Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3401 OF 2003
Supreme Court Bar Association
and others ... Appellants
Versus
B.D. Kaushik ... Respondent
WITH
CIVIL APPEAL NO. 3402 OF 2003
Supreme Court Bar Association ... Appellant
Versus
A.K. Manchanda ... Respondent
J U D G M E N T
J.M. Panchal, J.
Since common issues for determination are
involved in Civil Appeal No. 3401 of 2003 and Civil
2
Appeal No. 3402 of 2003, this Court proposes to
dispose them of by this common judgment.
2. Civil Appeal No. 3401 of 2003 is filed by three
appellants, i.e., (1) Supreme Court Bar Association
(Registered), through its Honorary Secretary Mr. Ashok
Arora, (2) Shri Ashok Arora, Honorary Secretary of
Supreme Court Bar Association and (3) Ms. Sunita B.
Rao, Coordinator, Implementation Committee,
Supreme Court Bar Association (for short "SCBA"),
Tilak Marg, New Delhi. It is directed against interim
order dated April 5, 2003, passed by learned Civil
Judge, Delhi below application filed under Order 39
Rules 1 and 2 read with Section 151 of Civil Procedure
Code (CPC) filed in Civil Suit No. 101 of 2003. Civil
Appeal No. 3402 of 2003 is filed by Supreme Court Bar
Association through its Honorary Secretary against
interim order dated April 5, 2003, passed by the
learned Civil Judge below application filed under Order
39 Rules 1 and 2 read with Section 151, CPC, filed in
Civil Suit No. 101 of 2003. By the common order, the
appellants are restrained from implementing the
3
resolution dated February 18, 2003 amending Rule 18
of the Rules and Regulations of SCBA till the final
disposal of both the suits.
3. The respondent in Civil Appeal No. 3401 of 2003
is Shri B.D. Kaushik whereas the respondent in Civil
Appeal No. 3402 of 2003 is Shri A.K. Manchanda.
Both the respondents are the advocates practicing in
Delhi. They are members of SCBA, Delhi High Court
Bar Association, Delhi Bar Association, Tis Hazari
Courts, Delhi, etc. The appellant No. 1, i.e., Supreme
Court Bar Association is a Society registered on August
25, 1999 under the Societies Registration Act, 1860
and its Registration No. is 35478 of 1999. The
Registered Office of the Association is in Supreme
Court premises at New Delhi. The provisions of the
Societies Registration Act, 1860 empower a society to
frame Memorandum of Association and Rules and
Regulations. In exercise of those powers the
Association has framed Memorandum of Association of
the SCBA as also the Rules and Regulations. The aims
and objectives of the Association are specified in
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Clause 3 of the Memorandum of Association, which are
as under: -
"3. AIMS AND OBJECTIVES: The Aims
and Objectives of the association are:
i) To promote upholding of rule of law;
ii) To encourage profession of law in
India;
iii) To promote and protect the privileges,
interest and prestige of the association
and to promote union and cooperation
among the advocates practicing in the
court and other associations and
advocates;
iv) To promote and maintain high
standards of profession among
members of the Bar;
v) To establish and maintain an adequate
library for the use of the members and
to provide other facilities and
convenience to the members;
vi) To watch the state of law, progress of
legislation and administration of
justice and to take such steps as may
be necessary for their progress and
reform;
vii) To express opinion on proposed
legislation and other matters of
interest and to make representation in
respect thereof;
viii) To take necessary steps to prevent and
remedy any abuse of law or mal-
administration of justice;
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ix) To make representation from time to
time to the authorities on matters
affecting the Bar;
x) To acquire and safeguard the rights
and privileges necessary or convenient
for the purpose of the association;
xi) To arrange for raising funds for legal
aid and to do everything including
applying of funds that may be
necessary to that end;
xii) To promote and participate in All India
Lawyers' Association and activities
connected therewith;
xiii) To adopt all such matters as might be
necessary or incidental to the carrying
out of the aforesaid objects;
xiv) To take measures including founding
and applying of funds for aid to
deserving members of the association
and its employees;
xv) To conduct and hold seminars,
symposia, conference on issues and
topics of interest to the legal profession
and to disseminate information in this
behalf; and
xvi) To promote the welfare of the members
of the association."
The Rules and Regulations framed by the Association
are known as Rules and Regulations of Supreme Court
Bar Association. Rule 3 of the Rules and Regulations
defines certain phrases. Rule 3(i) defines `Association'
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to mean the Supreme Court Bar Association. There
are four classes of Members as specified in Rule 4.
They are (i) Resident Members, (ii) Non-resident
Members, (iii) Associate Members, and (iv) Non-Active
Members. As per Rule 3(ii) `Associate Member' means
an association of advocates practicing in a High Court
or Judicial Commissioner's Court and enrolled as such
a Member. Rule 3(iv) defines the term `Committee' to
mean Executive Committee of the Bar Association
whereas Rule 3(v) defines the word `Court' to mean the
Supreme Court of India. The term `Member' is defined
in Rule 3(vi) to mean a member of Association. Sub-
rule (vi)(a) of Rule 3, which was inserted by resolution
of Special General Body Meeting dated September 9,
2010 retrospectively with effect from September 14,
2009, defines `Temporary Member' to mean a member
other than a member within the meaning of Rule 3(vi).
`Non-Active Member' is defined in Rule 3(viii) to mean a
Member whose name is kept on the list of Members
notwithstanding he has accepted an office of profit
disentitling him to practice. The phrase `Resident
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Member' is defined in Rule 3(ix) to mean a member
residing and practicing as an advocate in Delhi or its
suburbs. Rule 5 of the Rules and Regulations deals
with fees, admission and subscription.
Rule 5(v)(a) provides that in terms of Rule 5 an
applicant found to be suitable to be made a member of
the Association, will be made a member, initially on
temporary basis for a period of two years. It further
provides that a person so made a member on
temporary basis will be identified as temporary
member and such temporary member will be entitled
to avail the facilities of the Association such as library
and canteen etc., but he will not have a right to
participate in general meetings as prescribed in Rule
21 or to contest and vote at the elections as provided
in Rule 18 and to be issued a Library Card.
Explanation appended to Rule 5(v)(b) makes it clear
that `suitable' means a person applying must fulfill all
the criteria listed in the Rules and Regulations of the
Association, viz., Rule 5(v) and also satisfy the
requirements prescribed in the prescribed form. As
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per Rule 5(v)(c) at the end of two years period from the
date of approval of temporary membership by the
Executive Committee, if such temporary member pays
SCBA dues without any default during such period
and produces the proof of either of the following of
requirements before the Executive Committee, his
name would be considered for being made a regular
Member of the Association - (i) appearance in Supreme
Court as lead counsel in at least five matters in each
year of the two years period, or (ii) appearance in
Supreme Court as a junior advocate appearing with
any senior advocate/advocate-on record in at least
twenty matters in each year of the two years period,
(iii) only such of the temporary members on satisfying
the above requirements at the end of two years period
would be made a member of the Association with an
entitlement to all the privileges of the Association
including the right to contest and vote and Library
Card etc., else, he/she shall continue to remain a
temporary member till such time he/she fulfills these
conditions.
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4. A requisition dated January 10, 2003 signed by
343 Members was received in the Office of the
SCBA on January 23, 2003. By the said
requisition an amendment was sought in Rule 18
regarding the eligibility of the members to contest
and vote at an election. It was proposed that the
member, who exercises his right to vote in any
High Court or District Court, Advocates'/Bar
Association, shall not be eligible to contest for
any post of the SCBA or to cast his vote at the
elections. It was further proposed that every
member before casting his vote shall in a
prescribed form give a declaration that he is not
voting in any other election of advocates in the
High Court/District Court Bar Association. It
was also proposed that if such a declaration is
found to be false, it shall entail automatic
suspension of the member giving such false
declaration from membership of SCBA for a
period of three years. The requisition dated
January 10, 2003 was considered in the
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Executive Committee meeting held on February 1,
2003 and it was decided to hold a special General
Body Meeting on February 18, 2003 to consider
the requisition. Rule 22 of the Rules and
Regulations of SCBA provides that the Executive
Committee may call a General Body Meeting on
seven days' notice to the members whereas Rule
23 stipulates the manner in which notice of
meeting has to be given to a member.
