Rajasthan High Court Seeks BCI's Response On Plea Challenging Its Power To Extend Term Of State Bar Council Members Beyond Statutory Period

Rajasthan High Court sought reply from the Bar Council of India (“BCI”) in a petition challenging the amendment to Rule 32 of the Bar Council of India Certificate and Place of Practice (Verification) Rule, 2015 (“the Rules”) and thereby empowering itself to extend the term of elected members of State Bar Councils prescribed under Section 8 of the Advocates Act, 1961 (“the Act”)

The division bench of Chief Justice Manindra Mohan Shrivastava and Justice Ashutosh Kumar was hearing a petition filed by a bunch of advocates challenging the validity of Rule 32 as existing in the Rules after being amended by the BCI to the extent that it provided for extension of the term of elected office of State Bar Councils beyond the maximum period prescribed under Section 8 of the Act.

It was argued by the petitioners that BCI and State Bar Councils were statutory bodied created by the Act and thus were bound by the provisions contained therein. If any decision was taken by them which was in contravention to the provisions of the Act, it would be ultra-vires, non est and void ab initio.

The petitioners highlighted that Section 8 of the Act prescribed the term of officer of members of State Bar Council to be 5 years from the date of publication of the result of the election. This term could be further extended for 6 months in case the State Bar Council failed to conduct elections before the expiry of the term.

In case, the State Bar Council failed to conduct elections as contemplated in Section 8, it had to constitute a special committee under Section 8-A. Furthermore, the old Rule 32 under the Rules provided for constitution of an ad-hoc committee to oversee preparation of electoral rolls which had to work under the special committee constituted under Section 8-A of the Act.

The petitioners further put forth that the term of elected members of Bar Council of Rajasthan (“BCR”) got over on January 16, 2024 (including the extension of 6 months). After this, BCI came up with an amendment for Rule 32 and as per the new Rule, the requirement to form the ad-hoc committee was waived and the BCI was empowered to extend the period of elected members/office bearers of State Bar Councils beyond the statutory periods prescribed in the Act.

This new Rule was subsequently used by BCI to extend the term of BCR's members whose term otherwise got over in January, 2024.

In this background, the petitioners challenged the validity of amended Rule 32 as well as the consequent extension of term by BCI. It was submitted that the statutory term of the elected members of State Bar councils was prescribed by the Parliament and the power to extend such term could not have been taken over by BCI. Such action was ultra-vires to the Act, grossly arbitrary and violative of Article 14 of the Constitution.

“It is a settled proposition of law that a body created under the legislation cannot supersede the legislation and which has been precisely done by Bar Council of India by promulgating New Rule 32 making the new Rule 32 per se ultra vires and unconstitutional.”

While hearing this petition, the Court sought response from BCI as to how in exercise of rule-making power, a rule could be made in violation of the parent statute. The matter is listed for November 14, 2024.

Title: Shyam Bihari & Ors. v Bar Council of India & Anr.

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