CWP No. 24392 of 2015 (O&M). Case: Rakesh Punia Vs Bar Council of India and Ors.. High Court of Punjab (India)
| Case Number | CWP No. 24392 of 2015 (O&M) |
| Counsel | For Appellant: Raman Sharma, Gagandeep Rana and Divay Sarup, Advocates |
| Judges | Rajesh Bindal and Harinder Singh Sidhu, JJ. |
| Issue | Advocate Act, 1961 - Sections 12, 15, 15(1), 15(2), 15(2)(c), 15(3), 16, 17, 17(4), 19, 2(a), 22, 26A, 3, 3(1)(a), 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 34, 35, 36, 49(ah), 49(1)(ag), 49(i), 6(1)(dd), 6(1)(ee), 6(1)(eee), 6(1)(g), 6(1)(h), 6(1)(i), 6(2)(c), 6(dd), 6(h), 6(i); Advocates Welfare Fund Act, 2001 - Sections 15, 16, 16(3), 16(4), 17, 17(... |
| Judgement Date | December 21, 2016 |
| Court | High Court of Punjab (India) |
Judgment:
Harinder Singh Sidhu, J.
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This judgment shall dispose of CWP Nos. 5232, 23865, 24392 and 25912 of 2015 as similar issues are involved therein.
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The question raised in the present petitions is whether the Bar Association (Constitution and Registration) Rules, 2015 (for short "the 2015 Rules") are ultra vires being beyond the Rule making powers of the State Bar Council under the Advocates Act, 1961 (for short "the 1961 Act")? And further whether the said Rules are violative of the rights of the petitioners as guaranteed under Article 19(1)(c) of the Constitution?
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Vide judgment dated 04.08.2015, this Court had disposed of a bunch of petitions bearing CWP No. 6047 of 2015, Harjot Singh Harikey v. Bar Council of Punjab and Haryana High Court and other connected cases which raised issue of validity of the 2015 Rules. As during the course of hearing of those petitions, challenge to the Rules was given up, the cases were disposed of in terms of an agreed order. SLP (Civil) No. 26871 of 2015 titled 'Deepak Kundu and others v. Bar Council of Punjab and Haryana and others' was filed wherein a grievance was raised by the Rohtak and Panipat Bar Associations that they were not parties to the proceedings before the High Court, yet an order binding them was passed. In view of the fact that these two Bar Associations had not been heard before passing the agreed order, the order of the High Court was set aside and the matter remitted to the High Court to decide the writ petition on merits after hearing all the contesting parties. Certain other SLPs were also similarly disposed of.
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Learned counsel for the petitioners in CWP No. 5232 of 2015 has argued that the State Bar Council has no power under Section 6 or 15 or any other provision of the 1961 Act to regulate the conduct of elections of the Bar Associations which are private Associations of Lawyers regulated by their own Bye-laws. He accordingly argues that the 2015 Rules are ultra vires the 1961 Act and thus being without any statutory basis cannot bind the Bar Associations. He further argues that these Rules violate the rights of the petitioners to form associations which is guaranteed under Article 19(1)(c) of the Constitution.
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Ld. Counsel next raised an argument regarding procedural breach in the framing of the Rules. He argued that as per Rule 52(h) of the 'Rules Regarding the Election of Chairman, Vice-Chairman & Members of Various Committees', the function of drafting Rules is assigned to the 'Rules Drafting Committee' which is to place the draft before the Bar Council of Punjab & Haryana. It has been argued that the impugned Rules were not drafted by the Rules Drafting Committee nor were the draft Rules placed before the Bar Council of Punjab and Haryana for approval. Rather the Rules were sent to the Bar Council of India for approval without having been approved by the State Bar Council. Thus Rule 52(h) of the said Rules has been violated.
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Mr. Harjot Singh Harikey Advocate who had earlier filed CWP No. 6047 of 2015, in which there was no specific challenge to the 2015 Rules was permitted to intervene. He did not dispute the power of the Bar Council to frame the Rules and in fact, argued that the framing of the Rules is desirable.
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Ld. Counsel for the Bar Council of Punjab and Haryana argued that the source of power of the State Bar Council to frame the Rules lay in Sections 6(dd), 6(h) and 6(i) read with Section 15 of the Advocates Act. He also relied on Sections 16,17, and 18 of the Advocates Welfare Fund Act, 2001 (for short "the 2001 Act"). He further states that in framing these Rules the objective of the State Bar Council is only to ensure transparency and fairness in the elections of the Bar Associations and not to exercise any control or otherwise interfere with their functioning and they would continue to enjoy the fullest autonomy as before. He states that as required in terms of Section 15(3) of the 1961 Act, the 2015 Rules have been duly approved by the Bar Council of India in its meeting held on 02.05.2015 and are thus, legal and valid.
