Delhi High Court
Bar Council Of Delhi & Another vs Surender Pal Singh Chauhan & ... on 30 April, 2009
Author: Ajit Prakash Shah
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: April 30, 2009
+ L. P. A. No. 187/2009 & CM Nos. 5944-46/2009
BAR COUNCIL OF DELHI & ANOTHER
.....Appellants
Through: Mr.V.P. Singh and Mr.Sanjay
Jain, Sr. Advocates with
Mr.Jayant Tripathi, Advocate
versus
SURENDER PAL SINGH CHAUHAN & OTHERS
..... Respondents
Through: Mr. R.K. Sharma and Mr.Rajiv
Khosla, Advocates for
respondents No.1 and 2.
Mr.Sanjeev Sachdeva, Advocate
for respondent No.3.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL
1. Whether Reporters of local papers may be allowed to see the
judgment? yes
2. To be referred to the Reporter or not?n
3. Whether the judgment should be reported in Digest?n
AJIT PRAKASH SHAH, CHIEF JUSTICE (ORAL) :-
The present appeal is preferred by the Bar Council of Delhi
(BCD) against the order dated 21.04.2009 passed by S. Ravindra
Bhat, J. in Writ Petition No. 7444 of 2009 filed by respondent Nos. 1
and 2. Respondents No. 1 and 2 are practicing advocates and their
names appear on State Bar Council roll of Advocates. In the writ
petition they impugned the notification issued by the BCD dated
27.1.2009 (published on 5.3.2009) requiring all the advocates to
file declarations in the form prescribed by the BCD failing which
they shall not be included in the Electoral Roll under preparation.
2.It was inter alia averred in the writ petition that such declaration
L. P. A. No. 187/2009 Page 1 of 17
cannot be insisted upon, in view of the clear mandate of Rule 3 of the
Bar Council of India (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. Reliance was placed on the
decision reported in Bar Council of Delhi and others vs. Surjeet
Singh and others, (1980) 4 SCC 211 to contend that in the absence
of any rule, the BCD could not restrict the right of an Advocate to
caste 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).
It was contended that 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. A contention was also
raised that the notification which was issued by BCD on 27.1.2009, but
was published on 5.3.2009 did not comply with the 150 days
mandatory period, in terms of Rule 4 (a) of the Rules framed by the
BCI. It was alleged that even before the publication of the impugned
notice, the incumbent office bearers of the BCD has 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 was 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.
3.Though the writ petition was mainly and vigorously contested by
the BCD, the BCI maintained that the impugned notification requiring
Advocates to furnish declaration, is contrary to the BCI Rules,
particularly Rule 2, which only requires such declarations to be made
L. P. A. No. 187/2009 Page 2 of 17
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 was
stated that after the decision in Bar Council of Delhi and others
vs. Surjeet Singh and others (supra), the BCI had introduced a
similar requirement, which remained in place for almost a decade,
after which it was discarded in 1991. The BCD, therefore, could not
have brought about a similar requirement, or a precondition for
elector's exercising their franchise in its elections, without prior
permission of the BCI, under Section 15 (3). Therefore, the impugned
action of BCD is without statutory mandate, as rule making under
Section 49 is the prerogative of the BCI.
4.Learned single Judge has taken the view:
"20. The above discussion would show that while the
question of disqualification has been dealt with in clear
terms, and an obligation is cast on every Advocate, who is
suffering such disqualification, to disclose it [by virtue of
explanation to Rule 2 and Rule 4(1)], there is no like
obligation cast on every Advocate appearing on the state
rolls. In other words, the obligation to make disclosure or
declaration is only upon an Advocate who appears on the
State rolls and is also subject to any of the disqualifications;
such of those Advocates who are not laboring under any
disqualification have not been dealt with at all. This inference
is reinforced by the Explanation to Rule 2 which provides the
consequence, i.e. "deemed misconduct" in the case of one
who has suffered disqualification but does not disclose it. The
Form to Rule 4 relied upon also clearly refers to Explanation
to Rule 2.
21. ... ... ... ... ... ...
