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Bar Council Row-Resolution Passed


Chandigarh (Global news)

COPY OF THE RESOLUTION PASSED BY THE BAR COUNCIL OF PUNJAB AND

HARYANA IN ITS EXTRA-ORDINARY/EMERGENT MEETING HELD ON

15.09.2020.


RESOLUTION

The Bar Council of Punjab and Haryana has always strived hard to

maintain the dignity and purity of the Legal Profession. The Bar Council has

always recognized and promoted the autonomy and independence of

democratically elected Bar Associations. Due to the confusion created by

certain Members of the Bar with vested interests it is prudently required to

bring on record the exact factual and legal position for the clarity to the

Hon’ble Advocates whom we all represent.

The Hon’ble High Court vide order dated 01.09.2014 passed in LPA No.

1427 of 2014 took notice of all the anomalies which affected the purity,

fairness, transparency and democratic values in the annual elections of Bar

Associations. In compliance thereof the Bar Council framed “The Bar

Association (Constitution & Registration) Rules 2015, which were approved by

the Bar Council of India on 30.06.2015. The vires of the above Rules were

challenged in CWP no. 24392 of 2015 titled Rakesh Punia Vs. Bar Council of

India and another. The Hon’ble High Court upheld the Rules of 2015 and the

following (extract) was observed in para 42 to 44 of the judgment :-


“42. Based on the aforesaid considerations, we are satisfied that the

State Bar Council is empowered in terms of the above referred provisions

to frame rules which have as their object to bring about uniformity and

transparency in matters relating to the elections of the Bar Associations,

within its jurisdiction. In fact framing of such Rules may be considered an

inevitable necessity to effectuate the broad legislative scheme evidenced

by the Acts and Rules referred to above wherein the Bar Associations


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recognized by the State Bar Council have been assigned a Central role as

also in view of the role and importance of the Bar Associations in the

administration of justice and the imperative noticed and stressed even by

Hon'ble the Supreme Court to ensure that the Associations are truly the

representatives of the Advocates practicing in the Courts. Accordingly we

do not find any merit in the argument of the petitioner that the Rules are

ultra vires being beyond the Rule making power of the State Bar Council.


43. It is also noteworthy, as is stated on behalf of the Bar Council, that

the Rules have been framed after exhaustive consultation with the Bar

Associations in Punjab and Haryana. Before finalizing the Rules a

meeting of the Presidents/ Secretaries/ office Bearers of all the Bar

Associations from Punjab and Haryana was called and it was only after

getting their proposals and suggestions that the rules were framed. The

Rules thus reflect the broad consensus of the representatives of the

advocates on this issue. (ii) Whether the regulation of elections of the Bar

Associations is violative of the rights of the petitioners guaranteed under

Article 19(1)(c) of the Constitution of India?


44. On the issue of whether framing of the Rules to regulate elections

violates the fundamental rights of the petitioners under Article 19(1)(c)

of the Constitution, a complete answer is furnished by the decision of the

Delhi High Court in P.K.Dash's case (supra). In that case, a petition was

filed in the Delhi High Court praying for directions from the Court that the

rules governing allotment of Chambers for advocates in various court

complexes should be amended to restrict eligibility to one chamber in the

entire territory of Delhi, even though they may be members of more than

one bar association. It was also prayed that the Bar Council of Delhi

should ensure introduction of 'One Bar One Vote' throughout all the Bar

Associations in Delhi. Those resisting the introduction of the 'One Bar

One Vote' principle relied on the fundamental right to form associations

under Article 19(1)(c) of the Constitution and the consequential

autonomy to conduct the affairs of the association as per their own

volition.”


In CWP No. 9764 of 2018 again the Rules of 2015 were challenged on the

primary ground that these rules do not apply to the elections of Punjab &


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Haryana High Court Bar Association. It was mainly pleaded that the Punjab and

Haryana High Court Bar Association is a Society registered under Societies

Registration Act 1806 which framed its own Rules and Regulations and all the

Members of the High Court Bar Association constituted the General Body.

Further reliance is placed on the affidavit dated 18.02.2015 filed by Sh. Rakesh

Gupta, the then Chairman of Bar Council, in which he had then stated that

these Rules were framed for the District and Sub Division Bar Associations and

not for High Court Bar Association and further reliance was placed on the

judgment of Hon’ble Madhya Pradesh High Court in WP No. 750-2017 titled as

Bar Association, Chadhoda, District Guna vs. State Bar Council of MP and Anr,

decided on 09.01.2018 wherein it had been held that the Bar Council has no

authority, power or jurisdiction to stay the election process or to interfere with

the election affairs of Bar Association.

The affidavit dated 18.02.2015 of Sh. Rakesh Gupta the then Chairman

of the Bar Council was filed in his personal capacity and it was not mandated

by the General House of the Bar Council. The General House had duly framed

the Rules of 2015 which explicitly includes Punjab and Haryana High Court Bar

Association as well and these were approved by the Bar Council of India on

30.06.2015. The Hon’ble High Court while rejecting this contention of the

petitioner that these Rules are not applicable to the Punjab and Haryana High

Court Bar Association had observed as under on page 14 of the judgment :-


“The Rules 2015 had been framed after following the

properprocedure and after communicating with the then

President, High Court Bar Association and its members, through

various communications mentioned above. The Rules had been

framed to bring uniformity and transparency in matters relating to

the elections of the Bar Associations, within its jurisdiction and

further to mandate introduction of 'One Bar One Vote'.


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Once in Rakesh Punia's case (supra), the Division Bench of this

Court has upheld the power of Bar Council to frame Rules under

the Advocate's Act, 1961, the impugned notices have rightly been

issued to the petitioner under Rules, 2015.

The vires of the Rules have already been challenged and the

Division Bench of this Court dismissed the writ petition, vide Civil

Writ petition No. 24392-2015 titled as Rakesh Punia v. Bar Council

of India another, decided on 21.12.2016 (Annexure A-2). The

object of Rules 2015 is to only bring transparency in the elections.

In Rule 2 (e) of Rules 2015, it has been clearly mentioned that the

Court means all kind of Courts (including Punjab and Haryana High

Court) and shall include the Tribunals, Commissions, Forums and

any other statutory body and authority where the lawyers are

entitled to appear under any provision of law.”

Thus, the controversy with regard to whether these Rules of 2015 are

applicable to the Punjab & Haryana High Court Bar Association or not stood

settled vide the above mentioned decision dated 29.08.2018 passed in CWP

No. 9764 of 2018.

The elections of all the Bar Associations are being held strictly under the

Rules of 2015. The annual elections of the year 2020-21 were scheduled for 3 rd

April 2020. But due to Covid-19 and imposition of restrictions the elections

were deferred by the Bar Council vide resolution dated 31.3.2020. The term of

the Bar Association is fixed for one year under Rule 9 of the Rules of 2015

which can be further extended for one month and after that the

Administration of the Association (as per rules) will vest in Ad-hoc Committee

nominated by the Bar Council. The Bar Council received various complaints

from the members of various Bar Associations to follow the drill of Rule 9 (ibid)

and constitute the Ad-hoc Committees as in many Bar Associations the

incumbent Presidents were/are again contesting the elections and importantly


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after issuance of election programme the office bearers cannot be allowed to

continue thus Ad-hoc Committees be appointed. The Bar Council deeply upon

the issue and after a thorough discussion very conscientiously decided not to

impose Committees, rather replace the present office bearers by

democratically elected office bearers through online elections. The General

House of the Bar Council vide resolution dated 18.06.2020 for the first time

decided to explore the possibility of online elections. It was further resolved to

constitute a Committee to examine and report with regard to the feasibility,