F.I. Rebello, J.
1. Heard forthwith.
For the purpose of deciding the controversy the facts in Writ Petition No. 903 of 2004 are being set out.
2. The petitioner is a practicing Advocate. By the present petition, the petitioner has prayed that all the Advocates on the roll of the Bar Council of Maharashtra and Goa - respondent No. 1, be allowed to cast their votes and contest the elections without being disqualified for non-payment of the amounts as per Rule 40 of Chapter II of Part-VI, Standards of Professional Conduct and Etiquette of the Bar Council of India Rules. The other relief was a direction to the Members of the Bar Council at the time the petition was filed, to restrain them from distributing Law Books to the Bar Associations from the Bar Council Funds as elections had been declared. During the pendency of the petition the elections were held and a new Committee has been elected. Pursuant to the results declared on 4th March 2004, the respondent Nos. 6 to 29 and the petitioner were declared as elected. By an amendment they were added as party respondents. Consequently the added prayer clause, is to set aside the elections to the Bar Council of Maharashtra and Goa declared on 4th March 2004 and to direct holding of fresh elections by providing booths at all the Courts in Mumbai and allowing all the Advocates on the roll of the Bar Council, to vote in the fresh elections. By yet another amendment, a relief is sought that Sub-rules (h) and (i) incorporated in Rule 6 of 'The Bar Council of Maharashtra and Goa Election Rules, 1968' (hereinafter referred to as 'the Election Rules') be ordered to be struck down, being illegal and to delete the words 'and such preferences shall not less than to 10 candidates' appearing under the head 'Method of Voting' in Sub-rule (1) of Rule 31. The correct Rule is Rule 32(g) and the correct language of the rule is 'preferences to less than 10 candidates are indicated.'
3. The petitioner had earlier been elected as a Member of the Bar Council and continued to hold the post until the Managing Committee of the Bar Council was dissolved by order dated 5th September 2003 by the Supreme Court of India. Pursuant to the elections, the petitioner has also been declared elected and is presently a member of the committee. The elections to 25 posts of Managing Committee are held every five years. The petitioner has alleged mal-practices which were noticed in the past. Details of various orders passed including the orders of the Hon'ble Supreme Court in the Special Leave Petition are set out in the petition. The petition was filed after the preliminary electoral roll was prepared and published on 3rd November 2003. The petitioner refers to Rule 40 of the Rules framed by the Bar Council of India, by which those who have not made contribution to the Advocates' Welfare Fund (Medical Aid Scheme) are not allowed to cast their votes.
As a consequence, it is pointed out, that out of 75,000 Advocates on the rolls of the first respondent, about 30,000 Advocates stood disqualified by virtue of non payment. There are various averments in respect of improper fees which we need not advert to in detail.
4. By an interim order this Court directed the concerned Members of the Bar Council to return the books purchased for distribution to the Bar Council within ten days from the date of order, if the books had not already been distributed. Subsequent to the holding of the elections and election of new Managing Committee, the said order was vacated and respondent No. 1 council was allowed to distribute the books to the various Bar Associations.
5. Rule 32 of the Elections Rules makes it mandatory for every voter to cast a minimum of ten preference votes in order that the ballot paper be treated as valid. It has been averred that under Section 3(2) of the Advocates Act, elections are to be held in accordance with the system of proportional representation by means of a single transferable vote from amongst advocates on the electoral roll of the State Bar Council. The relevant portion of Rule 32 reads as under:
Rule 32.- Voting Papers when invalid....
A voting paper shall be invalid in which:
(a) ...
(b) ...
(c) ...
(d) ...
(e) ...
(f) ...
(g) Preference to less than ten candidates are communicated.
It is the case of the petitioner that this Rule is ultra vires the provisions of Section 3(2)(b) of the Advocates Act, 1961 which hereinafter shall be referred to as the 'Advocates Act'.
6. The other contention which has been raised is to the validity of Rule 6(h) and (i) of the Election Rules which reads as under:
6. The name of an Advocate appearing in the Bar Council Roll shall not be on the Electoral Roll, if on information received or otherwise obtained by the Bar Council that:
(a) ...
(b) ...
(c) ...
(d) ...
(e) ...
(f) ...
(g) ...
(h) if he has not paid the subscription under Rule 40, Chapter II, Part VI of the Rules and obtained receipt from the State Bar Council.
(i) he has incurred any disqualification mentioned in the Act or the Rules made thereunder. Explanation:If an Advocate who has incurred any disqualification as referred to in Rule 6 and does not furnish details about it as required in the notice under Rule 8 of these Rules within the time specified shall be deemed to have committed an act of other misconduct as referred to in Section 35(1) of the Act.
