Bihar Bar Council Journal removes names of members of Bihar State Bar Council due to pending dispute before Central Election Tribunal

In Ratan Kumar Singh vs. The Chairman, Bihar State Election Commission & Ors. (2024), the 44th Chief Justice of Patna High Court, K. Vinod Chandran and Justice Partha Sarthy dismissed the petition with liberty to explore the alternative remedy. The 4-page long judgement dated September 4, 2024 observed:"There is an alternate remedy provided in the Rules itself which the petitioner would be entitled to pursue, if he so desires. We find no reason to interfere with the Rules, specifically the amendments brought in or the elections; which have been concluded and results declared. The intervenor application is also filed, which, in the circumstance of the main matter being rejected does not survive." Ratan Kumar Singh, the petitioner, a practicing Advocate had filed the writ petition challenging the amendment made in 2023 to the Bar Council of Bihar Election Rules, 1968. He had also challenged the elections conducted in the year 2023 to the State Bar Council. The petitioner had submitted that the State of Bihar has more Advocates than that listed in the voters list.

The petitioner had also challenged the substitution of Rule 49 which provided that, no election shall be conducted unless the process of verification of certificates of all the Advocates is complete as per the Certificate and Place Of Practice (Verification) Rules, 2015) of the Bar Council of India. It now provides for holding of elections even when the process of verification is not likely to be completed within the tenure of the elected members of the Council, with the permission and approval of the Bar Council of India. It was argued that this prescription goes against Rule 32 of the Verification Rules of 2015. 

Notably, ahead of the elections of the Bihar State Bar Council, 9-page long notification regarding Bar Council of India Rules (for qualification/Disqualification and produce for election and code of conduct for the elections of S.B.C/B.C.I.) 2023 Rules and Amendments was published in The Gazette of India on June 26, 2023. It reads:"In order to improve the standard of the Bar Councils and to ensure the elections only of practicing Advocates as Member of Bar Councils, who have no bad antecedents and to stop the inclusion/election and/or continuation of Advocates having criminal antecedents or misconduct, the Council has resolved to make the following Rules and Code of conducts. The Rules are being framed under Section 7(1)(b), (d), (g), (e) read with Section 49(1)(a), (ah), (i) of the Advocates Act, 1961. The Hon’ble Members also raised the issue of laying down the qualifications and disqualifications for being a voter in the State Bar Council and for becoming and/or remaining a Member of State Bar Council and Bar Council of India. Accordingly, the office has framed and proposed the Rules for such qualifications and disqualifications and also certain Code of Conduct has been provided for the candidates contesting the elections of State Bar Council and Bar Council of India." 

The Court observed:" 4. We notice that Rule 32 only provides for the Bar Council of India to form Adhoc Committees due to the delay in the process of identification of non-practicing Advocates under these Rules or in case of delay in the preparation of the electoral role for the election to the State Bar Councils. It does not necessarily follow that if verification is not completed, then mandatorily there should be an Adhoc Committee formed. The State Election Rules provides for the elections to be held with the permission of the Bar Council of India, even when the verification is not complete."  

It may be recalled that like Ratan Kumar Singh's case, during the tenure of Braj Kishor Prasad 9th Chairman of the Bihar State Bar Council (April 10980-April 1989), in Young Lawyers' Association vs. Bihar State Bar Council & Ors. (1988), Patna High Court  was apprised by the petitioner that the majority of the advocates who have been enrolled by the State Bar Council and whose names, appear on the State Roll have not been included in the electoral roll prepared for the election to be held. This happened because the advocates, who were practising in the different district courts and Sub-Divisional Courts, had no information that before their names are entered in the electoral roll they had to furnish the details in the prescribed forms in terms of Rule 4 of the Bar Council of India Rules. In exercise of the powers under Sections 3(4); 15(2)(a) and 49(1)(a) and (ab) of the Act, in Part III Chapter I of the Rules, specific rules have been framed in respect of preparation of electoral roll, prescribing qualification and disqualification of advocates whose names have to be entered in such electoral roll. In view of Rule 1 every advocate, whose name is on the Electoral Roll of the State Bar Council shall be entitled to vote at an election. Rule 2 prescribes that the name of an advocate appearing in the State Roll shall not be on the Electoral Roll. Justice Nagendra Prasad Singh observed:"In view of the fact that this is the first election, which is being held, in accordance with amended rules, it can be presumed that the advocates practising in different district courts and sub-divisional courts did not have knowledge of the procedure regarding furnishing their particulars for being enrolled as voters...." Notably, Braj Kishor Prasad was also 10th and 12th Chairman of the Bihar State Bar Council during April 1989-April 1994 and April 1999-August 2000 respectively.