Accordingly notices for the aforesaid General
Body Meeting were issued by the SCBA on
February 6, 2003. The notices were sent to the
members along with the cause list. The notice
was also displayed on the notice board of the
Office of the SCBA situated at Supreme Court
premises. The notices were also sent to different
Bar Associations at Delhi including the Delhi Bar
Association. On February 18, 2003 the General
Body Meeting was convened wherein more than
278 Members had participated. Mr. Ved Sharma
and Mr. Rajiv Khosla, Office Bearers/Members of
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the District/Delhi Bar Association had
participated and had spoken against the
resolution in the General Body Meeting. After
due deliberations and discussion, the resolution
proposing amendment in Rule 18 of the Rules
was put to vote. It was passed by majority of 85%
of the members present and voting. Thereafter, a
meeting of the Executive Committee was
convened on March 3, 2003. In the said meeting
it was resolved to hold election of the Office
Bearers/Executive Members for the next session
and for the constitution of Election Committee. It
was further resolved to hold election on April 25,
2003. An election Committee of three members of
the SCBA was constituted for the purposes of
conducting election. Further in the said meeting
a requisition signed by 237 Members of SCBA to
recall resolution dated February 18, 2003 was
considered and dealt with. It was decided to
defer the consideration of the said resolution in
view of the fact that elections were declared.
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Moreover, in the meeting of the Executive
Committee held on March 10, 2003 it was
resolved to constitute an Implementation
Committee to implement the resolution "One Bar
One Vote", which was adopted in the General
Body Meeting dated February 18, 2003. The
notices of the election and about formation of the
Implementation Committee were sent to the
Members of the Bar Association on March 11,
2003 again along with the cause list and
conveyed also by displaying the same on the
notice board of the SCBA. On March 13, 2003,
meeting of the Implementation Committee was
held and the declaration form was finalized and
programme for implementation was also decided.
The notices regarding declaration form were again
issued on March 25, 2003. Meanwhile, Mr. B.D.
Kaushik, who is one of the members of the SCBA
as well as a member of the High Court Bar
Association, Delhi Bar Association, Tis Hazari
Courts, filed Suit No. 100 of 2003 in the Court of
13
Shri Sanjeev Jain, Commercial Civil Judge, Delhi,
challenging validity of resolution dated February
18, 2003. He has sought a decree declaring that
Resolution dated February 18, 2003, passed by
the General Body Meeting of SCBA inserting Rule
18-III, is illegal and ineffective. He had also
prayed for a decree of perpetual injunction
restraining the SCBA and its Office Bearers from
implementing the Resolution dated February 18,
2003 in the elections of SCBA, which were
proposed to be held on April 25, 2003. Further,
the prayer to restrain the SCBA and its election
officers from debarring any of the members of the
SCBA, who had already paid their subscription
from casting their votes in the ensuing elections
was also sought. Mr. A.K. Manchanda, another
member of the SCBA, filed suit No. 101 of 2003 in
the Court of Shri Sanjeev Jain, Commercial Civil
Judge, Delhi, seeking the reliefs which were
sought by Mr. B.D. Kaushik in his suit No. 100 of
2003.
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5. Mr. B.D. Kaushik and Mr. A.K. Manchanda, the
plaintiffs in Suit Nos. 100 of 2003 and 101 of
2003 respectively, filed applications under Order
39 Rules 1 and 2 read with Section 151 of the
Code of Civil Procedure to restrain the
defendants, who are appellants herein, from
implementing the Resolution dated February 18,
2003 till the final disposal of the suits. Both the
applications were taken up together for hearing
by the learned Judge. The learned Judge
disposed of those applications seeking temporary
injunction by common order dated April 5, 2003.
By the said common order the applications filed
by the plaintiffs under Order 39 Rules 1 and 2
were allowed and the appellants were restrained
from implementing the Resolution dated February
18, 2003 amending Rule 18 of the Rules and
Regulations of the SCBA till the final disposal of
the suits. As the injunction granted by the
learned Judge had far reaching repercussions,
the appellants straightway approached this Court
15
by filing Special Leave Petition No. D-7644 of
2003 against order dated April 5, 2003 in Suit
No. 100 of 2003, passed by the learned Civil
Judge, Delhi. The SCBA also filed Special leave
Petition No. D-7645 of 2003 against order dated
April 5, 2003 in Suit No. 101 of 2003. The
matters were placed before this Court in
mentioning list on April 10, 2003. This Court
had heard the then learned Attorney General and
other learned senior advocates practicing in this
Court. The matters were taken on Board and
straightway leave was granted. Pending
proceedings, stay of the common order passed by
the trial court was also granted. It was made
clear that if any elections were held, the same
shall be subject to the result of these appeals. It
was also clarified that the order shall be effective
notwithstanding any other order made by any
court or authority in any other proceedings filed
or yet to be filed. On leave being granted Special
Leave Petition No. D-7644 of 2003 is numbered
16
as Civil Appeal No. 3401 of 2003 whereas Special
Leave Petition No. D-7645 of 2003 is numbered
as Civil Appeal No. 3402 of 2003.
6. This Court had appointed Mr. Ranjit Kumar,
learned senior counsel practicing in this Court,
as Amicus Curie to assist the Court in the
matters. This Court has also requested learned
Attorney General Mr. Goolam Vahanvati to
express his views in the matters and to assist the
Court. Accordingly, this Court has heard learned
Attorney General as well as learned senior
counsel Mr. Ranjit Kumar. The Court has also
heard Mr. Rajesh Aggarwal, who has appeared on
behalf of the appellants as well as Mr. Dinesh
Kumar Garg, learned advocate who appeared on
behalf of the original plaintiffs. This being a
matter, which affects the learned advocates
practicing in this Court, the Court has also heard
learned senior counsel Mr. P.P. Rao, former
President of SCBA, Mr. Pravin Parekh, present
President of SCBA and Mr. Sushil Kumar Jain,
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President of Association of Advocates-on-Record.
The Court has considered the Memorandum of
Association of SCBA as well as Rules and
Regulations of SCBA.
7. It is not disputed by any of the learned advocates
appearing in the matters that after stay of
common order dated April 5, 2003, passed in
Civil Suit No. 100 of 2003 and Civil Suit No. 101
of 2003 was granted by this Court on April 10,
2003, elections of the office bearers of the SCBA
have taken place and Rule 18 of the Rules and
Regulations, as was amended by the Resolution
dated February 18, 2003, has been implemented.
8. Article 145 (1)(a) of the Constitution empowers
the Supreme Court to make Rules for regulating
generally the practice and procedure of the Court
including Rules as to the persons practicing
before the Court. In exercise of this
constitutional power, the Supreme Court has
framed Rules called Supreme Court Rules, 1966.
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Rule 2(1)(b) provides that an advocate-on-record
to be the only person to "act" as well as to "plead"
before this Court. The other two categories of
persons, namely, "senior advocate" and "non-
advocate-on-record" can only plead, but cannot
act on behalf of the client. Their
appearances/pleadings in a case before this
Court cannot be without an advocate-on-record
and without his instructions. Order IV of the
Supreme Court Rules, 1966 deals with
"advocates". Rule 1 states that subject to the
provisions of the Rules only those advocates
whose names are entered on the roll of any State
Bar Council, maintained under the Advocates
Act, 1961, shall be entitled to appear and plead
before the Court. As per Rule 2(b) certain
restrictions have been placed on senior advocate
who is recognized as such under Rule 2(a),
mentioning inter-alia that he cannot file a
vakalatnama or act in any court or tribunal in
India or accept instructions to draw pleadings or
19
affidavits, etc. Explanation (iii) appended to the
Order IV defines "junior" to mean an advocate
other than a senior advocate. Rule 6(a) provides
that an advocate-on-record shall, on his filing a
memorandum of appearance on behalf of a party
accompanied by a vakalatnama duly executed by
the party, is entitled to act as well as to plead for
the party in the matter and to conduct and to
prosecute before the Court all proceedings that
may be taken in respect of the said matter.
Clause (b) of Rule 6 mentions that no advocate
other than an advocate-on-record shall be
entitled to file an appearance or act for a party in
the court. Rule 10 of the Rules provides that no
advocate other than an advocate-on-record shall
appear and plead in any matter unless he is
instructed by an advocate-on-record, whereas
Rule 12 enables an advocate-on-record or a firm
of advocates to employ one or more clerks to
attend the registry for presenting or receiving any
papers on behalf of the said advocate or firm of
20
advocates. Rule 12(2) mandates that notice of
every application for the registration of a clerk
shall be given to the Secretary, SCBA, who shall
be entitled to bring to the notice of the Registrar
within seven days of the receipt of the notice any
facts, which, in his opinion, may have a bearing
on the suitability of the clerk to be registered.
Rule 13(1) requires the Registrar to publish list of
persons proved to his satisfaction by evidence of
general repute or otherwise, habitually to act as
touts to be known as list of touts. Explanation
(b) appended to Rule 13(1) mentions that the
passing of a resolution by the SCBA or by High
Court Bar Association declaring any person to be
tout shall be evidence of general repute of such
person for the purpose of this Rule.
