PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL OF M.P. & ORS.

The Judgment of the Court was delivered by E SWATANTER KUMAR J. 1.Leave granted.

2Copy pinpoint2. From the very simple facts of these cases, the following substantial questions of law and public importance arise for F consideration of this Court:

(1) Whether the provisions of Rules 121and122-A of the State BarCouncil of Madhya Pradesh Rules (for short, the 'M.P. Rules') are ultra vires Section 15 of the Advocates Act, 1961 (for short, 'the G Advocates Act'), inter a/ia for the reason that there is no nexus between the rule making power of the State Bar Councils and the powers provided under Section 15(1) or 15(2)(c) of the Advocates Act? Was the delegation of legislative power under H

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Section 15 of the Advocates Act excessive, inasmuch as it does not provide any guidelines for removal of office-bearers of the State Bar Councils?

(2) Whether despite the absence of the enabling provisions in the principal statute, namely, the Advocates Act, empowering subordinate State Bar Councils to enact provisions for removal of the office bearers of the State Bar Councils by 'no confidence motions', such power could be read into the general clause of Section 15(1) of the Advocates Act? ·

(3) Whether Rules 121 and 122-A of the M.P. Rules are invalid for want of prior approval from the Bar Council of India? D

3Copy pinpoint3. The necessary facts are that the Parliament enacted the Advocates Act on 19th May, 1961. Section 15 of the Advocates Act empowers the State Bar Councils to frame Rules to carry out the powers conferred upon the State Bar Councils under E Sections 15(1 ), 15(2), 28(1) and 28(2) read with Chapter II and other provisions of the Advocates Act. The State Bar Council of Madhya Pradesh (for short 'the State Bar Council'), with the approval of the Bar Council of India, made and published the M.P. Rules in 1962.These M.P. Rules came to be amended F on 27th April, 1975.

4Copy pinpoint4. Section 15 of the Advocates Act provides that the State Bar Councils can frame/amend the Rules with prior approval of the Bar Council of India. Section 15(2)(a) of the Advocates Act read with Part Ill and IX of the Bar Council of India Rules G (for short, 'the Rules') contemplates that election to the State Bar Council shall be held. In furtherance to this legislative mandate, the election to the State Bar Council were held in the year 2008 and Mr. Rameshwar Neekhra was elected as Member and then Chairman of the State Bar Council by its H

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A members on 31st August, 2008. After the expiry of 2% years, fresh elections were held on 12th February, 2011 and the said Mr. Neekhra was again elected as member, and then the Chairman of the State Bar Council by its members. He is stated to have secured 21 votes, out of a total 25 votes of the B Members of the State Bar Council. Mr. Adarsh Muni Trivedi was elected as Vice-Chairman of the State Bar Council.

5Copy pinpoint5. At the very threshold of the 15th Meeting of the General Body of the State Bar Council held on 27th March, 2011 at C Jabalpur, a number of Members submitted two requisitions: one stated that due to lack of confidence in the Chairman and Vice- Chairman, a 'no confidence motion' should be issued; and the second requisition stated that, since the election of the Committees for the second term was not as per the constitution, re-election for the Committees may be conducted. They D requested the State Bar Council to call a special meeting to consider these requjsitions. It is also recorded in these Minutes that the Chairman and Vice-Chairman had offered their resignation, subject to withdrawal of the requisition of 'no confidence motion'. There was a long discussion, whereafter it was resolved that the agenda of the special meeting was to be circulated on the same day i.e. 27th March, 2011 by registered post. Copy of the resolution passed and the requisition motion of 'no confidence', would be circulated to all Hon'ble Members of the State Bar Council i.e. who were present and those who were not present. These Minutes, annexed as 'P-10' (colly) to the petition, read as under:

"Before the start of the meeting Hon'ble Members Sis Vinod Kumar Bhardwaj, Kuldeep Bhargava, Ghanshyam Singh, Prem Singh Bhadouria, Shivendra Upadhyay, G Champa Lal Yadav, Dinesh Narayan Pathak, Khalid Noor Fakhruddin, Mrigendra Singh Baghel, Jai Prakash Mishra. Prabal Pratap Singh Solanki, Ku. Rashmi Ritu Jain and B.K. Upadhyay submitted two requisitior: motion of no confidence. In one of the requisition motion of no H

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confidence they have stated that they have no confidence in Chairman, Vice- Chairman and Treasurer therefore, they are moving no confidence motion against them. In the second requisition motion they have requested that since the election of the Committees for the second term were not as per the constitution therefore and even otherwise they want re-election for the Committees. For both the requisition motion they have requested to call a special meeting and consider their vote of no confidence against Chairman, Vice-Chairman and Treasurer. For another requisition motion they have requested to call a special c · meeting and consider their proposal. When the meeting was started both the requisition motion were placed before the Hon'ble Chairman. Shri Ganga Prasad Tiwari, Hon'ble Treasurer, Shri Rameshwar Neekhra, Hon'ble Chairman and Shri AM. Trivedi, Hon'ble Vice-Chairman stated that 0 they offer their resignation subject to withdrawal of requisition of no confidence motion. There had been long discussion and members Sis Vinod Kumar Bhardwaj, Prem Singh Badhouria, Champa Lal Yadav, Pratap Mehta, Vijay Kumar Choudhary, Ghanshyam Singh, Z.A. Khan, Kuldeep Bhargava, Khalid Noor Fakhruddin, Rajesh E Pandey Mrigendra Singh Bhagel, Prabal Pratap Singh Solanki expressed their views. There had been divergent views in respect of withdrawal of no confidence motion as well as conditional resignation offered by Hon'ble Chairman, Vice-Chairman and Treasurer. As such it is resolved to hold a special meeting on 16th April, 2011 at Jabalpur from 12.30P.M. onwards in term of Rule 122(A) & (B) of State Bar Council of Madhya Pradesh Rules. It is resolved that agenda of the meeting be circulated today itself by registered ·post and copy of the resolution passed along with requisition motion of no confidence be circulated to all Hon'ble Members of the Council who are present and to them also who are not present today."

6Copy pinpoint6. It appears from the record that in terms of the above H

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A minutes of the 15th Meeting of the General Body of the State Bar Council held on 27th March, 2011, the notices of the 16th Meeting were also issued and circulated. The 16th Meeting of the General Body of the State Bar Council was decided to be held on 16th April, 2011 in the Meeting dated 27th March, 2011 B itself.

7Copy pinpoint7. After issuing the notice in accordance with the M:P. Rules, a meeting of the State Bar Council was held on 16th April,

2011. At this meeting, the 'no confidence motion' was moved by 13 members of the State Bar Council, in terms of Rule 122- C A of the M.P. Rules, against both the Chairman and the Vice- Chairman. The parties to the present appeals are at some variance as to the manner, knowledge and the decision with which the meeting was closed. The respondents herein have contended that in this meeting, there was actual discussion of the 'no confidence motion' moved by some of the members of the State Bar Council, which was a part of the formal agenda notice issued by the Secretary of the State Bar Council. In the Minutes placed on record as Annexure R-16/6, it has been stated that item No.² of the agenda, which was to consider the requisitioning of 'no confidence motion', was actually considered and the question arose as to whether Shri Rameshwar Neekhra, the Chairman could still preside over the meeting. There was some discussion on that issue, whereafter the Chairman along with the Secretary is stated to have left the meeting on 16th April 2011. The Advocate General had then presided over the meeting, and the 'no confidence motion' is stated to have been passed by majority of the members. It will be useful to refer to the Minutes of the Meeting, held on 16th April, 2011 on this issue, which are as follows: G "Twelve of the M.embers have quit away the meeting on the ground that by virtue of Rule 15 of Chapter V no matter can be decided and reconsidered for a period of three months unless the Council by 2/3 of majority of the Members present shall permit. The affect of this rule is also H

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required to be considered by the Hon'ble High Coyrt and A all these issues are open before the Hon'ble High Court.

