JUDGMENT
D.K. Deshmukh, J.
Page 1185
1. These two writ petitions have been placed before me pursuant to the order made by the Honble the Chief Justice. These Petitions were filed basically challenging Rule 6(h) & 6(i) of the Rules framed by the Bar Council of Maharashtra & Goa, as also Rule 32(h) of the Election Rules framed by the Bar Council of Maharashtra & Goa and the elections to the Bar Council of Maharashtra and Goa held on the basis of these Rules in the year 2004. These two petitions came for final hearing before the Division Bench consisting of Honble Mr. Justice F.I.Rebello and the Honble Mr. Justice A.V.Mohta. The two learned Judges presiding over the Division Bench delivered two separate judgments. The Honble Mr.Justice F.I.Rebello held that Rule 6(h) & (i) of the Election Rules framed by the Bar Council of Maharashtra & Page 1186 Goa (hereinafter referred to as the State Election Rules) is invalid. He further held that, however, invalidity of that rule does not affect in any way the result of the election because the Bar Council of India has also framed a rule to the same effect. Honble Mr.Justice A.V.Mohta has held that Rule 6(h) of the State Election Rules is valid.
2. The Honble Mr.Justice F.I.Rebello has held that Rule 32(g) of the State Election Rules in invalid, as a consequence he has directed recounting of votes which were declared invalid because of Rule 32(g) of the State Election Rules. The Honble Mr.Justice A.V.Mohta, however, has held that Rule 32(g) of the State Election Rules is valid, as a consequence he has dismissed the petition.
3. The Division Bench by order dated 10-4-2007 held that difference of opinion amongst them is on the following two points:
(i) Is Rule 6(h) of the Election Rules invalid being ultravires Section 49(1) of the Advocates Act?
(ii) Is Rule 32(g) of the State Election Rules ultravires Section 3(2)(b) read with Section 3(4), read with Section 49(1)(a) of the Advocates Act?
4. I have heard the Petitioners. I have also heard the learned Counsel appearing for the State Bar Council as also the learned Counsel appearing for the Bar Council of India. I have also heard the learned Counsel appearing for the other Respondents.
5. Mr.M.P.Vashi, the Petitioner in one of the petition appearing in person contended that apart from the two points on which the two learned Judges sitting in the Division Bench have differed, there are other points involved, which also call for decision. However, considering the provisions of Clause 36 of the Letters Patent that option is not open to me. Clause 36 of the Letter Patent reads as under:
Clause 36: Single Judges and Division Courts:-And we do hereby declare that any function which is hereby directed to be performed by the said High Court of judicature at Madras, Bombay, Fort William in Bengal in the exercise of its original or appellate jurisdiction may be performed by any Judge, or by any Division Court thereof, appointed or constituted for such purpose, in pursuance of Section 108 of the Government of India Act, 1915; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges if there shall be a majority, but if the Judges should be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.
6. Perusal of the above clause shows that when there is difference of opinion amongst the members of a Division Bench, they state the point upon which they differ and then the case is referred to a third Judge to hear the parties on that point and it is only that point on which the Members of the Division Bench have differed, on which opinion is to be expressed by the third Judge to whom the case is referred. Therefore, I have to express my opinion only on Page 1187 the two points on which the two learned Judges sitting in the Division Bench have differed.
7. Now, first the question that is to be considered is whether the Rule 6(h) of the Election Rules is invalid. Rule 6(h) of the Election Rules reads as under:
6. The name of an Advocate appearing in the Bar Council Roll shall not be on the Electoral Roll, if on information received or otherwise obtained by the Bar Council that:
…
(h) if he has not paid the subscription under Rule 40, Chapter II, Part VI of the Rules and obtained receipt from the State Bar Council. Rule 40 found in Chapter II, Part VI of the Rules framed by the Bar Council of India reads as under:
40. Every Advocate borne on the rolls of the State Bar Council shall pay to the State Bar Council a sum of Rs.90/- every third year commencing from 1st April, 1993 along with a statement of particulars as given in the form set out at the end of these Rules, the first payment to be made on or before 1st April, 1993 or such extended time as notified by the Bar Council of India or the concerned State Bar Council.
Provided further however that an advocate shall be at liberty to pay in lieu of the payment of Rs.90/-every three years a consolidated amount of Rs.300/-. This will be a life time payment to be kept in the fixed deposit by the concerned State Bar Council and interest to be used for the purpose of this rule. However, payment made by the concerned Advocate before this consolidated payment shall be exclusive of it and no credit shall be given for payment, but those advocates who have paid consolidated amount of Rs.200/- only as a consolidated amount, Rs.100/-will be required to pay.
