IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12-01-2011 CORAM: THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN O.A.No.18 of 2011 and A.No.78 of 2011 in C.S.No.7 of 2011 Tamil Nadu Advocates Association Represented by its Secretary .. Applicant/Plaintiff vs. 1. The Bar Council of Tamil Nadu and Pondicherry, Represented by its Secretary 2.The Bar Council of India Represented by its Secretary .. Respondents/Defendants
For Applicant : Mr.S.Prabhakaran For Respondent-1 : Mr.R.Krishnamoorthy, Senior Counsel for Mr.S.Y.Masood For Respondent-2 : Mr.K.Venkatakrishnan COMMON ORDER Tamil Nadu Advocates Association registered as a Society under the Societies Registration Act, has filed the above suit against the Bar Council of Tamil Nadu and the Bar Council of India, praying for the following reliefs:-
"(i) Declaring that the press release dated 30.12.2010 (R.O.C.No. 1733 of 2010) issued by the first defendant, announcing election to the Bar Council of Tamil Nadu on 4.3.2011, is null and void;
(ii) Declaring that the electoral rolls, published by the first defendant, in preparation for the election of members to the Bar Council of Tamil Nadu, to be held on 4.3.2011, are null and void;
(iii) For appointment of a retired Hon'ble Judge of this Hon'ble Court to conduct the election of members to the Bar Council of Tamil Nadu, right from the preparation of the electoral rolls upto the announcement of the successful candidates, within a time limit fixed by this Hon'ble Court;
(iv) For an order of permanent injunction restraining the defendant from proceeding with the electoral process in pursuance of its press release dated 30.12.2010 (R.O.C.No.1733 of 2010)."
2. Pending disposal of the suit, the plaintiff seeks two interim reliefs in O.A.No.18 of 2011 and A.No.78 of 2011 respectively for (i) an interim injunction restraining the first respondent/defendant from proceeding with the electoral process and (ii) the appointment of a retired Judge of this Court to conduct the election of Members to the Bar Council of Tamil Nadu right from the preparation of electoral rolls upto the announcement of the successful candidates within the time limits.
3. I have heard Mr.S.Prabhakaran, learned counsel appearing for the applicant/plaintiff, Mr.R.Krishnamoorthy, learned Senior Counsel appearing for the first respondent (Bar Council of Tamil Nadu) and Mr. K.Venkatakrishnan, learned counsel appearing for the second respondent (Bar Council of India).
4. The last election to the Bar Council of Tamil Nadu was held on 20.9.2005 and the Council was constituted on 12.10.2005. The term of office of the State Bar Council expired on 11.10.2010, in terms of the provisions of Section 8 of the Advocates Act, 1961. By virtue of a resolution bearing Resolution No.77/2010, said to have been passed by the Bar Council of India, in its meetings held on 22nd and 23rd August 2010, the term of office of the Bar Council of Tamil Nadu is stated to have been extended for a period of 6 months with effect from 12.10.2010, in terms of the Proviso to Section 8.
5. On the strength of the said extension, the State Bar Council convened a meeting on 23.12.2010 and passed 4 resolutions, bearing Resolution Nos.373, 374, 375 and 376. By the first resolution, an election schedule was finalised as follows:-
"ELECTION SCHEDULE DATE OF ELECTION 04.03.2011
1) Publication of Draft Voters list 20.10.2010
2) Publication of Final Electoral Roll 20.12.2010
3) Final list to be sent to all the Bar Associations/Advocates Associations 27.12.2010
4) Publication of Notice in the Tamil Nadu Government Gazette and in "The Hindu"
or any other English daily on or before 04.01.2011
5) Nomination filing begins on 31.01.2011
6) Last date for receipt of Nomination 04.02.2011
7) Last date for withdrawal of Nomination 10.02.2011
8) Publication of List of candidates 12.02.2011
9) Date of Election 04.03.2011
10) Counting of votes 09.03.2011 By the same resolution, the Secretary of the State Bar Council was appointed as the Returning Officer.
6. By the second resolution, a Special Committee comprising of 5 Senior Advocates of this Court were appointed to scrutinise and monitor the conduct of the ensuing election with power to issue suitable instructions to the Returning Officer for the conduct of a free and fair election and the power to nominate any number of Advocates to assist them in the conduct of the election.
7. By the third resolution, 3 Advocates of this Court were appointed as the Election Tribunal, as contemplated by the rules.
8. By the fourth resolution, the Bar Council of Tamil Nadu resolved to hand over the administration of the Bar Council to the Advocate General with power to sign the cheques and operate the bank accounts, jointly with the Secretary.
