The Madras High Court has barred elected candidates in Bar Associations and Advocates’ Associations in Tamil Nadu from contesting elections to the elected posts a second time continuously, clarifying that such candidates are allowed to contest in elections in alternate intervals (V Madhesh v. The Secretary, Bar Council of Tamil Nadu and Puducherry). Among various directives, the High Court has also directed the Bar Council of Tamil Nadu and Puducherry to ensure that elected office bearers of Bar/ Advocate Associations do not print photographs on calendars or their names along with their position in vakalaths, after taking note of certain concerns raised over the same. The order was passed by a Bench of Justices N Kirubakaran and R Pongiappan in a case concerning the Salem Bar elections, which are now slated to be conducted by April 26

[2/9, 17:58] Meera Bar Bench: https://www.barandbench.com/news/litigation/madras-high-court-bars-elected-candidates-in-bar-associations-from-contesting-consecutively
[2/9, 18:17] Sekarreporter1: barandbench

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Madras High Court bars elected candidates in Bar associations from contesting consecutively, issues directives against monopoly in elections
By
Meera Emmanuel
9th Feb, 2021 at 5:49 PM
The Madras High Court has barred elected candidates in Bar Associations and Advocates’ Associations in Tamil Nadu from contesting elections to the elected posts a second time continuously, clarifying that such candidates are allowed to contest in elections in alternate intervals (V Madhesh v. The Secretary, Bar Council of Tamil Nadu and Puducherry).

Among various directives, the High Court has also directed the Bar Council of Tamil Nadu and Puducherry to ensure that elected office bearers of Bar/ Advocate Associations do not print photographs on calendars or their names along with their position in vakalaths, after taking note of certain concerns raised over the same.

The order was passed by a Bench of Justices N Kirubakaran and R Pongiappan in a case concerning the Salem Bar elections, which are now slated to be conducted by April 26.

“It is hereby declared that all the Bar/Advocate associations in the State shall have rule that the elected office bearers cannot contest next election continuously and they can contest in the alternate elections. To put it in other words, there shall be a prohibition for the elected office bearers of the Bar/Advocate Associations in the State to contest in the following/next election and they can contest in the alternate elections only,” the order said.
On the prevailing Bar Association election malpractices
The Court lamented extensively about election malpractices and the “sorry state of affairs” when it comes to Bar/Advocates’ Association elections.

“Elections to Advocates Associations or Bar Council are no different from general election to legislature in which invariably, to woo the electorate, Communal, religious, political cards etc., are played; Money power is exhibited; Liquor is generously offered. Due to unavoidable above corrupt practices, election process in our country has become a mockery… Sadly, our bar leaders are not properly elected by following democratic process, without any malpractices. Present members of the so called ‘Noble Profession’ are readily selling their votes for ‘Money, Liquor, Foreign Tours, etc.’. This is the practise in almost every election for Association or Bar Council,” the Court said.
In this regard, the Court also referred to the concerns voiced by the Advocate General of Tamil Nadu with respect to Bar Council elections in 2018.

A further reference was made to the Supreme Court’s ruling in Supreme Court Bar Association and others v. BD Kaushik wherein the top court had taken note of submissions made by Senior Advocate KK Venugopal (now the Attorney General) on how elected Supreme Court Bar Association members become very familiar with the government and the political class.

The High Court observed that these aspects are equally applicable to Bar Associations across the country, adding that contesting advocates, therefore, spent “lakhs and crores” to get elected. The elected positions are also used to attract briefs, do “Katta Panchayats”, threaten judicial officers, and indulge in illegal activities such as land grabbing, the Court added.

“It is also stated that many litigants engage the elected bar leaders rather than advocates with knowledge of law as they think that they are capable of securing orders, though it is a sorry state of affairs, it has become a reality,” the Court said.

On why the Court is issuing directives in internal matters of Bar Associations
The Court went on to acknowledge that a rule concerning the internal affairs of the Bar Association is ordinarily introduced by amendment to its by-laws following a resolution by the General Body with a two-thirds majority.