Perusal of the above rule shows that an advocate on the rolls of the State Bar Council has to pay subscription. Thus, Rule 6(h) of the State Election Rules lays down that if an advocate commits default in paying subscription then his name is not be included in the Electoral Roll. Thus, this rule creates a disqualification in so far as entitlement of an advocate to have his name included in the Electoral Roll, is concerned. In so far as qualification for voting at the election of the Bar Council is concerned, it is Sub-section 4 of Section 3 of the Advocate Act, which makes the provision. It reads as under:
3(4) An Advocate shall be disqualified from voting at an election under Sub-section (2) or for being chosen as, and for being, a member of State Bar Council, unless he possesses such qualifications or satisfies such conditions as may be prescribed in this behalf by the Bar Council of India, and subject to any such rules that may be made, an electoral roll shall be prepared and revised from time to time by each State Bar Council.
Thus, an advocate is qualified for voting at the Election of the Bar Council, unless he is disqualified by any Rules framed by the Bar Council of India. In other words, every person whose name is entered in the Roll of Advocates maintained by the Bar Council is entitled to vote at the election of the Bar Council, unless he is disqualified from being a voter by the Rules framed Page 1188 by the Bar Council of India. The provision further shows that an Electoral Roll is to be prepared and revised from time to time by the State Bar Council subject to the Rules that may be framed by the Bar Council of India. Thus, Sub-section 4 of Section 3 vests legislative competence in the Bar Council of India to frame Rules laying down qualification and conditions which the advocate has to satisfy before he becomes entitled to have his name included in the Electoral Roll. Section 49 of the Advocates Act deals with the rule making power of the Bar Council of India. Clause (a) of Sub-rule (1) of Rule 49 is relevant for the present purpose. It reads as under:
49(1)The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe
(a) the conditions subject to which an advocate may be entitled to vote at an election to the State Bar Council including the qualifications or Page 1189 disqualifications of voters, and the manner in which an electoral roll of voters may be prepared and revised by a State Bar Council; Combined reading of Sub-section 4 of Section 3 and Section 49(1)(a) shows that under the Act the only body which is competent to make a Rule prescribing conditions subject to which an advocate is entitled to vote at the election of the State Bar Council is the Bar Council of India.
8. The Supreme Court in its judgment in the case of Bar Counsel of Delhi v. Surjeet Singh and Ors. , has considered this position of law. Following observations made in paragraph 8 of that judgment, in my opinion, are relevant. They read as under:
8. In order to determine the point at issue we shall now read some relevant provisions of the Advocates Act Section 3 provides for the constitution of the State Bar Council, Sub-section (4) of which says:
(4) An Advocate shall be disqualified from voting at an election under Sub-section (2) or for being chosen as, and for being, a member of a State Bar Council, unless he possesses such qualifications or satisfies such conditions as may be prescribed in this behalf by the Bar Council of India, and subject to any such rules that may be made, an electoral roll shall be prepared and revised from time to time by each State bar Council.
On a plain reading of this sub-section it is manifest that under the Act the qualifications and conditions entitling an advocate to vote at an election or for being chosen as a member of the State Bar Council has to be prescribed by the Bar Council of India. The State Bar Council has no such power. The power of the State Bar Council is merely to prepare and revise from time to time the electoral roll subject to the rules made by the Bar Council of India concerning the qualifications and conditions aforesaid. This interpretation of Section 3(4) of the Act finds ample support from the very special and specific provision contained in Section 49(1)(a) providing for the general power of the Bar Council of India in these terms:
49.(1) The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe
(a) the conditions subject to which an advocate may be entitled to vote at an election to the State Bar Council including the qualifications or disqualifications of voters, and the manner in which an electoral roll of voters may be prepared and revised by a State Bar Council; Great reliance was placed on behalf of the appellants on the concurrent power of the State Bar Council and the Bar Council of India engrafted in Section 15 of the Advocates Act. It is true that the power to make rules conferred by Section 15 is both for the Bar Council of India as also for the Bar Council of a State. But no provision of Section 15 can override the specific provision made in Section 3(4) and Section 49(1)(a) of the Act. Sub-section (1) of Section 15 says
A Bar Council may make rules to carry out the purposes of this Chapter” which means chapter II including Section 3. But the power to prescribe qualifications and conditions entitling an advocate to vote at an election being that of the Bar Council of India Section 15(1) cannot be interpreted to confer power on the State Bar Council to make rules regarding the qualifications and conditions aforesaid. The relevant words of Sub-section (2)(a) of Section 15 are the following:
In particular, and without prejudice to the generality of the foregoing power, such rules may provide for:
(a)… the preparation and revision of electoral rolls and the manner in which the results of election shall be published.