It is submitted on behalf of the petitioner that Rules 6(h) and (i) are Rules pertaining to disqualification and consequently could not have been made by the State Bar Council, but only by the Bar Council of India.
7. The other grievances of the petitioner is that in the Districts and Talukas in the rest of Maharashtra, polling booths are provided irrespective as to whether the voters strength was 50 or 100. In the case of Mumbai, however, the same was not done initially and only one booth was provided at University Convocation Hall, Fort, Mumbai. On a petition being filed by the petitioner herein, a learned Bench of this Court directed that two additional booths, one at Kurla and another at Bandra, be provided but on the condition that the voters should exercise option in advance, to vote at Kurla and Bandra polling booths. As a result, about 400 voters cast their votes at Bandra and 300 voters exercised their option at Kurla. The voting percentage in Mumbai was only 20% whereas the voting percentage outside Mumbai was 85%. The petitioner by means of a chart has sought to demonstrate the number of first preference votes obtained by candidates in Mumbai and candidates outside Mumbai. It is not necessary for us to reproduce the figures. Those figures indicate that in areas outside Mumbai, where the polling booths were provided at the Taluka and District Court levels, more number of candidates have secured, larger number of first preference votes, vis-a-vis the candidates from Mumbai.
8. On behalf of the Bar Council of Maharashtra and Goa various affidavits have been filed, challenging the locus of the petitioner, more so, when the petitioner was very much a party to the Rules, more specifically Rule 40. The electoral roll, it is contended, has already been finalised and the election process had been set in motion and as such this Court, ought not to entertain the petition in the exercise of its extraordinary jurisdiction. Names of advocates were not included in the electoral roll as they had not paid the contribution in terms of Rule 40 of the Bar Council of India Rules, and as contained in Rule 6(h) of the Election Rules framed and gazetted on 2nd August 2001. Before publishing the electoral roll, Notices were issued to the defaulter members asking them to make payment as required by Rule 40 of the Rules of the Bar Council of India. It is on account of the failure of the advocates to pay the fees that the names of such candidates were not included in the electoral roll.
Subsequent to the amendment of the petition an additional affidavit was filed on 6th September 2004. It is submitted that considering Section 15 of the Advocates Act read with Section 6(1)(g) of the said Act, it is the State Bar Council that has to provide for election of its members.
9. On behalf of the Bar Council of India, Mr. S. Radhakrishna, Secretary, has filed an affidavit. It is pointed out that under Sub-rule (h) of Rule 2 in Part-3, Chapter-I of the Rules framed by the Bar Council of India, it is prescribed that unless the subscription amount is paid up to date, those who have not paid their subscriptions, their names shall not be included in the Electoral Roll. Thus, it was within the competence of the State Bar Council, considering Rule 40 of the Rules of Bar Council of India, to exclude defaulters from the electoral roll.
Reference is made to Rule 2(h) of Part-III of Chapter-I of the Rules of Bar Council of India which reads as under:
2. The name of an Advocate appearing in the State Roll shall not be on the electoral roll, if on information received or obtained by the State Bar Council concerned on the basis of which it is satisfied that....
(a) ...
(b) ...
(c) ...
(d) ...
(e) ...
(f) ...
(g) ...
(h) if he has not paid the subscription under Rule 40, Chapter-II, Part-6 of the Rules and obtained receipt from the State Bar Council.
(i) he has incurred any disqualification mentioned in the Act or the Rules made thereunder.
The said Rule has been upheld by the Supreme Court in the case of Bar Council of India v. Omprakash Faiji and Ors. decided on 2nd December 1997.
10. From the averments and the arguments advanced, two issues of law and a subsidiary issue regarding setting up of polling booths remain for consideration. The two issues of law which are required to be considered may be now formulated:
(i) Are Rule 6(h) and (i) of the State Election Rules invalid, inasmuch as they are Rules pertaining to disqualification and as such could only have been made by the Bar Council of India in exercise of the powers conferred on the Bar Council of India Under Section 49(1)(a) of the Advocates Act, 1961. The Rule made by the State Bar Council even if it has been approved by the Bar Council of India subsequently under powers vested in it Under Section 15(3) would be of no consequences.
(ii) Rule 32 of the State Election Rules which provides that voting paper shall be invalidated on which preferences to less than ten candidates are indicated, in fact, is a rule of disqualification of the candidate and as such would not fall within the rule making power of the State Bar Council Under Section 15 but would be a power of the Bar Council of India Under Section 49 and/or in the alternative such a rule would be ultra vires Section 3(2)(b) of the Advocates Act, 1961.