So far as the presiding over of the meeting is concerned, Rule 14 of Chapter V says that in the absence of any provision the matter is to be decided by-the majority. B That being so the majority of the Members present have decided to consider the No Confidence Motion hence this meeting is now being presided over by Advocate General to whom the majority has decide to preside.

Before the start of the Meeting Hon'ble Member Shri C Prabal Pratap Singh Solanki has asked Shri_ Rameshwar Neekhra, Chairman to kindly decide that the Members are ready to participate in the No Confidence Motion but at that time Hon'ble Chairman quit the Meeting Hall along with his followers and also took away the Secretary saying that we D are not going to participate in the No Confidence Motion.

At this Juncture Shri Vinod Kumar Bhardwaj, Hon'ble Member State Bar Council of Madhya Pradesh requested Shri R.D. Jain, Hon'ble Advocate General and Ex Official E Member who remained present from the very beginning of the meeting and has watched all the proceedings & discussions which took place by the Hon'ble Members Shri Bhardwaj requested the Hon'ble Advocate General Shri R.D. Jain to preside over the meeting which was F seconded by all the members present as following:

1. S/Shri Vin_od Kumar Bhardwaj, (2) Kuldeep Bhargava (3) Jai Prakash Mishra (4) Shivendra Upadhyay (5) Ms. Rashmi Ritu Jain (6) Dinesh Narayan Pathak (7) Prem Singh Bhadouria (8) Champa Lal Yadav (9) Ghanshyam G Singh (10) Mrigendra Singh Baghel (11) Prabal Pratap Singh Solanki (12) Khalid Noor Fakhruddin (13) Shri Ghanshyam Singh, Hon'ble Members.

Shri R.D. Jain, Hon'ble Adovate General and Ex H

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A Officio Member stated that the meeting need not be adjourned and the Hon'ble Advocate General also read out the part of the order of Hon'ble High Court in WP No. 6372/11.

Item No. 2 Resolution No. 258/GB/2011 B The Item No. 2 of the agenda was read over. The members are asked to give their vote for or against by raising their hands. I

c Since the majority of the Members of the Council have supported the motion by raising hands it stands passed under Rule 122(A).

The following Members are present in the house as per below: D S/Shri (1) Vinod Kumar Bhardwaj (2) Jai Prakash Mishra (3) Shivendra Upadhyay (4) Ms. Rashmi Ritu Jain (5) Kuldeep Bhargava (6) Dinesh Narayan Pathak (7) Prem Singh Bhadouria (8) Champa Lal Yadav (9) Ghanshyam E Singh (10) Mrigendra Singh Baghel (11) Khalid Noor Fakhruddin (12) Prabal Pratap Singh Solanki (13) Bal Krishna Upadhyay have supported the motion and hence the motion stands passed by a majority of all the members present and the voting under Rule 122-A." F

8Copy pinpoint8. We may notice that two sets of minutes recorded differently for the same meeting have also been placed on record as Annexure P-10 (colly) and R-16/4 respectively. It needs to be noticed that one set of minutes is only signed by tlie Secretary of the State Bar Council while the other is signed by the Secretary as well as by other members who passed the Resolution.

9Copy pinpoint9. In the Minutes of the meeting dated 16th April, 2011, it had been specifically recorded that the Resolution is not to be given effect to in view of the orders passed by the Madhya

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OF M.P. & ORS. [SWATANTER KUMAR, J.] Pradesh High Court on 15th April, 2011 in Writ Petition No. A 6372 of 2011. However, the copy of the proceeding was to be communicated to the Registrar General of the High Court of Madhya Pradesh. This Resolution had been signed by the members present. B