9. The Advocates Act, 1961 provides for the creation
of different State Bar Councils, whose one or the
main function is to admit advocates on its rolls
and to promote the growth of Bar Associations for
the purpose of effective implementation of the
21
welfare schemes. It further enables the Bar
Councils to make their own rules. Section 17 of
the Advocates Act provides that every Sate Bar
Council shall prepare and maintain roll of
advocates. Section 17(4) further states that no
person shall be enrolled as an advocate on the
roll of more than one State Bar Council. Section
49 of the Advocates Act, 1961 empowers the Bar
Council of India to make rules. In exercise of the
said power Bar Council of India has framed
Rules. Chapter III of Bar Council Rules provides
that every advocate shall be under an obligation
to ensure that his name appears on the roll of the
State Bar Council in whose jurisdiction he
ordinarily practices and if that advocate does not
apply for transfer of his name to the roll of State
Bar Council within whose jurisdiction he
ordinarily practices within six months of the start
of such practice, it shall be deemed that he is
guilty of professional misconduct. Section 34 of
the Advocates Act, 1961 also empowers the High
22
Courts to make Rules regarding the advocate
practicing in the High Court and courts
subordinate thereto.
10. The learned counsel, appearing in the matters,
pointed out to the Court that problem of bogus
voting in the election of office bearers of SCBA
started since the year 1978. According to the
learned counsel, in the year 1978, 101 Members
contested election for the post of Members of
Executive Committee. The grievance made by the
learned counsel was that those advocates, who
were not regularly practicing in this Court, were
enrolled as Members of the SCBA only to vote at
the election of office bearers of the SCBA.
According to the learned counsel, the advocates,
who have been enrolled as Members of the SCBA
are practicing either at Kanpur or at Gurgaon
and other courts situated in India, but they never
practice in this Court regularly nor are even able
to recognize the Hon'ble Judges of this Court.
The learned counsel emphasized that those
23
advocates, who are not practicing in this Court
and are enrolled as members of the SCBA, have
outnumbered the actual practitioners in this
Court and do not permit the actual practitioners
to be office bearers of the SCBA. Thus the
learned advocates appearing in the matters have
called upon this Court to consider the problem
posed in the appeals in the light of facts
mentioned by them.
11. The Supreme Court Bar Association, as the name
suggests, is a society primarily meant to promote
the welfare of the advocates generally practicing
in the Supreme Court. The name, i.e., the
Supreme Court Bar Association was formally
registered under the Societies Registration Act,
1860 only on August 25, 1999. One of the prime
objectives of the SCBA is to establish and
maintain adequate library for the use of the
members and to provide other facilities and
convenience of the members. Thus, the
formation of the SCBA is in the nature of aid to
24
the Advocates Act, 1961 and other relevant
statutes including Article 145 of the Constitution.
12. There is no manner of doubt that court annexed
Bar Associations constitute a separate class
different from other lawyers associations such as
Lawyers' Forum, All India Advocates' Association,
etc. as they are always recognized by the
concerned court. Court annexed Bar
Associations function as part of the machinery for
administration of justice. As is said often, the
Bench and Bar are like two wheels of a chariot
and one cannot function without the other. The
court annexed Bar Associations start with the
name of the court as part of the name of the Bar
Association concerned. That is why we have
Supreme Court Bar Association, Tis Hazari
District Court Bar Association, etc. The very
nature of such a Bar Association necessarily
means and implies that it is an association
representing members regularly practicing in the
court and responsible for proper conduct of its
25
members in the court and for ensuring proper
assistance to the court. In consideration thereof,
the court provides space for office of the
association, library and all necessary facilities
like chambers at concessional rates for members
regularly practicing in the court, parking place,
canteen besides several other amenities. In the
functions organized by the court annexed Bar
Associations the Judges participate and exchange
views and ascertain the problems, if any, to solve
them and vice-versa. There is thus regular
interaction between the members of the Bar
Association and the Judges. The regular
practitioners are treated as officers of the court
and are shown due consideration.
13. Enrolment of advocates not practicing regularly
in the court is inconsistent with the main aim
and object of the Association. No court can
provide chambers or other facilities for such
outside advocates, who are not regular
practitioners. Neither the Association nor the
26
court can deal with them effectively if they
commit any wrong. There are sufficient
indications in the Memorandum of Association
and the Rules and Regulations of SCBA, which
indicate that the Association mainly tries to
promote and protect the privileges, interest and
prestige of the Association and to promote union
and cooperation among the advocates practicing
in the court and other associations of advocates.
This is quite evident if one refers to sub-clause
(iii) of clause (3) of the Aims and Objectives of the
Association. It is significant to note that the
signatories of the Memorandum of Association,
namely, Members of the Executive Committee,
whose names are mentioned, are all regular
practitioners, who got the Association registered
under the Societies Registration Act, 1860. Mr.
P.P. Rao, learned senior counsel has given all
credit for registration of Association to Shri K.K.
Venugopal, one of the senior-most counsel of this
Court.
27
14. Rule 6 of the Rules and Regulations of the SCBA
mentions the duties of Members. It inter alia
provides that (i) a member shall endeavour to
provide full assistance to the court and
competent representation to a client, (iii) a
member shall not knowingly (a) make a false
statement of material fact or of law to the court,
(b) shall not seek to influence the court or Judges
or officers of the court in any matter by means
prohibited by law or by false representation on
behalf of his client nor shall such member
communicate with such persons ex-parte or
engage in conduct intending to bring disrepute to
the functioning of the court. Rule 6(iii)(c)
provides that a member of the Association shall
participate in serving those persons/groups of
persons who are unable to pay all or portion of
reasonable fees or who are unable to obtain
representation by counsel. Clause (c) of Rule
6(iii) inter alia states that a member may
discharge his duty to serve those persons who are
28
unable to pay all or portions of reasonable fees by
providing professional services at no fees or at a
substantially reduced fee. A member of the
Association has to charge reasonable fees from
his client which has to be determined on the
basis of the time and labour spent over the
matter and is not entitled to charge a contingent
fee. Thus duties of members contemplate that
the members should be regular practitioners in
the Supreme Court.
15. As noticed earlier, no person can be enrolled as
an advocate on the roll of more than one State
Bar Council. A citizen of India is entitled to cast
his vote at an election of Legislative Assembly or
an election of M.P. only in the constituency where
his name appears as a voter in the voting list and
he cannot claim right to vote at another place
where he may be residing because of his
occupation, service, etc. Thus "one person one
vote" is recognized statutorily since long. Viewed
in the light of these facts, the concept of voting
29
introduced by amendment of Rule 18 of the Rules
and Regulations of the SCBA cannot be regarded
as illegal or unconstitutional. It is well settled by
catena of reported decisions of this Court that the
right to vote is not an absolute right. Right to
vote or to contest election is neither a
Fundamental Right nor a common law right, but
it is purely a statutory right governed by statute/
rules/regulations. The right to contest an
election and to vote can always be restricted or
abridged, if statute/ rules or regulations
prescribe so. Voting right restrictions also existed
in Rule 18 and 18A before Rule 18 was amended.
By amendment a further restriction is imposed by
the Resolution adopted in the General Body
Meeting.
16. The argument that by the said amendment of
Rule 18 the Aims and Objects of the SCBA are
amended without prior approval of the Registrar
of Societies and, therefore, the same is illegal,
cannot be accepted. The impugned order makes
30
it more than clear that this ground has heavily
weighed with the learned Judge in granting the
injunction. The substance and purpose of the
amendment made in Rule 18 of the Rules and
Regulations of the SCBA cannot be lost site of. It
does not affect any of the aims and objectives of
the SCBA. On the contrary, it promotes and
protects privileges, interest and prestige of the
SCBA. There is no manner of doubt that the
amended Rule 18 promotes union and
cooperation among the advocates practicing in
this Court and this is one of the prime aims and
objectives of forming the SCBA. The SCBA exists
for the purpose of promoting the interest of the
Supreme Court of India as well as that of
advocates regularly practicing in the Court and
not of the advocates, who are not regularly
practicing in the Court.
17. It has been rightly pointed out by the learned
counsel for the appellant that restrictions placed
on right of voting can hardly be regarded as
31
altering or amending Aims and Objects of SCBA.
The Aims and Objects of SCBA have been
enumerated in earlier part of this judgment. The
basic principle underlying the amendment of Rule
18 is that those advocates who are not practicing
regularly in this Court cannot be permitted to
take over the affairs of the SCBA nor on ransom.
One of the Aims and Objects of the SCBA is to
promote and protect the privileges, interest and
prestige of the Association whereas another
objective is to promote and maintain high
standards of profession among members of the
Bar. To achieve these objectives Rule 18 is
amended. It is wrong to hold that
limitations/restrictions on the exercise of right to
vote and contest the elections amount to altering
and/or amending and/ or changing Aims and
Objects of the SCBA and this could not have been
done without the consent of Registrar as provided
in Societies Registration Act, 1860.
32
18. Section 12 of the Societies Registration Act, 1860
invests a society with the power to frame rules/
regulations to govern the body of any society
under the Act, which has been established for
any particular purpose or purposes. In built in it
is the authority to alter or abridge such power. If
such a wide power is conferred including power to
alter, amend or abridge the purpose itself, it
could never be successfully contended that the
power to amend, vary or rescind the rules does
not exist in such society.