11. We may now deal, with the first contention that Rules 6(h) and (i) of the Election Rules disqualifying an Advocate from having his name included in the electoral roll is invalid.
Learned Counsel for the petitioner had relied on the judgment of the Supreme Court in Bar Council of Delhi and Anr. v. Surjeet Singh and Ors. reported in : [1980]3SCR946 to further contend that mere approval by the Bar Council of India to a rule which is beyond the rule making power of the State Bar Council, cannot make the rule valid nor has it the effect of a rule being made by the Bar Council of India. Framing a rule by the Bar Council of India and granting approval to a rule made by the State Bar Council are two distinct and different things and one cannot take the place of the other. Rule 6(h) considered in the context of Rule 40 of the Rules made by the Bar Council of India and Section 49(1)(a) of the Advocates Act, 1961, would be ultra vires and consequently would have to be struck down. The mere fact that the rule has been approved by the Bar Council of India would be of no consequence as a rule made beyond the competence of the subordinate legislative authority would be still born and cannot be breathed life into, by another body in exercise of the power of approving rules, which could only be validly made by the Bar Council of India. In our opinion, however, this issue need not detain us as on behalf of the Bar Council of India their learned Counsel has drawn our attention to Part-III, Chapter-I of the Bar Council of India Rules and more specifically to Sub-rule 2(h) which we have earlier reproduced.
It is clear therefrom that the Bar Council of India itself has provided a rule that the name of an advocate appearing in the State Roll, shall not be on the electoral roll if such Advocate has not paid the subscription, under Rule 40, Chapter-II, Part-6 of the Rules of the Bar Council of India and obtained receipt from the State Bar Council. It is clear, therefore, that what would govern the preparation of the electoral roll by the State Bar Council, is the rule made by the Bar Council of India. In terms of this rule an advocate whose name appears on the roll of the Bar Council, has not paid the subscription as set out in Rule 2(h), that name cannot be included in the electoral roll.
Rule 6(h) of the Election Rules, merely reflects, what is set out in Rule 2(h) of Part-3, Chapter-I of the Rules made by the Bar Council of India. It cannot therefore, be said that the electoral roll as prepared by the State Bar Council is without the authority of law and/or is illegal. Rule 6(i) of the Election Rules merely sets out that the name of an advocate would not be included in the electoral roll if such an advocate has incurred any of the disqualifications mentioned under the Act or the Rules made thereunder. It cannot be said that this Rule is ultra vires Section 49(1)(a) as the rule only reflects a measure of guidance in preparing the election roll, which is within the competence of the State Bar Council considering Section 3(4) of the Advocates Act. That first issue question is, therefore, answered accordingly.
As Rule 6(h) is therefore beyond the rule making power of the State Bar Council and is consequently ultra vires Section 49(1)(a). Such declaration, however, would really not affect the outcome of the election held to the Bar Council of Maharashtra and Goa.
12. The second issue may now be considered and on which there has been a considerable debate. On behalf of the petitioners it is submitted that though Rule 32 speaks as to when a voting paper is to be treated as invalid, Rule 32(g) in fact disqualifies an elector whose name is included in the electoral roll and who participate in voting but who choose not to exercise his preference for another nine candidates. In other words, the ballot paper of such an voter on account of the rule is being treated as invalid. The voter under Rule 32(g) must exercise his preference, for at least ten candidates out of the twenty five candidates who have to be elected, to have his ballot paper declared as valid. The submission is that in fact this is a rule pertaining to disqualification though purportedly framed as a rule for rejecting ballot paper and/or in the alternative that such voter considering Section 3(4) does not satisfy the conditions for voting and consequently stand disqualified. Once the name of a candidate appears on the electoral roll, is it open to the State Bar Council to make a further rule for rejecting the ballot paper on the ground that such an elector had not cast ten preference votes. Such a rule prima facie would be ultra vires Section 3(2)(b) read with Section 3(4).
The system of preference votes requires that for a vote to be valid, the elector has to cast his first preference. All other preference votes are immaterial. It is the choice of the elector as to how many additional preference votes such elector would cast. Once the elector has cast the first preference vote, his vote is valid and cannot be rejected. Any rule to the contrary if can be made, can only be made by the Bar Council of India under Section 3(4) of the Advocates Act.