10Copy pinpoint10. One Pratap Chandra Mehta had filed this above- mentioned Writ Petition No. 6372 of 2011, challenging the vires of Rules 121 and 122-A of the M.P. Rules. These Rules related to the term of, and procedure for passing a 'no confidence motion' against the Chairman, Vice-Chairman and the C Treasurer etc. As already noticed, the Court had directed that the meeting of the State Bar Council could be held on 16th April, 2011, but the Resolution, if passed, would not be given effect to, till further orders. The matter was ordered to be listed for hearing on 25th April, 2011. In the meanwhile, another writ petition was also filed being Writ Petition No. 6628 of 2011 and D the High Court in its final judgment observed that, in both the petitions same relief, on virtually the same grounds, had been claimed. The High Court had framed two basic points for decision: E

1. Whether Rule 122-A, as framed under Section 15 of theAdvocates Act was, ultra vires; and

2. Whether the second Resolution, dated 16th April, 2011 was invalid? F

11Copy pinpoint11. Vide its detailed judgment dated 20th May, 2011, the High Court decided both the issues against the petitioners and dismissed the writ petitions while vacating the interim order. The High Court held as under: G "22. On point (E) of para 16 above, it was urged from the petitioner's side that if Section 15(1) of the Act is taken to be the source of power for framing Rules prescribing the tenure for an elected chairman, and prescribing curtailment such tenure through a no-confidence motion, then such H

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A delegation to subordinate legislation must be struck down · as it confers wholly unguided and thus unfettered powers upon the delegate subordinate legislative Authority. In reply it could not be shown that there is any express guidance or that any policy guidance can be deciphered from all or B any of the provisions of the Act or from the scheme of the Act, regarding what tenure, if any, should be permitted, and if so under what circumstances and by what process, subject to what restrictions.

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principles is that the delegate ......... cannot widen or A constrict the scope of the Act or the policy laid down thereunder. It cannot, in the garb of making rules, legislate on the field covered by the Act.. ... .". We do not find the rule in question to be widening or constricting the scope of either the Act or any policy laid down under the Act. Nor B is the Rule in question legislating upon any field covered by the Act. To the same effect is cited the case of 'Addi. District Magistrate Vs. Sir Ra,' (2005) 5 SCC 451 (para 16).

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A 28. Before moving on to the next issue, we may refer to a decision cited by the Respondent no.6 (of W.P. No. 6628). In this interesting decision by a Full Bench of Gujarat High Court in the case of 'N.B. Posia Vs. Director' reported in AIR 2002 Guj 348 (PB) (relevant paragraphs are 46 and B 66 of that law report) it has been held that though there was no provision in the Act or statutory Rules for removal of an elected Chairman of the Committee, yet (i) the words "ceasing to hold office for any reason" include the removal by a no-confidence motion and (ii) if a holder of an office c if elected by a simple majority, he can be removed (through no-confidence motion) by a simple majority (even in absence of a statutory provision for such removal). With utmost respect to the said decision, we find ourselves totally unable to subscribe to either of the two propositions therein." D

12Copy pinpoint12. It is the legality and correctm~ss of the above reasoning that has been questioned before us in the present appeals. We have already noticed that the questions which arise for consideration in the present cases are of some public importance and are matters which are likely to arise repeatedly in the conduct of affairs of the State Bar Councils. Before we proceed to discuss the legal aspects of the propositions involved in the present cases, it will be more appropriate for the Court to notice the scheme of the Advocates Act and the relevant provisions of the laws and rules.

13Copy pinpoint13. The Parliament of India enacted the Advocates Act on 19th May, 1961 to amend and consolidate the laws relating to legal practitioners and to provide for the constitution of State G Bar Councils and an All India Bar Council. The object of the Advocates Act is to constitute one common Bar for the whole country and to provide machinery for its regulated functioning. Though the Advocates Act relates to legal practitioners in its pith and substance, it is an enactment dealing with the qualifications, enrolment, right to practise and discipline of H

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advocates. It is not only implicit but clear from the provisions A of the Advocates Act that once an advocate is enrolled by any State Bar Council, he becomes entitled to practise in all courts including the Supreme Court. Therefore, this is a legislation which deals with persons entitled to practise before the Supreme Court. In the case of O.N. Mohindroo vs. Bar Council B of Delhi & Ors. [AIR 1968 SC 888) this Court held that:

"(10) The object of the Act is thus to constitute one common Bar for the whole country and to provide machinery for its regulated functioning. Since the Act sets up one Bar, C autonomous in its character, the Bar Councils set up thereunder have been entrusted with the power to regulate the working of the profession and to prescribe rules of professional conduct and etiquette, and the power to punish those who commit breach of such rules. The power of punishment is entrusted to the disciplinary committees D ensuring a trial of an advocate by his peers. Section 35, 36 and 37 lay down the procedure for trying complaints, punishment and an appeal to the Bar Council of India from the orders passed by the State Bar Councils. As an additional remedy S. 38 provides a further appeal to the E Supreme Court. Though the Act relates to the legal practitioners, in its pith and substance it is an enactment which concerns itself with the qualifications, enrollment, right to practise and discipline of the advocates. As provided by the Act once a person is enrolled by any one F of the State Bar Councils, he becomes entitled to practise in all courts including the Supreme Court. As aforesaid,. the Act creates one common Bar, all its members being of one class, namely, advocates. Since all those who have• been enrolled have a right to practise in the Supreme Court G and the High Courts, the Act is a piece of legislation which deals with persons entitled to practise before the Supreme · Court and the High Courts. Therefore the Act must be held to fall within entries 77 and 78 of List I. As the power of H

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A legislation relating to those entitled to practise in the Supreme Court and the High Courts is carved out from the general power to legislate in relation to legal and other professions in entry 26 of List Ill, it is an error to say, as the High Court did, that the Act is a composite legislation B partly falling under entries 77 and 78 of List I and partly under entry 26 of List Ill."

14Copy pinpoint14. If one looks into the statement of objects and reasons for enacting the Advocates Act, it becomes clear that the Act C seeks to implement the recommendations of the All India Bar Committee, made in the year 1953, after taking into account the recommendations of the Law Commission on the subject of Reform of Judicial Administration, and particularly, the recommendations relating to the Bar and to legal education. It was, therefore, conceptualized to legislate a law which will govern the State Councils and the All India Bar Councils in different specified fields. The main features of the Advocates Act were, the integration of the Bar into a single class of legal practitioners known as advocates; the establishment of a common roll of advocates, having a right to practise in any part of the country and in any court, including the Supreme Court; the prescription of uniform qualifications for the admission of persons to become advocates; the division of advocates into senior advocates and other advocates based on merit; and the creation of autonomous Bar Councils, one for the whole of India, F i.e, the establishment of an All India Bar Council and one for each State. We may examine some of the relevant provisions of the Advocates Act.

15Copy pinpoint15. Section 2(a) of the Advocates Act defines an G 'advocate' to mean an advocate entered in any roll under the provisions of the Advocates Act.

'Bar Council' means a Bar Council constituted under the Advocates Act.

H On the other hand, the 'Bar Council of India' means the Bar

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Council constituted under Section 4 for the territories to which A the Advocates Act extends. ,

The 'State Bar Council' means a Bar Council constituted under Section 3 of the Advocates Act.

The expression 'prescribed for the purposes of this Act' B means prescribed by the rules made under the Advocates Act.

16Copy pinpoint16. The constitution of State Bar Council is provided under Section 3 of the Advocates Act and as would be evident, this Section has been subjected to numerous amendments made c from time to time. The constitution of the State Bar Council has been spelt out in Section 3(2); and Section 3(3) of the Advocates Act which provides that there shall be a Chairman and a Vice-Chairman of each State Bar Council, elected by the members, in such manner as may be prescribed. The o Advocates Act, inter alia, imposes certain restrictions and the deeming provisions in terms of Sub-sections (3) and (3A) of Section 3 of the Advocates Act, that every person holding office as Chairman or as Vice-Chairman of any State Bar Council immediately before the commencement of the Advocates E (Amendmer.it) Act, 1977, shall, on such commencement, cease to hold office as· the Chairman or Vice-Chairman, as the case may be, but, would continue to carry on the duties of his office until the persons elected as Chairman or Vice-Chairman, as the case may be, in accordance with the provisions of the Advocates Act, assume charge. F

17Copy pinpoint17. Section 3(4) of the Advocates Act requires 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 G satisfies such conditions as are prescribed in this behalf.

