or obtained by the State Bar Council concerned on the basis of which it is satisfied that (a) his name has at any time been removed; (b) he has been suspended from practice, provided that his disqualification shall operate only for a period of five years from the date of the expiry of the period of suspension; (c) he is an undischarged insolvent; (d) he has been found guilty of an election offence in regard to an election to the State Council by an election tribunal, provided however, that such disqualification shall not operate beyond the election next following after such finding has been made; (e) he is convicted by a competent court for an offence involving moral turpitude, provided that this disqualification shall cease to have effect after a period of two years has elapsed since his release; (f) he is in full-time service or is in such parttime business or other vocation not permitted in the case of practising advocates by the rules either....
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....mbers of the said State Council necessitating the election (and relevant portion thereof shall be sent to such Bar Associations as the Secretary considers fit). Provided that the Bar Councils whose term of office already expired or shall expire within 120 days from the date of commencement of these rules shall, as far as possible, publish the electoral roll forthwith and fix the elections for a date after not less than 120 clear days from the date of publication of the electoral rolls. (3) Before final publication of the electoral Roll, a State Bar Council may, if satisfied, on an application made by any particular advocate giving sufficient reasons, allow his name to be included in the electoral roll in question, and on such inclusion the advocate concerned shall be entitled to take part in the election. .... 9. Application of these rules : These rules shall govern the elections of all State Bar Councils to be held after these rules are enforced, and all State Bar Councils holding the elections of their members shall prepare their electoral rolls in terms of these rules. CHAPTER-II: RULES TO SECURE AT LEAST A MINIMUM NUMBER OF ADVOCATES....
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....in court, even if so instructed by his/or her client. Such is the high standard of ethics of members of the legal profession that even advertising to secure clients is a bar. Campaigning in elections is a bar. 12. The Bar Council of India and the State Bar Councils are entrusted with the solemn duty of streamlining the legal profession and ensuring that the legal profession conforms to the highest standards. 13. Some of the duties and functions of the Bar Councils and in particular the State Bar Councils, include entertaining and determining complaints of misconduct against advocates, and promoting and supporting law reforms. 14. It is, thus, imperative that members of the Bar Council be selected in a fair manner by the process of fair elections and those who are eligible for membership of the Bar Councils be practising advocates of integrity. Thus, a rule which debars advocates facing disciplinary proceedings before a Bar Council, involved in criminal proceedings or guilty of contempt of court from contesting for the membership of a Bar Council can neither be held to be arbitrary nor illegal. 15. Considering the immense responsibility on the Bar Councils to maintain th....
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....of the Special Committee to pass the resolution making the impugned amendments and also argued that the restrictions imposed were arbitrary, discriminatory and without jurisdiction. 20. Emphasizing on the proviso to sub-section (2) of Section 3 of the Advocates Act, 1961, Mr. V. Ayyathurai, argued that, subject to any rules that might be made in this behalf by the Bar Council of India, only one half of the elected members could be persons who had for at least ten years been advocates on a State roll. 21. Mr. Ayyathurai argued that the Special Committee had no power to make continuous practice for a period of ten years as an Advocate the condition precedent for contesting the election, as this was patently contrary to the proviso to Section 3(2) of the Advocates Act, 1961. 22. Referring to Section 3(4) of the Advocates Act, 1961, Mr. V. Ayyathurai submitted that an advocate could only be disqualified from contesting for membership of a State Bar Council or from being chosen as a Member of such State Bar Council, if he did not possess the requisite qualifications or specified requisite conditions as might be prescribed in this behalf by the Bar Council of India. 23. Mr. A....
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.... members of the resolution adopted by the Bar Council of India on 21.1.2018 with regard to fixation of schedule of elections to State Bar Councils. The notice was, inter alia, published in newspapers on 25.1.2018. 28. In the meanwhile, on 24.1.2018, the Special Committee passed the impugned resolution. From the recital of the resolution, it is apparent that the amendments have been made in exercise of powers conferred under Section 8-A, Section 15 and other enabling provisions of the Advocates Act, 1961. 29. Mr. S.R. Raghunathan, learned counsel appearing on behalf of the Bar Council of India drew the attention of this Court to Section 15(3) of the Advocates Act, 1961 and submitted that the writ petition was premature. Under Section 15(3) of the Advocates Act, 1961, no rules made under Section 15 by a State Bar Council are to have effect unless they have been approved by the Bar Council of India. Mr. Raghunathan submitted that the impugned resolution had been forwarded to the Bar Council of India and a decision was to be taken by the Bar Council of India at its meeting to be held on 04.2.2018. Today, we have been informed that decision has been deferred by the Bar Council of ....