On the other hand, on behalf of Bar Council of Maharashtra and Goa and the contesting respondents, it is submitted by the learned Counsel that Rule 32(g) is not a rule pertaining to the disqualification, but a rule for rejecting a ballot paper. It is submitted that neither Section 15 nor Section 49 of the Advocates Act, would be applicable and what would be applicable would be Section 6(1)(g) of the Advocates Act, which confers power on the State Bar Council to provide for election of its members. Similarly, it is submitted that Bar Council of India can make Rules to provide for election of its members Under Section 7(1)(k) of the Advocates Act. Rule 32 as framed in exercise of the powers conferred on the State Bar Council under Section 6(1)(g), cannot be said to be ultra vires the power of the State Bar Council nor can it be said to be ultra vires Section 3(2)(b) of the Advocates Act.
On behalf of the Bar Council of India the learned Counsel submits that in the absence of instructions of the Bar Council of India on this aspect, it is not possible for him to address the Court on this point. Learned Counsel for the petitioner have referred to several judgments which would be adverted to in the course of our discussion to the extent necessary.
13. The Advocates Act Under Section 3(2)(b) provides for holding elections, under a system of proportional representation. The relevant portion of the section reads as under:
Section 3(2)(b) :- In the case of a State Bar Council with an electorate not exceeding five thousand, fifteen members, in the case of a State Bar Council with an electorate exceeding five thousand but not exceeding ten thousand, twenty members, and in the case of the State Bar Council with an electorate exceeding members, and in the case of the State Bar Council with an electorate exceeding ten thousand, twenty-five members, elected in accordance with the system of proportional representation by means of the single transferable vote from amongst advocates on the electoral roll of the State Bar Council.
We may omit the proviso as it is not required for our discussion.
The next relevant part is Sub-section (4) of Section 3 which reads as under:
Section 3(4) :-An advocate shall be disqualified from voting at an election under Sub-section (2) or for being chosen as, and for being, a member of State Bar Council, unless he possesses such qualifications or satisfies such conditions as may be prescribed in this behalf by the Bar Council of India, and subject to any such rules that may be made, an electoral roll shall be prepared and revised from time to time by each State Bar Council.
Rule 3(1) of the Election Rules, framed by the Bar Council of Maharashtra and Goa, defines an original vote to mean in relation to any candidate, a vote on the voting paper on which his first preference is recorded for such candidate. Rule 3(1) defines first preference to mean the figure '1' or '1st' or 'one' or 'first' or 'I' set opposite the name of a candidate; 'Second Preference' means figure '2' or '2nd' or 'two' or 'second' or 'II' set opposite the name of a candidate and 'Third Preference' means the figure '3' or '3rd' or 'three' or 'third' or 'III' set opposite the name of a candidate and so on.' Election by proportional representation is also found in The Representation of the People Act, 1951 for elections to the Legislative Council as also to the Rajya Sabha.
14. Before the issue is answered, it would be better to understand the concept of proportional representation. Gainful reference for that purpose may be made to the judgement in Surendra Pal v. Shamim Ahmad reported in AIR 1985 Del 22. A learned Single Judge of the Delhi High Court was considering the issue of 'Proportional Representation' and has traversed its history. The principle of 'proportional representation' was formulated in the middle of Nineteenth Century, by C.C.G. Andrae in Denmark and Thomas Hare and John Stuart Mill in Britain. Since then several methods for applying it have been devised, the best known are the single-transferable vote method and the list system. All forms of proportional representation necessitate multi-member constituencies. Under the single-transfer-vote method, voters number the names of candidate on the ballot paper in order of preference; that is, (i) before the first choice, (2) before the second, and so on.
The election is based on a quota determined under the Droot formula, named after its deviser, the Belgian H.R. Droot. The total number of valid votes cast, is divided by the number of seats to be filled plus one, and one is added to the result. Thus, for example if the number of seats to be filled is nine and the total votes cast is 2,00,000, the latter figure is divided by ten and one added to the quotient 20,000, giving a quota of 20,001. Any candidate who obtains the quota on the basis of the first preference votes is declared elected. When a quota is exceeded, all the votes of a successful candidate are transferred to the second preferences. Any surplus amongst subsequently successful candidates is similarly transferred and so on, if necessary. If any seats are still vacant the candidate with the least votes is eliminated, and all his ballots transferred to second preferences until all seats are filled by candidates obtaining a quota.