All the same, the Court opined that it has the powers to issue directives in the matter given prevailing malpractices, how the functioning of office bearers may affect the court’s functioning, and the supervisory and regulatory powers conferred on the High Court.

“It is true that the formation of association is an internal matter and Courts may not have any power to meddle with the same, but the experience of this Court in the past would reveal that the administration of justice is affected because of election of non-practising advocates, advocates with tainted background and inexperienced lawyers, who, invariably, call for boycotts affecting justice delivery system and eroding the faith of general public in Courts … Besides, nowadays, numerous Bar Associations are formed on communal and political basis. These are all the realities in the Lower Courts and this Court cannot lose sight of the same. Hence, necessarily, this Court has to give directions even regarding the functioning of Bar Associations,” the Court said.
The Court also noted that as a healthy practice, the two big Bar Associations associated with the principal Bench of the Madras High Court i.e. Madras Bar Association and the Madras High Court Advocates’ Association follow the practice of elected members not contesting a second time, making it a voluntary prohibition.

“When the two big Bar Associations attached to the principal Bench of this Court follow the aforesaid healthy norm, there may not be any reason for not following the said norm in the Lower Courts also,” the Court said.

The Salem Bar Association case before the Court
The conduct of the Salem Bar Association elections was mired with allegations that some were conniving to ensure that the same lawyers were elected continuously “by hook or crook”, including through payment of subscription in bulk, the inclusion of outside members in voters’ lists etc.

Among other submissions, it was contended that the former President used to print calendars with his name and photograph as the “President of the Salem Bar Association” even before the elections were conducted and as if he had already been elected.

In its January 20 order, the High Court has now issued the following directives;

General directions applicable to all Bar Associations or Advocate Associations
Elected candidates of Bar Associations/Advocates Associations shall not be allowed to contest for the second time continuously. However, There is no prohibition to contest in the alternate election, which shall be the norm for all elections to advocates/Bar associations in the State.

The Bar Council of Tamil Nadu and Puducherry is directed to direct the Advocates/Bar Associations of the State that elected candidate shall not be allowed to contest for the second time continuously and there is no prohibition to contest in the alternate election.

A June 3, 2019 order passed by the Special Committee of the Bar Council of Tamil Nadu and Puducherry in M Arumugam and others Vs. President/Secretary, GT Bar Association and another had permitted candidates to contest in two elections continuously, provided that they do not contest thereafter for three terms. This ruling has been modified by the High Court to permit the elected office bearers of Bar/Advocate Associations to contest election in alternate elections. Such candidates are only barred from contesting continuously a second time.

The Bar Council of Tamil Nadu and Puducherry shall direct the Advocates/Bar Associations not to print the photographs of the elected office bearers on calenders as well as their names along with their position in the associations in the vakkalaths.

One bar one vote shall be the norm as per the Rules of Practice and as per Judgment of the Supreme Court, in the case of Supreme Court Bar Association v. BD Kaushik.

Directions applicable for the upcoming Salem Bar Association elections
The constitution of a three-member Election Committee by the State Bar Council to oversee the Salem Bar Elections after a complaint was made on election malpractices, has been set aside. The constitution of this committee was challenged by a lawyer on the ground that the members had endorsed the nomination of certain advocates for the elections. As such, the High Court agreed with the petitioner that the Committee’s members cannot be expected to act neutrally, even if they may be neutral persons.

The voters list as prepared by the Election Officer initially should be updated as on December 31, 2020. The updated voterlist shall be the voter list for the ensuing elections.

Retired District Judge, Venugopal is appointed as an Election Officer along with Manivasagam and they may be assisted by one or two advocates as per the discretion of the Election Officers.

The election shall be conducted and concluded on or before April 26, 2021.

The election officers shall file a compliance report by April 29, 2021, when the matter will be heard next by the High Court.

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