WP(C) No.7444/2009 Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 15.04.2009 Pronounced on: 21.04.2009 + WP(C) No.7444/2009 SURENDER PAL SINGH CHAUHAN & ANR. ….PETITIONERS Through : Mr. Rajinder Sharma and Mr. Rajiv Khosla, Advocates with petitioners in person. Versus BAR COUNCIL OF INDIA & ORS. ….RESPONDENTS Through :Mr. Sanjeev Sachdeva with Mr. Preet Pal Singh, Advocates for respondent/BCI. Mr. V.P. Singh, Sr. Advocate with Mr. Amol, Advocate for Respondent. Mr.Sanjay Jain, Senior Advocate with Mr. Sarfaraz Ahmad, Advocate for respondent. Mr. K.C. Mittal with Mr. Khatri, Advocates for Respondent CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT 1. Whether the Reporters of local papers Yes may be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? S.RAVINDRA BHAT, J. % 1. The writ petitioner in these proceedings seek intervention of the court in respect of elections to the Bar council of Delhi (“BCD”), scheduled to be held sometime this year. WP(C) No.7444/2009 Page 2 2. Briefly the facts of the case are that according to the petitioners, the Bar Council of Delhi is acting illegally and in contravention of provisions of the Advocates Act and the Bar Council of India Rules, in regard to the time schedule within which electoral rolls are to be revised or corrected; and in requiring every advocate or elector to furnish a declaration that he or she is not subjected to any disqualification spelt out in Rule 2 of the Bar Council of India Rules (hereafter called “BCI Rules”). The petitioners also complain that the notice published in a newspaper, by the Honorary Secretary, is no notice in the eye of law since, the Rules mandate employment of a full-time Secretary and not an Honorary Secretary, as was done by the BCD. 3. The petitioners complain that the notification issued by the BCD on 27-1-2009, but published on 5-3-2009 did not comply with the 150 day mandatory period, in terms of Rule 4(2) of the Rules framed by the BCI (hereafter called “The BCI Rules”). It is alleged that the notice on the one hand posited that those desirous of voting in the forthcoming elections had to fill a declaration form, and furnish it, but at the same time, restricted receipt of such forms to 16th March, 2009. It is alleged that such declaration cannot be insisted upon, in view of the clear mandate of Rule 3 of the BCI rules, read with Section 3 of the Advocates Act, 1961, which confers a right on every Advocate, the right to practice law, to vote in the elections of the State Bar Council which maintains his or her name in its rolls. It is said, besides, that even before the publication of the impugned notice, the incumbent office bearers of the BCD had ensured that no less than 80,000 declaration forms were issued to their confidants, with a view to see that genuine voters were excluded from the election process. It is urged, in addition that the BCD has to issue individual notices to the Advocates, at the addresses maintained in its office, asking them to furnish all the information required in the form. WP(C) No.7444/2009 Page 3 4. Mr. Rajinder Sharma and Mr.Rajeev Khosla, learned counsel for the petitioner, submitted that the impugned actions of the BCD are illegal and unsustainable. Reliance was placed on the decision reported as Bar Council of India v. Surjeet Singh, (1980) 4 SCC 211 (hereafter Surjeet Singh’s case) to say that in the absence of any rule, the BCD could not restrict the right of an Advocate to cast his or her vote in an election. It was urged that though the BCD, a State Bar Council, can frame rules, they are for limited purposes, and that such Rules have to be approved by the BCI under Section 15(3). By prescribing that registered advocates have to fill a form, as a precondition to cast their vote, which is without any statutory sanction, the BCD has acted illegally. It was next argued that under Rule 4(2) of the BCI Rules, the BCD was under a statutory obligation to issue notice to each advocate enrolled with it, so that they could fulfil requirements such as payment of dues, mandated by Rule 40. 5. It is argued that BCD has to prepare a fresh electoral roll only in case no roll is in existence; if there is any in existence, revision, according to Rule 6, has to be made. The BCD already has its own electoral rolls; it also has information about disqualification of Advocates. It can therefore, effectuate the conditions in Rule 2 of BCI Rules, without requiring every Advocate to furnish a declaration. The petitioners also contend that during the last Bar Council elections, more than 14,000 advocates could not exercise their franchise, since their names were deleted from the electoral roll, on the ground that they could not make payment to the Advocates Welfare Funds, constituted by the BCI, in terms of its Rule 40. Though the BCD has issued almost a lakh of forms which Advocates have to fill and furnish, in regard to their qualification to vote, it has not published a list of those eligible to vote, according to its records. BCD has also not indicated which of the Advocates have not paid the amounts, in terms of Rule WP(C) No.7444/2009 Page 4 40. Therefore, the proposal to prepare the electoral rolls within the time, indicated in the impugned notice is illegal. 