15. The Supreme Court had an occasion to consider the issue of proportional representation in the case of Km. Shradha Devi v. Krishna Chandra Pant and Ors. reported in : [1983]1SCR681 under the context of Representation of the People Act, 1951 and the Conduct of Election Rules, 1961. The issue before the Supreme Court was that in cases of preference votes, when can the ballot paper be said to be invalid? In the course of the discussion the Apex Court in para 12 observed as under:
But while exercising the preferences it is obligatory in order to render the ballot paper valid to give first preference vote. It is optional for the elector to exercise or not to exercise his remaining preferences. This must be so in the very nature of things because this system of voting was devised to provide minority representation.
Further the Apex Court then observed as under:
It, therefore, necessarily follows that when voting is in accordance with the proportional representation by means of the single transferable vote it is obligatory to cast the first preference vote for ensuring the validity of the ballot paper and the first preference vote must be so cast as not to leave any one in doubt about it. The remaining preferences are optional with the elector. He may or may not exercise his franchise for the remaining preferences. If he chooses not to exercise remaining preferences the ballot paper cannot be rejected as invalid for failure to exercise the remaining preferences.
From the above judgment, which was rendered in the context of Rule 73(2) of the Conduct of Election Rules, 1961, the Supreme Court held that for the ballot paper to be valid it was incumbent on the voter, to cast his first preference vote. In the absence of so casting, the ballot paper would be declared invalid if the figure (1) is not marked. Consequently, considering Rule 73, the Supreme Court further held that what is material for the elector, is to cast his first preference vote and insofar as exercising his franchise to the remaining preferences, it was not obligatory. In other words, it is the choice of the elector to cast his second preference vote or further preference votes.
16. The argument may now be tested, as to whether the State Bar Council, considering that one of its function is to provide for election of its members, could frame the Rule Under Section 15 or under Section 6(1)(g). Section 15(1) is an enabling power in the Bar Council to make Rules to carry out the purposes of Chapter-II. Section 15(2) provides that a State Bar Council can make Rules to provide for election of members of the Bar Council by secret ballot including conditions subject to which persons can exercise their right to vote by postal ballot, preparing and revision of electoral roll and the manner in which the result of the election shall be published. This would indicate that a State Bar Council can lay down the procedure for holding the secret ballot for the election of its members. It would thus appear, that it is the State Bar Council that can lay down the procedure. Section 15, however, would have to be read with the other provisions of the Act so that the Act is harmoniously construed. Section 6(1)(g) confers a power on the State Bar Council to make rules for election of its members. The test in such cases, normally is whether the general power has to give way to the specific power.
17. The Bar Council of India has been conferred, as a part of it's functions, to make rules for the election of its members under Section 7(1)(k). Insofar as the power to make rules, the power conferred Under Section 49, is in respect of Act and not in respect of any Chapter under the Advocates Act, 1961. The power to make Rule includes, the conditions subject to which an Advocate may be entitled to vote at an election to the State Bar Council including the qualification or disqualification of the voters and the manner in which an electoral roll of the voters may be prepared and revised by a State Bar Council.
Provisions of Section 49(1)(a) to the extent relevant are reproduced hereinbelow:
49. General power of the Bar Council of India to make rules.-(1) The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe(a) the conditions subject to which an advocate may be entitled to vote at an election to the State Bar Council including the qualifications or disqualifications of voters, and the manner in which an electoral roll of voters may be prepared and revised by a State Bar council;
Section 49(1)(a), therefore, confers a power on the Bar Council of India to impose conditions by which an Advocate may be entitled to vote at an election to the State Bar Council and this includes laying down the qualification or disqualification of the voters as also the manner in which the electoral roll of the voters may be prepared. On a plain construction or a literal reading of Section 49(1)(a), it is apparent that the power, to impose conditions subject to which an advocate may cast his vote at an election to the State Bar Council election, is exclusively with that of the Bar Council of India. Once there is a specific power Under Section 49(1)(a), then Section 6(1)(g) r/w Section 15 of the Advocates Act will have to be confined to make Rules under that Chapter and secondly such rules cannot be against the express language of Section 49(1)(a).
We may now refer to the judgment in Bar Council of Delhi v. Surjit Singh (supra). The Supreme Court in the context of construing the power under Sections 15, 3(4) and 49 observed as under:.It is true that the power to make rules conferred by Section 15 is both for the Bar Council of India as also for the Bar Council of a State. But no provision of Section 15 can override the specific provision made in Section 3(4) and Section 49(1)(a) of the Act....