19. As noticed earlier `Associate Member' means an
association of advocates practicing in a High
Court or Judicial Commissioners' Court and
enrolled as such a member. As an association of
advocates cannot practice in a High Court or
Judicial Commissioners' Court, it is obvious that
an associate member is a member of association
of advocates practicing in a High Court and
enrolled as such a Member. The intention,
therefore, is obvious that it is only an advocate,
33
who is practicing in a High Court or in a court of
Judicial Commissioner and enrolled as a
member, who is entitled to the status of an
`Associate Member' for the purpose of the Rules
and Regulations of the SCBA. When it comes to
the question of voting or contesting for an
election, Rule 18(1)(iv) declares that non-active
members and associate members shall not have
right to vote. It is, therefore, clear that the SCBA
is constituted primarily for those advocates who
are regularly practicing in the Supreme Court.
Other advocates can become non-resident senior
members, non-resident members, associate
members and non-active members, but they will
not be eligible to vote much less to contest the
election. Thus, the amendment in Rule 18 is
wholly consistent with the aims and objectives of
the SCBA.
20. This Court further finds that in the application
filed by the respondents/plaintiffs in each suit
under Order 39 Rules 1 and 2 read with Section
34
151 CPC, injunction against the appellants to
restrain them from implementing resolution dated
February 18, 2003 amending Rule 18 of the
Rules and Regulations of SCBA till the final
disposal of the suits, was claimed. A bare
perusal of the plaint of Civil Suit No. 100 of 2003
indicates that the respondent has claimed
following reliefs in the plaint: -
"a. A decree of declaration declaring that
the resolution dated 18.2.2003 passed
by the alleged General Body Meeting of
Supreme Court Bar Association
amending Rule 18-III is illegal and
ineffective;
b. pass a decree of perpetual injunction
restraining the defendant No. 1
Association and its office bearers from
implementing the resolution dated
18.2.2003 in the ensuing elections of
Supreme Court Bar Association
proposed to be held on 25.4.2003;
c. This Hon'ble Court may also be pleased
to restrain the defendant No. 1
association, its election officer(s) from
debarring any of the members of
Supreme Court Bar Association who
have already paid their subscription
from casting their vote in the ensuing
elections.
d. Any other proper and further order
which this Hon'ble Court deems fit may
35
kindly be passed in favour of the
plaintiff and against the defendants."
Thus, the learned Judge has decreed the suit partially
by granting injunction without adjudicating rival claims
of the parties. This Court in catena of reported
decisions has laid down the principle that interim relief,
which has tendency to allow the final relief claimed in
the proceedings, should not be granted lightly. No
special circumstances have been mentioned in the two
impugned orders which would justify decreeing the suits
at interim stage. The relief granted by the learned
Judge at the interim stage was not warranted by the
facts of the case at all. Therefore, the impugned orders
are also liable to be set aside on this ground.
21. Further, Order 39 Rule 1 deals with cases in
which temporary injunction may be granted and
inter alia provides that where in any suit it is
proved by affidavit or otherwise - (a) that any
property in dispute in a suit is in danger of being
wasted, damaged or alienated by any party to the
36
suit, or wrongfully sold in execution of a decree,
(b) that the defendant threatens, or intends, to
remove or dispose of his property with a view to
defrauding his creditors, (c) that the defendant
threatens to dispossess the plaintiff or otherwise
cause injury to the plaintiff in relation to any
property in dispute in the suit, the Court may, by
order, grant a temporary injunction to restrain
such act, or make such other order for the
purpose of staying and preventing the wasting,
damaging, alienation, sale removal or disposition
of the property or dispossession of the plaintiff, or
otherwise causing injury to the plaintiff in
relation to any property in dispute in the suit as
the Court thinks fit until the disposal of the suit
or until further orders.
Order 39 Rule 2 deals with injunction to restrain
repetition or continuance of breach and inter alia
provides that in any suit for restraining the defendant
from committing a breach of contract or other injury of
any kind, whether compensation is claimed in the suit
37
or not, the plaintiff may, at any time after the
commencement of the suit and either before or after
judgment, apply to the court for a temporary injunction
to restrain the defendant from committing the breach of
contract or injury complained of, or any breach of
contract or injury of a like kind arising out of the same
contract or relating to the same property or right.
As is well-known Section 151 deals with saving of
inherent powers of the Court and provides that nothing
in Civil Procedure Code shall be deemed to limit or
otherwise affect the inherent power of the court to make
such orders as may be necessary for the ends of justice
or to prevent abuse of the process of the Court.
22. It hardly needs to be emphasized that in any
Body governed by democratic principles, no
member has a right to claim an injunction so as
to stall the formation of the Governing Body of
the Association. No such right exists in election
matters since exercise of a right conferred by a
rule is always subject to the qualifications
38
prescribed and limitations imposed thereunder.
The contention of the respondents that the
amendment to Rule whereunder the right to be
eligible to contest for any post for the Association
or the eligibility to cast the vote at the election,
takes away the right completely, is misconceived
since by the amendment the right is not taken
away but is preserved subject to certain
restrictions on its exercise and this could always
be done.
23. It is important to notice that what the impugned
Rule does is that it only declares the eligibility of
a member to contest and vote and does not take
away ipso facto the right to vote. The impugned
Rule only prescribes the eligibility or makes a
person ineligible in the circumstances stated
therein which is the nature of a reasonable
restriction as the right to vote is neither a
common law right nor Fundamental Right but a
statutory right prescribed by the statute as has
been held in several reported decisions of this
39
Court. What is necessary to be noticed here is
that the impugned clause in the Rule is not the
only clause prescribing ineligibility to vote as
there are other eligibility conditions or ineligibility
restrictions within Rule 18, which may also make
a person ineligible to vote. The challenge,
therefore, to this ineligibility of filing a declaration
not to vote at the elections to any other Bar
Association is erroneous in law. If a person is the
member of several associations of advocates and
wants to participate in the affairs of different
associations of which he/she is a member,
he/she may not be in a position to be really
involved in the affairs of all associations of which
he/she is the member. A person who is a
member of more than one association would form
a different class than the person who is a member
of only one association of lawyers, particularly,
the association of the Court in which he/she
regularly practices. Though an advocate can be
member of several associations, the right to form
40
an association or be a member of an association
does not necessarily include the right to vote at
every such association's General Body Meeting or
election meetings and the rules of the association
can circumscribe the voting rights of members of
such association by prescribing eligibility and
ineligibility. It is an admitted position that SCBA
today has temporary members who do not have a
right to vote. Similarly, non-active members and
associate members do not have a right to vote.
Thus, these are all reasonable restrictions which
have been prescribed and are not open to
challenge as there is no Fundamental Right to
vote. After all a Bar Association in a court is
formed for the purpose of seeing that all lawyers
practicing normally and regularly in that court
work under one umbrella and be in a position to
interact with the Judges or officials of that court
for any grievance through their elected body
because individual lawyers are not supposed nor
it is proper for them to interact with the Judges
41
so as to preserve and secure the independence of
judiciary.
24. The argument of the respondents was that the
right to vote available to a member has been
infringed or curtailed but this argument does not
appear to be correct for the simple reason that
though the Rule is couched in a negative
language, it preserves the right of a Member to
either contest or to cast his vote in the election
subject to his exercising an option to vote only in
the SCBA and not in any High Court/District
Court Bar Association.
This is amply clear from the amended provision
whereunder every member before casting his vote, is
required, in the prescribed form, to give a declaration
that he has not voted in any other election of any
advocates in the High Court/District Court Bar
Association. The restriction on the right to vote of a
member is provided with an avowed object of better
welfare and convenience of those advocates, who are
42
regularly practicing in this Court and who are directly
concerned with day-to-day affairs of the Supreme Court.
Such restriction in fact subserves Article 145 of the
Constitution and other statutory provisions relating to
advocates. As right to vote is not an absolute right
recognized in common law and is always subject to the
statute/Rules creating such rights, it is equally well
settled that the exercise of such right could always be
subject to the provisions of the Statute/Rules creating
it. Under the circumstances, the contention advanced
by the respondents that their right to vote was either
curtailed or abridged should not have been lightly
accepted by the learned Judge.
25. The right to form an association is recognized as
a Fundamental Right under Article 19(1)(c) of the
Constitution. The provision in the SCBA Rules
for prescribing eligibility to vote at only one of the
associations, i.e., "One Bar One Vote" is a
prescription which is in furtherance of the right
to form association and be able to manage the
affairs of the association by those who regularly
43
practice in the courts of which the association is
formed and of which the members are regular
practitioners. It will not be out of place to
mention that a person having become ineligible to
vote because of having voted at another
association election does not (a) lose the
membership of the association nor (b) is in any
way hampered or restricted in the use of other
facilities, which the association provides to its
members such as library, canteen,
telecommunication, car parking, etc. Having
regard to the aims and objects as set out in the
Memorandum of Association, it is evident that
one of the primary objectives of formation of the
association was to have a Body of Advocates who
are attached to and practicing in the Supreme
Court of India. In Smt. Damyanti Naranga vs.
