10 Dec 2018 12:12 PM GMT
In a significant decision that will have an impact on elections for bar associations to be held across the State of Maharashtra, the Bombay High Court has directed the Thane District Courts Bar Association (TDCBA) to reschedule the elections that were scheduled to be held on December 10 and hold them in accordance with the principle of ‘One Bar One Vote.’A division bench of Justice...
In a significant decision that will have an impact on elections for bar associations to be held across the State of Maharashtra, the Bombay High Court has directed the Thane District Courts Bar Association (TDCBA) to reschedule the elections that were scheduled to be held on December 10 and hold them in accordance with the principle of ‘One Bar One Vote.’
A division bench of Justice BP Dharmadhikari and Justice SV Kotwal was hearing a petition filed by four advocates practicing in Thane District and Sessions Court.
The petitioners contended that certain advocates practice in Thane and they also have memberships of other bar associations. Such advocates are used by contesting candidates to create vote bank, hence the petitioners argued that the principle of ‘One Bar One Vote’ should be made applicable.
According to the petitioners, on August 14, 2018, some 151 members of the TDCBA had written a letter to a seven-member committee communicating approval for the purpose of introducing the principle of 'One Bar, One Vote'. The Special General Body Meeting was convened on September 11 for implementing these changes in the Constitution. A few more changes were proposed through the amendment and it was decided that such suggestions should be forwarded to the constitutional committee for its consideration.
Thereafter, on November 13, 2018, the meeting was conducted and according to the petitioners, during the said meeting, members who were 'outside members', tried to take charge of the meeting forcefully. The proposed amendment for 'One Bar, One Vote' was not passed and no decision was taken on that issue.
Also, chaos ensued when one of the election officers issued a notification on November 27 declaring that elections shall be held as per the principle of ‘One Bar One Vote’ and the said notification was annulled by another notification issued by the second election officer. Another notification was issued stating that the first notification continued to bind the elections, a fourth notification was issued in retaliation asking members to ignore the earlier notification.
Once the said petition was filed, advocates who are life members of the TDCBA, as well as Navi Mumbai and Bhiwandi Bar Associations, filed intervention applications.
Submissions and Judgment
Senior Advocate PS Dani appeared on behalf of the petitioners and in support of the principle of ‘One Bar, One Vote’ relied on judgment of the Supreme Court in Supreme Court Bar Association and Ors. Vs. BD Kaushik and Ors, the Delhi High Court’s decision in PK Dash and Ors. vs. Bar Council of Delhi and Ors and the decision of the High Court of Madhya Pradesh (Indore Bench) in the case of Amol Shrivastava and Ors. Vs. Bar Council of India and Ors. He submitted that the said principle was binding on the TDCBA and pother bar associations also.
Whereas, advocate for the intervenors SM Oak submitted that the principle of ‘One Bar One Vote’ was a sound principle but the Supreme Court had not made it binding on other bar associations, therefore the rules of TDCBA must be amended accordingly and only then such principle should be made applicable.
After examining the facts at hand and Supreme Court’s judgment on the issue, the court said-
“We have noted down the events which have occurred in the election process and in particular, the chaotic situation which is prevailing at present. Therefore, in our opinion, this is a rare case which calls for our interference though the election process has begun. In view of discussion in the body of this Judgment and chaotic situation noted supra, we find that polling on 10/12/2018 as scheduled, is not possible. Elections need to be conducted in cordial atmosphere and in adherence to the principle of 'One Bar, One Vote'. Hence, it is in the interest of Bar Association that the elections are rescheduled at an earliest possible opportunity.”
The court further noted-
“The Hon'ble Supreme Court has observed that embodiment of such principle in the rules does not affect any fundamental rights of the Advocates who are members of more than one Bar Associations. Though, the said Judgment was delivered in the case of Supreme Court Bar Association, the observations of the Hon'ble Supreme Court are in the nature of obiter and have a binding force.”
The court directed the members intending to vote in the TDCBA elections to sign a declaration with a validity of two years stating that they are casting their vote in only one election. The election programme was set aside and the TDCBA was ordered to announce the new programme after complying with the said directions.