22. The legislative history of the BCI Rules, which are to
some extent relevant, and permissible as external aids (See
State of T.N. v. Pyare Lal Malhotra, (1976) 1 SCC 834), clearly
does not support the construction advanced on them, by the
BCD. On the contrary, the BCI had the benefit of Supreme
Court's ruling in Surjeet Singh; in its wisdom, it cast an
obligation on advocates to furnish declaration forms as a
condition precedent for exercising voting rights. That
L. P. A. No. 187/2009 Page 3 of 17
obligation existed for almost 11 years between 1980 and
1991, when it was ultimately discarded. The enactment of a
positive obligation, which existed undeniably during some
point in time, and its deletion therefore, are relevant
extraneous aids in construing the rules. The deliberate
omission of such an existing positive obligation, prescribed in
the previous rule, should deter the court from using the
interpretive process to re-enact it, when the rule making
body clearly intended it to cease operation. The court should
also adopt this approach because another rule of
interpretation of statutes is that where the statute provides
for a consequence, of a duty to observe some condition, the
obligation is deemed mandatory (See State of UP -V.-Babu
Ram Upadhyay 1961 (2) SCR 679; Mohan Singh -V.-
International Airports Authority of India 1997 (9) SCC 132).
Here, a combined reading of Explanation to Rule 2 and the
form to Rule 4, as well as Rule 4(1) itself would show that one
consequence has been prescribed, i.e. an Advocate subjected
to disqualification, on not furnishing the required declaration,
is deemed to have committed misconduct. Such an
unambiguous provision therefore, debars the court from
extending its operation to those who do not suffer from any
such disqualification, and therefore do not furnish the
declaration. Doing so, would also amount to reading into the
rules words that were neither intended, nor arise out of
necessary implication."
5.Learned single Judge consequently declared that there is no
obligation on all advocates to furnish declaration about the matters
mentioned in Rule 2 of the BCI Rules; the obligation is only upon those
who are subjected to the disqualifications mentioned in the Rule.
Accordingly, BCD was directed to issue a corrigendum, to its earlier
notice, dated 27-1-2009, published on 5-3-2009 to the effect that such
of the Advocates who have incurred disqualification, in terms of the
BCI Rules, should furnish their declarations, to it, to that effect. The
BCD was further directed to take steps to finalize the electoral rolls,
and hold elections to the Council in accordance with law and the BCI
Rules.
6.On behalf of the appellant/BCD, it was submitted by Mr. V. P.
Singh, learned Senior Council that Surjeet Singh's case was in the
context of a Rule introduced by the BCD requiring individual
L. P. A. No. 187/2009 Page 4 of 17
Advocates to furnish declarations. He submitted that the judgment
nowhere indicates that the Court held that such declaration could not
be obtained. Elaborating this, it was submitted that BCD has
formulated the declaration form, exactly as per the requirement of BCI
Rules which, in turn, have been framed to meet the statutory
requirements of Section 3(4) of the Advocates Act. Learned senior
counsel submitted that Rule 2 contains as many as nine eventualities
of incurring disqualification for the purpose of voting in a State Bar
Council election within the meaning of Section 3(4) of the Advocates
Act. Except those provided in clauses (a), (b), (g) and (h) and
partially, to some extent, (i), a State Bar Council has no means to be
aware of such disqualifications. According to him the rational behind
the declaration form can be gathered not by reading any particular
Rule in isolation but needs to be gathered from the conjoint reading of
Section 3(4) of the Advocates Act and the BCI Rules. Learned senior
counsel further submitted that the requirement of furnishing the
declaration form is a positive requirement and each Advocate is
obligated to comply with the same within the framework of Rule 4(1)
read with Rules 2 and 3. Learned senior counsel submitted that the
previous history of the rule, or that the Supreme Court has 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. It is implicit that the Advocates failing to
furnish the declaration as per Rule 4 would be disentitled from
exercising their right to vote.
7.Mr. Rajiv Khosla appearing for respondent no. 1 & 2 and Mr.
Sanjeev Sachdeva appearing for BCI countered all the submissions
L. P. A. No. 187/2009 Page 5 of 17
urged on behalf of the appellants and supported the judgment of the
learned single Judge.
8.We find no substance in any of the submissions urged on behalf of
the appellants. We are in agreement with the decision of the learned
single Judge. We proceed to briefly state our reasons for the same.
9.Section 3 of Advocates Act provides for the Constitution of the
State Bar Council, Sub-section (4) of which says :-
(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 a 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.
10.A plain reading of this sub-section makes it clear that the
qualifications and conditions entitling an advocate to vote at an
election for being chosen as a member of the State Bar Council has to
be prescribed by the Bar Council of India. The State Bar Council has no
such power. Further Sub-section (3) of Section 15 clearly provides that
no rules made under this section by a State Bar Council shall have
effect unless they have been approved by the Bar Council of India. In
the present case, the procedure prescribed by the State Bar Council is
not approved by the BCI.