The Union of India and others (1971) 1 SCC
678, this Court has authoritatively laid down that
the right to form an association necessarily
implies that persons forming the association have
44
also the right to continue to be associated with
only those whom they voluntarily admit in the
association. In Zoroastrian Cooperative
Housing Society Ltd. and others vs. District
Registrar, Cooperative Societies (Urban) and
others (2005) 5 SCC 632, in the context of
Fundamental Right to form an association
excluding others and the right of the Members of
the association to keep others out, it has been
held in para 17 at page 651 as under: -
"Section 24 of the Act, no doubt, speaks of
open membership, but Section 24(1) makes
it clear that open membership is the
membership of a person duly qualified
therefore under the provisions of the Act,
the Rules and the bye-laws of the Society.
In other words, Section 24(1) does not
contemplate an open membership dehorns
the bye-laws of the society. Nor do we find
anything in the Act which precludes a
society from prescribing a qualification for
membership based on a belief, a persuasion
or a religion for that matter. Section 30(2)
of the Act even places restrictions on the
right of a member to transfer his right. In
fact, the individual right of the member,
Respondent 2, has got submerged in the
collective right of the Society. In State of
U.P. v. C.O.D. Chheoki Employees' Coop.
Society Ltd. (1997) 3 SCC 681, this Court
after referring to Daman Singh vs. State of
45
Punjab (1985) 2 SCC 670, held in para 16
that: (SCC p. 691)
"16. Thus, it is settled law that no
citizen has a fundamental right under
Article 19(1)(c) to become a member of
a cooperative society. His right is
governed by the provisions of the
statute. So, the right to become or to
continue being a member of the society
is a statutory right. On fulfillment of
the qualifications prescribed to become
a member and for being a member of
the society and on admission, he
becomes a member. His being a
member of the society is subject to the
operation of the Act, rules and bye-
laws applicable from time to time. A
member of the society has no
independent right qua the society and
it is the society that is entitled to
represent as the corporate aggregate.
No individual member is entitled to
assail the constitutionality of the
provisions of the Act, rules and the
bye-laws as he has his right under the
Act, rules and the bye-laws and is
subject to its operation. The stream
cannot rise higher than the source."
26. In matters of internal management of an
association, the courts normally do not interfere,
leaving it open to the association and its
members to frame a particular bye-law, rule or
regulation which may provide for eligibility and or
46
qualification for the membership and/or
providing for limitations/restrictions on the
exercise of any right by and as a member of the
said association.
It is well settled legal proposition that once a
person becomes a member of the association, such a
person looses his individuality qua the association and
he has no individual rights except those given to him by
the rules and regulations and/or bye-laws of the
association.
27. It should have been noticed by the learned Judge
that the plaintiffs/respondents claimed
injunction on the basis that the right to contest
and vote in the election of the SCBA had been
adversely affected and, therefore, they invoked
the provisions of Order 39 Rules 1 and 2 read
with Section 151 CPC. The amended Rule 18 has
not taken away right to vote completely but has
put restrictions to promote and protect the
privileges, interest and prestige of the SCBA.
47
Rule 18 was also amended to promote and
maintain high standards of profession amongst
Members of the Bar. Having regard to the objects
of amendment of Rule 18, this Court is of the
opinion that the learned Judge should not have
granted the injunction as claimed by the
plaintiffs/respondents for mere asking.
28. Originally enacted Rule 18 provided for eligibility
of members to contest and vote at/in the
elections. An important provision is contained in
Rule 18(II)(4) to the effect that non-active
members and associate members shall not have
the right to vote. In light of the above provisions
of the Rules, more particularly, Rule 5(1)(v), the
eligibility of every advocate entitled to practice law
for being a member of the Supreme Court Bar
Association is subject to the provisions of the said
Rules. In other words, an absolute right as is
sought to be asserted by the
plaintiffs/respondents is controlled by conditions,
48
qualifications, disqualifications and restrictions
imposed by the said Rules.
29. The power to amend Rules is specifically
conferred under Rule 39 whereunder it is
provided that the Rules and the bye-laws of the
Association shall be subject to such conditions
and/or modifications, as may from time to time,
by resolution passed by at least 2/3rd of the
Members present and voting at the General Body
Meeting. Therefore, any part of the Rules could
always be amended. As noticed earlier, SCBA
being a Society registered under the Societies
Registration Act, is governed by its Memorandum
of Association. The said Association is entitled to
have its own Rules and Regulations. In fact, it is
contemplated in the Act that a Committee of
management can be constituted to manage the
affairs of the Society as specified in the Rules and
Regulations. The Memorandum of Association is
a contract amongst the members of the Society,
which though required to be registered under the
49
Statute, does not acquire any statutory character.
These are rules which govern internal control and
management of the Society. The authority to
frame, amend, vary and rescind such rules,
undoubtedly, vests in the General Body of the
Members of the Society. The power to amend the
rules is implicit in the power to frame rules.
30. Yet, another ground of attack in the suits filed by
the respondents is with reference to notice of
meetings and the manner of holding of meetings
including Special General Meeting. The record
produced by the SCBA before this Court indicates
that the meeting in which the amendment was
carried out in Rule 18 was held in accordance
with Rule 22 because it was a Special General
Meeting. The holding of meetings including
Special General Meeting is governed by Rules 21,
22 and 23, which read as under: -
"21. MEETINGS
The Annual General Meeting of the
Association shall ordinarily be held not later
than 15th day of May every year. Not less
50
than 15 days notice shall be given to the
members of the Annual General Meeting.
The following shall along with other
business that may be required to be
transacted, be included in the agenda of the
Annual General Meeting.
a) Auditor's Report on the Account and
Balance Sheet of Budget estimate;
b) Report of the Secretary on the activities of
the terms which will include report of the
work of committee other than the
Executive Committee;
c) The election of the officers of the
Association and Members of Executive
Committee or other committees and
appointment of Auditors;
d) The approval of the revenue account and
the balance sheet of the affairs of the
Association as on 31st March of the
previous year duly passed.
22. SPECIAL GENERAL MEETING
The Committee may call a General Meeting
on 7 days notice to the Members provided
that a Special General Meeting may be
called on a shorter notice.
Provided that the Secretary may call an
emergent General Meeting on any day by
affixing a notice to that effect on the notice
board of the Association and circulating the
same to the Members as can be
conveniently informed.
The Committee shall call a General
Meeting or a Special General Meeting upon
51
the requisition given in writing by at least
150 Members of the Association in respect
of any matter. The requisition specified the
matter or question to be laid before the
meeting and shall be addressed to the
Secretary. The meeting shall be called not
later than 2 weeks after the receipt of such
requisition. The quorum at the Annual
General Meeting or a General Meeting or a
Special General Meeting shall be 50
Members. In absence of such quorum the
meeting shall stand adjourned to such a
date and time as the Chairman may appoint
and for such adjourn meeting no quorum
will be necessary.
23. NOTICE OF MEETING
1. The notice of the Annual General
Meeting or any of the Special Meeting shall
be given by: -
(a) Circulating the notice, to such
members as can conveniently be
informed in that way;
(b) Sending out such notices by post
addressed to every non-resident and
associate member and to every
resident member who may have
required the Secretary to send the
notice in this way and has registered
his address in the office of the
Association;
The notice of the meeting other than the
Annual General Meeting shall be given by:
(a) Affixing the notice on the notice board of
the Association;
(b) Circulating the notice to such members
as may be conveniently informed in that
way."
52
As can be seen from the bare reading of these Rules,
notice by post has to go to non-resident members and to
resident members only if request in writing is made to
the Secretary that notices should be sent to him by post
at his registered address, otherwise, notice by affixation
on notice board and by circulating the notice, normally
done with cause list is sufficient notice. The record does
not indicate at all that any of the plaintiffs/respondents
had given any notice to the Secretary of SCBA that he
should be informed individually by a notice in writing of
holding of any meeting by sending it at his registered
address. There is weighty reason as to why notice by
affixation on the notice board and by circulating the
notice with cause list should be regarded as sufficient
notice. This is obviously so because advocate members
normally practicing in this Court would be made aware
by these methods of notice. Thus the ground of
improper holding of the meeting or lack of service of
notice upon the plaintiffs/respondents are devoid of
53
merits and could not have been taken into consideration
while granting injunction claimed by them.
31. On page 2 of the paper book the learned trial
judge has mentioned details of the plaint and has
categorically stated as under: -
"It is disclosed in the plaint that members of
defendant No. 1 are scattered in various
parts of the country including Delhi and
majority of them do not visit the SCBA office
on regular basis."
In para 3 of the plaint it is averred as under: -
"Since all the members including the
plaintiff do not visit the Supreme Court and
office of the defendant No. 1 Association on
regular basis, they do not have an occasion
to acquaint themselves about all the notices
and circulars put up by the defendant No. 1
Association on its notice boards in the
Supreme Court building."
