The Madras High Court has made it clear that the occurrence of the words "any senior Muslim advocate" in the proviso to Section 14(1)(b)(iii) of the Waqf Act, 1995 is not confined to designated senior counsel.
"The legislature has not used the expression "Muslim senior advocate". Courts have to give effect to legislative intent and not play the game of scrabble," the bench comprised of Justice GR Swaminathan remarked.
The Court was hearing a practising Advocate's petition, challenging the Election Authority's decision to treat Muslim ex-members of the Bar Council of Tamil Nadu as the electoral college instead of a senior Muslim advocate in terms of proviso to Section 14(1)(b)(iii).
Section 14(1)(b)(iii)— The Board for a State shall consist of Muslim members of the Bar Council of the concerned State or Union territory. Provided that in case there is no Muslim member of the Bar Council of a State or a Union territory, the State Government or the Union territory administration, as the case may be, may nominate any senior Muslim advocate from that State or the Union territory.
The Petitioner had raised two contentions:
- (i)The Authority ought to have appointed a senior Muslim advocate and not Muslim ex-members of the Bar Council, in the absence of Muslim members in the Bar;
- (ii)Expression "any senior Muslim advocate" can only mean and refer to a designated senior advocate.
While dealing with the latter contention the bench held,
"The expression "Senior Advocate" may comprise two words. But they are like siamese twins. They cannot be separated…But the proviso relied on by the petitioner contains the expression "any senior Muslim advocate". The word "advocate" is qualified by the adjective "Muslim". This adjective stands in between the words 'senior' and 'advocate'. The legislature has not used the expression "Muslim senior advocate". Courts have to give effect to legislative intent and not play the game of scrabble. It can therefore only mean the senior among the Muslim advocates. It cannot be confined to the Muslim advocates designated as senior advocates under the Advocates Act, 1961."
The Court clarified that while designation as a Senior Counsel is an acknowledgement of the calibre of the person so designated, non-designation does not necessarily imply lack of professional competence. It said that if a narrow construction, as contended by the Petitioner is accepted, that would mean the government will not be able to tap the services of a large number of persons.
Coming to the former contention of the Petitioner, the bench held,
"When the Bar Council of the State does not have a Muslim member, the electoral college will not fall vacant. It will then comprise the Muslim ex-members of the Bar Council. Only if there are no Muslim sitting or ex-members of the Bar Council and it is not possible to constitute the electoral college, the Government may nominate any senior Muslim advocate from the State to fill up the category contemplated by Section 14(1)(b)(iii) of the Act."
The Authority had chosen ex-Members of the Bar Council to the electoral college under Section 14(2) of the Waqf Act. It had argued that the power of nomination can be invoked only when it is not reasonably practicable to constitute the electoral college. "When there are no sitting members in the Bar Council of the State, the ex-members will constitute the electoral college. Only if there are no ex-members also, the government will have to nominate 'any senior Muslim advocate'," the Government had submitted.
Concurring with this argument the bench said,
"We are a democratic republic. The democratic process must permeate everywhere. When the statute provides for a democratic machinery, it is that which must be preferred and not the process of nomination."
It derived guidance from Section 14(3) of the Waqf Act which states that the State Government may nominate all the members of the Board only if it is not reasonably practicable to constitute an electoral college for any of the categories mentioned in sub-clauses (i) to (iii) of clause (b) of sub-section (1) of Section 14 of the Act.
"From this, one can safely conclude that only if there are no sitting or ex-members of the Bar Council, the Government may invoke the proviso to Section 14(1)(b)(iii) of the Act.
Of course, it would have made better drafting sense if the proviso to Section 14(1) (b)(iii) had been placed after the second proviso to Section 14(2) of the Act. But a clumsy arrangement of the Section cannot come in the way of the Court correctly construing the provision," it said.
Reference was also made to Rule 2 (7) of the Tamil Nadu Waqf Board (Conduct of Election for Members) Rules, 1997 which defines electoral roll. It provides that where there are no Muslim members in any of the categories viz., (i) Members of Parliament; (ii)Members of the State Legislature; (iii)Members of the State Bar Council, the electoral roll shall consist of the ex-members of the respective electoral college as specified in the second proviso to sub-section (2) of section 14 of the Act."
"It is true that a plain reading of Section 14(1)(b)(iii) leads one to conclude that this category of electoral college will consist of the Muslim members of the Bar Council and in case there is no such member, the Government may nominate any senior Muslim advocate. But that would be too narrow an approach. Unlike horses, judges cannot afford to have blinkered vision," the bench held.
The Court dismissed the Respondent's challenge to maintainability of the petition holding thus:
- Failure to mention that the Petitioner had first filed a similar petition before the principal Bench at Madras is of no consequence as the same was not even numbered nor listed (See para 6).
- Commencement of election process would not affect maintainability of the petition as it goes to the very root of the matter. If the petitioner's contention turns out to be correct, the very holding of the election turns out to be illegal and without jurisdiction (See para 7).
- Joinder of Muslim ex-members of the Bar Council as necessary party is not mandatory as the Petitioner had contended that the entire election process was tainted by malice in law; challenge mounted by the petitioner is anchored on the interpretation of the statutory provision and nothing else (See para 8).
- Locus standi of the petitioner cannot be doubted since he is a practicing lawyer and a "person interested" within the meaning of Section 3(k) of the Waqf Act.
Case Title: M. Imam Hussain v. Government of Tamil Nadu & Ors.
Case No.: WP (MD) No. 7661/2020
Quorum: Justice GR Swaminathan
Appearance: Advocate M. Mahaboob Athiff (for Petitioner); Additional Advocate General K. Chellapandian, assisted by Special Government Pleader VR Shanmuganathan (for Respondents)