State bar councils have powers to frame rules, says Madras HC

The Madras High Court today made it clear that state bar councils have the power to frame rules, subject to the condition that these are to have effect only on approval by the Bar Council of India.
The court made the observation while rejecting the contention of a special committee, appointed on its orders, to conduct elections to Bar Council of Tamil Nadu and Puducherry, that there was no need for Bar Council of India (BCI) approval for an amendment by the state body.
Advocate G Selvakumar had challenged the January 24 resolution passed by the committee, constituted by the BCI, amending a rule, restricting the eligibility criteria to contest in the elections to Bar Council of Tamil Nadu and Puducherry.

The amendment said only lawyers who have practised continuously for 10 years are entitled to contest.
The petitioner sought to quash it and also a direction to conduct the elections according to the provision of the Advocates' Act, 1961.
The first bench, comprising Chief Justice Indira Banerjee and Justice Abdul Quddhose, said that considering the immense responsibility on bar councils to maintain highest standards of discipline, integrity and even their role in law reforms, it was necessary that members collectively have some experience.

"Therefore, a cut-off on the basis of the number of years of practice cannot also be said to be arbitrary or illegal," the court said.

The bench did not accept arguments of counsel for the special committee that the impugned resolution has been forwarded to the BCI only by way of abundant caution and no approval was really necessary.
Quoting two sections of the act, it said all rules framed by state bar councils are subject to the approval of the BCI.
"In case of any inconsistency and/or repugnancy between the rules framed by the State Bar Council and Bar Council of India, rules framed by Bar Council of India are to prevail."
Noting that the rules would take effect, subject to approval by the BCI, it said that since the amended rules had not yet been approved by Bar Council of India, candidates with less than 10 years of practise may file their nominations "without prejudice to the rights and contentions of either party".

However, this would not confer any rights on them and in the event the rules were ultimately approved by the BCI, their deposits should be refunded expeditiously, the court said.
The bench then was informed that the BCI has not approved the amended rules as the notification was already issued for the elections.
On January 31, the Madras High Court had said that the rules framed by special committee, prescribing 10 years of practise as minimum eligibility to contest in the council elections, "might not be wrong".
On January 24, the special committee had passed a resolution prescribing certain rules to govern the election, scheduled for March 28, one of which was that only advocates continuously practising for 10 years would be entitled to contest the election.