Supreme Court Seeks Suggestions On Electoral Reforms In Supreme Court Bar Association

“We have impressed upon Dr. Adish Aggarwala and the other members of the Supreme Court Bar Association to submit their respective suggestions and/or the modalities to be followed for further reforms in the election process of the bar association. The suggestions may be submitted within eight weeks.”

A bench of Justices Surya Kant and Dipankar Dutta was hearing an application filed by a member of the bar association through Advocate-on-Record Pravir Choudhary seeking a relaxation of the norms for determining voter eligibility. Taking on record the suggestions offered by former SCBA president Vikas Singh, the bench also pronounced:

“In deference to the previous orders, Senior Advocate Vikas Singh has given certain suggestions. Copy of the same be given to Dr. Adish Aggarwala, Senior Advocate and President of the Supreme Court Bar Association.”

Courtroom Exchange

Right at the outset, SCBA president Adhish C Aggarwala resisted the application by saying that the executive committee of the association was active and would consider any amendments that were submitted in the form of a requisition endorsed by at least 150 members. Saying that the court no longer had any role to play, the senior counsel said –

“The court’s role starts when the executive committee of the bar association is not referring any requisition to the general body. Earlier, in 2011, when this committee was unable to do anything, the court appointed an implementation committee of three members…That issue is over.”

“You are right,” Justice Kant conceded, “The only larger issue is relating to some reforms – good reforms – members were suggesting.”

Any member with suggestions should come to the Supreme Court Bar Association and submit their suggestions in the form of a requisition, the bar association president insisted. He added, “SCBA is alive. But the problem is, we have to face these people who do not know the bye-laws of the association. They do not know that they should submit requisitions.”

“We are confident that members of the Bar are well-conversant with law,” Justice Kant intervened, before saying, in jest, “They know law better than us, and better than you, Dr Aggarwala.”

“The present application has become infructuous,” Aggarwala argued, pointing to the fact that the application seeking electoral reforms had been filed before the 2023 elections that took place in May.

Justice Kant explained, “After that application was filed, on the last occasion, we had taken up some issues for consideration…All of you give suggestions, we will consider them.”

Aggarwala protested. “If someone wants an amendment now, they will have to give us a requisition supported by at least 150 members, which will then be voted on by the general body. If they give a requisition and we fail to act upon the requisition; that is when the role of the court begins.”

“Alright, but file something before us outlining the relevant rules and procedure at least. We are granting you time. You give us that note,” Justice Kant said.

A counsel interjected, saying that she wished to place on record the suggestions given by former SCBA president Vikas Singh. His suggestions, as well as the suggestions of other members of the Bar had been solicited by the bench on an earlier occasion, for the purpose of “laying down explicit guidelines for elections in the future”.

“Give a copy to Dr Aggarwala and others,” Justice Kant instructed the counsel. To the SCBA president, the judge said, “You please submit that note making reference to the entire procedure.”

Aggarwala pointed out that his predecessor had been appointed amicus curiae, when he was the president of the bar association.  He added, “If Vikas Singh wants to remain amicus curiae as per the last order, then he should make a statement that he is not going to contest any election.”

Justice Kant declined before clarifying, “We have not appointed anyone amicus curiae. All members of the Bar are amicus curiae as far as this case is concerned. Everyone.”

Ultimately, the SCBA president agreed, on behalf of the bar association, to file an affidavit, but added a caveat. “We do not want to waste Your Lordship’s time. We will file the affidavit, but not on the basis of this.” The senior counsel held up the papers handed to him, containing the suggestions. He further said:

“We can look into a requisition. But, the executive committee has decided that the status quo will remain. There is no point in submitting suggestions at this stage because we have already decided. If anyone wants any change in the present system, they are free to submit a requisition.”

This argument did not find favour with the bench. “We are not staying your general body...You decide in your general body…Whatever you have decided, just place it on record,” Justice Khanna told the senior counsel.