Further, at page 19 of the paper book a finding has been
arrived at by the trial court as under: -
"Most of the members do not ordinarily
practice in the Supreme Court of India and
are members of other association."
54
In the light of above pleadings, it is quite clear that the
plaintiffs/respondents who were seeking to challenge
the impugned Rule which prescribed an eligibility clause
to enable them to vote, have candidly admitted that they
are not regular practitioners of the Supreme Court nor
do they attend the Supreme Court on regular basis nor
are aware of the circulars circulated by the SCBA or
pasted on the information board of the SCBA. This is
something which has been totally overlooked by the trial
court in arriving at a conclusion in favour of the
plaintiffs/respondents without examining the true and
correct import of Rule 23 of the Rules, which prescribes
the method of giving notice of the meeting. There is no
manner of doubt that the trial court has committed an
error in coming to the conclusion that in any case
individual notice was required to be given when the rule
does not warrant giving of any such individual notice.
32. The three reasons indicated by the learned Judge
in the impugned orders for grant of injunction are
not sustainable at all and, therefore, the
impugned orders will have to be set aside.
55
33. Further, the appellants had rightly pointed out to
the learned Judge that election process had
already started and, therefore, injunction, as
claimed, should not be granted. Since 1952 this
Court has authoritatively laid down that once
election process has started the courts should not
ordinarily interfere with the said process by way
of granting injunction. The argument advanced
by the appellants that election process having
started, the injunction should not be granted is
dealt with by the learned Judge by holding that in
the present case the plaintiffs have not prayed for
injunction against the election process. This
Court has no doubt at all that the injunction
granted by the learned Judge has propensity to
intervene and interfere with election process
which had already started. Apart from the
prayers claimed in the applications filed under
Order 39 Rules 1 and 2 read with Section 151
CPC the Court could not have ignored the effect
of granting an injunction. If the injunction
56
granted by the learned Judge had not been
stayed by this Court, the office bearers of the
SCBA would have been required to prepare a new
voters list as if unamended Rule 18 was in
operation and the exercise undertaken by them
for preparing voters list in the light of the
amended Rule 18 would have been of no
consequence. Thus the injunction claimed by the
plaintiffs/respondents which had very wide
repercussions on the elections, which were to be
held in the year 2003, should not have been
granted by the learned Judge.
34. The impugned order is also liable to be set aside
on yet another ground. Though the suits were
not filed in a representative capacity, the
injunction is granted by the court restraining the
appellants from implementing the resolution
dated February 18, 2003 in respect of all
advocates and not in respect of two advocates
only who have filed Civil Suit Nos. 100 of 2003
and 101 of 2003 respectively. A perusal of the
57
plaint in the two suits makes it more than clear
that suits are not filed in a representative
capacity. In the plaint, individual rights to vote
at the election of the Executive Committee of
SCBA is claimed. Even if extremely good case
was made out by the plaintiffs/respondents of the
two suits, the relief could have been confined only
to the two plaintiffs/respondents and a relief
granting blanket injunction restraining the
appellants from implementing the Resolution
dated February 18, 2003 amending Rule 18 of the
Rules and Regulations of SCBA till the final
disposal of the suits could not have been granted.
35. For all these reasons impugned common order is
liable to be set aside and is hereby set aside.
36. Mr. K.K.Venugopal, an august and well-known
senior lawyer, who is regularly practicing in this
Court since years and was also former President
of SCBA at least for three years and who was also
Chairman, Interim Board of Management in 2010
58
when the Executive Committee of the SCBA had
dissolved itself and appointed the Interim Board
of Management, submitted that the statements of
aims and objectives of the SCBA, among others,
includes the objective, viz., "to promote and
protect the privileges, interest and prestige of the
association and to promote union and
cooperation among the advocates practicing in
the court and other association and advocates".
According to the learned counsel, the phrase "to
promote union and cooperation among the
advocates practicing in the court and other
association and advocate" is to promote union
and cooperation among the advocates practicing
in the Supreme Court, on the one hand, and
other advocates or associations of advocates, on
the other, which itself indicates that SCBA exists
for the advocates practicing "in the court", i.e.,
Supreme Court of India. The learned counsel
explained that SCBA exists for the benefit of the
advocates in the Supreme Court of India and
59
SCBA owes a fiduciary duty to such advocates
and members of the SCBA for protecting their
privileges, interests and prestige. The learned
counsel asserted that the SCBA is, therefore,
entitled to seek the protection of the Court by
invoking Article 142 of the Constitution to ensure
that the members practicing in the Supreme
Court are not rendered incapable of enjoying, to
the full, the privileges and benefits in the
Supreme Court of India, which has provided
infrastructure and facilities in the nature of
libraries, car parking, chambers, canteens,
lounges, etc. The learned counsel pointed out
that the factual situation, which has been placed
before the Court, would establish that today the
membership of the SCBA has risen to an mind-
boggling figure of around 10,000, of which only
around 2,000 members are regularly practicing in
this Court. Informing the Court the learned
counsel mentioned that historically, with the
advocates regularly practicing in the Supreme
60
Court being inducted as members of the SCBA,
the facilities made available by this Court to the
members were sufficient for their use, but certain
unhealthy practices and vices started creeping in
to the system of elections to the various
posts/offices of the SCBA by reason of the fact
that the office of the President of SCBA carried a
vast prestige and status, not merely among
lawyers but also among Governments and the
political class. It was also stated by the learned
counsel that being an office bearer of a member of
the Executive Committee of the SCBA also carried
great importance and prestige. According to the
learned counsel, the main vice that crept into the
system, for the last decade or so was that
aspiring office bearers started buying the
application forms for membership, in bulk, and
paying the membership fee for lawyers from the
various places like Meerut, Rohtak, Saharanpur,
Ghaziabad and even as far away a place as
Chandigarh. The learned counsel Shri Venugopal
61
claimed as Chairman of the Interim Board of
Management that one came across as many as
100 subscription forms, paid with consecutive
bank draft numbers, as disclosed by the bank
statements obtained by the Interim Board of
Management, which showed that a single sponsor
had paid vast sums of money for each of these
forms and memberships, the membership fee
being Rs.5,150/- for advocates with ten years
standing and Rs.3,650/- for advocates with less
than ten years standing. It was emphasized by
the learned counsel that practices like these have
resulted in the present strength of the SCBA
being around 10,000 and it is a well known fact
among the members of the Bar regularly
practicing in the Supreme Court of India that
persons inducted into the SCBA through such
means, numbering about 8,000, are seen in the
Supreme Court premises only on the day of SCBA
elections for casting their votes, otherwise, these
persons have no interest whatsoever either in the
62
functioning of the SCBA or the well being of its
members or the functioning of the Supreme Court
of India, as a Court. The learned counsel has
produced minutes of the meeting of the Interim
Board of Management dated March 22, 2010
along with his written submissions for perusal of
the Court. The learned senior counsel lamented
that all these would disclose the disgraceful
condition to which SCBA has been reduced on
account of machinations and malpractices of
certain members of the SCBA, who are aspiring
for offices in the Executive Committee of the
SCBA. The learned counsel has also appended
copies of Allotment of Lawyers' Chambers Rules
as amended up to November 30, 2007 as well as
letter dated August 10, 2004 inter alia
prescribing eligibility to apply for allotment of
chambers along with his written submissions.
The learned counsel has pointed out that the
SCBA is facing a crises today, because of the
induction of the vast number of members who do
63
not practice regularly in the Supreme Court of
India and, therefore, have no interest whatsoever
in the function of the Apex Court or in the
reputation, prestige and well being of the SCBA
whereas, on the other hand, the sole objective of
such persons is to ensure that their respective
sponsor(s), who paid their subscription and
entrance fee, would be elected to one of the posts
of the SCBA, including the post of SCBA
President. The learned counsel has expressed
apprehension that the day may not be far of when
the entire set of office bearers of the SCBA may be
persons with no regular practice in the Supreme
Court of India and who may have their regular
practice in other courts in Delhi or even in the
adjoining towns or even in a city as far away from
Delhi as Chandigarh. The learned counsel
argued that the SCBA has to shoulder great
responsibility in regard to the effective
functioning of the Supreme Court itself, the
dispensation of justice and to represent the
64
regular practicing members of the Bar from time
to time. According to the learned counsel the
present situation, which virtually renders the
regularly practicing members strangers in their
own court can only be remedied if this Court were
to step in, to exercise its vast powers under
Article 142 of the Constitution, to ensure that the
functioning of the Court itself is not affected by
reason of the huge influx, into the SCBA, of
advocates who have no interest in the functioning
of the Supreme Court, its Bar or its association.