The State Bar Council can frame rules for the preparation and revision of electoral rolls under Section 15(2)(a). That would be in conformity with the latter part of Sub-section (4) of Section 3 also. But in the garb of making a rule for the preparation and revision of the electoral rolls it cannot prescribe disqualifications, qualifications or conditions subject to which an advocate whose name occurs in the State roll resulting in his deprivation of his right to vote at the election.
9. Perusal of the above quoted observations from the judgment of the Supreme Court shows that the Supreme Court has clearly laid it down as a law by the Supreme Court that under the Advocates Act the qualification and conditions entitling an Advocate to vote at an election of the State Bar Council has to be prescribed by the Bar Council of India. The State Bar Council has no such powers. Thus, the State Bar Council clearly has no legislative competence to frame a Rule which has the effect of disqualifying an advocate from voting at an election of the State Bar Council. Rule 6(h) has the effect of disqualifying an advocate from voting at the election if he fails to pay the subscription, which he is required to pay under Rule 40 of Chapter II of Part VI of the rules framed by the Bar Council of India. The Rule, thus, incorporates a condition which has to be satisfied by an advocate before he becomes entitled to vote at an election of the State Bar Council, and therefore, the State Bar Council has no legislative competence to make such a Rule. Rule 6(h), therefore, is clearly beyond the legislative competence of the State Bar Council.
10. Even if such a power is assumed to exist in the State Bar Council, there can be no debate that the power to frame Rules in this regard clearly vests in the Bar Council of India. Even if it is assumed, as is being argued on behalf of the State Bar Council, that such a power concurrently vests also in the State Bar Council then also, in my opinion, as the Bar Council of India in exercise of its power has already framed Rule 2(h) in Part III Chapter I of its Rules, which provides that the name of an advocate appearing in the State Page 1190 roll shall not be included in the electoral roll, if he has not paid the subscription under Rule 40 Chapter II Part VI of the Rules and obtained a receipt from the State Bar Council. The State Bar Council will not have the power to frame either the Rule with this rule or a Rule contrary to that rule, because the powers to frame rule in this regard stands exhausted by one of the two bodies competent to frame such a rule having already exercised that power and framed the rule. Hence, in so far as first point is concerned, I am in respectful agreement with the opinion expressed by Justice Mr.F.I.Rebello, in so far as invalidity of Rule 6(h) of the State Election Rules is concerned.
11. So far as Rule 32(g) of the State Election Rules is concerned, it provides that voting papers shall be invalid in which preference to less than 10 candidates are indicated. Rule 32(g) is in fact a consequence of sub-rule 1 of Rule 31. Sub-rule (1) of Rule 31 reads as under:
31 Method of Voting.- (1) voter shall be entitled to mark his preferences to all the candidates appearing in the voting paper in the form mentioned hereinbelow and such preferences shall not be less than to 10 candidates.
12. The consequence of Rule 31(1) and Rule 32(g) of the State Election Rules is that if a voter indicates less than 10 preferences on his ballot paper, then his ballot paper becomes invalid. Justice Shri F.I.Rebello in his judgment has held that this Rule is invalid because it is contrary to the provisions of Section 3(2)(b) of the Advocates Act as also Section 49. Justice Shri A.V.Mohta has held that the provision is valid. In my opinion, the basic provision relevant in this regard is contained in Sub-section 2(b) of Section 3. It reads as under:
3(2)(b) in the case of State Bar Council with an electorate not exceeding five thousand, fifteen members, in the case of a State Bar Council with an electorate exceeding five thousand but not exceeding ten thousand, twenty members, and in the case of the State Bar Council with an electorate exceeding ten thousand, twenty-five members, elected in accordance with the system of proportional representation by means of the single transferable vote from amongst advocates on the electoral roll of the State Bar Council.
Thus, this provision provides for election of members of the State Bar Council in accordance with the system of proportional representation by means of the single transferable vote. The same phrase occurs in Sub-Article (4) of Article 80 of the Constitution of India. Sub-Article (4) of Article 80 reads as under: The representation of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of single transferable vote.
13. The Supreme Court in its judgment in the case of Shradha Devi v. Krishna Chandra Pant , has considered the meaning of the term “proportional representation by means of single transferable vote.” The Supreme Court in paragraph 12 of that judgment has observed thus:
The Returning Officer while counting votes at election by Assembly members has to bear in mind the implication of voting in accordance with the proportional representation by means of the single transferable Page 1191 vote. What is obligatory in this system of voting is that every elector must exercise his first preference vote. Rule 37-A(1) specifies that every elector has one vote only irrespective of the number of seats to be filled in at such election. Rest are preferences.
