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Bar Association Discharges Public Functions; Writ Petition Under Article 226 Maintainable Against It: Karnataka HC

In a latest, landmark, learned and laudable judgment titled Shri Chandrakant v Karnataka State Bar Council and 3 others in Writ Appeal No. 100141/2020 (GM-RES) delivered on November 30, 2020, the Karnataka High Court has held that a writ petition under Article 226 of the Constitution is maintainable against a Bar Association. A Division Bench of Justice G Narendar and Justice MI Arun while deciding an appeal filed by Chandrakant Maiagi who is Advocate and Vice President of Belgavi Bar Association said that, “It is held that the writ petition against the 3rd respondent Bar Association, a Society registered under the Societies Registration Act, is maintainable.” The petitioner had moved the court challenging the appointment of respondent 4, Dinesh M Patil as President of the Bar Association. The single Judge Bench on November 17 had dismissed the petition filed by him on the short ground of maintainability, holding that Bar Association does not answer the definition of the term “State”.

Before anything else, it is stated at the outset that, “This writ appeal is filed under Section 4 of the High Courts Act, 1961 praying this hon’ble court to set aside the order dated 17.11.2020 in writ petition no. 148178 of 2020 (GM-RES) passed by the learned single Judge of this hon’ble court and allow the writ petition as prayed for, in the interest of justice and equity.”

To start with, the ball is set rolling in para 1 of this notable judgment authored by Justice G Narendar for himself and Justice MI Arun of Karnataka High Court wherein it is stated that, “Heard the learned counsel for the appellant and the learned Senior Counsel Sri. S.M.Chandrashekar alongwith Sri.Rajashekhar Burji for the 3rd respondent, Sri.Sanjay S. Katageri for 4th respondent and Sri.K.L.Patil for respondent Nos.1 and 2.” It is then made clear in para 2 that, “It is relevant to note that respondent Nos.1 and 2 are one and the same.”

While explaining further, the Bench then notes in para 3 that, “The intra Court appeal is directed against the order dated 17.11.2020 passed by the learned Single Judge whereby the learned Single Judge was pleased to dismiss the Writ Petition No.148178/2020 on the short ground of maintainability and without going into the merits of the writ petition. In view of the short point involved, the Writ Appeal is taken up for disposal with the consent of the counsels. It is pertinent to note that no arguments are advanced either by the counsel for the respondent Nos.1 and 2 or respondent No.4 on merits of the case.”

While dwelling on the facts briefly, the Bench then states in para 5 that, “That in the elections held on 01.08.2019, one late Sri.A.G.Mulawadmath was declared successful in the elections held to the post of President of the 3rd respondent Association and in the process, he defeated the 4th respondent, who unsuccessfully contested against the said late Sri. A.G. Mulawadmath to the said post. That the said late Sri. A.G. Mulawadmath passed away on 09.08.2020. In the light of the sudden demise of the President, the Managing Committee, in the meeting held on 11.08.2020 resolved to authorize the appellant/petitioner to operate the bank accounts and discharge other official work attached to the office of the President.”

While elaborating further in detail, the Bench then goes on to add in para 6 that, “That certain members of the Managing Committee made a request to the 3rd respondent Association and the 3rd respondent Association called a meeting on 25.09.2020 to fill the vacant post of President by co-option. That the meeting was scheduled at 10:30 a.m. on 03.10.2020 and contrary to its own bye laws. That despite the petitioner not calling for the meeting, a meeting notice was published in the absence of the appellant/petitioner, who was deputed by the Managing Committee to meet the Chairman of the Karnataka Administrative Tribunal to plead for restarting the functioning of the Tribunal at Belagavi. That the appellant/petitioner upon return circulated a letter dated 28.09.2020, thereby withdrawing the notice dated 25.09.2020. That on 30.09.2020 the appellant/petitioner addressed a letter to the 1st respondent, State Bar Council, seeking its guidance with regard to the illegal attempts been made to co-opt a non-elected member to an elected post that too to the post of President, contrary to the mandate of the bye law 17(b), which clearly states, that the holders of the office of President, two Vice Presidents and two Secretaries, one Hon. General Secretary and a Joint Secretary and six members “shall be elected”. That despite opposition and objections, a meeting was held on 03.10.2020 at 10:30 a.m. and subsequently adjourned and reconvened at 01:30 p.m. and resolution was passed co-opting the 4th respondent to the post of President.”