Construing Section 3(4) the Apex Court observed as under:
On the plain reading of this Sub-section it is manifest that under the Act qualifications and conditions entitling an Advocate to vote at an election or for being chosen as a member of the State Bar Council has to be prescribed by the Bar Council of India. The State Bar Council has no such power. The power of the State Bar Council is merely to prepare and revise from time to time the electoral roll subject to the rules made by the Bar Council of India concerning the qualifications and conditions aforesaid.
Proceeding further in the context of examining the power conferred Under Section 15 the Apex Court observed as under:
The State Bar Council can frame rules for the preparation and revision of electoral rolls under Section 15(2)(a). That would be in conformity with the latter part of Sub-section (4) of Section 3 also. But in the garb of making a rule for the preparation and revision of the electoral rolls it cannot prescribe disqualifications, qualifications or conditions subject to which an advocate whose name occurs in the State roll can find place in the electoral roll resulting in his deprivation of his right to vote at the election....
18. Section 3(4) as can be seen, provides that an advocate shall be disqualified from voting at an election under Sub-section (2) or for being chosen as a member of the State Bar Council, unless he possesses such qualifications or satisfies such conditions as may be prescribed in this behalf by the Bar Council of India, and subject to any such rules that will be made, an electoral roll shall be made and revised from time to time by the State Bar Council.
On a proper construction of the various sections and the respective powers conferred on the Bar Council of India and the State Bar Council, it is apparent that the preparation of an electoral roll is of the State Bar Council. That electoral roll, however, has to be prepared, considering the rules made by the Bar Council of India in the matter of qualifications and disqualifications and such other conditions as laid down either under the Advocates Act or by Rules made by Bar Council of India. The State Bar Council cannot impose conditions as to qualifications or disqualifications. That is wholly outside their rule making power. The second aspect of the matter is that the conditions subject to which an advocate may be entitled to vote, is again a specific power conferred on the Bar Council of India by Section 49(1)(a) and that is so held by the Supreme Court in Surjeet Singh's case (supra). Consequently, what follows is that after the electoral roll is prepared by the State Bar Council in terms of the rules framed by the Bar Council of India, if there be a further condition, subject to which an advocate may be entitled to vote, then such conditions can be imposed only by the Bar Council of India. In the instant case, Rule 32(g) is a condition for an advocate, to cast his vote in order that it be treated as valid. Though the rule does not bar an advocate from voting, none the less, the voting paper is to be treated as invalid, if the elector give his preference to less than ten candidates. This would clearly amount to imposing a condition on the elector to cast his vote. In other words, even though the elector casts his first preference votes to make the vote legal, his failure to give preferences to nine other candidates would result in the rejection of the ballot paper inasmuch as the ballot paper would be treated as invalid. It is clear, therefore, that Rule 32(g) though coming under the heading as to when the voting paper becomes invalid, for all purposes, is a condition for an advocate to exercise his right to vote. Rule 32(g), therefore, would be clearly ultra vires Section 49(1)(a) of the Advocates Act.
19. Having said so let the other limb of the argument may be considered, as to whether Rule 32(g) would be ultra vires Section 3(2)(b) read with Section 3(4) of the Advocates Act. In the earlier part of the discussion we have noted that election to the State Bar Council has to be held by a system of proportional representation by means of single transferable vote. The concept of proportional representation and single transferable vote would mean that for the vote to be valid it is incumbent on the elector to cast his first preference vote. Once the elector casts his first preference vote, then such a vote is legal and it is to be counted for election of members, irrespective of, as to whether the voter casts the second preference or other preference votes.
In Shradhadevi's case (supra), adverting to the provisions of The Representation of the Peoples Act, the Apex Court while construing the provisions of the rules under that Act, held that while exercising preferences, it is obligatory in order to render the ballot paper valid to give first preference vote. It is optional for the voter to exercise or not to exercise remaining preferences. The remaining preferences are optional for the voter. He may or may not exercise his franchise for the remaining preferences. Such a reading of Section 3(2)(b) would mean that it is the choice of the elector after having cast his first preference vote to exercise his right to cast his second preference vote or in the case like elections to the Bar Council of Maharashtra and Goa where 25 members have to be elected the remaining preference votes. The right to vote is an exercise by the voter to decide his preference. That preference would be the suitability of the voter, local or regional considerations or such other factors which may weigh with such voter. The decision not to cast the second, third or other preference votes may be, because such voter is unaware of the credentials of the other candidates or in his opinion the elector does not find them to be worthy of consideration to be on the Managing Committee of the Bar Council or such other consideration. Is it then open to the State Bar Council purporting to make a rule in the exercise of the powers Under Section 6(k) or Section 15 to impose a condition in the nature of Rule 32(g)? It has been held earlier that such a power does not vest in the State Bar Council. Even assuming it is held that there is such a power, then to that extent it would be inconsistent with the concept of proportional representation by means of a single transferable vote. To insist that such an voter must cast a minimum of ten votes, is to ask the voter to cast his preference votes to candidates who in such voter's opinion are unworthy of being members of the State Bar Council. The concept of election is a choice to the voters to select a candidate who in their opinion is worthy of their trust and confidence.