6. The BCI argues that originally, the condition of having to file a declaration, introduced in 1978 by the BCD, was declared ultra vires in Surjeet Singh. The BCI introduced a similar rule, requiring Advocates to furnish declarations, like the one, required in the rule struck down in Surjeet Singh, in 1980; it continued till 1991, when it was deleted. It is argued that the BCD’s proposal, requiring advocates to furnish a declaration, is contrary to the Rules, particularly Rule 2, which only requires such declarations to be made by those who are subjected to disqualifications. Further, the consequence of not furnishing declarations by such persons (i.e those subject to disqualifications) is that they are deemed to have committed misconduct under Section 35 of the Advocates Act. It is contended that though Rule 40 mandates that Advocates have to pay the requisite amounts, and there is a reference to such position, in Rule 2, that does not lead to the conclusion that a declaration of the kind sought has to be furnished. Counsel emphasized that once the BCI had introduced a similar requirement, which remained in place for almost a decade, after which it was discarded in 1991, the BCD could not have brought about a similar requirement, or a precondition for electors’ exercising their franchise in its elections, without prior permission of the BCI, under Section 15 (3). The BCD’s impugned action is without statutory mandate, as rule making under Section 49 is the prerogative of the BCI. Underlining its submissions, the BCI argues that its rules, as on 6-9-1980, specifically provided as follows: “By the said notice the secretary shall also inform the advocates concerned that unless information required by the said notice in question is received by the state Bar Council in the prescribed form or forms exactly similar thereto, within the specified time or within WP(C) No.7444/2009 Page 5 the extended time as stated hereinabove, his name shall not be included int eh Electoral Roll and he shall not be entitled to take part in the election in question.” Counsel also urged that the form of notice, under Rule 4 as prescribed by the BCI had contained the following requirement: “The advocate concerned is specifically to note that unless he/she furnishes the particulars noted below, his/her name shall not be included in the electoral roll.” BCI contends that with the deletion of the above two requirements, and the consequence spelt out, there is no obligation cast on Advocates, who are not subjected to any disqualification, to furnish declarations. Insisting them to do so, as the BCD is doing, would frustrate the object of a fair election. 7. It is argued that there is no requirement of issuing individual notices to Advocates, as contended by the petitioners, since that Rule was amended in 1991. Learned counsel for BCI relied on a chart showing the original rule, as it existed after Surjeet Singh (supra), and the rule as amended in 1991. Counsel points to the existing Rule 4(2) which does not require State Bar Councils to issue individual notices to electors. Learned counsel also relies on the full text of the 1991 notification, issued by the BCI, which amended the existing rules. The BCI indicates a four step procedure which has to be followed by State Bar Councils, when holding elections. In terms of such procedure, in the first step, the State Bar council has to update the rolls, by making entries about those advocates who are disqualified, according to its records; this exercise should also comprehend those who are not entitled to vote, because of payments not being made under Rule 40, and the amounts if any, due from each advocate. The updated State roll should be made available to Advocates, by keeping a copy at various offices of such Bar Council, and various bar associations; consequently, the concerned Advocates should be WP(C) No.7444/2009 Page 6 required to make payments, within reasonable time. In the second step, a notice under Rule 4(1) should be issued, declaring elections, in 150 days, and also mandating that Advocates who are disqualified should filed declarations. The notice so published should also indicate that Advocates who do not furnish the declaration would be deemed guilty of misconduct, in terms of explanation to Rule 2 (of the BCI Rules). The third step involves preparation of the electoral rolls, and in the publication, 120 days prior to the election; the preliminary rolls should be displayed and accessible to all Advocates, through their Bar Associations. The fourth step involves consideration of applications under Rule 4(3) for corrections, and issuance of reasoned orders while disposing of such objections. The final step involves placing, on display the final electoral roll not more than 75 days and not less than 60 days before the elections. 