11.We may also refer to the relevant rules occurring in Chapter I of
Part III of the Bar Council of India Rules. Rule 1 says:
"Every advocate whose name is on the electoral roll of
the State Council shall be entitled to vote at an election."
L. P. A. No. 187/2009 Page 6 of 17
Rule 2 lays down situations in which the name of an Advocate
appearing in the State Roll shall not be entered in the electoral roll
and which runs thus:
"2. The name of an advocate appearing in the state
roll shall not be on 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) 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 rules
within the time specified, shall be deemed to have
L. P. A. No. 187/2009 Page 7 of 17
committed an act of other misconduct as referred to in
Section 35(1) of the Act."
Rule 3 provides:
"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."
Rule 4 then provides:
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."
L. P. A. No. 187/2009 Page 8 of 17
Rule 5 provides for preparation of final electoral roll after
incorporating such changes as may be necessary including addition
of the names of the Advocates enrolled after the preparation of the
preliminary roll and putting up the same 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. Rule 6 speaks of revision of
electoral roll and Rule 8 says that 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 is as follows:
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 (g) 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)
L. P. A. No. 187/2009 Page 9 of 17
I hereby declare and affirm that the foregoing statements are
true to my knowledge and I have not concealed anything
thereto.
Date
..................................
Signature in full.
............................. .....................
.... (emphasis supplied)
12.In Surjeet Singh's case validity of a proviso added to Rule 3(j) of
the Bar Council of Delhi Election Rules, 1968 was considered by the
Supreme Court. The proviso added to Rule 3(j) provided that on
failure to file a declaration or on filing of incomplete or incorrect
declaration in any respect, it shall be presumed that name of such
Advocate is not to be entered on the Electoral Roll in accordance with
Rule 3 of Chapter I of Part III of the BCI Rules. In accordance with that
proviso copy of the declaration form was sent to the Advocates whose
names found place in the State Roll of Advocates asking them to
return the declaration form duly filled up and signed within the
specified period. The Electoral Roll was finally published excluding the
names of about 2000 Advocates, who had failed to submit such
declaration forms. The writ petition challenging the whole election by
attacking the validity of the proviso to Rule 3(j) was allowed by the
Delhi High Court. Affirming that judgment, the Supreme Court held as
follows:
"7. Section 24 of the Advocates Act provides for persons who
may be admitted as advocates on a State roll. Clause (a) of
sub-section (1) says that the person must fulfil such other
conditions as may be specified in the rules made by the State
Bar Council under Chapter III of the Act which concerns the
admission and enrolment of advocates. Under the Rules so
framed a person desirous of being enrolled as an advocate
has to apply in the prescribed form furnishing all the details
of his qualifications to be enrolled as an advocate. In item 3
of the application the applicant declares-"I declare that upon
admission I propose to practise within the State of Delhi." At
the end of the application form certain undertakings are
given by the applicant. Clause (c) of the undertaking runs
thus:-
I hereby declare and undertake that-
* * *
(iv) I intend to practise ordinarily and regularly
within the jurisdiction of the Bar Council of Delhi.
(v) I shall inform the Bar Council of any change of
address of my residence or place of practice for the
proper maintenances of the roll and voters' list.
According to the case of the Delhi Bar Council many
advocates after having been enrolled and put on the State
roll of advocates of Delhi break the said undertaking. They do
not ordinarily and regularly practise within the jurisdiction of
the Bar Council of Delhi nor do they inform any change of
address for the proper maintenance of the roll and the voters'
list. It is a pertinent matter no doubt. It is the duty of the Bar
Council to obtain information as to whether any person put
on the roll of State advocates ceased ordinarily and regularly
to practise within the jurisdiction of the Bar Council of Delhi;
if so, to, take steps for removal of his name from the State
rolls. That would automatically, as we shall presently show,
debar the person concerned to be put on the electoral roll.