To put things in perspective, the Bench then points in para 7 that, “In the above background, the writ petition came to be moved and the learned Single Judge was pleased to grant an interim order restraining the 4th respondent. Thereafter, the 3rd respondent Bar Association filed statement of objections and raised a preliminary objection regarding the maintainability of the Writ Petition, in the light of the fact that the 3rd respondent Association is a Society and a private entity and a writ petition is not maintainable. That the activities of the 3rd respondent do not border on or contain a public law element and hence, a judicial review of the resolution in exercise of the powers vested in the High Court in Article 226 of the Constitution of India is impermissible. That the 3rd respondent is neither funded by the State Government or under the control and supervision of the State.”

As it turned out, the Bench then elucidates in para 8 that, “The same came to be resisted by the appellant/petitioner, who has placed reliance on a catena of judgments of the Hon’ble Apex Court and various High Courts. Reliance was also placed on the object of the association.”

On expected lines, it is then further disclosed in para 9 that, “The learned Single Judge after placing reliance on the orders of a Co-ordinate Bench rendered in Writ Appeal No.399/2020 and other connected Writ Appeals disposed of on 24.10.2020 proceeded to hold that invocation of Article 226 of the Constitution of India is limited only to enforce public duty and in the absence of the public law element, exercise of jurisdiction under Article 226 of the Constitution of India is impermissible to enforce purely private contracts.”

Be it noted, the Bench then points out in para 13 that, “The point that falls for determination for the disposal of the appeal is:

“1. Whether a writ petition under Article 226 is maintainable against a private entity?

2. Whether the Bar Association is amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution of India?””

Of course, it is then very rightly pointed out in para 26 of which only the most relevant part is mentioned that, “The Madhya Pradesh High Court in Amol Shrivastava and another vs. Bar council of India and others in Writ Petition No.22635/2017 (PIL) has observed in paragraph 31 that, “Considering the role of Advocates and its importance in administration of justice privilege given by the High Court to them and their duty towards preservation of justice delivery system etc. Bar is an integral constituent of administration of justice, as such, it is required to function with the object to achieve proper method dispensation of the justice to the public and preserve judicial decorum etc. The High court Bar Association, Indore is one of the largest Association of the Advocates. They have been provided by the Registry of the High Court, a huge space both for locating their library and conducting meetings. It is only in recognition of the fact that they are discharging public duties that they have been allotted such a space. High Court Bar Association, Indore is a recognized by the Registry of this Court. They are amenable to the writ jurisdiction of this Court. Therefore, we hold that the writ petition is maintainable.””

On similar lines, it is then pointed out in para 28 that, “The Kerala High Court in Adv.E.Shanavas Khan vs. The Kollam Bar Association in Writ Petition No.89/2020 was pleased to observe in paragraph 10 as under:

“Though it is contended that by the insertion of a provision for sale of welfare stamps through outlets set up by the Bar Council for the said purpose as well, the public duty of Bar Associations to supply welfare fund stamps stands terminated, I am of the clear view that the primary responsibility cast on the Bar Associations in the State to supply welfare stamps to their members renders them amenable to writ jurisdiction. I hold that the respondent association which is performing a public duty and a statutory function is amenable to the writ jurisdiction of this Court.””

Similarly, it is then also pointed out in para 29 that, “The Delhi High Court in the case of P.K.Dash, Advocate vs. Bar Council of Delhi reported in AIR 2016 Delhi 135 was pleased to observe in paragraph 36 as under: “36. Given this position of Advocates in Courts in India, and the importance of their role in judicial decision making, their conduct in respect of matters not regulated by law may appear, on the facade, beyond the pale of what may be described as “public functions”. Yet, that is not the case. Bar Associations- like the respondents, apart from the statutory bodies such as Bar Councils, also occupy a pivotal role in Court administration and functioning. This can be gathered from the fact that Court procedure is framed after consultation with such Bar Associations, important policy and administrative decisions such as rules to allot chambers, use of common spaces, allotment of commercial spaces, their identification (all meant for the use of the litigant public and members of the Bar) earmarking of parking lots, policies and rules for designation of senior counsel under the Advocates Act, are taken, more often than not, with the consultation and inputs from these Bar Associations, in view of their representative nature. Any dispute within such association invariably has repercussions in court functioning. Conflicts with members of the public, interface with the local administration and police authorities routinely – for security of court, court precincts, chambers, etc. need active participation by Bar Associations. Often, individual grievances of members of the Bar in court premises require intervention and deft handling on the part these Associations, in the absence of which Court proceedings would be disrupted. Above all, elections of Bar Associations quite often lead to large-scale requests for adjournments, and litigants have to pay the price. Intervention through court policies requiring discipline in canvassing for votes and what is permissible in the form of leaflets and pamphlets, use of speakers, etc, by the Bar Associations, if left unregulated would also seriously undermine court functioning. These show that Bar Associations’ activities have a pre-dominantly public character, and can, in many instances, affect court functioning. As a result, it is held that the nature of relief sought in these proceedings is intrinsically connected with public functioning of the court and affect them. Consequently the present proceedings are maintainable under Article 226 of the Constitution of India.”