8. The BCD’s position is that its notice, asking Advocates to furnish declarations, in order to exercise their franchise, is legal, and in accordance with law. It was submitted by Mr. V.P. Singh, Senior Advocate that Surjeet Singh’s case was in the context of a Rule introduced by the BCD requiring individual Advocates to furnish declarations. The BCD submits that the judgment nowhere indicates that the Court held that such declaration could not be obtained. Elaborating this, it was submitted that a joint reading of Section 3(4) and Rule 2 would show that the former deals with the rights of individual Advocates to vote, (subject to disqualifications, if any); the law stipulates specific disqualification conditions which barred Advocates from exercising voting rights. Rule 3, it was submitted, is expressly subject to Rule 2 and entitles the State Bar Council to exclude such Advocates who are subjected to disqualification from the electoral process. WP(C) No.7444/2009 Page 7 9. Learned Senior counsel appearing for the BCD submitted that Rule 4 operates in a different field and spells out the procedure to be adopted for preparation of an electoral roll, from amongst the State Rolls and the methodology which State Bar Councils have to follow for the purpose. After following the various steps mentioned in Rule 4, a final electoral roll is prepared under Rule 5; the time limit for voting is also specified by the provisions. 10. Learned senior counsel for the BCD submitted that the rules are to be read conjointly with the form annexed to it, as part of Rule 4, which clearly requires individual Advocates to furnish declarations. Learned counsel submitted that the previous history of the rule, or that Supreme Court had decided that a similar condition, which had not been lawfully introduced in Surjeet Singh’s case should not deter this Court from adopting a correct interpretation. If the law contemplates doing something in its own terms, the circumstance that for some time, such condition had been spelt out in clearer or express terms, would not detract from their existence if a natural interpretation of the rule or concerned regulation permits such inference. Learned counsel relied upon the decision reported as Chief Inspector of Mines v. Lala Karam Chand Thapar AIR 1961 SC 838. The BCD also relied upon Section 24 of the General Clauses Act, 1897 in support of the submission. 11. Before proceeding further, it would be necessary to reproduce the relevant extracts of the BCI Rules, which are as follows: “BAR COUNCIL RULES Part-III Certain matters relating to state council Chapter-I WP(C) No.7444/2009 Page 8 Electoral roll, disqualification of membership and vacation of office (Rules under Sections 3 (4), 10B, 15 (2) (a) and 49 (1) (a) and (ab) of the Act) 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 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 part-time business or other vocation not permitted in the case of practising advocates by the rules either of the State Council concerned or the Council ; (g) he has intimated voluntary suspension of practice and has not given intimation of resumption of practice ; (h) if he has not paid the subscription under Rule 40 Chapter-II, Part VI of the Rules and obtained receipt from the State Bar Council ; (i) he has incurred any disqualification mentioned in the Act or the rules made thereunder*. 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 WP(C) No.7444/2009 Page 9 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 the Secretary of the State Bar Council concerned in prescribed form in the official gazette and in two or more local newspapers, one English and the other in a local language, as may be decided by the State Bar Council, asking each of the advocates on the roll of the concerned State Bar Council to intimate the State Bar Council within the time to be specified in the said notice or within such extended time as may be given/allowed by the State Bar Council for reasons to be recorded, as to whether he has incurred any disqualification mentioned in Rule 2 of these rules and quote rule 2 of these rules in the said notice. (2) A preliminary electoral roll containing the names of all advocates whose names are required to be included under these rules shall be put up on the notice board of the State Council within 120 clear days before the expiry of the term of the members 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. 5. The final electoral roll shall be prepared after incorporating such changes as may be necessary including the addition of the names of advocates enrolled after the preparation of the preliminary roll and put up on the notice board of the State Council not more than 75 clear days and not less than 60 clear days before the date of election. (Intimation of such publication shall be given within a week after the publication to the Bar Association aforesaid). WP(C) No.7444/2009 Page 10 6. Revision of electoral roll: If for any reason the election to the State Council is postponed beyond the date of expiry of the term of its members the preliminary or the final electoral roll shall be revised so as to include there in the names of advocates enrolled up to 75 clear days before the date of the election. ............................. ……………………. 