Kerala High Court
Sri. Anil Kumar K N vs Bar Council Of India on 5 June, 2024
Author: T.R.Ravi
Bench: T.R.Ravi
WP(C) NO. 18361 OF 2024
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 5TH DAY OF JUNE 2024 / 15TH JYAISHTA, 1946
WP(C) NO. 18361 OF 2024
PETITIONERS:
1 SRI. ANIL KUMAR K N,
AGED 60 YEARS
S/O NARAYANAN NAIR, ADVOCATE (CHAIRMAN, BAR
COUNCIL OF KERALA) P O ROAD, PERUMBAVOOR,
PIN - 683542
2 SRI. JOSEPH JOHN
AGED 65 YEARS
S/O JOHN, ADVOCATE (MEMBER, BAR COUNCIL OF KERALA)
MALEKUDY HOUSE OLAMATTOM, THODUPUZHA P O IDUKKI,
PIN - 685584
3 SRI. NASSEER K K,
AGED 57 YEARS
S/O KUNJUMOHAMMED, ADVOCATE (MEMBER, BAR COUNCIL
OF KERALA) NJC LAW CHAMBERS ALUVA, ERNAKULAM
DISTRICT, PIN - 683101
4 SRI.JAYACHANDRAN K P,
AGED 67 YEARS
S/O PURUSHOTHAMAN PILLAI, ADVOCATE ADDL. ADVOCATE
GENERAL (MEMBER, BAR COUNCIL OF KERALA) TC 9/1280,
DWARAKA,TEMPLE ROAD SASTHAMANGALAM P O
TRIVANDRUM-, PIN - 695010
BY ADVS.
SRI RENJITH THAMPAN (SR.)
SRI V.M.KRISHNAKUMAR
SMT.P.R.REENA
RESPONDENTS:
1 BAR COUNCIL OF INDIA
REPRESENTED BY ITS SECRETARY, 21, ROSE AVENUE
INSTITUTIONAL AREA, NEW DELHI, PIN - 110002
WP(C) NO. 18361 OF 2024
2
2 THE SECRETARY,
BAR COUNCIL OF INDIA, INSTITUTIONAL AREA, NEW
DELHI, PIN - 110002
3 THE ADVOCATE GENERAL KERALA
OFFICE OF AG, HIGH COURT OF KERALA, ERNAKULAM,
PIN - 682031
4 THE CHAIRMAN,
BAR COUNCIL OF INDIA, 21, ROSE AVENUE
INSTITUTIONAL AREA, NEW DELHI, PIN - 110002
5 AJITH T S,
ADVOCATE (MEMBER, BAR COUNCIL OF KERALA) ATHULYA,
MAMMIYUR, GURUVAYOOR PO THRISSUR- PH:9846582853.
([email protected]), PIN - 680101
6 SRI. MANOJ KUMAR N,
ADVOCATE STATE ATTORNEY (MEMBER, BAR COUNCIL OF
KERALA) AMAR, H. NO: 49/697-R RAJIV NAGAR,
ELAMAKARA P O ERNAKULAM- PH: 9447156069,
PIN - 682026
7 SRI. SHARAFUDDEEN M
ADVOCATE (MEMBER, BAR COUNCIL OF KERALA) "SHAS",
CHETTOMCOONNU P O. TELLICHERRY, KANNUR PH:
9895708842, 0490 - 2342231.(R ), PIN - 670101
8 SRI. SANTHOSH KUMAR P,
ADVOCATE (MEMBER, BAR COUNCIL OF KERALA) "THE LAW
& JUSTICE " MANJALIKULAM,THAMPANOOR P O
TRIVANDRUM-. PH.NO: 9446566866 0471-2336333,
2211366. EMAIL: [email protected], PIN -
695001
9 SRI. RAJKUMAR K R,
ADVOCATE (MEMBER, BAR COUNCIL OF KERALA)
THATHAMPILLIL HOUSE WARRIAM ROAD ERNAKULAM PH:
9497202042., PIN - 682016
10 SRI. SAJEEV BABU P,
ADVOCATE (MEMBER, BAR COUNCIL OF KERALA)
PURUSHOTHAM BUILDINGS DWARAKA MADOM NEAR NEW
BHARATH STUDIO ANANDAVALLEESWARAM NEAR
COLLECTORATE KOLLAM PH:9995535669, PIN - 691009
WP(C) NO. 18361 OF 2024
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11 SRI. SHAJI B S.