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.... The power of the Bar Council of India and the State Bar Councils to frame Rules are concurrent under Section 15 of the Advocates Act, 1961. 33. Mr. Ayyathurai, however, argued that Section 49 of the Advocates Act, 1961 empowered the Bar Council of India to make rules for discharging its functions under the Advocates Act, particularly prescribing the conditions subject to which an advocate may be entitled to vote at an election to the State Bar Council, including the qualifications or disqualifications of voters, and the manner in which an electoral roll of voters might be prepared and revised by the State Bar Council and also to prescribe qualifications for membership of a Bar Council and the disqualifications for such membership. Mr. Ayyathurai submitted that the power to frame rules prescribing qualifications for membership of a Bar Council lay with the Bar Council of India and not the State Bar Council. 34. In support of his submissions, Mr. Ayyathurai cited the judgments of the Supreme Court in Bar Council of Delhi and another v. Surjeet Singh and others, reported in AIR 1980 SC 1612 and Bar Council of Maharashtra and Goa v. Manubhai Paragji Vashi, reported in (2012) 1 S....
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....rom the State bar Council. The language of Rule 2(h) is therefore verbatim the same as Rule 6(h) of the State Bar Council Rules made by the State Bar Council and lays down a condition subject to which an Advocate will be entitled to vote inasmuch as it provides that he will be entitled to vote provided he has paid his subscription. The State Bar Council could not have made such a provision in Rule 6(h) of the State Bar Council Rules in exercise of its powers under Section 15 of the Act and such a provision could only be made by Bar Council of India under Section 49(1)(a) of the Act. The High Court was, therefore, right in holding that Rule 6(h) of the State Bar Council Rules was ultra vires Section 49 (1)(a) of the Act. However, as Rule 2(h) of the Bar Council of India Rules makes exactly the same provision, names of the Advocates who had not paid the subscription had to be deleted from the electoral roll." 37. On the other hand, Mr. R.Singgaravelan appearing on behalf of the Special Committee strenuously contended that the Bar Council of India and the State Bar Councils had concurrent power to frame rules prescribing qualifications for membership of a Bar Council and the disqua....
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....tes the functions of State Bar Councils and in particular, Section 6(1)(g) and 6 (1)(h). A State Bar Council has the power to frame rules for election of its members and for all other functions conferred on it by the Advocates Act, 1961. 42. Section 49 of the Advocates Act, 1961 enumerates the general powers of the Bar Council of India to make rules for discharging its functions. The aforesaid rules "may" prescribe the conditions subject to which an advocate may be entitled to vote at an election to the State Bar Council, including the qualifications or disqualifications of voters and the manner in which an electoral roll of voters may be prepared and revised by a State Bar Council. 43. 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....
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....within the field circumscribed by the parent Act. 48. In Pratap Chandra Mehta, supra, the issue was whether despite the absence of the enabling provisions in the principal statute, namely, the Advocates Act, empowering subordinate State Bar Councils to enact provisions for removal of the office bearers of the State Bar Councils by 'no confidence motions', such power could be read into the general clause of Section 15 (1) of the Advocates Act, 1961, and whether Rules 121 and 122A of the M.P. Rules are invalid for want of prior approval from the Bar Council of India? The Supreme Court held that Section 15(1) of the Advocates Act, 1961 was of wide amplitude and there was no reason to restrict the scope of the rule making power under Section 15(1), so as to exclude removal on a vote of noconfidence from the ambit of the rule making power conferred by that provision. The Supreme Court observed as under: "21. The functions of the State Bar Council and the Bar Council of India are prescribed under Sections 6 and 7 of the Advocates Act. Besides admitting persons as advocates on its rolls [Section 6(a)] and maintaining such rolls [Section 6(b)], it is for the State Bar C....
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....ctions. 48. In our view, Sections 6(1)(h) and 6(1)(i) have to be read and interpreted conjointly. We see no reason why the expression 'manner of election of its members' in Section 6(1)(g) should be given a restricted meaning, particularly in light of Sections 6(1)(h) and 6(1)(i). The responsibility of the State Bar Councils to perform functions as per the legislative mandate contained in Section 6 of the Act is of a very wide connotation and scope. No purpose would be achieved by giving it a restricted meaning or by a strict interpretation. The State Bar Council has to be given wide jurisdiction to frame rules so as to perform its functions diligently and perfectly and to do all things necessary for discharging its functions under the Act. The term of office of the members of the State Bar Council is also prescribed under Chapter II, which shall be five years from the date of publication of the result of the election. On failure to provide for election, the Bar Council of India has to constitute a special committee to do so instead." (emphasis supplied) 49. Mr. R. Singgaravelan rightly argued that in Bar Council of Delhi, supra, and Bar Council of Maharashtr....
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....and there is no bar in law to framing a rule which makes continuous practice of ten years as advocate the eligibility criteria for any kind of membership in the State Bar Council. 54. 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. We are unable to hold that the Special Committee does not have the competence to frame rules. 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, reported in 2010 (2) KHC 189. 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. The Special Committee is empowered to exercise all the powers which the Bar Council of Tamil Nadu and Puducherry are empowered to exercise. However, any rules framed would only take effect on approval of the Bar Council of India. Needless to mention that the power of th....