8. The nomination of any person who at the date of scrutiny thereof is subject to any of the disqualifications referred to in Rule 2 shall be rejected. ............................. ……………………. Form of notice under rule 4 It is hereby notified that for the purpose of preparing final electoral roll in accordance with rules 2 and 3 of chapter I, Part III of the rules framed by the Bar Council of India under Sections 3 (4), 10B, 15(2) (a), 49 (1) (a) and (ab) of the Advocates Act, 1961, for the next election of members to this Council, the particulars as to any of the disqualifications as referred to in clauses (a) to (i) of rule 2 shall be furnished by an advocate who has incurred them to the State Council within the time specified in the notice issued under rule 4. (Herein below to reproduce Rule 2 with Explanation). Dated the secretary Number on the State Roll : 1. Name of the advocate as on the roll: (in block letters) 2. (a) Address of the advocate (as on the State roll) (b) Present address : 3. (a) Have you incurred any of the disqualifications mentioned in rule 2 of Chapter I, Part III of the rules of the Bar Council of India ? 4. Are you a member of any Bar Association? (If so, give the name) 5. Where do you intend to cast your vote? (If you are not a voter entitled to vote by postal ballot) I. hereby declare and affirm that the foregoing statements are true to my knowledge and I have not concealed anything thereto. Date WP(C) No.7444/2009 Page 11 Signature in full. ............................. ……………………. 12. The relevant provisions of Chapter II, Part VI of the Rules, requiring payment of Advocates’ Welfare Fund, is in the following terms: “40. Every Advocate borne on the rolls of the State Bar Council shall pay to the State Bar Council a sum of Rs. 300/- every third year commencing from 1st August, 2001 along with a statement of particulars as given in the form set out at the end of these Rules, the first payment to be made on or before 1st August, 2001 or such extended time as notified by the Bar Council of India or the concerned State Bar Council. Provided further however that an advocate shall be at liberty to pay in lieu of the payment of Rs. 300/- every three years a consolidated amount of Rs. 600/- . This will be a life time payment to be kept in the fixed deposit by the concerned State Bar Council and the Bar Council of India at the ratio of 80:20 as envisaged under Rule 41 and interest to be used for the purpose of this rule. “Out of life payment, 80% of the maount will be retained by the State Bar Council in a fixed deposit and remaining 20% has to be transferred to the Bar Council of India. The Bar Council of India and State Bar Council have to keep the same in a fixed deposit and the interest on the said deposits shall alone be utilized for the Welfare of the Advocates.” Explanation 1 : Statement of particulars as required by rule 40 in the form set out shall require to be submitted only once in three years. Explanation 2. All Advocates who are in actual practise and are not drawing salary or not in full time service and not drawing salary from their respective employers are only required to pay the amount referred to in this rule. Explanation 3. This rule will be effective from 1st August, 2001 and for period prior to this, advocates will continue to be covered by old rule. 41. (1) All the sums so collected by the State Bar Council in accordance with Rule 40 shall be credited in a separate fund known as “Bar Council of India Advocates Welfare Fund” and shall be deposited in the bank as provided hereunder. (2) The Bar Council of India Advocates Welfare Fund Committee for the state shall remit 20% of the total amount collected and credited to its account, to the Bar Council of India by the end of every month which shall be credited by the Bar Council of India and Bar WP(C) No.7444/2009 Page 12 Council of India shall deposit the said amount in separate fund to be known as “Bar council of india advocates welfare fund.” This fund shall be managed by the Welfare Committee of the Bar Council of India in the manner prescribed from time to time by the Bar Council of India for the Welfare of Advocates. (3) The rest 80% of the total sum so collected by the Bar Council of India Advocates Welfare Fund Committee for the State under Rule 41 (1) shall be utilised for the welfare of advocates in respect of Welfare Schemes sponsored by the respective State Bar Councils and this fund shall be administered by the Advocates Welfare Committee for the State which shall submit its report annually to the Bar Council of India. (4) In case of transfer of an advocate from one State Bar Council to other state Bar Council, 80% of the total sum collected so far in respect of that advocate by the Bar Council of India Advocates Welfare Committee for the State under Rule 41 (1) where the said Advocate was originally enrolled, would get transferred to the Advocates Welfare Fund Committeed of the Bar Council of India for the State to which the said Advocate has got himself transferred. 42. If any advocate fails to pay the aforesaid sum within the prescribed time as provided under rule 40, the Secretary of the State Bar Council shall issue to him a notice to show cause