ADVOCATE (MEMBER, BAR COUNCIL OF KERALA) RITU, TC
14/2056(4) VENPALAVATTOM, ANAYARA P O, TRIVANDRUM
PH:9847350009., PIN - 695029
12 SRI. MOHAMMED SHA P A,
ADVOCATE (MEMBER, BAR COUNCIL OF KERALA)
4C/EXPRESS ESTATE APARTMENTS NEAR AJ HALL, KALOOR
PH:9447081280, PIN - 682017
BY ADVS.
SRI RAJIT, SC (BCI)
R5 BY SMT.M.U.VIJAYALAKSHMI
SRI BRIJESH MOHAN(K/1851/1999)
SRI K.JAJU BABU (SR.)(K/116/1981)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 22.05.2024, THE COURT ON 05.06.2024
DELIVERED THE FOLLOWING:
WP(C) NO. 18361 OF 2024
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T.R. RAVI, J.
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W.P.(C). No.18361 of 2024
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Dated this the 5th day of June, 2024
JUDGMENT
The election to the Bar Council of Kerala was held in the
year 2018. The list of the elected candidates was published in
the Gazette as per Ext.P1 notification dated 07.11.2018. The
petitioners are persons included in Ext.P1. The 1 st petitioner was
the Chairman of the Bar Council of Kerala. The 2 nd petitioner was
the Honorary Secretary, the 3rd petitioner was the Treasurer, and
the 4th petitioner was the Chairman of the Executive Committee
of the Bar Council of Kerala. Section 8 of the Advocates Act says
that the term of office of an elected member of a State Bar
Council (other than an elected member referred to in Section 54)
is five years from the date of publication of the result of his
election. As per the proviso to Section 8, where a State Bar
Council fails to provide for the election of its members before the
expiry of such term, the Bar Council of India may, by order, for
reasons to be recorded in writing, extend the said term for a
period not exceeding six months. The term of the petitioners
WP(C) NO. 18361 OF 2024
expired on 06.11.2023. The Bar Council of India, in exercise of
the power under the proviso to Section 8, extended the term for
a period of six months, which also expired on 06.05.2024.
2. Section 49 of the Advocates Act vests with the Bar
Council of India, the power to make Rules for discharging its
functions under the Act. Section 49A gives power to the Central
Government to make rules by notification in the official gazette
for carrying out the purposes of the Act including Rules with
respect to any matter for which the Bar Council of India or a
State Bar Council has power to make Rules. In exercise of the
powers available under Sections 49 and 49A of the Advocates
Act, the "Certificate and Place of Practice (Verification) Rules,
2015 (hereinafter referred to as the 2015 Rules) was notified.
Rule 32 of the said Rules, gives power to the Bar Council of India
to form an Ad-hoc Committee, in case the term of elected
members of any Bar Council is likely to expire/expires due to
delay in the process of identification of non-practicing Advocates
under the Rules or in case of delay in the preparation of the
electoral roll for the elections to the State Bar Council, consisting
of required number of elected members of the State Bar Council
for smooth running of the State Bar Council and for expeditious
WP(C) NO. 18361 OF 2024
execution of the process of identification of non-practicing
Advocates. The said Committee has to function under the
Special Committee constituted under Section 8A of the Act till the
process of preparation of the electoral roll as per Chapter I Part
III of the Bar Council of India Rules for the purpose of elections
to the State Bar Council is completed. The above Rule was
amended as per Ext.P2 notification dated 23.06.2023. The
amended Rule reads thus:
"In case the term of elected members of any State Bar
Council is likely to expire/expires due to delay in the
process of identification of non-practicing advocates or
verification of their certificates or delay in the preparation
in the electoral roll for the election to the State Bar
Councils due to the aforementioned reasons, the Bar
Council of India may allow the elected members and the
office-bearers of the State Bar Council (s) to continue to
function beyond their extended tenure under Section 3 of
the Advocates Act, 1961 in order to complete the process
of verification and in order to ensure that the non-
practicing Advocate becomes a voter or a member of any
state Bar Council. The State Bar Council(s) shall be
required to complete the process of verification within a
period of 18 months from the date of extension of their
tenure by the Bar Council of India and shall complete the
process of election within a period of 6 months therefrom.