When the SCBA president and some other members of the association expressed their apprehensions over the court’s order seeking suggestions ‘opening a pandora’s box’, to allay their concerns, Justice Khanna said –

“Look, we have not taken suo moto cognisance of this. Someone filed an application in a matter decided by this court. They wanted some directions. We examined the application and issued some directions. Thereafter some other issues have been brought up. If you have any reservation with respect to these issues, please point them to us. If you want to suggest a separate procedure for anything, bring that procedure on record…Whoever wants to give suggestions, may do so in writing…This is not litigation. In any case, this is not adversarial litigation. We are all here for the betterment of the institution. If you say something is to be done with the intervention of this court, we will do that. If you say everything is fine and nothing needs to be done, we will not do anything…We know how to open a Pandora's Box and close one too.”

Background

In 2011, the Supreme Court in Supreme Court Bar Association v. BD Kaushik, upheld an amendment to a rule preventing a member of any other bar association who exercised their right to vote in the said high court, district court or advocates’ bar association to contest for any post at the Supreme Court Bar Association or cast their vote at the election to choose members of the SCBA Executive Committee. This verdict was delivered on the basis of the principle ‘one bar one vote’.

A bench of Justices J M Panchal and HL Gokhale noted in this judgment that some of the members of the Supreme Court Bar Association were not regular practitioners at the apex court and mostly made their presence felt during the elections. The court directed the criteria relating to chamber allotment laid down in the 1998 Vijay Balchandra ruling to be adopted to identify eligible voters. For that purpose, an implementation committee comprising senior advocates KK Venugopal, PP Rao, and Ranjit Kumar was formed, which prescribed 50 appearances for senior advocates and non-advocates on record as one of the conditions to vote in the SCBA office-bearers elections.

However, the parameters suggested by the implementation committee also led to intense confrontation between factions within the bar association. This conflict prompted a second round of litigation by way of an interlocutory application seeking clarifications regarding the implementation committee’s criteria. After considering various suggestions offered by members of the SCBA to refine the criteria, the court disposed of the application with a direction to the implementation committee to modify the parameters in terms of the suggestions accepted by the bench and prepare a voters’ list for the upcoming election accordingly.

According to the extant rules, SCBA members who have 50 appearances per year in the previous two years, those representing or appearing for the state government or the central government and having a total of at least 50 appearances for such government during the period of three calendar years, and those who entered the Supreme Court using their proximity card for 60 days in the concerned year would be eligible to vote.

Ahead of the 2023 SCBA elections held in the month of May, Advocate Surender Kumar Tyagi filed another interlocutory application seeking a relaxation of the aforesaid parameters for identifying eligible voters. He said that since punching machines at the entry gates of the Supreme Court had been non-functional since 2019 and new proximity cards under the upgraded security system had yet to be issued to all members, the registry had no database that could be relied on to determine the eligibility of a voter. The advocate further pointed out that the total number of appearances made by a member in 2021 was affected by the court pivoting to a virtual format in view of the COVID-19 norms. The application reads:

“During the last few years, the members of the Supreme Court Bar Association whose names were there in the previous year’s voter list were carried forward as the current voter lists of the members of the Supreme Court Bar Association…There are several members who could not fulfil the first criteria as per the judgment requiring 50 appearances in 2021 and 2022. The members may not opt for the second alternative option of 60 entries through proximity cards as the punching machines are not functional since 2019 due to the upgradation of the security system and the new machines installed are not fully functional due to the non-completion of the process of issuing proximity cards to all members.”

Claiming that these circumstances were discriminatory against regular practitioners and members of the Supreme Court Bar Association and violate their right to participate in their own association, Tiyagi sought a relaxation of the eligibility criteria to enable regular practitioners to vote in the 2023 elections.

Case Details

Supreme Court Bar Association v. BD Kaushik | Diary No. 13992 of 2023

Click here to read the order