Because I am not being able to send an email from my Gmail account at this time for some unknown reason, I am also posting this here:
Comment on Supreme Court order dated 11 December 2013
on DHCBA elections
Congratulations!
Thanks to Rajiv Khosla and R K Sharma
who fought to uphold the democratic traditions of the Delhi High Court Bar
Association (DHCBA), a three Judge Supreme Court (SC) Bench presided over by
Justice Lodha has cancelled the illegal DHCBA elections that A S Chandhiok had
scheduled for 13 December 2013.
The SC has directed that elections will be
held according to the old unamended rules, thereby accepting that the new
alleged rules drafted by A S Chandhiok without convening a General Body Meeting
were illegal.
However, the direction of J. Lodha that the
“ensuing” elections to be held by 28 February 2014, will follow the principle
of one bar one vote is illegal, unconstitutional and wrong.
Even though the SC Bench clarified that
their direction to apply the principle of one bar one vote would only be
applicable to the current elections, it is important to recognise that this
direction is prima facie wrong.
All lawyers have the fundamental right to
associate and organize professionally. This is our fundamental right under
Article 19 of the Constitution of India.
The Bench or the Supreme Court has no legal
or moral authority to dictate to the Bar how they should organise and how the
affairs of Bar Associations should be managed. The Supreme Court has no
authority to dictate which lawyers can be members of a bar association and to
curtail the voting rights of members of Bar Associations whether on the alleged
principle of one bar one vote or on any other ground.
The decisions in the B D Kaushik case are
not the “law of the land” and do not automatically apply to all bar
associations. These B D Kaushik decisions apply only to the SCBA as they were
based upon a specific fact situation.
In B D Kaushik, the facts were that the
SCBA had by special resolution elected to apply the principle of one bar one
vote. The SC merely dismissed a legal challenge to this resolution.
The DHCBA has not passed a special resolution
in General Body adopting the principle of one bar one vote.
The Supreme Court Bench headed by J. Lodha
therefore had no authority to insist that the “ensuing” elections will be
covered by this alleged principle.
The alleged principle of one bar one vote
is against the interests of lawyers and against judicial reform. Entrenched
corrupt interests within the judicial system are pushing for this alleged
principle so as to curtail the power of the bar and to divide and rule.
In Sudha v President Advocates Association,
Chennai reported in 2010 14 SCC 114, the Supreme Court had itself directed that
alleged new rules (incorporating the one bar one vote principle) and drafted
for the Chennai lawyers association by a Chennai High Court appointed committee
and accepted by the Chennai High Court, could only take effect after and if
they were accepted by the General Body of the Chennai lawyers association.
The alleged principle of one bar one vote
must be first widely debated in the Bar and it can only be accepted if the
General Body of the DHCBA elects to apply this principle by passing a special
resolution.
It is crucial that lawyers protect their
fundamental right under Article 19 of the Constitution of India to associate
and organize professionally and that the direction by J. Lodha imposing the one
bar one vote principle on the DHCBA be resisted and challenged in court.
It will be a mistake for the Bar to believe
that this is a harmless direction in that it applies only to a single election
and that thereafter the DHCBA will be free to decide whether or not to apply
this alleged principle to future elections. Once the one bar one vote principle
is implemented in even a single DHCBA election, it will be impossible for the
DHCBA to depart from this principle in future.
There is another problem with the SC order.
It has directed that as a consequence of the alleged one bar one vote
principle, any DHCBA member who has either contested or voted in the election
process of any other bar association in the year 2013 will stand disqualified
from either contesting or voting in the ensuing DHCBA election.
This direction amounts to a retrospective
application of the alleged one bar one vote principle. For example several
DHCBA members have voted in the 2013 elections of at least one district bar
association. The SC order will result in the disqualification of such DHCBA
members from either contesting or voting in the ensuing DHCBA elections. This
disqualification from the ensuing DHCBA elections will follow even though at
the time when such members participated in elections of another bar
association, they could not have anticipated that this would result in
disqualifying them from the ensuing DHCBA election as no such bar existed at
that point in time. Such a retrospective application of a disqualification rule
is unfair and unlawful.
All lawyers enrolled with the Bar Councils
have the right of audience in all courts. All lawyers resident in Delhi and practicing law in Delhi
have the right of audience in all Delhi
It is the prerogative of lawyers acting
individually and collectively to decide if they want to associate with or
establish a particular bar association and there can be no legal bar against a
lawyer electing to be a voting member of more than one bar association.
Most litigating lawyers have court matters
in more than one court and it would be reasonable to expect these lawyers to want
to associate with other lawyers through bar associations based in these courts.
If a lawyer has a right of audience before
a court, he/she also has the right to associate and organise professionally
with other lawyers based in that court or affiliated to it or interested in
that court.
The Supreme Court decision in B D Kaushik
is based upon a misconception of the purpose and role of a bar association. A
bar association does not exist mainly to provide chambers, canteen and library
facilities to lawyers as the B D Kaushik decision mistakenly emphasizes. (In
fact, a bar association is only able to provide chambers to a tiny fraction of
its members). Rather the foremost objective and purpose of a bar association is
to protect the rights and interests of its members (both individual and
collective).
Imagine a situation, where a lawyer
practicing mainly in a district court, comes to the High Court for a single
matter and that lawyer is unfairly and unlawfully victimised by the judge or
any other authority connected to the Delhi High Court. Such a lawyer will
require support from the DHCBA. Such as lawyer is unlikely to receive much
support from the DHCBA unless he/ she is a DHCBA member.
As in the B D Kaushik decision, during the
hearing on 11 December 2013, the view was verbally expressed by the SC Bench
that the one bar one vote principle would only curtail voting rights and not
membership rights and that therefore this principle should be acceptable to
all.
This statement by the Bench is fallacious.
How will a DHCBA member enforce his/ her rights if he/she does not have the
right to vote either in the elections or in the General Body Meetings? Such a
member with no voting rights will have no real say in the functioning of the
DHCBA.
The basic tenet of democratic
representation is the right to vote and elect representatives who are then
expected to act in the interests of those who elected them to office. A DHCBA
member who cannot vote cannot be represented by those executive committee members
he/ she did not elect.
The right to vote is an indispensable
component of the right to participation in the democratic functioning of an
institution like the DHCBA. Right to membership of the DHCBA without a right to
vote as part of the DHCBA is a mere illusory right. There can be no democratic representation
without a right to vote.
Lawyers do not join bar associations merely
to obtain chambers. They join bar associations expecting such associations to
protect their individual rights and interests, their collective rights and
interests, and the rights and interests of the bar association as institutions
connected to the administration of justice.
The alleged one bar one vote principle
needs to be vigorously opposed because it is deeply detrimental to the
interests of lawyers and to their Article 19 right to associate and organise
professionally. Adoption of this principle will only result in the creation of
insiders and outsiders among practicing lawyers.
Seema Sapra
Advocate
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