'Extraordinary Situation Warrants Extraordinary Measures': Karnataka HC Relaxes Advocates' Association Bye Laws For Conducting Elections Expeditiously
The Karnataka High Court has relaxed the rigor of certain Bye Laws of the Advocates Association of Bengaluru, for ensuring the elections to the Association are completed expeditiously and latest by December 22, as earlier ordered by the Court.
Justice Krishna S Dixit said,
"the rigor of the Bye Laws needs to be relaxed for the very same reason so that the elections can be conducted within the period prescribed by this Court and affirmed by the Division Bench; an extraordinary situation warrants an extraordinary measure, as of necessity; therefore, relaxation sought for by the HPC to the relevant provisions of the Bye Laws needs to be and is accorded."
The Bench was hearing an application moved by a seven member high power committee (HPC) formed by the court to conduct the elections. It had moved the court pointing that Bye Law Nos.33(d) to 33(f) of the Memorandum & Bye Laws of the Association prescribe certain time lines for the preparation of Electoral Rolls, which if adhered to would render the holding of election within the prescribed period almost impossible.
Noting that the Committee was "more than justified" in moving the subject application, the Court ordered thus:
"consistent with the intended accomplishment of the election within the fixed period, the subject Bye Laws would yield to a purposive construction and consequently, the prescription of timelines of actions thereunder shall be treated as directory and as admitting variation in the discretion of the HPC in the special circumstances."
The Court noted that such relaxation in Bye Laws was also granted with respect to elected representatives of the Association. Ordinarily, elected representatives cannot continue in the office beyond their prescribed tenure, January 2021 in this case. However, the regular elections could not be conducted because of COVID-19 Pandemic and the associated restrictions.
Thus, the incumbent Managing Committee continued in the office by way of "ad hoc arrangement" given the "extraordinary situation". It noted,
"This is not permitted in the Bye Laws that operate in normal situations, is true. The rigor of the Bye Laws needs to be relaxed for the very same reason so that the elections can be conducted within the period prescribed by this Court and affirmed by the Division Bench."
As regards apprehension raised as to voting rights of certain members who happen to be members of other similar Bar Associations, the court said,
"The Bye Laws of the Association provide for the membership subject to certain conditions prescribed therein being complied with; arguably dual membership, i.e., an advocate being a member in more than one Bar Association is not absolutely barred, although it is restricted and regulated."
Further, it said, "The right to vote being a corollary of the membership, cannot be taken away except on the grounds mentioned in Bye Law 35, subject to all just exceptions; in other words such a valuable right cannot be denied only on the ground that an advocate has secured membership to some other Bar Association as well; there is no much scope for an argument to the contrary."
The court however opined,
"The above having been said, it needs to be mentioned that this Court too shares the view that it is high time to restrict the voting rights only to the practitioners of law in Bengaluru Courts or to the advocates ordinarily residing within the jurisdictional limits of Bruhat Bengaluru Maha Palike & Bengaluru Development Authority. However, this is a policy matter which now cannot be debated before the Court in a case of the kind, more particularly because of the embargo enacted in Bye Law 10(8); this provision arguably interdicts amendment inter-alia to the provisions of membership and allied matters after the cut off period."
Background:
The court had constituted the HPC while hearing a petition filed by the Association challenging an order dated 04.09.2021, whereby the Deputy Commissioner, Bengaluru Urban District has been appointed as & to be its Administrator. Since the tenure of the Management Committee, having expired and the election having not been conducted; as per section 27A of the Karnataka Societies Registration Act, 1960.
Case Title: The Advocates Association Bengaluru v. The State Of Karnataka
Case No: WP 16350/2021