More so, in an educated class of voters like Advocates. This is irrespective of what is alleged by the petitioner about the illegal influences that are sought to be brought in at the time of voting. If such practices are adopted, all that can be said is, that such unfair practice ought to be deprecated. Apart from that, on a reading of Section 3(4), it is clear that the disqualification of any voter under Sub-section (2) can only be prescribed by the Bar Council of India. Therefore, in the matter of exercising the right to vote in accordance with the system of proportional representation, it is the Bar Council of India in exercise of its power Under Section 3(4) r/w Section 49(1)(a) which alone will have the right to make the rules for disqualification. Rule 32(g) under the circumstances made by the Bar Council of Maharashtra and Goa is ultra vires Section 3(2)(b) r/w Section 4, r/w Section 49(1)(a) of the Advocates Act and consequently null and void. Whether such a rule in fact could be made by the Bar Council of India as that is not in issue and need not be examined.
20. A faint argument was advanced on behalf of the respondents that the petitioner himself was a party to the making of the rules and as such he is estopped from challenging the validity of these rules. Firstly, there can be no estoppel against law. The mere fact that the petitioner was a member of Managing Committee which made the rules, is irrelevant while contesting the legality of the rules. In Bar Council of Delhi v. Surjeet Singh's case (supra), the elections were challenged after the election was held. The Supreme Court negated such a challenge, by holding that merely because the petitioner took part in the election by standing as candidate or by exercise of his right of franchise, he cannot be estopped from challenging the whole election when the election was illegal and void. Even if the challenge to the election is after it is held, it could not be said that such a petitioner is guilty of laches and must be prohibited on that count, as long as the elections are held under rules which were void. In that case the Supreme Court held that the entire electoral roll was null and void because of the invalidity of the impugned proviso. In our opinion, therefore, that contention must be rejected.
21. The petitioners have also drawn our attention to the rules for providing ballot booths or polling stations in the city of Mumbai.
The petitioners contend, that the procedure for providing polling stations insofar as Mumbai District is concerned, is unfair and arbitrary. It is pointed out that Rule 15 provides that the voting shall be by personal ballot at the seat of the High Court, District Court and Taluka Court as shall be decided by the Bar Council. By an explanation it is provided that if there is no Court at the Taluka, the voter from the said Taluka shall vote at the place of the Court which has jurisdiction over the said Taluka or at such place as may be directed by the Secretary. There is a proviso which sets out that insofar as Mumbai City is concerned, elections shall be held at such place as the Council/Secretary deems fit and proper. It is pointed out that there was only one place provided for the voters in Mumbai to cast their votes and pursuant to the petition filed in this Court, two other polling stations were provided subject to such directions. If in the rest of the State if the ballot is to be cast, even though there may be Benches of the High Court at the District and at Taluka level Courts in those districts, still voting is permitted at District and Taluka Courts. We see no reason as to why the same procedure should not be adopted insofar as the City of Mumbai is concerned. The voters in the city of Mumbai ought to have an equal right as voters as in other parts of the State of Maharashtra and Goa to exercise their franchise. The proviso which deprives the voter from exercising his right of vote other than the seat of the High Court, District Courts and Taluka Courts, would be void.
The proviso properly read is to provide for additional voting places like in the city Mumbai, where there may be more than one Court within the District or Taluka. These Election Rules were notified in 2001 during the term of the last Managing Committee of the Bar Council.
It is not necessary to strike down the rule, considering that the rule can be read down. The Bar Council of Maharashtra and Goa therefore, to read the proviso to mean to make arrangements for polling booths, at every place where there be a Court and if there be sufficient number of voters on the same pattern where polling booths are provided in the rest of the State to set up polling booth in such places.