In case of failure to complete the process of verification
WP(C) NO. 18361 OF 2024
and the election within the said extended period as
prescribed under this Rule, the Bar Council of India may
dissolve the State Bar Council and shall proceed to
constitute the Special Committee as provided under
Section 8A of the Advocates Act, 1961."
3. As per the amended Rule, in the place of constituting
an Ad hoc Committee, the elected members/and the office
bearers of the State Bar Council were to continue to function
beyond their extended tenure under Section 8 of the Advocates
Act, 1961. To complete the process of verification and to ensure
that no non-practicing Advocate becomes a voter or a member of
any State Bar Council, the amended Rule says that the State Bar
Council shall be required to complete the process of verification
within a period of 18 months from the date of extension of the
tenure by the Bar Council of India and to complete the process of
election within a period of six months thereafter. The Rule
further says that in case of failure to complete the process of
verification and the election within the said extended period, the
Bar Council of India may dissolve the State Bar Council and
proceed to constitute a Special Committee as provided under
Section 8A of the Advocates Act.
4. The petitioners submit that the Bar Council of Kerala
WP(C) NO. 18361 OF 2024
has almost completed the verification process of non-practicing
Advocates, and the list is being finalised. It is stated that on
21.11.2023, the Bar Council of Kerala issued a notification calling
for the particulars of the members who have incurred
disqualification, for the purpose of publication of the electoral roll.
But the said decision had been stayed by notification issued by
the Bar Council of India. On 05.05.2024, the Bar Council of India
passed a resolution whereby the tenure of all the elected
members of the Bar Council of Kerala was extended for the
purpose of allowing the completion of the verification process in
the exercise of the power available under Rule 32 of the 2015
Rules. While extending the tenure, the Bar Council of India also
resolved that during the interim period of 18 months, another
committee will be constituted by the Bar Council of India, to
complete the verification process in a transparent and
expeditious manner. As per the resolution, the Committee shall
be constituted by the Hon'ble Chairman, Vice Chairman, and the
Executive Chairman of the Bar Council of India in consultation
with Mr.Manoj Kumar N., Member, Bar Council of India from
Kerala, within a period of 7 days. It was also resolved that the
Committee and office bearers shall be from amongst the elected
WP(C) NO. 18361 OF 2024
members of the State Bar Council of Kerala only. Pursuant to the
resolution dated 5.5.2024, which had been communicated to the
Secretary of the Bar Council of Kerala by Ext.P3 letter dated
6.5.2024, the Bar Council of India constituted three Committees
as (a) Office Bearers of Committee, (b) Executive Committee and
(c) Enrolment Committee and the details were communicated to
the Bar Council of Kerala by Ext.P4 letter dated 20.5.2024. The
petitioners are aggrieved by the decision to constitute another
committee by the Bar Council of India, as reflected in Exts.P3
and P4.
5. Heard Sri Renjith Thampan, Senior Advocate,
instructed by Sri V.M.Krishnakumar on behalf of the petitioner,
Sri Rajit, Standing Counsel for the Bar Council of India and
Sri Jaju Babu, Senior Advocate instructed by Sri Brijesh Mohan
on behalf of the 5th respondent.
