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2025 Supreme(Ker) 448
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.S. DIAS, J.
Aisha P. W/o E. Sankaran Potty - Petitioner
Versus
Bar Council of India, New Delhi Represented by its Secretary - Respondent
WP (C) No. 26651 of 2024
Decided On : 02-04-2025
Advocate Appeared:
For the Petitioners: Thomas Abraham, Merciamma Mathew, Aswin P. John, R. Ananthapadmanaban, Paul Baby, Thara Elizabeth Thomas, Swathy A.P.
For the Respondents: M.U. Vijayalakshmi, K. Jaju Babu, Rajit
IMPORTANT POINT
Co-opted members of a Bar Council have the same rights as elected members and cannot be excluded from council functions, as per the Advocates Act.
Headnote:
(A) Advocates Act, 1961 - Section 3(2)(b) and Section 8 - Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015 - Rule 32 - Co-opted members of Bar Council of Kerala - Petitioners, co-opted members, challenged exclusion from meetings after term extension by Bar Council of India - Court held that co-opted members cannot be treated differently from elected members and are entitled to rights and privileges as per the extended term resolution. (Paras 1 , 11 , 15 )
(B) Legal Rights - Co-opted members have the same rights as elected members under the Advocates Act and cannot be excluded from the Bar Council's functions. (Paras 11 , 15 )
(C) Administrative Powers - Bar Council of India has the authority to extend terms of State Bar Councils and must ensure all members are included in such extensions. (Paras 9 , 10 )
Facts of the case:
The petitioners, co-opted members of the Bar Council of Kerala, were excluded from meetings after the Bar Council of India extended the term of the XIIth Bar Council. They argued that this exclusion was unlawful as they were elected members and should be treated equally.
Findings of Court:
The court found that the petitioners, being co-opted members, are entitled to the same rights as elected members and cannot be excluded from the Bar Council's functions.
Issues: The main issues were whether co-opted members have the same rights as elected members and the legality of their exclusion from meetings.
Ratio Decidendi: The court ruled that co-opted members are entitled to the same rights and privileges as elected members, emphasizing that the Bar Council of India must treat all members equally under the law.
Result: Writ petition allowed.
JUDGMENT :
The petitioners are the members of the Bar Council of Kerala, who were co-opted to the two vacancies that arose due to the death and the resignation of two members. The 1st petitioner was elected by the members of the Bar Council of Kerala ('BCK', for brevity) on 20/3/2022, and she was co-opted as a member of the XIIth BCK on the same day by resolution No.161 of 2022. Similarly, the 2nd petitioner was elected on 20/8/2023 and was co-opted as a member on the same day by resolution No.254 of 2023. The term of the XIIth BCK expired on 6/11/2023, on completion of 5 years as stipulated under Section 8 of the Advocates Act, 1961 (‘Act’ for brevity). Since the elections of the next BCK could not be conducted within the stipulated time, the Bar Council of India (‘BCI’, for short), in the exercise of its powers under the proviso to Section 8, extended the term of the BCK by a further 6 months. The extended period also expired on 6/5/2024. After that, the BCI extended the term of the XIIth BCK for an additional term of 18 months. Subsequently, by Ext.P1 communication, the BCI nominated a few among the 25 BCK members to the three committees viz. (i) Office Bearers of the Committee, (ii) Executive Committee and (iii) Enrolment Committee. The cardinal purpose of constituting the committees was to continue the day-to-day functioning of the BCK, ensure that the election is conducted within 18 months, and take necessary steps to conduct periodical enrolments of fresh applicants. The BCI had earlier issued Ext.P1(a) notification amending Rule 32 of the Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015 (‘Verification Rules’, for brevity). The said rule stipulates that in case the term of the elected members of any State Bar Council is likely to expire due to delay in the process of identification of non-practising advocates, verification of their certificates, and delay in the preparation of the electoral roll for the election to the State Bar Council, the BCI may allow the elected members of the State Bar Council to continue for an extended tenure. However, stating that Rule 32 only mentions the extension of the term of the elected members/office bearers of the State Bar Council, the petitioners are being kept out of the meetings of the XIIth BCK. The extension granted by the BCI for the period beyond the periods mentioned under Section 8 and the proviso to Section 8 of the Act has to be made applicable to all the members without any distinction. The co- opted members cannot be held in a different class from the elected members. The petitioners are deprived of their right to continue as members of the XIIth BCK. The strength of the BCK, as per Section 3(2)(b) of the Advocates Act, 1961, is 25, as the electorate exceeds 10,000 members. The filling of the vacancies of elected members through co-option is a statutory procedure that cannot be watered down by any casual decision. The enrolment function is not an extraordinary meeting and 10 days’ notice to all members of the State Bar Council is mandatory. Therefore, the meeting for the proposed enrollment is illegal. Hence, the writ petition.
2. The first respondent has filed a statement through its Standing Counsel contending that the petitioners were co-opted as members of the BCK. The five-year term of the BCK came to an end on 06.11.2023. The term was then extended for six months till 06.05.2024. After that, the BCK was dissolved. BCI then constituted a special committee invoking its powers under Rule 32 of the Verification Rules. The petitioners have no legal right to continue as members of the BCK because they were co- opted members, and the term of the BCK has not been extended. This Court has rejected the challenge against the constitution of the Committee in W.A.No.788/2024. The judgment has become final. Therefore, the writ petition may be dismissed.
3. The respondents 2 and 3 have filed a counter affidavit stating that the cases challenging the am