9. In pursuance of the above resolutions, an Election Notification was issued by the Secretary to the Bar Council of Tamil Nadu on 27.12.2010 and the same was published in the Tamil Nadu Government Gazette Part VI-Section 1, No.51-A. The Notification was also published in the newspaper on the following day and a Press Release was issued by the Advocate General on 30.12.2010, confirming the election schedule and the appointment of the Secretary to the Bar Council of Tamil Nadu as the Returning Officer.
10. Challenging the Press Release issued by the Advocate General on 30.12.2010 and the election process so initiated, the plaintiff has come up with the above suit, praying for the reliefs indicated in para-1 above. Pending suit, the plaintiff has sought two interim reliefs, one for the grant of an interim order of injunction restraining the first respondent from proceeding with the electoral process and the other for the appointment of a retired Judge of this Court to conduct the election process from the stage of preparation of electoral rolls upto the stage of declaration of results.
11. On 5.1.2011, when the applications were moved for ad interim orders, Mr.R.Krishnamoorthy, learned Senior Counsel, representing Mr. S.Y.Masood, appearing for the first respondent took notice. Therefore, I ordered notice to the second respondent returnable by 10.1.2011. On 10.1.2011, the first respondent filed a counter along with a set of documents. The learned counsel for the second respondent made oral submissions on the basis of records.
12. Essentially the challenge of the applicant/plaintiff to the Press Release (Election Notification) issued by the Advocate General on 30.12.2010 is on two grounds. The first is that the resolutions passed by the Bar Council of Tamil Nadu on 23.12.2010, handing over the administration to the Advocate General and notifying the election, is contrary to the provisions of Section 8-A of the Advocates Act. The second objection is that the names of more than about 13,000 Advocates have been removed from the Electoral Rolls, on the ground that they had not paid their subscription, but without following the procedure prescribed by Rule 42 of Chapter-II of Part-VI of the Bar Council of India Rules.
13. Though the first respondent filed a counter stoutly denying the averments contained in the affidavit in support of these applications, it was fairly conceded, in the course of hearing, by the learned counsel appearing on both sides that the elections to the Bar Council have to be conducted in a free and fair manner.
14. As a matter of fact, a Committee of Senior Advocates was constituted in pursuance of an order passed by this Court on 24.8.2005, for supervising and monitoring the conduct of the previous elections held on 9.9.2005. After the elections were over, the Committee filed a report on 17.10.2005. The report disclosed that there were a few irregularities. Para 10 of the said report records a complaint that no polling took place at Sattur, though as per the statement of the Polling Officer, 88 votes were polled between 10 and 11.30 A.M. Para 11 of the report records a complaint that out of 950 votes in Tirunelveli, only 359 could be polled before 5.00 P.M. Paragraph 12 of the records a complaint from the Observer of the Nagercoil Polling Booth that the Polling Officer refused to use the indelible ink and that there would have been at least 500 false votes, since many persons voted 7 or 8 times. Paragraph 14 of the report records that a section of the "so called Lawyers" somehow wanted to prevent the polling. Para 16 of the report records that some more complaints were received after the polling. The Committee also made 3 suggestions in their report dated 17.10.2005, for future implementation. But unfortunately no steps have been taken to implement those suggestions.
15. Apart from the points raised by the Committee appointed to oversee the previous elections, there are also other issues, which have actually kept the Bar Council in the limelight, in the recent past, though for wrong reasons. Therefore, taking into account our past experience, I made a few suggestions, in the course of hearing of the applications, on 11.1.2011, to ensure the conduct of free and fair elections, so that persons of integrity and commitment are persuaded to inter the fray and also have a chance to get elected. Fortunately, Mr.S.Prabhakaran, learned counsel appearing for the plaintiff, Mr.R.Krishnamoorthy, learned Senior Counsel appearing for the first respondent (State Bar Council) and Mr.K. Venkatakrishnan, learned counsel for the second respondent, agreed to all the suggestions and consented to an order being passed on those lines.
16. Therefore, the following order is passed in the above applications, by consent of parties:-
(i) Mr.Justice K.P.Sivasubramaniam (Retd.) is appointed as a Commissioner to oversee and monitor the ensuing elections to the State Bar Council. He shall take over charge of the election process forthwith and shall be in charge of supervising and monitoring the entire process, till the declaration of results.