6. The contention of the Senior Counsel appearing for the
petitioners is that there is no power available to the Bar Council
of India to form Special Committees in the manner done in
Exts.P4 and as resolved on 5.5.2024. According to the counsel,
the power for extension of the period was available with the Bar
Council of India under the proviso to Section 8, but for a period
WP(C) NO. 18361 OF 2024
of six months alone. There could have been no further extension
going by the provision in the Statute. It is submitted that the
said period fixed in the Statute is sought to be extended by the
amendment to Rule 32 of the 2015 Rules. It is submitted that
even if such power is conceded, it is only to extend the term of
the Committee and there was no power to dictate who should be
the Office Bearers during the extended period. It is submitted
that under Chapter III of the Bar Council of Kerala Rules, the
election of the Chairman, Vice Chairman, Treasurer, and
formation of various Committees have been dealt with. Rule 2
deals with the election of the Chairman, Vice Chairman, and
Treasurer, and it says that it is the members of the Bar Council
who are to elect the Chairman, Vice Chairman, and Treasurer
from among themselves. Rule 10 says that the Bar Council shall
constitute Committees, namely, (a) Executive Committee, (b)
Enrolment Committee, (c) Disciplinary Committee, and (d) Rule
Committee. Rules 12 to 16 deal with the functions of each of
these Committees. It is hence submitted that when the power is
given to the Bar Council of Kerala for constituting the
Committees, the same cannot be usurped by the Bar Council of
India under the guise of action taken under Rule 32 of the 2015
WP(C) NO. 18361 OF 2024
Rules. It is hence submitted that Exts.P3 and P4, to the extent
they provide for the formation of Committees by the Bar Council
of India, are without authority of law and against the statutory
provisions.
7. The Standing Counsel for the Bar Council of India took
me through the contents of Ext.P3 to submit that sufficient
reasons have been provided for the purpose of the constitution of
the Committees, and no interference is called for by this Court in
the exercise of its powers under Article 226 of the Constitution of
India. It is submitted that on the facts which have been stated in
Ext.P3, there was nothing wrong in the action of the Bar Council
of India in forming the Committees since it is for the betterment
of the Advocates.
8. The learned Senior Counsel for the 5th respondent
(who has been now named as the Chairman as per Ext.P4),
submitted that the writ petition has been filed without revealing
the entire facts. It is brought to my notice that on 13.4.2024,
the Bar Council of Kerala had written to the Bar Council of India
stating that the term of the Bar Council of Kerala is to expire on
6.5.2024 and requesting the Bar Council of India to extend the
term of office as per the amended Rule 32 to enable the Bar
WP(C) NO. 18361 OF 2024
Council of Kerala to complete the verification process. It is hence
submitted that the contention that the Bar Council of India does
not have power cannot be sustained since the action under Rule
32 was requested by the Bar Council of Kerala itself, of which the
petitioners were Office Bearers, before the expiry of their
extended term. It is submitted that Ext.P3 was issued pursuant
to the letter dated 13.4.2024. Soon after receipt of Ext.P3, the
Bar Council of Kerala again addressed the Bar Council of India by
letter dated 7.5.2024 requesting for a copy of the complaint,
which had been referred to in the letter. The letter does not
speak about any grievance regarding the decision taken on
5.5.2024 by the Bar Council of India. On 21.5.2024, the Bar
Council of Kerala again addressed the Bar Council of India,
informing that the Bar Council of Kerala had assumed charge on
21.5.2024 as directed by the Bar Council of India in Ext.P4 letter.
The Senior Counsel submits that none of the above facts have
been stated in the writ petition and the petitioners have not
approached the Court with clean hands. The counsel further
submitted that in paragraph 17 of the writ petition, the
petitioners have stated, that the petitioners 1, 2, 4, and the 5 th
respondent had met the Chairman of the Bar Council of India on
WP(C) NO. 18361 OF 2024
14.5.2024 at the Bar Council of India Office. It is stated that the
4th respondent was also present at the meeting. As per the
pleadings, the Chairman of the Bar Council of India had wanted
the 4th respondent to be the Chairman of the Bar Council of
Kerala to which the petitioners 1, 2, and 4 and the 5th respondent
had responded stating that a decision could be taken only by the
General Council of the Bar Council of Kerala and not by the
individual members. The Senior Counsel submits that the entire
aspects that have transpired on 14.5.2024 at the meeting have
not been fully disclosed in the writ petition. I do not think it
necessary to go into the contents of the discussion that was held
by the petitioners and others with the President of the Bar
Council of India in this writ petition and all that is needed to be
looked into is the power of the Bar Council of India to issue
Exts.P3 and P4.
