The Supreme Court on Tuesday directed that the two women members to be co-opted to State Bar Councils shall be nominated from among former women High Court judges or senior women members with a fair standing at the Bar, holding that such a mechanism would bring "objectivity, independence and transparency" to the functioning of the councils.

The Court allowed the Chief Justice of the concerned High Courts to nominate the two co-opted members.

A Bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V Mohana was hearing a batch of matters concerning various issues arising out of State Bar Council elections, including implementation of women's representation, the method of co-option and the system of transferable votes. The Court had earlier mandated 30% women's reservation in Bar Councils, while clarifying that 10% members could be co-opted. However, there remained confusion regarding how to implement the co-option, and the Court had directed the BCI to finalise a proposal on it after taking the views of all stakeholders.

The Court framed two principal questions for consideration: first, the appropriate "zone of consideration" for co-option of women members to the State Bar Councils, and second, the correct methodology for counting transferable votes in Bar Council elections.

On the issue of co-option, the Bench noted that extensive discussions had taken place in open court with members of the Bar representing different State Bar Councils and recorded that there was broad consensus on authorising the Chief Justice of the jurisdictional High Court to nominate the co-opted women members.

"There is a broad consensus that the Chief Justice of the jurisdictional High Courts may be authorised to nominate a former woman Judge of the High Court or a senior practising woman advocate of the Bar as co-opted women members of the State Bar Council," the Court recorded in its order.

Accepting the suggestion, the Bench directed:

"In our considered opinion, it will infuse objectivity, independence and transparency in the working of the State Bar Council. We accordingly direct that two women candidates to be co-opted in the State Bar Councils shall be nominated from among former women Judges of the jurisdictional High Court or senior woman members having a fair standing at the Bar."

The Court also clarified that an unsuccessful candidate in the State Bar Council elections would not be disqualified from being considered for co-option.

On increase of Bar Council seats

During the hearing, Senior Advocate Gopal Sankaranarayanan, for some of the petitioners, flagged the recent Bar Council of India resolution to increase the State Bar Council Seats. The Election Supervisory Committee later stayed the BCI resolution. Sankaranarayanan submitted that the BCI cannot alter the statutory limit of seats, and contended that it was being done to rope in persons who got excluded due to the implementation of women's reservation.

"The BCI is the highest regulatory body in the country for lawyers. It surprises me that it can pass a resolution in the teeth of parliamentary law which fixes 25 as a limit," he submitted.

Senior Advocate S Kannan, however, submitted that women's reservation can be only above the statutory cap of seats as the Advocates Act contemplates a single transferable vote. "Nobody is opposing giving representation to the women members. But, it doesn't mean that the statutory mechanism under section 3(2) should be dispensed with. One has got over 2000 votes and a lady has got 46. Give her preference but don't count her second transferable vote. How can that happen? am not objecting to 30% reservation. Whether it can be beyond 25 members or within 25 members is a point which comes for consideration," he submitted.

During the hearing, CJI Surya Kant observed that the Court had never contemplated increasing the statutory strength of State Bar Councils while directing 30% representation for women.

"When we talked about representation, we never contemplated that the strength of the State Bar Councils will be increased. We had the number of 25 in our mind. Thirty per cent was eight. If tomorrow the strength of the State Bar Council is increased, the women will be entitled to have a share in the increase," the CJI observed. It may be noted that during an earlier hearing as well, the Chief Justice had expressed similar views, saying that if the seats are increased, women's reservation also requires to be proportionately increased.

CJI Surya Kant noted that divergent views had emerged on the issue and asked members of the Bar to place their suggestions before the High-Powered Committee headed by Justice Sudhanshu Dhulia.

"The controversy is also regarding transferable vote methodology. Submit your opinion or suggestion on a piece of paper to Justice Dhulia's committee. He has said that if there are 20 opinions, let all of them be in writing. So let this issue be resolved there," the CJI observed during the hearing.

The bench also interacted with Senior Advocate V Giri, a member of the Supervisory Committee, who also objected to the BCI move to increase the seats, saying that it was a violation of the settled rule that the "rules of the game cannot be changed after the game has begun."

Senior Advocates Shobha Gupta, Vibha Datta Makhija, etc also appeared for other petitioners.

Advocate Radhika Gautam, for the BCI, submitted that the Council has also submitted a report.

In its order, the Court said the varying opinions on transferable votes required detailed consideration by the Justice Dhulia Committee. It permitted members of the Bar to submit written suggestions and directed that the committee may also afford an opportunity of oral hearing before taking a final decision.

Case no. – W.P.(C) No. 1319/2023 Diary No. 45388 / 2023

Case Title – M. Varadhan v. Union of India