Not stopping here, it is then also very rightly pointed out in para 31 that, “The High Court of Uttarakhand at Nainital in Amrish Kumar Agrawal vs. Bar Council of Uttarakhand another in Special Appeal No.960/2018 was pleased to observe as under:

14. Yet another reason why we must reject the submission of Mr. Shakti Singh, learned counsel appearing for second respondent-writ petitioner, that a writ petition would not lie is that an advocate, an officer of the Court, discharges public law functions of providing access to justice to needy litigants. He has also the responsibility of ensuring that administration of justice is carried on unhindered. The Bar Association is a collective of advocates, and has certain statutory obligations which it is required to discharge under the Advocates Welfare Fund Act, 2001 (for short the 2001 Act). The central function that the legal profession must perform is nothing less than the administration of justice. (The Practice of Law is a Public Utility’ – ‘The Lawyer, The Public and Professional Responsibility’ by F. Raymond Marks et al – Chicago American Bar Foundation, 1972, p. 288-89). The role of a Lawyer is indispensable in the system of delivery of justice. (R. Muthukrishnan v. Registrar General of the High Court of Judicature at Madras : AIR 2019 SC 849). Lawyers owe a duty not only to the legal system, but also to society. (Oudh Bar Association v. State of Uttar Pradesh : Order of the Supreme Court in Civil Appeal No. 6710 of 2019 dated 26.08.2019). An advocate’s duty is as important as that of a Judge, and they play a vital role in the preservation of the justice system. (O.P. Sharma and others v. High Court of Punjab and Haryana : (2011) 6 SCC 86). Since the duty of a lawyer is to assist the Court, in the administration of justice, the practice of law has a public utility flavor. (Sri Jayendra Saraswathy Swamigal (II), T.N. v. State of T.N. : (2005) 8 SCC 771 and Indian Council of Legal Aid and Advice v. Bar Council of India and another : (1995) 1 SCC 732). The practice of law is thus a public utility of great implications. (Bar Council of Maharashtra v. M.V. Dabholkar and others : (1976) 2 SCC 291; Ishwar Shandilya v. State of Uttarakhand and others (Order in Writ Petition (PIL) No.31 of 2016 dated 25.09.2019)). Since the practice of law has a public utility flavor, and the Bar Associations discharge a public duty under the 2001 Act, abuse of authority by the Bar Associations, while discharging their statutory duties, would also justify this Court exercising its jurisdiction, under Article 226 of the Constitution of India, to interfere.”

As a corollary, the Bench then pertinently observes in para 32 that, “In all the above noted cases, the point of maintainability of the writ petition as against a Bar Association has been specifically contended and the Courts have consistently held that the Bar Association is amenable to the writ jurisdiction and that a writ under Article 226 of the Constitution of India is maintainable against the Bar Association, more so when the issue involved is the sanctity of the elections. We are in complete agreement with the views expressed by the various High Courts.”

To be sure, the Bench then spells out in para 33 that, “At this stage, it is necessary to look into the provisions of the bye laws of the Bar Association more particularly the objects of the Association which is contained in bye law No.3 and reads as under:

“3. The objects of the Association are:

(a) To organize and unify lawyers with a view to build up strong and independent Bar, capable of maintaining high standards and traditions associate with the legal profession.

(b) To promote fellow feelings among all persons who practice legal profession, pleaders and Advocates.

(c) To take steps for the physical, social, intellectual advancement of its members.

(d) To encourage legal learning and research and to organize and establish law library.

(e) To protect and promote the interest of the Junior Section of the Bar.

(f) To publish or to assist the publication of treatise, text books or pamphlets or periodicals or journals etc., on subjects of law.

(g) To examine and offer suggestions to appropriate authorities on legislation or proposed legislation and formation or amendment of rules of procedure and to offer suggestions on all other matters relating to legal profession.

(h) To establish and manage or assist in the management of Canteens, Co-operative Societies, Legal Aid Centres, Benevolent or Welfare Funds and the Conduct of Sports, Entertainments etc., for the benefit of its members.

(i) To do everything incidental to or necessary for the achievement of all or any of the objects either singly or in collaboration with other Law Institutions or Associations having the same or similar objects.””