18Copy pinpoint18. All elections to the State Bar Council are to be held in accordance with the provisions of the Act. Similarly, under S~ction 4 of the Advocates Act, Bar Council of India shall H

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A consist of the persons stated under the Advocates Act. The provisions of the Advocates Act dealing with State Bar Councils under Section 3, are substantially similar to the provisions with respect to the Bar Council of India, under Section 4 of the Advocates Act. Every Bar Council shall be a body corporate B having perpetual succession and a common seal, with power to acquire and hold property and to sue and be sued in its own name.

19Copy pinpoint19. The functions of the State Bar Council and the Bar C Council of India are prescribed under Sections 6 and 7 of the Advocates Act. Besides admitting persons as advocates on its rolls [Section 6(a)] and maintaining such rolls [Section 6(b)], it is for the State Bar Councils to provide for the elections of its members [Sections 6(g)] and to perform all other functions conferred on it by or under this Act [Section 6(h)]. Section 6(i) D of the Advocates Act allows the State Bar Councils to do all other things necessary for discharging their functions.

20Copy pinpoint20. Functions of the Bar Council of India are of a wider spectrum than that of the State Bar Council. Bar Council of India E has to lay down standards of professional conduct and etiquette for the advocates, the procedure to be followed in Disciplinary Committees and to safeguard the rights, privileges and interest of advocates.

21Copy pinpoint21. The Bar Council of India may, under Section 7(k) of F the Advocates Act, provide for the election of its members. This provision is identical to Section 6(g) of the Advocates Act. Simila~ly, Sections 6(h) and 6(i) are equivalent to Sections 7(1) and 7(m) of the Advocates Act.

22Copy pinpoint22. The election to the Bar Councils fs for a specified tenure, which is stated under Section 8 of the Advocates Act. The term of the office of an elected member of a State Bar Council, other than an elected member thereof referred to in Section 54, shall be for five years from the date of publication H of the results. The Bar Council of India has been vested with

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the power of extending this period, for reasons to be recorded, A and only in the event of the State Bar Council failing to provide for the election of its members before the expiry of its terms. This power is also regulated by an upper limitation of 6 months in such grant of extension.

23Copy pinpoint23. Section 14 of the Advocates Act mandates that no B · election of a member to a Bar Council shall be called in question on the ground merely that due notice thereof has not been given to any person entitled to vote at the elections, if notice of the date has, not less than thirty days before that date, been C published in the Official Gazette.

24Copy pinpoint24. Section 15 of the Advocates Act is one of the most relevant provisions, which needs to be examined by this Court, as according to the contention raised by the appellants, Rule 122-A is ultra vires Section 15 of the Advocates Act. Section D 15 of the Advocates Act gives power to the Bar Council to make rules to carry out the purposes of 'this Chapter'. 'This Chapter' means Chapter II of the Advocates Act. Inter alia, this Chapter deals with constitution, election and functions of the Bar Councils. It will be useful to refer to the relevant parts of the E provisions of Section 15 of Chapter II of the Advocates Act, which are as under:

"15. Power to make rules,- (1) A Bar Council may make rules to carry out the purposes of this chapter. F (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for-

a. (Note:- Subs. by Act 60 of 1973, sec.12) the election of members of the Bar Council by secret ballot including the G conditions subject to which persons can exercise the right to vote by postal ballot , the preparation and revision of electoral rolls and the manner in which the results of elections shall be published];

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A. , c. (Note:- Clause (c) ins. by Act 38 of 1977, sec. 5) the manner of election of the Chairman and the Vice-Chairman of the Bar council];

d. )()()()()()( B e. xxxxxx

f. the filling of casual vacancies in the Bar Council ;

g. the power and duties of the Chairman and the Vice- Chairman of the bar Council ; c (ga) . xxx xxx

(gb). xxxxxx

h. xxxxxx D i. the constitution and functions of any committee of the Bar council and the term of office of members of any such committee;

E (3) No rules made under this section by a State Bar Council shall have effect unless they have been approved by the Bar Council of India."