Prior to the tenure of Ramakant Sharma, the 20th Chairman, Bihar State Bar Council, Lalit Kishor was the Chairman during July 2017-May 2021. Before Kishor, Ram Balak Mahto was the Chairman during September 2015-July 2017. Mahto was preceded by Akhauri Mangla Charan Shrivastava, the 17th Chairman during November 2012-September 2015. The current chairman was a member of the Council at since the tenure of Baleshwar Prasad Sharma, the 16th Chairman during May 2010-November 2012. Prashant Kumar Shahi, the current Advocate General of Bihar since January 2023 was the 15th Chairman during March 2008-May 2010. He was Advocate General during during 2005-2010 as well.He is ex-officio member of the Bihar State Bar Council. Manan Kumar Mishra, the current 31st Chairman, Bar Council of India (BCI) is the representative of BCI in the Bihar State Bar Council. Mishra was 29th Chirman of BCI as well.   

Notably, ahead of the Bihar State Bar Council elections in December 2023, The Gazette of India published a 2-page long notification dated June 23, 2023 on June 26, 2023 under the subject "The house in order to improve the Standard of Legal Profession further feels the need to repeal Rule 32 and new Rule 32 of Bar Council of India Certificate and Place of Practice". The new Rule 32 reads: "Rule 32. In case the term of elected members of any state Bar Council is likely to expire/expires due to delay in the process of identification of non-practicing advocates or verification of their certificates or delay in the preparation in the electoral roll for the election to the state Bar Councils due to the aforementioned reasons, the Bar Council of India may allow the elected members/and the office-bearers of the State Bar Council(s) to continue to function beyond their extended tenure under Section 8 of the Advocates’ Act, 1961 in order to complete the process of verification and in order to ensure that no non-practicing Advocate becomes a voter or a member of any state Bar Council. The State Bar Council(s) shall be required to complete the process of verification within a period of 18 months from the date of extension of their tenure by the Bar Council of India and shall complete the process of election within a period of 6 months therefrom. In case, of failure to complete the process of verification and the election within the said extended period as prescribed under this Rule, the Bar Council of India may dissolve the State Bar Council and shall proceed to constitute the Special Committee as provided under Section 8A of the Advocates Act, 1961." It also stipulates that "In case of any doubt or dispute as to the meaning, interpretation, execution of these Rules arises, the Bar Council of India shall be the final authority to settle such issues and its decision thereon shall be final."

Ratan Kumar Singh, the petitioner had filed in the High Court on February 16, 2024. It was registered on March 14, 2024. Arun Kumar, Prem Kumar Paswan, Ram Sandesh Roy, Alka Pandey, Pawan Kumar Singh, Farooque Ahmad Khan and Ram Jiban Pd. Singh were the counsels for the petitioner. The five other respondents were Chairman, Bar Council of India, Bihar State Bar Council, through its Chairman, Returning Officer, the Bihar State Bar Council Election- 2023, Chief Observer, Bihar State Bar Council Election- 2023 and all the Members of Bihar State Bar Council. 

The dispute regarding December 2023 election of the Bihar State Bar Council is pending before the Election Tribunal, one of the 15 committees of BCI. It is noteworthy that doctrine of ejusdem generis is relevant in this regard. The expression ejusdem generis-”of the same kind or nature”-signifies a principle of construction whereby words in a statute which are otherwise wide but are associated in the text with more limited words are, by implication, given a restricted operation and are limited to matters of the same class are genus as preceding them. If a list or string or family of genus-describing terms are followed by wider or residuary or sweeping-up words, then the verbal context and the linguistic implications of the preceding words limit the scope of such words. But the preceding words or expressions of restricted meaning must be susceptible of the import that they represent a class. It implies that the Election Tribunal, is essentially a committee of the BCI. 

