Bar Council Elections | 'BCI's Women Co-Option Formula Seems Fair', Says Supreme Court; Directs To Finalise Proposal

The Supreme Court on Tuesday indicated that the Bar Council of India's (BCI) proposal to fill the 10% co-option component for women lawyers in State Bar Councils by inducting the highest-polling unsuccessful women candidates appeared to be a "fair suggestion", while directing the BCI to evolve a final mechanism after consulting stakeholders.

A Bench comprising Chief Justice of India Surya Kant and Justice V Mohana was hearing matters relating to the implementation of its earlier directions aimed at ensuring 30% effective representation for women lawyers in State Bar Councils.

The bench was informed that elections in most State Bar Councils had already been completed and results declared, with the only unresolved issue being the manner in which the 10% co-option seats for women would be filled.

Responding to the submission, the CJI observed that the BCI had come forward with a reasonable proposal.

"BCI has come with a fair suggestion that the unsuccessful candidates who secured the maximum votes can be," the CJI remarked.

When one counsel pointed out that the Court had earlier cautioned that the 10% co-option mechanism should not become a quota for unsuccessful candidates, the CJI clarified the intent behind the Court's directions.

"Our purpose was to introduce 30% representation, not reservation, for women lawyers," he said.

The Court ultimately authorised Advocate Radhika Gautam for BCI to formulate a uniform mechanism for co-option after consulting newly elected State Bar Council members and other stakeholders.

State-Specific Concerns Raised

During Tuesday's hearing, Senior Advocate Meenakshi Arora flagged concerns regarding smaller States and Union Territories.

Referring to Goa, she submitted that despite having a Bar of around 4,000 members, the State often does not secure representation in the Bar Council of Maharashtra and Goa. Similar issues, she said, arise in Daman and Diu and in several North-Eastern States.

"Goa has a small bar of just about 4000 members. They never get any representation on the BCMG. Similarly Daman and Diu never has representation. Maharashtra is not alone in this situation," Arora submitted.

The CJI acknowledged the concern, observing that these were "genuine issues". When Arora requested that State-specific factors be considered while framing the co-option mechanism, the Bench indicated that the BCI could consult State Bar Councils on such unique concerns.

In its order, the Court observed :

"Keeping in view various suggestions given by counsel representing different individuals or State Bar Councils, we authorise the Bar Council of India to evolve a uniform, transparent and fair criteria for the purpose of 10% co-option, which may even vary keeping the peculiar facts and circumstances of a State Bar Council, and submit such proposal before this Court."

However the BCI shall consult the newly elected members of the state bar councils and others stake holders for the purpose of evolving such transparent mechanism. The entire exercise shall be completed by 14th July. Post this matter on 15th July"

BCI's Co-Option Formula

The issue traces its origin to the Supreme Court's directions mandating 30% representation for women lawyers in State Bar Councils and the Bar Council of India.

Under the framework evolved by the Court, 20% of seats are to be secured through direct election, while an additional 10% representation is to be achieved through co-option. The question that remained unresolved was the methodology for identifying women lawyers to be inducted under the co-option category.

To address this, the BCI proposed that co-option should be based on electoral performance, with seats being offered to women candidates who contested the elections but narrowly missed getting elected, while securing the highest votes among unsuccessful candidates.

The proposal was placed before the Court following consultations before the High-Powered Election Supervisory Committee headed by former Supreme Court judge Justice Sudhanshu Dhulia.

The BCI had argued that such a formula would preserve the democratic character of the process, avoid subjective nominations and ensure that co-opted members enjoy demonstrable support from the electorate.

Case : M Vardhan v. Union of India | WP(c) 1319 OF 2023