9. In Babu Varghese & Ors. v. Bar Council of Kerala
& Ors. [(1999) 3 SCC 422], the Hon'ble Supreme Court had
considered the power available under the proviso to Section 8 of
the Advocates Act for extending the term of the members of the
State Bar Council. It was held that the resolution extending the
term must be passed before the expiry of the extended term and
WP(C) NO. 18361 OF 2024
no action can be taken thereafter for extending the term. In the
case on hand, the extension has been done at the first instance
before the expiry of the term, and hence, the power available
under the proviso to Section 8 has been correctly exercised. The
second extension is not under the proviso to Section 8 but an
extension invoking the power under Rule 32 of the 2015 Rules, in
a situation where the proper electoral roll cannot be prepared
due to the non-completion of the preparation of the list of non-
practicing advocates. The exercise of power under Rule 32 alone
needs to be considered.
10. The petitioners do not contend that Rule 32 is itself
ultra vires the statutory provisions. In fact, the petitioners are
beneficiaries of the extension of the term granted under Rule 32.
Rule 32, as it stands now, provides for the extension of the term
of office of a Member of the State Bar Council for the sole
purpose of completing the process of verification. The amended
Rule also gives power to the Bar Council of India to "extend the
term of the Office Bearers of the Bar Council to continue to
function". The Rules does not mandate the Bar Council of India
to extend the term, and the word used is only 'may', which gives
a discretion to the Bar Council of India, to act as the
WP(C) NO. 18361 OF 2024
circumstances warrant. The Bar Council of India chose to extend
the term of the members but did not choose to extend the term
of office of the Office Bearers to so function. Instead, the Bar
Council of India was of the opinion that there is a necessity for
change in the Office Bearers though the constitution of the entire
Bar Council would remain the same. This is an informed choice
taken by the Bar Council of India against which this Court cannot
sit in appeal. The reason for exercising the choice has also been
stated in Ext.P3. When there is a power available to the Bar
Council of India to act in the manner in which it has acted in
Exts.P3 and P4 and there is no challenge to the power, the only
question to be considered is whether there is any arbitrariness or
unreasonableness or patent illegality in exercise of the power as
reflected in Exts.P3 and P4. I do not think any such
circumstances exist in this case. Sufficient reasons have been
stated in Exts.P3 and P4, which do not warrant any interference
by this Court in the exercise of its extraordinary jurisdiction
under Article 226 of the Constitution of India. The petitioners are
persons who are aware of the situation in which the term was
extended. The consequences of not completing the process of
verification were also known to them. As far as the formation of
WP(C) NO. 18361 OF 2024
Special Committees is concerned, Section 8 of the Advocates Act
gives sufficient power to the Bar Council of India to constitute
Special Committees, if the 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. It can thus be
seen that the Bar Council of India could have constituted a
Special Committee immediately after the expiry of five years and
need not have exercised the power under the proviso to Section
8 and extended the term at the first instance. There is no
illegality in Exts.P3 and P4, nor can the action be termed as
arbitrary. None of the constitutional or statutory rights of the
petitioners are affected in any manner.
The writ petition fails and is dismissed.
Sd/-
T.R. RAVI
JUDGE
dsn
WP(C) NO. 18361 OF 2024
APPENDIX OF WP(C) 18361/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF GAZETTE NOTIFICATION NO.
2768 DATED 07.11.2018
Exhibit P2 TRUE COPY OF THE NOTIFICATION DATED
23.06.2023
Exhibit P3 A TRUE PHOTOCOPY OF THE LETTER DATED
06.05.2024 FROM THE SECRETARY, BCI TO
THE SECRETARY, BCK
Exhibit P4 A TRUE PHOTOCOPY OF THE LETTER DATED
20.05.2024 FROM THE SECRETARY, BCI TO
THE SECRETARY, BCK
Exhibit P5 TRUE COPY OF THE GAZETTE NOTIFICATION
DATED 21.11.2023
Exhibit P6 TRUE COPY OF THE RESOLUTION DATED
26.11.2023 OF BAR COUNCIL OF INDIA