But no provision in the Advocates Act or any rule was brought
to our notice enabling the Delhi Bar Council to remove the
name of a person from State roll if he has broken the
undertaking aforesaid. Section 26-A of the Advocates Act
merely says - "A State Bar Council may remove from the
State roll the name of any advocate who is dead or from
whom a request has been received to that effect". In para 2
of the affidavit of Shri D. Gupta, Advocate it is stated:-
It is the experience of this Council that most of the
advocate who are e1evated to the Bench or those who
join subordinate judiciary or family or other business or
employment, seldom care to notify this Council to get
their licence revoked or suspended, nor do the
advocates shifting their place of practice from Delhi to
elsewhere, care to notify this Council in that respect,
although the undertaking at internal page 8 of the
Enrolment form of this Council oblige them to do so.
It may be so but the lacunae in this regard have got to be
removed by amending the Advocates Act or by properly
framing the rules in that respect. We are definitely of the
opinion that so long the existing rules framed by the Bar
Council of India remained in vogue all persons whose names
are on the State roll are entitled proprio vigore to be put on
electoral roll. Rule 1 occurring in Chapter I of Part III of the
Bar Council of India Rules says :-
Every advocate whose name is on the Electoral Roll of
the State Council shall be entitled to vote at an election.
Rule 3 provides :-
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.
Exceptions to Rule 2 are to be found embodied in Rule 3 which
runs thus :-
The name of an advocate appearing in the State Roll shall
not be entered in the Electoral Roll, if on information
obtained by the State Council:
(a) his name has at any time been removed;
(b) he has been suspended from practice, provided that
this 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 fulltime 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 of the Council;
(g) he has intimated voluntary suspension of practice
and has not given intimation of resumption of practice.
None of the clauses in Rule 3 covers a clause of the kind
found in the proviso to Rule 3(j) of the Delhi Bar Council
Election Rules. Rule 3 of Delhi Bar Council Election Rules is
headed 'Interpretation". Clause (j) of the said Rules says :-
"Electoral Roll" means and includes the roll containing
the names of the advocates prepared in accordance
with the rules of the Bar Council of India in Part III,
Chapter I.
The impugned proviso added to Clause (j) in the year 1978
runs thus: -
Provided that the Electoral Roll shall not include the
name of such advocate who fails to file in the office of
the Bar Council, on or before such date (not being
earlier than 30 days of the date of notification) as may
be notified by the Bar Council in such manner as may
be considered proper by it from time to time, or within
45 days of the putting up of the preliminary Electoral
Roll Under Rule 4(1) of Chapter I of Part III of the Bar
Council of India Rules, a declaration containing the
name, address and number of the advocate on the
State Roll and to the effect that:-
(a) He is an advocate ordinarily practising in the
Union Territory of Delhi and that his principal place
of practice is within Union Territory of Delhi;
(b) He is not an undischarged insolvent;
(c) He has never been convicted by any court for
an offence involving moral turpitude;
or
A period of two years has elapsed since his release
after being convicted of an offence involving moral
turpitude;
(In case of conviction particulars of such conviction
should be given)
(d) He is not in full-time service or business or in
any such part-time business or other vocation as is
not permitted in the case of practising advocates
by the rules of the Bar Council; and
(e) He has not been suspended from practice;
and on the failure to file the declaration or on filing of
incomplete or incorrect declaration in any respect, it
shall be presumed that the name of such advocate is
not to be entered on the Electoral Roll in accordance
with Rule 3 of Chapter I of Part III of the Bar Council of
India Rules.
In these appeals we are not concerned with the propriety or
legality of asking such a declaration from a person belonging
to the noble profession. We shall proceed on the assumption,
that such an information could be asked for from a person
concerned whose name is on the State roll of Advocates. On
the furnishing of such information the name of the advocate
concerned could not be included in the electoral roll only if on
the basis of that information one or more clauses of Rule 3 of
the Bar Council of India Rules to be found in Part III, Chapter I
could come into play, not otherwise. In these appeals, we are
not concerned with any such case. The controversy here
centers round the fact that under the impugned proviso mere
failure to file the required declaration disqualified the
advocate concerned from being put on the electoral roll thus
depriving him of his right to vote or to stand as a candidate.
The crux of the matter in these appeals is as to whether such
a proviso was valid or ultra vires.
8. In order to determine the point at issue we shall now
read some relevant provisions of the Advocates Act,
Section 3 provides for the Constitution of the State Bar
Council, Sub-section (4) of which says :-
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 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.
