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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Rajesh Bindal and Harinder Singh Sidhu, JJ.
Rakesh Punia - Petitioner
Versus
Bar Council of India and another - Respondents
CWP No. 24392 of 2015 (O&M)
Decided On : 21-12-2016
The Court held that the State Bar Council has the power to frame rules to regulate the elections of Bar Associations within its jurisdiction. The Court also held that the regulation of elections to the Bar Associations through framing of such Rules intended to achieve fairness and transparency in the election process is not ultra vires the provisions of the Advocates Act, 1961. It is also not violative of the fundamental rights under Article 19(1)(c) of the Constitution.
Fact of the Case:
The petitioners, who are members of various Bar Associations in Punjab and Haryana, filed a petition challenging the validity of the Bar Association (Constitution and Registration) Rules, 2015 (the 2015 Rules) framed by the State Bar Council of Punjab and Haryana. The petitioners contended that the State Bar Council did not have the power to frame such rules and that the rules were violative of their fundamental rights under Article 19(1)(c) of the Constitution.
Finding of the Court:
The Court held that the State Bar Council has the power to frame rules to regulate the elections of Bar Associations within its jurisdiction. The Court also held that the regulation of elections to the Bar Associations through framing of such Rules intended to achieve fairness and transparency in the election process is not ultra vires the provisions of the Advocates Act, 1961. It is also not violative of the fundamental rights under Article 19(1)(c) of the Constitution.
Issues: 1. Whether the State Bar Council has the power to frame rules to regulate the elections of Bar Associations within its jurisdiction? 2. Whether the regulation of elections to the Bar Associations through framing of such Rules intended to achieve fairness and transparency in the election process is ultra vires the provisions of the Advocates Act, 1961? 3. Whether the regulation of elections to the Bar Associations through framing of such Rules intended to achieve fairness and transparency in the election process is violative of the fundamental rights under Article 19(1)(c) of the Constitution?
Ratio Decidendi: 1. The Court held that the State Bar Council has the power to frame rules to regulate the elections of Bar Associations within its jurisdiction. The Court relied on the provisions of the Advocates Act, 1961, which empower the State Bar Council to make rules for carrying out the purposes of the Act, including the promotion of the growth of Bar Associations for the purpose of effective implementation of welfare schemes for advocates. 2. The Court held that the regulation of elections to the Bar Associations through framing of such Rules intended to achieve fairness and transparency in the election process is not ultra vires the provisions of the Advocates Act, 1961. The Court held that the rules are necessary to ensure the proper functioning of the Bar Associations and to protect the interests of the advocates. 3. The Court held that the regulation of elections to the Bar Associations through framing of such Rules intended to achieve fairness and transparency in the election process is not violative of the fundamental rights under Article 19(1)(c) of the Constitution. The Court held that the rules do not impose any unreasonable restrictions on the right to form associations and that they are necessary to ensure the proper functioning of the Bar Associations.
Final Decision: The Court dismissed the petitions challenging the validity of the Bar Association (Constitution and Registration) Rules, 2015 (the 2015 Rules) framed by the State Bar Council of Punjab and Haryana.
HARINDER SINGH SIDHU, J.
1. This judgment shall dispose of CWP Nos.5232, 23865, 24392 and 25912 of 2015 as similar issues are involved therein.
2. 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?
3. Vide judgment dated 04.08.2015, this Court had disposed of a bunch of petitions bearing CWP No. 6047 of 2015, Harjot Singh Harikey Vs. 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 Vs. 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.
4. 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.
5. 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.
6. 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.
7. 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
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