More significantly, the Bench then observes in para 34 that, “A reading of clause (a) of bye law 3 would demonstrate that one of the obligations cast upon itself is to build up strong and independent bar capable of maintaining high standards and traditions associated with the legal profession. The 3rd respondent by this obligation has promised to discharge a duty of a public character. Reading of clause (d) is also an obligation of a public character. So also clauses (f), (g) and (h) which can by no stretch of imagination, be described as obligations of a private character. That apart, the other relevant provisions are bye laws 17, 18 and 26 which read as under:

“17. Management:

(a) The management and control of all the affairs of the Association shall be vested in a Governing Body called the Council consisting of the following members:-

(b) President, Two Vice Presidents and two Secretaries one Hon. General Secretary and a Joint Secretary and 6 members. The above members of the Council shall be elected at the Annual General Meeting of the association at the Annual General Meeting of the association to the held ordinarily in the month of June and they shall hold office till their successors are elected.

(c) In the case of any vacancy by death, resignation or absence for consecutive three meetings of the Council another member may be co-opted, in his place by the Council. In case of difference of opinion co-option shall be as per majority.

18. The Council at its first meeting or otherwise shall be entitled to co-opt to the Council from amongst the members not exceeding three members to its Council. Provided that a member so co-opted shall be one who has not contested as a candidate at the immediately preceding election and had been defeated.

26. The President, if present, shall preside over meeting of the Council. In the event of his absence, one of the Vice Presidents shall preside. In case, neither the President nor any of the Vice Presidents, is present, the members present shall elect one of their members to be the Chairman of the meeting.””

What’s more, the Bench then observes in para 36 that, “The observations of the Hon’ble Apex Court and the various High Courts in the long line of rulings narrated supra, obviates any detail discussion with regard to the maintainability of a writ petition against the Bar Association invoking the provisions of Article 226 of the Constitution of India. That apart, as detailed supra, some of the obligation, the 3rd respondent has cast upon itself, bears a public character. The Advocates are not mere arbiters but officers of the court who assist the Court in the running of the justice delivery system and it is such officers of the court who constitute the 3rd respondent Society. That the constituents of the 3rd respondent Society are answerable to the Court and to the 1st respondent with regard to their conduct in the discharge of their professional duties. Both the 1st respondent and the Court can by no stretch of imagination be described as private entities. That apart, if the objects of the 3rd respondent Society are juxtaposed with the observations of the Hon’ble Apex Court in Dwaraka Nath’s Case and SCBA case, it is apparent that the 3rd respondent discharges obligations of a public character. Hence, the writ petition invoking the provisions of Article 226 of the Constitution of India praying for a relief as against the 3rd respondent is required to be held as maintainable. It is not the case of the 3rd respondent that it is not similarly situated as the Bar Associations as detailed in the long line of rulings. Further, admittedly the 3rd respondent is in receipt of grants and is housed in the court premises and under the all pervasive control of the 1st respondent.”

Most significantly, the Bench then very rightly minces no words to state upfront in para 37 that, “We have perused the order of the learned Single Judge in Writ Petition No.148178/2020 upon which reliance is placed. The learned Single Judge has held that the Bar Association does not answer the definition of the term “State”. We have no quarrel with the same. But the learned Single Judge has failed to appreciate the scope and ambit of Article 226 of the Constitution of India which has been reproduced supra in the various decisions, wherein the reference is not merely to the “authorities”, but also to “persons”. In that light of the matter, the conclusion by the learned Single Judge that the writ petition is liable to be rejected warrants interference. The learned Single Judge has failed to consider the scope and ambit of Article 226 of the Constitution of India which clearly empowers the High Court to issue prerogative writs even to private entities. When and in which case such prerogative writs can be issued depends on the facts and circumstances of each case. The instant case involving co-option of defeated candidate to an elected post of President of the Association is a circumstance which is not only flagrantly contrary to the bye laws and to democratic principles and is a situation, that warrants consideration by the High Court. In our considered opinion, the action complained off shocks the judicial conscience of this Court. Hence, the writ petition invoking the provisions of Article 226 of the Constitution of India in our considered opinion is maintainable. Accordingly, the points for determination are answered in favour of the appellant.”

All said and done, the two Judge Bench of Karnataka High Court comprising of Division Bench of Justice G Narendar and Justice MI Arun have very rightly substantiated their learned judgment with valid reasons! It is now no doubt crystal clear that “Bar Associations” discharges public functions and therefore writ petition under Article 226 of the Constitution are maintainable against it! This is the crux of this judgment!

Sanjeev Sirohi

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