In its judgment in the case of Shradha Devi, the Supreme Court was considering the provision of sub-Article 4 of Article 80 of the Constitution, which provides for election of members of Rajya Sabha. The Supreme Court by the above quoted observations has clearly held that it is obligatory for a voter who is voting under this system namely “system of proportional representation by means of single transferable vote” that he must exercise his first preference vote. The Supreme Court then observes in the same paragraph, that in this system of voting for validity of a vote first preference vote has to be cast, it is thereafter that the elector can indicate his other preferences. It is optional for the elector to exercise or not to exercise his other preferences. The Supreme Court has then observed “This must be so in the very nature of things because this system of voting was devised to provide minority representation.” The Supreme Court has observed that this advanced system of proportional representation by means of single transferable vote was devised to avoid the monolithic political pocketborough of votes. The Supreme Court then observes “The very expression “proportional representation” is onomatopoeia in the sense it shows that various interests especially the minority groups can secure representation by this more advanced method of franchise.” Then the Supreme Court observes “It, therefore necessarily follows that when voting is in accordance with the proportional representation by means of the single transferable vote it is obligatory to cast the first preference vote for ensuring the validity of the ballot paper and the first preference vote must be so cast as not to leave any one in doubt about it. The remaining preferences are optional with the elector. He may or may not exercise his franchise for the remaining preferences. If he chooses not to exercise remaining preferences the ballot paper cannot be rejected as invalid for failure to exercise the remaining.” The Supreme Court has then observed “Therefore, the vote is only one and even if there is more than one seat to be filled in, subsequent preferences may be indicated by the elector and it is optional with him not to exercise preferences outside his only one vote which he must cast by indicating unambiguously his first preference. What then follows? If there is one vote at such an election and the preferences are as many as there are seats chronologically to be indicated and failure to exercise preferences subsequent to first preference would not invalidate the ballot paper, it must follow as a corollary that if the elector has committed some error exercising his preferences lower down the ladder the whole of the ballot paper cannot be rejected as invalid.”
14. In so far as this judgment is concerned, the only submission made on behalf of the Respondent was that by this judgment the Supreme Court has construed the provisions of Rule 37-A and Rule 73(2) of the Election Rules. A provision similar to those Rules is not to be found in the Rules which are under consideration and therefore, the observations made by the Supreme Court in relation to the meaning of the system cannot be said to be ratio of the judgment of the Supreme Court. In my opinion, the submission is not well founded. In the Conduct of Election Rules, provisions have made to give effect to what is contained in Sub-Article 4 of Article 80 of the Constitution. Page 1192 In other words, in the Conduct of Election Rules, provision has been made to give effect to the system of proportional representation by means of single transferable vote. The Supreme Court in the judgment was considering the Rules that have been framed in relation to the election of a member of Rajya Sabha. The Constitution, as observed above, provides that election of a member of Rajya Sabha shall be held in accordance with the system of proportional representation by means of a single transferrable vote. Obviously therefore, the Rules included in the Conduct of Election Rules in relation to the election to Rajya Sabha will be Rules made to make detail provision for implementing the system adopted in Article 80(4) of the Constitution for those elections. The Supreme Court has found that the provisions in the Conduct Election Rules are in consonance with the system of proportional representation by means of single transferable vote. In my opinion, basically the Supreme Court was explaining what “the system of proportional representation by means of single transferable vote” means and the Supreme Court has found that the system of proportional representation by means of the single transferable vote means that a voter who is casting his vote under this system is obliged to exercise his first preference vote and it is optional for him to exercise his remaining preferences. In other words, a voter voting under this system in order that his vote is rendered valid has to cast his first preference vote, once he casts his first preferential vote is valid even though he does not indicate other preferences that may be available to him.
15. Rule 31(i) quoted above as also Rule 32(g) has the effect of making it compulsory for every voters to cast his first preference vote and then compulsorily to indicate nine other preferences. This obligation cast on voters by Sub-rule 1 of Section 31 is contrary to the system of proportional representation by means of single transferable vote which is mandated by Section 3(2)(b) of the Advocates Act and therefore, in my opinion, Rule 31(1) and 32(g) are contrary to the provisions of Section 3(2)(b) and therefore invalid.
16. So far as the judgment of Justice Mr.F.I. Rebello is concerned, he has found Rule 32(g) to be invalid also because it imposes a condition in relation to the validity of a vote and therefore according to the learned Judge the Rule is beyond the legislative competence of the State Bar Council. am in respectful agreement with the reasons that have been given by Justice Mr.F.I.Rebello in his judgment for recording this finding and therefore I do not propose to repeat them.
17. I, thus, find that the opinion expressed by Justice Mr.F.I.Rebello in relation to the validity of Rule 6(h) of the Election Rules as also to the validity of Rule 32(g) of the State Election Rules is correct. I am in respectful agreement with the view taken by Justice Mr.F.I.Rebello in relation to both the points.
Parties to act on the copy of this order duly authenticated by Associate / Private Secretary as true copy.
Certified copy expedited.