The learned counsel asserted that the
circumstances prevailing are such that it is
imperative for the well being of the institution, as
well as Apex Court of the country itself, and its
regularly practicing members to ensure that it is
only the regularly practicing members who will be
eligible to cast votes at the SCBA elections. For
this purpose the learned counsel has suggested
that it is essential that the right to vote in the
SCBA elections is restricted to the categories of
65
persons enumerated in the Interim Board of
Management circular dated March 22, 2010, the
relevant portion whereof has been extracted in
the written submissions.
Mr. P.P.Rao, learned celebrated senior counsel
regularly practicing in this Court since long and who is
also former President of SCBA, has emphasized that the
very name of Bar Association, viz., SCBA necessarily
means and implies that it is an association representing
members regularly practicing in the court and
responsible for proper conduct of its members in the
court and for ensuring proper assistance to the court.
The learned counsel has, in his written submissions,
mentioned that SCBA needs to be salvaged from the
deluge of overwhelming numbers of outside advocates
practicing not only in the NCTR but even all other
States in North India who had been enrolled by short-
sighted candidates with an eye on their election to the
SCBA. The learned counsel has asserted that unless
this Court comes to the rescue of SCBA, the association
will cease to be a court annexed Bar Association and
66
words "Supreme Court" will have to be dropped and
substituted by the words "North India". Emphasizing
that the character of the SCBA should not be allowed to
be diluted in any circumstances, the learned counsel
has asserted that this is a fit case for exercise of powers
under Article 142 of the Constitution. The learned
counsel Mr. P.P. Rao has suggested that to identify
regular practitioners the criteria adopted by this Court
for allotment of chambers in Vinay Balchandra Joshi
vs. Registrar General of Supreme Court of India
(1998) 7 SCC 461 at pages 465-467 para 7, may be
adopted or in the alternative criteria mentioned in the
circular dated March 22, 2010 issued by the Interim
Board of Management of the SCBA consisting of M/s.
K.K. Venugopal, Chairman, Mr. P.P. Rao, Vice Chairman
and Mr. P.H. Parekh, Member - Executive and Convener
may be considered for acceptance mutatis mutandis.
Mr. Ranjit Kumar, a distinguished attorney of
this Court, who is appointed as amicus curie in this
matter to assist the Court, Mr. Sushil Kumar Jain,
learned President, Supreme Court Advocates-on-Record
67
Association, Mr. D.K.Garg, learned Counsel for the
respondent and who was also in past President of
Supreme Court Advocates-on-Record Association,
pointed out to this Court the difficulties being faced by
regular members of the SCBA because of enlistment of
large number non-regular advocates as members of
SCBA, who according to them, now constitute a majority
as a result of which the SCBA has not been able to take
any decision which would be in the interest of the Bar.
The learned Counsel have stated in their written
submissions filed, to supplement their oral arguments,
that there are more than ten thousand members of
SCBA out of which only two thousand advocates are
regular members who actually practice in this Court
and eight thousand non-regular members have taken
over the affairs of the SCBA in such a manner that it is
almost impossible for the regular members to transact
any business in the general or special meetings of
SCBA. The learned Counsel emphasized that yearly
subscription for members of SCBA for many decades
remained fixed at a paltry amount of Rs. 500/- and
68
every time when a proposal was made to increase the
subscription the same was rejected by the General Body
dominated by these non-regular members and that only
recently with great difficulty the subscription has been
revised to Rs. 1500/- by secret ballot held within high
security area of Supreme Court namely Library 1, but
now there is a demand to reduce it again to Rs. 500/-.
The learned Counsel pointed out that if the subscription
for members of SCBA is again revised and reduced to
Rs.500/-, it will be a boon not only for such non-regular
members but also a boon for the candidates contesting
elections who will have to shell out less, for enrolling
those advocates who are not practicing regularly in this
Court, to secure their votes and get elected. It was
emphasized that the enhanced subscription is in the
interest of association as it would not only improve
financial position of SCBA but also help to keep at bay
those members who are not regularly practicing in this
Court. The learned Counsel argued that this Court
provides to the members of SCBA, who are regularly
practicing in this Court, several facilities/benefits such
69
as bar rooms, libraries, canteens, parking place, clinics,
rest rooms etc., and as SCBA is intrinsically and
inextricably connected with the working of the Supreme
Court, this Court should give appropriate directions for
effective implementation of "One Bar One Vote" concept
introduced by the amended rule in exercise of its powers
under Articles 136, 142 and 145(1) (a) of the
Constitution to relieve the SCBA of the number of
maladies which have now come to be associated with it
and to improve the working of the institution as a
whole. What was stressed by all the learned Counsel
was that it is not in the interest of SCBA that advocates
who do not practice in this Court regularly, vote for or
get elected to the Executive Committee of SCBA, but in
past, several members who were themselves not
regularly practicing in the Supreme Court had contested
elections for different posts of Executive Committee of
SCBA though they were already members of the
Executive Committees of other Court annexed Bar
Associations and had come out successful on the
strength of votes of such non-regular members who are
70
to be seen in the Court compound only on the date of
elections. The learned Counsel mentioned that persons
so elected do not participate in the functioning of SCBA
since they are not affected by the working or non-
working of the SCBA which has affected the functioning
of SCBA as a facilitator in the administration of justice
and therefore in order to maintain purity and dignity of
the profession this Court has not only power but duty to
give directions under Article 136 and Article 142
particularly when request is made by the learned
amicus curie, SCBA represented by its Honorary
Secretary, President of Supreme Court Advocates-on-
Record Association and other high-ranking lawyers like
Shri K.K.Venugopal, Shri P.P.Rao etc., who are regularly
practicing only in this Court. Mr. D.K.Garg, the learned
Counsel who represents respondent Mr. B.D.Kaushik in
C.A. No. 3401 of 2003, frankly pointed out to this Court
as an officer of the Court that in spite of other effective
alternative remedies available to the appellant SCBA
against the interim order dated April 5,2003 passed by
the learned Civil Judge, Delhi, this Court had not only
71
entertained Special Leave Petition filed by SCBA, but
also granted stay because this Court wanted to regulate,
reform and improve the functioning of SCBA and to
prevent the misuse of various facilities provided by this
Court to the regular members of SCBA so that the
members of the SCBA render best assistance to this
Court in dispensation of justice. It was also submitted
that SLP was entertained and operation of the impugned
interim order was stayed by this Court to prevent the
interference of the outside members in day-to-day
functioning of SCBA and therefore this Court should
give directions/frame guidelines to regulate, reform and
improve the functioning of SCBA. The learned Counsel
pointed out that it is no secret that yearly membership
subscription fee of almost all these non-regular
members is paid by candidates contesting election for
the various posts of the Executive Committee of SCBA
and the records of SCBA show that hundreds of bank
drafts were issued by the same branch of the same bank
in favour of SCBA for the same amount towards
subscription of SCBA for such non-regular members
72
and that some interested persons who seek votes of
these non-regular members in the elections had paid
the subscription. This last argument of Mr. D.K.Garg
was endorsed by one and all learned advocates who are
appearing in the matter. Thus, the learned advocates
have urged this Court to give guidelines/directions for
effective implementation of amended rule which projects
the principle of "One Bar One Vote".
37. This Court has considered the request made by
the learned Counsel appearing in the matter to
give appropriate directions/guidelines for
effective implementation of "One Bar One Vote"
principle enunciated by the amended rule. It is
a matter of common knowledge that this Court
has provided four huge libraries, three canteens,
two lounges, several rooms to be used as
consultation rooms where learned advocates
regularly practicing in this Court can consult
with their clients, arbitration rooms, advocate's
chambers, huge parking places, free use of
electricity supply etc., to the members of the
73
SCBA. It is not in dispute that there are about
ten thousand members of SCBA at present
though the actual number of
advocates/practitioners, who are regularly
practicing in this Court is not more than two
thousand five hundred out of which there are
about nine hundred Advocates-on-Record. It is
an accepted fact that on the eve of annual
elections of the Executive Committee of SCBA,
nearly more than three thousand voters turn up
from all over India to come to the premises of
this Court, who are made to vote by the
advocates seeking elections for various posts.
