Elected Bar Association Office Bearers Cannot Contest Consecutively : Madras High Court Issues Directions To End Monopoly In Bar Elections

With the aim of ending monopoly in Bar Association elections, the Madras High Court has ruled that elected office bearers should not be allowed to contest for the second time consecutively.

The Court however permitted such elected members to contest alternatively.

"The provision to contest in the alternate election will be a healthy norm, which will enable all the members to contest the election and get elected without providing any room for monopoly", observed a division bench comprising Justices N Kirubakaran and R Pongiappan.

The Court declared that "all the Bar/Advocate associations in the State of Tamil Nadu shall have rule that the elected office bearers cannot contest next election continuously and they can contest in the alternate elections. To put it in other words, there shall be a prohibition for the elected office bearers of the Bar/Advocate Associations in the State to contest in the following/next election and they can contest in the alternate elections only".

The Court was considering a writ petition filed by a member of the Salem Bar Association challenging the decision of the Bar Council of Tamil Nadu and Puducherry to constitute a special committee for the conduct of Bar Association elections in 2019(N Madhesh v Secretary, Bar Council of Tamil Nadu and Puducherry).

The petitioner contended that the Bar Council has no power to pass directions with respect to the Association elections. The Special Committee, among other directions, had barred elected members from contesting consecutively.

The Bar Council told the bench that it intervened on the basis of complaint regarding manipulative tactics such as bulk payment of subscription to get outside persons as members of the Association.  It also submitted that there was violation of "one bar one vote" rule.

Court has power to prescribe qualifications for office-bearers of Bar Associations

The Court observed that since it has the power to regulate the conditions of practice of lawyers, it means that it has the power to prescribe the qualifications for office-bearers of Bar Associations.

"When this Court has got the power to regulate the conditions of practice, it cannot be said that the High Court cannot regulate or prescribe qualifications for office bearers of the associations including imposing prohibition regarding contesting more than one time at a stretch", the Court said.

"It is true that the formation of association is an internal matter and Courts may not have any power to meddle with the same, but the experience of this Court in the past would reveal that the administration of justice is affected because of election of non-practising advocates,advocates with tainted background and inexperienced lawyers, who,invariably, call for boycotts affecting justice delivery system and eroding the faith of general public in Courts. Moreover, this Court gets many complaints from subordinate judicial officers about threat, black mailing attitude of the office bearers of Bar Associations for judicial orders, as disgruntled elements are continuously getting elected. Besides, nowadays,numerous Bar Associations are formed on communal and political basis.These are all the realities in the Lower Courts and this Court cannot lose sight of the same. Hence, necessarily, this Court has to give directions even regarding the functioning of Bar Associations", the Court added.

Therefore, the court said that it has to intervene and give direction even in the internal matter of the Court annexed advocate/bar associations restricting the number of times an office bearer can contest.

"If a member of a Bar/Advocate Association is elected, interest of justice requires that there should be a provision prohibiting him from contesting for the second time so that other persons can have an opportunity to contest the elections. It would also prevent monopoly of the Bar as elected members,they get the advantage of getting elected easily, who sometimes indulge in corrupt practices. As a healthy practice, Madras Bar Association as well as Madras High Court Advocates' Association follow the procedure of elected member not contesting for the second time and making it as voluntary prohibition. When the two big Bar Associations attached to the principal Bench of this Court follow the aforesaid healthy norm, there may not be any reason for not following the said norm in the Lower Courts also", it added.

The High Court has also directed the Bar Council of Tamil Nadu and Puducherry to ensure that elected office bearers of Bar/ Advocate Associations do not print photographs on calendars or their names along with their position in vakalaths.

The Court also directed that "One bar one vote" shall be the norm as per the Rules of Practice and as per Judgment of the Supreme Court, in the case of SupremeCourt Bar Association V. B.D.Kaushik reported in 2011 13 SCC 77

'Flow of money and liquor'

The Court also made certain remarks regarding the 'flow of liquor and money' during Association Elections.

"It is common knowledge that during elections there will be heavy flow of money and liquor. Shamelessly some of the members of the so called noble profession sell themselves for liquor and money, paving the way for election of non-practising advocates with tainted backgrounds to the association/Bar Councils. Even though orders are being passed by this Court regularly to control these kind of malpractices, sometimes orders of this Court could not be enforced. In the last Bar Council election held in2018, taking note of the heavy flow of cash for voters, the learned Advocate General, Tamil Nadu and Ex-officio chairman of Bar Council of Tamil Nadu gave the details of corrupt practices being adopted", the Court observed.

The Court further observed :

"Elections to Advocates Associations or Bar Council are no different from general election to legislature in which invariably, to woo the electorate, Communal, religious, political cards etc., are played; Money power is exhibited; Liquor is generously offered. Due to unavoidable above corrupt practices, election process in our country has become a mockery... Sadly, our bar leaders are not properly elected by following democratic process, without any malpractices. Present members of the so called 'Noble Profession' are readily selling their votes for 'Money, Liquor, Foreign Tours, etc.'. This is the practise in almost every election for Association or Bar Council"

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