(ii) The election schedule as contained in the Election Notification published in the Tamil Nadu Government Gazette dated 29.12.2010, shall remain as such. However, in view of the fact that the names of thousands of members are not found in the draft voters list, on account of non-payment of subscription as well as other causes, the Secretary of the Bar Council of Tamil Nadu shall send a circular, in consultation with the Commissioner (KPSJ) to all the Bar Associations/Advocates Associations, informing them that the date for payment of arrears of subscription stands extended to 24.1.2011. The circulars shall be despatched by tomorrow (13.1.2011) and all the Bar Associations/Advocates Associations shall display the same in their Notice Boards, to enable the members whose names are not found in the electoral rolls, to take necessary steps. The final revised electoral roll shall be published on or before 31.1.2011. The filing of nominations may take place from 31.1.2011 to 4.2.2011 (both days inclusive), as indicated in the Election Notification. The last date for receipt of nomination, the last date for withdrawal of nomination, the publication of the list of candidates, the date of election and the date of counting shall remain as per the Election Notification.
(iii) The Secretary of the Bar Council of Tamil Nadu, who has been appointed as the Returning Officer, shall report to the Commissioner, take instructions from him and act accordingly.
(iv) The ballot papers shall be printed in a Security Press, as per the directions of the Commissioner. The ballot papers shall be sent in sealed covers/cartons/boxes (as the case may be) to the Presiding Officers of the Courts in which the 172 polling booths are located. If a polling booth is located in a Court Complex, where two or more Courts are located, the ballot papers shall be sent to the Presiding Officer of that Court which is the highest in hierarchy. In so far as Polling Booth No.53 which relates to Madurai High Court Bench and Polling Booth No.166 which relates to Chennai are concerned, the ballot papers shall be sent to the Registrar (Judicial) of the Madurai High Court Bench and the Registrar (Vigilance) of the Principal Bench.
(v) In respect of all Polling Booths, except Booth Nos.53 and 166, the Presiding Officers of the Courts to which the ballot papers are sent, shall keep them in safe custody. On the morning of the polling date, the Presiding Officers shall hand over the ballot papers to the Polling Officer. After the polling is completed in the evening, the Presiding Officers shall collect all the ballot papers, both polled and unused and put them in covers/cartons/boxes and seal them and send them directly to the Commissioner. The expenses incurred for carrying this task shall be charged to the State Bar Council. In respect of Polling Booth No.53, the Registrar (Judicial) of the Madurai High Court Bench shall carry out this task. Similarly, in respect of Polling Booth No.166, the Registrar (Vigilance) of the Principal Bench shall carry out this task.
(vi) The Presiding Officers of the Courts to whom the task of receiving the ballot papers and sending them back are entrusted, shall each nominate one Senior and respectable member of the local Bar, in which the Polling Booth is located, to be a Poll Observer. He must be a person known for his integrity and standing at the bar. He must not be either a contestant in the election or the Polling Officer of the booth. In so far as Polling Booth Nos.53 (Madurai Bench of the High Court) and 166 (Principal Bench) are concerned, the Commissioner himself may make the nomination of independent poll observers for the Madurai Bench and Principal Bench, from among the Senior members of the bar practising in Madurai Bench and Principal Bench respectively. The name of one Advocate so nominated, along with his residential address, enrolment number and the phone numbers (both mobile and landline) shall be sent by each of the Presiding Officers of the Courts, to the Commissioner in advance, for his approval. By this process, there would be 172 independent Poll Observers (at the rate of one Observer per Booth) nominated by the Judicial Officers.
(vii) The Poll Observers of all the Booths may directly communicate with the Court appointed Commissioner and get his guidance /advice from time to time and they shall act accordingly.
(viii) Ballot papers will be issued to the voters, only upon production of photo identity cards. While issuing ballot paper to a voter, an indelible ink mark shall be put on the left hand index finger of the voter. This information shall be displayed in the Notice Boards of the Bar/ Advocate Associations, so that the eligible voters take steps to ensure that their photo identity cards are available with them.
(ix) The candidates contesting the election shall ensure that festoons, flex boards, posters, banners and hand bills are not displayed/distributed in the Court campus. Any violation of the same would put their candidature/election in peril.
(x) The Commissioner shall be allotted an Office Room in the building of the Bar Council of Tamil Nadu and Pondicherry with phone facility. His mobile phone will be charged by the Bar Council and all his expenses will be met by the Bar Council.
(xi) Within 2 days of the conclusion of the poll, every independent Poll Observer shall send a report about the conduct of the election in his Booth directly to the Commissioner.
(xii) All the Polling Officers of all the 172 Polling Booths shall take the advice/orders of the Commissioner from time to time, to ensure the conduct of the elections in a free and fair manner. These Polling Officers shall abide by the advice/orders of the Commissioner.