Further, enlistment of large number of non-
regular members as members of the SCBA have
created problems in allotment of chambers for
this Court and it has been found that large
number of non-regular members of SCBA eats
up the quota of regular members who genuinely
need the chambers. It was pointed by Shri
Sushil Kumar Jain, the learned President of
74
Supreme Court Advocates-on-Record
Association that many of the non-regular
members who are allotted chambers are not
even residing in or around Delhi. The Supreme
Court Advocates-on-Record are advocates
primarily practicing in the Supreme Court and
are directly affected by the functioning of SCBA
primary object of which is to look after the
interest of advocates actually practicing in the
Supreme Court. There is no manner of doubt
that Advocates-on-Record form an important
constituent of the SCBA. All members of the
Supreme Court Advocates-on-Record
Association are also members of the SCBA and
because of malpractices committed by the
candidates who contest the elections a large
number of advocates who are not regular
practitioners in the Supreme Court have become
members of SCBA and claim a right, not only to
vote and elect the office bearers of the
Association but also seek to be elected as office
75
bearers themselves on the strength and support
of such non-regular members. Because such
non-regular members have become members of
SCBA, they claim facilities which are being
extended to members of SCBA, who are
regularly practicing in this Court. Because of
such claims, clashes, had taken place in the
past. It has been pointed out by Mr. Sushil
Kumar Jain, learned President of Supreme
Court Advocates-on-Record Association that by
merely becoming members of the SCBA some
advocates deem themselves to be advocates of
the Supreme Court and fleece litigants on that
basis. According to Shri Sushil Kumar Jain
such advocates call themselves as Supreme
Court Advocates and write/mention such a
status on their letter heads, visiting cards, name
plates, etc. misleading the litigants. As rightly
pointed out by the learned counsel Mr. P.P. Rao,
enrolment of advocates not practicing regularly
in the Supreme Court is inconsistent with the
76
main aim and object of the SCBA, no court can
provide chambers or other facilities for such
outside advocates, who are not regular
practitioners. Neither the SCBA nor the court
can deal with them effectively if they commit any
wrong. The power of this Court to make certain
rules, regulations and give directions to fill up
the vacuum till such time appropriate steps in
order to cover the gap are taken, is recognized
and upheld in several reported decisions of this
Court. In Vineet Narain Vs. Union of India
(1998) 1 SCC 226 this Court has observed as
under in Paragraph 51 of the reported decision:-
"In exercise of the powers of this Court
under Article 32 read with Article 142,
guidelines and directions have been issued
in a large number of cases and a brief
reference to a few of them is sufficient. In
Erach Sam Kanga Etc. Vs, Union of India,
(Writ Petition No. 2632 of 1978 decided on
20th March, 1979) the Constitution Bench
laid down certain guidelines relating to
Emigration Act. In Lakshmi Kant Pandey
Vs. Union of India (1984) 2 SCC 244, (in re:
Foreign Adoption), guidelines for adoption of
minor children by foreigners were laid down.
Similarly in State of West Bengal and Ors.
Etc. Vs. Sampat Lal and Ors. Etc., (1985) 1
77
SCC 317, K. Veeraswami Vs. Union of India
and Others, (1991) 3 SCC 655, Union
Carbide Corporation and Others Vs. Union of
India and others, (1991) 4 SCC 584, Delhi
Judicial Service Association Etc. Vs. State of
Gujarat and others Etc. (Nadiad Case),
(1991) 4 SCC 406, Delhi Development
Authority Vs. Skipper Construction Co. (P)
Ltd. and Another, (1996) 4 SCC 622 and
Dinesh Trivedi, M.P. and Others Vs. Union of
India and others [1997] 4 SCC 306,
guidelines were laid down having the effect
of law, requiring rigid compliance. In
Supreme Court Advocates-on-Record
Association and Others Vs. Union of India
(IInd Judges case), (1993) 4 SCC 441, a
Nine-Judge Bench laid down guidelines and
norms for the appointment and transfer of
Judges which are being rigidly followed in
the matter of appointments of High Court
and Supreme Court Judges and transfer of
High Court Judges. More recently in
Vishakha and Others Vs. State of Rajasthan
and others, (1997) 6 SCC 241, elaborate
guidelines have been laid down for
observance in work places relating to sexual
harassment of working women."
Moreover, this Court, has framed Supreme Court Rules,
1966 in exercise of powers under Article 145(1)(a) of the
Constitution regulating amongst other things advocates
who are entitled to practice in this Court. Further,
necessary directions/guidelines can always be issued
when facilities and privileges are conferred on the
78
members of the SCBA. Thus not only power to give
necessary guidelines/directions is available under
Articles 136, 142, 145(1)(a) of the Constitution but such
power can also be exercised as "Grantor" of the benefits
and privileges which are enjoyed by the members of the
SCBA to restore its dignity. Having regard to the over
all conditions prevailing in SCBA, this Court proposes
to give appropriate directions for implementation of the
amended rule which projects the principle of "One Bar
One Vote".
38. Having given thoughtful consideration to the
suggestions made by the learned counsel
appearing in the matter, this Court is of the
opinion that to identify regular practitioners the
criteria adopted by this Court for allotment of
chambers, as explained in Vinay Balchandra
Joshi Vs. Registrar General of Supreme Court
of India (1998) 7 SCC 461 at pages 465-467
para 7, should be directed to be adopted by SCBA
from time to time. Shri K.K. Venugopal, the
learned senior counsel has annexed a copy of
79
Allotment of Lawyers' Chambers Rules, as
amended up to November 30, 2007, with his
written submissions, wherein detailed procedure
for allotment of chambers and conditions
precedent to be satisfied before a chamber is
allotted, are laid down. Under the circumstances
this Court directs under Article 136 of the
Constitution read with Article 142 of the
Constitution that criteria adopted by this Court
for allotment of chambers, as mentioned in
Allotment of Lawyers' Chambers Rules, and as
explained in Vinay Balchandra Joshi (supra)
shall be adopted by the SCBA and its office
bearers to identify regular practitioners in this
Court. To identify regular practitioners in this
Court, it would be open to the office bearers of
SCBA or a small committee, which may be
appointed by the SCBA consisting of three senior
advocates, to collect information about those
members who had contested election in any of
the Court annexed Bar Association, viz., High
80
Court Bar Association, District Court Bar
Association, Taluka Bar Association, Tribunal
Bar Association and Quasi-judicial Bar
Associations like BIFR, AIFR, CAT, etc. from 2005
to 2010. If such an information is sought by the
office bearers of SCBA or the Committee
appointed by it, the same shall be supplied
invariably and without fail by the Court annexed
Bar Associations mentioned earlier. The
committee of SCBA to be appointed is hereby
directed to prepare a list of regular members
practicing in this Court and another separate list
of members not regularly practicing in this Court
and third list of temporary members of the SCBA.
These lists are directed to be put up on the SCBA
website and also on the SCBA notice board. A
letter is directed to be sent by the SCBA to each
member of SCBA informing him about his status
of membership on or before February 28, 2012.
The aggrieved member would be entitled to make
a representation within 15 days from the date of
81
receipt of letter from the S.C.B.A. to the
Committee, which is to be appointed by the SCBA
to identify regular practitioners stating in writing,
whether personal hearing before the Committee is
required or not. If such a request is made the
concerned member shall be heard by the
Committee. The representation/s shall be
considered and the decision would be rendered
thereon by the aforesaid Committee on or before
April 30, 2012. The decision of that Committee
shall be communicated to the member concerned
but the decision shall be final, conclusive and
binding on the member of the SCBA. Thereafter,
final list of regular practitioners of this Court
shall be displayed by S.C.B.A.
After preparation of the final list of the regular
practitioners, each member shall give a written
intimation to the S.C.B.A. whether he is a member of
another Court annexed Bar. It shall be mandatory for a
member, whose name is included in the said list, to give
a permanent declaration that he would vote only in the
82
SCBA and would not vote in any of the elections of any
High Court Bar Association or District Bar Association
or Taluka Bar Association or Tribunal Bar Association
or Quasi-judicial Bar Associations like BIFR, AIFR, CAT,
etc. A copy of this declaration shall be put
up/displayed on the website of the SCBA as well as on
the notice board of the SCBA. The information about
having filed such a declaration shall be sent to all the
Bar Associations where the said advocate is a member.
Once such a declaration has been given, it will be valid
till it is revoked and once it is revoked a member shall
forfeit his right to vote or contest any election to any
post to be conducted by the SCBA, for a period of three
years from the date of revocation.
39. The members of the SCBA, whose names do not
figure in the final list of regular practitioners,
shall not be entitled to either vote at an election
of the office bearers of the SCBA or to contest any
of the posts for which elections would be held by
the S.C.B.A.
83
40. This Court suggests that to ensure strict
compliance with the directions issued by this
judgment, an Implementation Committee
consisting of three learned senior advocates may
be constituted. The SCBA has suggested that
Mr. K.K. Venugopal, learned senior advocate, Mr.
P.P. Rao, learned senior advocate and Mr. Ranjit
Kumar, learned senior advocate, practicing in
this Court be appointed as members of the said
Implementation Committee. This Court
recommends that the names of three learned
senior counsel mentioned above be considered by
the SCBA for being appointed as members of the
said Committee subject to their consent and
convenience.
41. In view of the findings that the amendment made
in Rule 18 is legal and valid and that no right of
the advocates, who have filed the suits, is
infringed or is violated, this Court directs the trial
court to take up the two suits immediately for
hearing and to dismiss/ dispose of the two suits
84
pending on its file in the light of the observations
made by this Court in this judgment.
42. Subject to above mentioned directions, the two
appeals stand disposed of.
....................................J.
(J.M. PANCHAL)
.....................................J.
(H.L. GOKHALE)
New Delhi;
September 26, 2011.