In a significant development, given the fact that at present, Bihar State Bar Council does not have duly elected members, it has removed the page mentioning the names of members of the Bar Council from 2025 issue of the Bihar Bar Council Journal, although the same was mentioned in the 2024 issues. (Photo:Journals of Bihar Bar Council) Significantly, ahead of the Bihar State Bar Council election, three Central Election Tribunals/Committees were constituted on June 25, 2023 which published as the 18-page long notification dated October 9, 2023. The notification on the subject of "Regulations Governing the procedure for Election Petitions and applications Before the Central Election Tribunal/Committees of the Bar Council of India for resolution of issues relating to Election Disputes and other related matters of elections of the State Bar Councils and the Elections of Member Representatives to the Bar Council of India from the State Bar Councils" was published in The Gazette of India. The BCI claimed that it constituted these three Central Election Committees/Tribunals for looking into and ensuring free and fair elections of different State Bar Councils in the light of directions/observations of Supreme Court in the year 2017. Every Tribunal as per Rules in this regard is headed by a former Chief Justice of High Court who is the Chairman and two other former Judges of High Courts as per the prescribed Rules. Past experience has shown that at many places many Advocates, who fill up the verification forms, still go missing from the list of voters, while several names are included without any verification forms. This apart, thousands of names/father names/enrolment numbers are wrongly mentioned in voter lists. Sometimes very ugly scenes are created at polling booths, at the time of election, and/or during the counting of votes. Even there are complaints of large-scale adoption of corrupt practices, distribution of money etc. for votes, and the use of posters/hoardings against the norms and Rules of Bar Council of India, which makes the candidature of a candidate liable to be cancelled/rejected. The BCI constituted these Committee(s) to adjudicate and decide such issues/disputes and also to decide/resolve all the objections, issues relating to elections right from any objection relating to electoral roll, acceptance/rejection of nomination, matters/complaints relating to adoption of corrupt practices or use of unfair means in the elections and/or to decide any sort of dispute/matter relating to election of Members of State Bar Council or BCI as the case may be. The day to day affairs of the State Bar Councils are to be looked after by the State Bar Councils only, but the orders or directions of these Tribunals/Committees will be binding on the State Bar Councils, Returning Officers and/or the Observers with regard to the process of election. The Tribunal has been empowered to address and dispose off interim matters, complaints, or other applications expeditiously in a summary manner, and it may do so without requiring a formal hearing with the involved parties, on the basis of documentary evidence before it. Besides this, the Tribunal is empowered to take cognizance of some matters suo motto and is vested with the ability to proactively initiate proceedings in certain instances, and may issue directives or orders as necessary to uphold the principles of fairness and transparency throughout the election and counting processes. 

The notification provides details about the composition of the Tribunals. Tribunal No. 1 comprises of Justice L. Narasimha Reddy, Former Chief Justice, Patna High Court,  Justice Arun Tandon, former Judge, High Court of Allahabad and local former Judge to be nominated by the State Bar Council. Tribunal No. 2 comprises of Justice S. Mukherjee, Former Chief Justice, High Court of Karnataka,  Justice Shivaji Pandey, former Judge, Patna High Court and  local former Judge to be nominated by the State Bar Council. Tribunal No. 3 comprises of Justice Rajendra Menon, Former Chief Justice, High Court of Delhi, Justice M. Sathyanarayanan, former Judge, Madras High Court and local former Judge to be nominated by the State Bar Council.   

The notification states that "An appeal may be filed within 60 days of the Tribunal's order being communicated to the party as provided under Section-38 of the Advocates Act, 1961." It provides a note which reads: "On earlier occasions, the petitions were filed against the order passed by the Central Election Tribunal (s) of B.C.I. only before the Hon’ble Supreme Court." It implies that High Court need not entertain appeal against Tribunal's order. It also states that "Where no specific provision is made in the procedure/rules the direction of the Tribunal may be sought".

Also read: Make Audit Report of Bihar Bar Council, Bihar State Advocate Welfare Trust Committee online: Ram Jiban Prasad Singh, Candidate, Bihar State Bar Council 

What time Bar Council takes to constitute a committee is not within the domain of Patna High Court 

In Kaushal Kishore vs. The Bihar State Bar Council Patna through its Chairman & Ors. (2024), Justice Rajiv Roy of the High Court had heard the application seeking issuance of appropriate writ, order or direction to the Chairman, Bar Council of India and Chairman, Bihar State Bar Council to dispose of an Election Appeal no. 02/2023 which was pending before the Election Tribunal, Bihar State Bar Council, Patna within a shortest period. The matter related to the election of Office Bearers of the District Bar Association Patna Civil Court in which the petitioner was a candidate for the post of President but he was defeated. Subsequently, under Section 19(x) of the Uniform Rules for Bar/Advocates/Lawyers Association of Bihar, a petition was preferred before the Bihar State Bar Council on August 28, 2023 which led to Election Appeal No. 02 of 2023. The counsel for the petitioner had submitted that rule 19 (12) stipulates that the said election petition has to be disposed of in two months. The case was filed in the High Court on July 15, 2024 and registered on July 31, 2024.  

In his 4-page long order dated August 1, 2024, Justice Roy recorded: "6. The Bihar Bar Council is represented and it has been contended by learned counsel that due to election process was continuing in the Bihar State Bar Council, the matter could not be taken up. The committee came to be constituted in the month of February, 2024 only and the Election Tribunal of the Bihar State Bar Council has yet to be constituted." But the order does not mention the name of the counsel of Bihar Bar Council. 

The Court's order reads: "It is unfortunate that after stipulating a particular period for the disposal all the election petition, the Bar Council is sitting over the matter. Admittedly, even going by their assertion, the fresh committee has come into existence in the month of February, 2024 and we are today in the month of August, 2024." 

Justice Roy added:"In that background, what time the Bar Council takes to constitute a committee is not within the domain of the Patna High Court but can only advise/request that since number of such cases may be pending, the same should be constituted as early as possible and the present election petition no. 02/2023 must be taken to its logical conclusion. Though two months have been stipulated rules itself, the court expects that the final order will be passed by 31 st of December, 2024."