22. That leaves the issue as to whether the entire election be set aside or an order be passed, that those ballot papers which were rejected on the ground that the voters had not cast ten preference votes, should be counted and/or not to interfere with the election to the managing committee considering that it has completed more than two years of its term and the challenge to the rule was made after the elections were held. The Supreme Court has held, that the power to declare that a judgment would apply prospectively is only of the Supreme Court and such a power is not conferred on the High Court. Considering that Rule 32(g) has been held to be invalid, then the issue is whether to direct that the votes which have been rejected ought to be counted. The effect of this may be to affect the results already notified. The challenge to Rule 32(g) was not made before the elections were held or when the petition was first filed. The votes were rejected in terms of the rules as they stood. The petitioners original prayers were to allow all the voters to cast their votes without considering Rule 40 of the Bar Council of India Rules. There was no challenge to the vires of Rule 32(g). That has only been brought up by an amendment after the results were declared. In these circumstances the question is whether we should order a recount considering the judgment in Bar Council of Delhi v. Surjeet Singh's case (supra). In that case the entire electoral roll was set aside and consequently the election. In the instant case there is no challenge to the validity of the electoral roll. The issue is of counting of about three thousand ballot papers, pursuant to Rule 32(g) being held to be invalid. In our opinion, it is not necessary to set aside the entire election and order de-novo elections. The choice is to either direct counting of the votes which were rejected on the ground that the preference votes had not been indicated or considering that the challenge to the rule was after the results were declared not to interfere with the electoral process. No doubt Rule 44 provides the procedure of challenging the election of a candidate. The election petition has to be filed within 15 days. That only would mean that challenging the election of an individual candidate or may be of all the candidates, but not on account of the rule being declared invalid, which is beyond the competence of the election Tribunal.
23. Considering the judgment of the Supreme Court in Bar Council of Delhi v. Surjeet Singh (supra) and as the rejected votes in respect of Rule 32(g) being declared invalid are substantial, justice would require that the rejected votes to be counted, more so, after it has held that the rule be invalid. In the light of that, we direct respondent No. 1 to also count the ballot papers which were rejected on the ground that the voters had not cast ten preference votes. Till such time as the counting process is complete, the present Managing Committee will continue in office. In the event on recounting of votes any other candidate gets more votes than those votes secured by respondents 6 to 29 and the petitioner herein, in terms of the preference votes cast, then to that extent those candidates will be declared to be elected and those amongst respondents 6 to 29 and the petitioner who secured less votes, their elections will stand set aside. The new Managing Committee as constituted pursuant to the direction will hold the office for the unfilled portion of the term for which it was elected.
24. For the aforesaid reasons, the answers to the questions are as under:
(A) Rule 6(h) is invalid being ultra vires Section 49(1)(a) of the Advocates Act;
(B) Rule 32(g) is ultra vires Section 3(2) r/w Section 3(4) r/w Section 49(1)(a) of the Advocates Act;
(C) The Bar Council of Maharashtra and Goa for future elections to provide polling booths apart from what is being promptly provided in the city of Mumbai also at other Courts in Mumbai where there are minimum number of voters in terms of the procedure as followed by the Bar Council out side Mumbai;
(D) Respondent No. 1 to get counted the votes from the ballot papers which were declared invalid on the ground that the voters had not cast ten preference votes. The entire process to be completed within eight weeks. On such counting, if any other candidate gets more votes than respondents 6 to 29 and petitioner, then such candidate to be declared to be elected and proportionally those from amongst the present Managing Committee who were earlier declared elected, will give weigh to the newly elected candidates. Till such time the exercise is complete, the present Managing Committee to function as the Managing Committee. The term of the Committee after declaration of the results will be the same as of the present Managing Committee.
Rule made absolute accordingly in both the Writ Petitions. There shall be no order as to costs.
(A) Rule 6(h) is invalid being ultra vires Section 49(1)(a) of the Advocates Act;
(B) Rule 32(g) is ultra vires Section 3(2) r/w Section 3(4) r/w Section 49(1)(a) of the Advocates Act;
(C) The Bar Council of Maharashtra and Goa for future elections to provide polling booths apart from what is being promptly provided in the city of Mumbai also at other Courts in Mumbai where there are minimum number of voters in terms of the procedure as followed by the Bar Council out side Mumbai;
(D) Respondent No. 1 to get counted the votes from the ballot papers which were declared invalid on the ground that the voters had not cast ten preference votes. The entire process to be completed within eight weeks. On such counting, if any other candidate gets more votes than respondents 6 to 29 and petitioner, then such candidate to be declared to be elected and proportionally those from amongst the present Managing Committee who were earlier declared elected, will give weigh to the newly elected candidates. Till such time the exercise is complete, the present Managing Committee to function as the Managing Committee. The term of the Committee after declaration of the results will be the same as of the present Managing Committee.
Rule made absolute accordingly. There shall be no order as to costs.