25Copy pinpoint25. Chapter Ill of the Advocates Act deals with 'Admission and Enrolment of Advocates'. F Section is of the Advocates Act empowers the State Bar Councils to make rules to carry out the purposes of this Chapter, i.e., Chapter Ill.

26Copy pinpoint26. Section 49 of the Advocates Act appears under Chapter VI, i.e., 'Miscellaneous' and empowers the Bar Council of India to make rules for discharging its functions under this Act and besides providing for specific powers, the Bar Council of India may prescribe rules under the residuary provisions of H Section 49(1 )0) of the Advocates Act, whereby the Council is

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empowered to make rules in regard to any other matter which A may be prescribed. However, tl:le rules framed would not come into force or take effect unless they have been approved by the Chief Justice of India and if the rules relate to Section 49(1 )(e) of the_ Advocates Act they will not take effect unless they have been approved by the Ce.ntral Government. Under Section 49A B of the Advocates Act, the Central Government is vested with the general power of making rules and these rules could be framed for the whole of India or for all or any of the Bar councils. In the event of conflicts between the rules framed by the Central Government and the Bar Councils, the rules framed by the c Central Government shall have precedence in terms of Section 49A(4) of the Advocates Act. We need not elaborate upon other provisions of the Advocates Act at this stage.

27Copy pinpoint27. Now let us notice the relevant provisions in the Bar Council of India Rules (in short, the 'Rules') which were enacted D in exercise of its rule making powers under the Advocates Act. This power of the Bar Council of India originates from clauses (c), (d), (e), (f) and (g) ofSub-section (2) of Section 15 read with Sections 4 and 1OB of the Advocates Act. E

28Copy pinpoint28. Chapter I of Part II of the Rules deals with the matters relating to the Bar Council_pf India and particularly to the election of members of the Council. The election of the members of the Bar Council of India has to be conducted in terms of Rules 1 to 10 of the Rules. Rule 11 of the Rules makes it mandatory that a member of the Bar Council of India, who is elected as Chairman or Vice-Chairman or member of any Committee of the Council, shall cease to hold office as such Chairman or Vice-Chairman or member of Committee, on the expiry of his term as a member of the Bar Council of India. A restriction is further sought to be placed upon the right of the person to resign. A member can resign from the membership of the Bar Council of India only on the grounds which are genuine and not for the purposes of sharing of terms fixed by the statute. Under Rule 12(2) of the Rules, the Chairm'an or the Vice-Chairman H

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A shall hold the office for a period of two years or until his term of office as member of the Bar Council of India ceases whichever is earlier. The election for the post of Chairman and Vice- Chairman has to be held at the meeting of the Bar Council of India and in accordance with the procedure prescribed under B Rule 12 of the Rules. The Chairman and the Vice-Chairman perform the functions of exercising general control and supervision over the affairs of the Bar Council of India, save as otherwise provided in these Rules and subject to the resolutions of the Bar Council of India. Rule 22 of the Rules has significant c bearing on the discussion in the present cases. This Rule relates to 'no confidence motion' against the Chairman, the Vice-Chairman, or any other office bearer, and its consequences. The Rule 22 reads as under:

"On a motion of "No confidence" being passed by Bar D Council of India by a Resolution passed by majority of not less than 3/4th of the Members present and voting and such majority passing "No Confidence Motion" is more than 2/ 3rd of the total number of Members constituting the Bar Council for the time being, the Chairman or Vice-Chairman E or any other office bearer against whom the motion is passed shall cease to hold office forthwith.

Notwithstanding anything contained in the Act or the Rules made thereon, the Chairman or Vice-Chairman shall not F preside over the meeting in which motion of "No Confidence" is discussed against him and such meeting shall be convened on a notice of at least one month. The Chairman or the Vice-Chairman shall have the right to vote, speak or take part in the proceeding of the meeting."