(xiii) The Commissioner as well as the Judicial Officers in control of the Courts in which the Polling Booths are located, are at liberty to seek appropriate police protection. Since the learned Advocate General of this Court is also the Ex-officio member of the Bar Council and also since the Bar Council itself has passed a resolution, handing over the administration to him, the learned Advocate General shall ensure that adequate police protection is provided in all Polling Booths, on the date of the poll, as per the request of the Commissioner as well as the Judicial Officers concerned.
(xiv) The Commissioner shall be paid an initial remuneration of Rs.1,00,000/- by the State Bar Council, within a week.
(xv) Advocates who have migrated to different towns/cities, from the place indicated in the list/Register maintained by the Bar Council, shall make a request in writing, to the Commissioner, for permitting them to vote in a station other than the one in which their names find a place in the electoral roll. Such requests are to be made within one week of publication of the final electoral roll. It will be open to the Commissioner to scrutinise such requests and grant or refuse the same. Once permission is granted by the Commissioner, such persons shall be permitted to cast their votes in those places.
(xvi) It will be open to the Commissioner, if he considers it necessary, to take the assistance of one or more Senior Advocates to assist him in carrying out the above tasks. It will also be open to the Commissioner to fix their remuneration, depending upon the nature of the duties assigned to them. The remuneration so fixed shall be paid by the Bar Council.
(xvii) It was contended by the learned counsel for the petitioner that a confusion is created when two or more persons with the same name and initial contest the elections and that therefore, the ballot papers should also contain the photographs of the persons contesting the elections, alongside their names. Though it was pointed by the learned Senior Counsel for the first respondent that there is no scope for confusion in view of the addresses being given, I find from the report filed by the Committee of Senior Advocates, in respect of the previous elections, that about 1,054 ballot papers were invalidated, on account of the fact that they contained roman numerals or tick mark or cross mark. Under the heading Suggestion II, the Committee of Senior Advocates had indicated in their report in respect of the previous elections that "it was unfortunate that educated voters like lawyers do not read instructions printed on the ballot papers" and "that most of the voters did not understand the concept of single transferable vote". Therefore, the Commissioner is given liberty to examine the possibility of incorporating the photographs of the respective candidates, alongside their names in the ballot papers, subject to security and financial constraints.
(xviii) It will be open to the Commissioner to seek any directions/ clarifications from this Court, whenever considered necessary by him.
(xix) This Court will monitor the progress of the entire election process, till the results are announced.
(xx) The Commissioner is requested to file a report after the conclusion of the poll.
(xxi) It is made clear that the Commissioner is appointed only for the purpose of conducting, overseeing and monitoring the entire election process. Therefore, all other functions of the Bar Council, such as enrolments, signing of cheques etc., may be carried out by the learned Advocate General as per the resolution passed by the Bar Council.
(xxii) The Registrar-General is directed to communicate a copy of this order to the Judicial Officers to whom the tasks of nominating an independent Observer, receiving the ballot papers and sending them back are entrusted. The Secretary of the State Bar Council shall also communicate a copy of this order to the Bar Associations/Advocates Associations, so that all the members are put on notice of the directions issued hereunder.
17. Call these applications on 16.3.2011.
Svn O.A.No.18 of 2011 and A.No.78 of 2011 in C.S.No.7 of 2011 V.RAMASUBRAMANIAN, J.
After the orders were pronounced in the morning, the learned counsel appearing on both sides made a request for two modifications. One is in respect of the indelible ink mark for which a direction is issued under paragraph 16(viii) of the order. Since the Assembly Elections will be hardly two to three months away from the date of the State Bar Council elections, the counsel expressed the difficulty that if the indelible ink mark is affixed on the left hand index finger, the Advocates may face difficulty in polling in the Assembly Elections. Therefore, they requested that the ink mark can be made on the right hand index finger. This request in all fairness should be conceded.
2. The second request made is that the total ban imposed in paragraph 16(ix) of the order for flex boards, posters etc., may too harsh and that the contestants may be permitted at least to distribute hand bills.
3. In view of the above requests, a small modification is made in paragraph 16(viii) and 16(ix) of the order. In paragraph 16(viii) instead of the words "left hand index finger", the words "right hand index finger" shall be substituted. In paragraph 16(ix) the words "hand bills" shall stand deleted. However, it shall be the responsibility of the contesting candidates to clear the campus of the hand bills printed and distributed in their names, one day prior to the date of polling.
4. The above modifications shall form part of the original order.