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Reliance was placed by him on a decision of Delhi High Court in P.K. Dash, Advocate & Co. v. Bar Council of Delhi & Ors.: AIR 2016 Delhi 135 to contend that Bar Associations cannot be regarded as purely private associations but have a predominantly public character as their actions can, in many instances, affect court functioning and hence, the need to ensure transparency and fairness in the election process.
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Denying that there was any procedural breach in the framing of the Rules, Ld. Counsel referred us to letter dated 2.2.2015 addressed by the Chairman Bar Council of Punjab & Haryana to the Chairman Rules Drafting Committee on the subject of framing of the Rules relating to elections of office bearers of Bar Associations. Along with the letter he had forwarded a report based on the suggestions received from Presidents and office bearers of Bar Associations with a request to frame the rules immediately. He also referred to letter dated 10.2.2015 from the Chairman Rules Drafting Committee to the Chairman State Bar Council whereby he forwarded the draft Rules. He next referred to copy of resolution No. 7 approved by the Bar Council of Punjab and Haryana in its meeting held on 1.3.2015 wherein it was resolved that the newly framed Rules be sent to the Bar Council of India for approval u/s. 15(3) of the 1961 Act. The Rules were forwarded to the Bar Council of India for approval on 5.3.2015. The Bar Council of India approved the Rules in the meeting of the General House held on 2.5.2015. He thus argued that the Rules were drafted by the Rules Drafting Committee, thereafter considered and approved by the Bar Council of Punjab and Haryana and later approved by the Bar Council of India, and are thus in order.
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We have heard Ld. Counsel for the parties and perused the record.
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As the core issue in these petitions is the competence of the State Bar Council to frame the Rules, we need not refer to the earlier litigation, which provided the immediate catalyst for the framing of the Rules, though there was no specific direction issued by this Court regarding the framing of the Rules as clarified in order dated 25.03.2015 passed in CM-988-989-LPA-2015 in LPA No. 1427 of 2014 Mohinder Singh Chauhan v. Bar Council of Punjab & Haryana & Anr.
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It is stated on behalf of the respondent Bar Council that before finalizing the Rules the Presidents/Secretaries/office bearers of all the Bar Associations from Punjab and Haryana were invited for a meeting and after getting their proposals the said Rules were formulated.
The Aims and Objects of the Rules are stated in Rule 1 as under:
Aims and Objects:-
i) To bring the uniformity, Transparency relating to the elections of the Office Bearers of the All Bar Associations comes within the jurisdiction of the Bar Council of Punjab and Haryana.
ii) To avoid the complicity bye laws framed by various Bar Associations which are affecting Purity, Fairness and Democratic value in the annual elections of the Bar Association.
RELEVANT STATUTORY PROVISIONS
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In order to decide the issue, it would be necessary to refer to the relevant provisions of the Advocates Act, 1961 and the general scheme and objectives thereof. Also relevant would be The Advocates Welfare Fund Act, 2001, which extends to the whole of India except certain States which have framed their own Advocates Welfare Acts as mentioned in Schedule II of the Act. A reference to certain Rules framed by the Bar Council of India and decisions of the Supreme Court wherein the important public functional aspect of the role played by the Court annexed Bar Associations has been highlighted, would also be helpful.
(i) The Advocates Act, 1961
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As stated in the preamble to the 1961 Act, it is an Act to amend and consolidate the law relating to legal practitioners and to provide for the constitution of Bar Councils and an All-India Bar. The objective and reason for the enactment is reflected in the Statement of Objects and Reasons thereof, which are reproduced as under:
The Bill seeks to implement the recommendations of the All India Bar Committee made in 1953, after taking into account the recommendations of the Law Commission on the subject of Reform of Judicial Administration insofar as the recommendations relate to the Bar and to legal education.
2. The main features of the Bill are, _
(1) the establishment of an All India Bar Council and a common roll of advocates, and advocate on the common roll having a right to practise in any part of the country and in any Court, including the Supreme Court;
(2) the integration of the Bar into a single class of legal practitioners known as advocates;
(3) The prescription of a uniform qualification for the admission of persons to be advocates;
(4) the divisions of advocates into senior advocates and other advocates based on merit;
(5) the creation of autonomous Bar Councils, one for the whole of India and one for each State.
3. Following the recommendations of the All India Bar Committee and the Law Commission, the Bill recognizes the continued existence of the system known as the dual system now prevailing in the High Courts of Calcutta and Bombay, by making suitable provisions in that behalf. It would, however, be to the two High Courts, if they so desire, to discontinue this system at any time.
4. The Bill, being a comprehensive measure, repeals the Indian Bar Councils Act, 1926, and all other laws on the subject.
5. The notes on clauses explain, wherever necessary, the various provisions of the Bill.
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As held by Hon'ble the Supreme Court in Bar Council of U.P. v. State of U.P: AIR 1973 SC 231, the 1961 Act, in its pith and substance, is an enactment dealing with qualifications, enrolment, right to practise and discipline of advocates.
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There was no reference to or mention of Bar Associations or Advocates Association in the 1961 Act as originally...
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