On a plain reading of this sub-section it is manifest that
under the Act the qualifications and conditions entitling an
advocate to vote at an election or for being chosen as a
member of the State Bar Council have to be prescribed by
the Bar Council of India. The State Bar Council has no such
power. The power of the State Bar Council is merely to
prepare and revise from time to time the electoral roll
subject to the rules made by the Bar Council of India
concerning the qualifications and conditions aforesaid. This
interpretation of Section 3(4) of the Act finds ample
support from the very specific provision contained in
Section 49(1)(a) providing for the general power of the Bar
Council of India in these terms :-
49. (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
disqualifications of voters, and the manner in
which an electoral roll of voters may be
prepared and revised by a State Bar Council;
Great reliance was placed on behalf of the appellants on
the concurrent power of the State Bar Council and the Bar
Council of India engrafted in Section 15 of the Advocates
Act. It is true that the power to make rules conferred by
Section 15 is both for the Bar Council of India as also for
the Bar Council of a State. But no provision of Section 15
can override the specific provision made in Section 3(4)
and Section 49(1)(a) of the Act. Sub-section (1) of Section
15 says-"A Bar Council may make rules to carry out the
purposes of this Chapter" which means Chapter II including
Section 3. But the power to prescribe qualifications and
conditions entitling an advocate to vote at an election
being that of the Bar Council of India Section 15(1) cannot
be interpreted to confer power on the State Bar Council to
make rules regarding the qualifications and conditions
aforesaid. The relevant words of Sub-section 2(a) of
Section 15 are the following:-
In particular, and without prejudice to the generality
of the foregoing power, such rules may provide for :-
(a) ...the preparation and revision of electoral rolls
and the manner in which the results of election shall
be published.
The State Bar Council can frame rules for the preparation
and revision of electoral rolls under Section 15(2)(a). That
would be in conformity with the latter part of sub-section
(4) of Section 3 also. But in the garb of making a rule for
the preparation and revision of the electoral rolls it cannot
prescribe disqualifications, qualifications or conditions
subject to which an advocate whose name occurs in the
State roll can find place in the electoral roll resulting in his
deprivation of his right to vote at the election. In the
instant case under the impugned proviso failure on the
part of an advocate to submit the required declaration
within the specified time entitles the State Bar Council to
exclude his name from the electoral roll. Such a thing was
squarely covered by the exclusive power conferred on the
Bar Council of India under Sections 3(4) and 49(1)(a) of the
Advocates Act. The State Bar Council had no such power."
(emphasis supplied)
13.After Surjeet Singh's case, the Bar Council of India introduced a
similar rule in clause 5 of BCI Rules. The rules of the Bar Council of
India as on 06.09.1980 specifically provided as under:
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 the extended time as stated
herein above, his name shall not be included in the Electoral
Roll and he shall not be entitled to take part in the election in
question.
14.The Form of notice under rule 4 as prescribed by BCI also
contained the following:
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.
15.As on 1980 when the above disqualification was prescribed the
requirement of rule 2 was that notice had to be sent to all advocates
at their respective addresses in ordinary post with certificate of
posting. With effect from 01.01.1991 the rule disqualifying the
advocate from right to vote on failure to file declaration was
specifically deleted and also the provision requiring the sending of
individual notices was deleted from the rules. The note in the notice
was also deleted.
16.The above amendments in the rules as made w.e.f. 01.01.1991
clearly shows that the intention of the BCI is not to make the failure to
file declaration as a disqualification. Thus, the notification issued by
the Bar Council of Delhi making the failure to file declaration as a
disqualification is contrary to the rules of Bar Council of India. It is
also noticed that the declaration form prescribed by BCD is contrary to
the form which has been prescribed by BCI. In the form prescribed by
the BCI the particulars as to the disqualification(s) has to be furnished
by an Advocate who has incurred them and not by all Advocates
whereas the impugned notification prescribes that the last date for
acceptance of the declaration is 16th March, 2009, failing which the
name of the Advocate shall not be included in the Electoral Roll under
preparation. It is not permissible for the State Council to frame rules
or prescribe form which is contrary to the form prescribed by the BCI.
Thus, the impugned notification and the declaration form cannot have
any effect being in contradiction to the provisions of Section 15(3) of
the Advocates Act.
17.We are in agreement with the learned single Judge that the
impugned notice and declaration form are in contravention to the
provisions of Section 15 (3) of the Advocates Act. Therefore, there is
no warrant to interfere with the order of learned single Judge.
Accordingly, the appeal is dismissed. All the pending applications are
disposed of accordingly.
CHIEF JUSTICE
NEERAJ KISHAN KAUL, J
APRIL 30, 2009
rb/nm