29Copy pinpoint29. The Committees excluding the Disciplinary Committees are to be constituted by the Bar Council of India under Chapter II. The framers of the Rules have taken a precaution that the decisions of the Bar Council of India should not be changed without reason and in violation of the relevant H provisions. Rule 9 of Chapter II of the Rules provides that the

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jecision on any matter shall be by majority and, in the case of A. 3quality of votes, the Chairman of the meeting shall have a second or a casting vote. Rule 10 of the Rules puts a restriction on change of decisions. According to this Rule, no matter once decided, shall be re-considered for a period of 3 months unless the Bar Council of India by a two-third majority of the members present so permits. Under Rule 12 of the same Chapter, in the absence of the Chairman or the Vice-Chairman member at any meeting, a member chosen by the members of the Council shall preside at the meeting.

30Copy pinpoint30. We have noticed these Rules to make a comparative study of the relevant M.P. Rules, to examine their impact in correct perspective. In exercise of the powers conferred by Sections 15(1), 15(2), 28(1) and 28(2), read with Chapter II and other provisions of the Advocates Act, the State Bar Council, with the approval of the Bar Council of India as required under D Sections 15(3) and 28(3) of the Advocates Act, has framed the M.P. Rules. The M.P. Rules dea~ with different facets of functioning of the State Bar Council. It is not necessary for us to deal with all the aspects of the rules governing the functioning of the State Bar Council. The State Bar Council shall elect the E members of each Committee in its Meeting as per Rule 1 of Chapter VI. In terms of Rule 3 of the same Chapter, the election to the Committee shall be conducted by the Chairman of the State Bar Council and in case the Chairman of the State Bar Council is a candidate for being elected as a member of any F Committee, the State Bar Council, before proceeding with the elections to such Committee, shall appoint any one. of its members who is not a candidate for election to such committee, to conduct the election to the said Committee and to declare the results under his signature. G

31Copy pinpoint31. Under Chapter XVI, Rule 110 of the M.P. Rules, it is obligatory on the part of the Chairman of the State Bar Council to call a meeting, which he shall preside over, when he receives a requisition for doing so, signed by not less than 3 members H

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A of the State Bar Council. The Chairman has to exercise general control and supervision over all the matters of the State Bar Council.

32Copy pinpoint32. The State Bar Council consists of 26 elected members and the Advocate General of the State. Rule 118 is the first rule that falls under Chapter XVIII and it requires that a State Bar Council shall elect a Chairman and a Vice-Chairman from amongst its members for two years. Rule 118 of the M.P. Rules came to be amended and, as per the amended Rule, the State Bar Council has to elect a Chairman and a Vice-Chairman from amongst its members for 2% years vide Resolution No. 631 of 1998.

33Copy pinpoint33. Rule 122-A of the M.P. Rules was amended by the . State Bar Council sometime in the year 1975 and vide its D Resolution dated 27th April, 1975, the amendments and newly added rules were sent for approval of the Bar Council of India. Again in its Resolution dated 9th March, 1980, the State Bar Council had recorded that to these amendments/newly added Rules, approval of the Bar Council of India had been obtained. E It needs to be noticed that all the members of the State Bar ..Council had attended the meeting and were signatory to this Resolution. However, Rule 121, which was amended vide Resolution No. 631 of 1998 dated 24th January, 1998 is also stated to have received approval from the Bar Council of India. F However, no notification in that regard is stated to have been issued as yet. There is some controversy whether Rule 121 under !he same Chapter was amended and whether it attained the approval of the Bar Council of India. This question is not very material for us to examine inasmuch as under both Rules 118 and 121, the period of term of the elected Chairman and G the Vice-Chairman is stated to be two years or till they cease to be members whichever is earlier. Besides the above facts, Section 15(3) of the Advocates Act requires that tRe rules !framed by the State Bar Council should be approved by the Bar Council of India. It nowhere requires issuance of any notification H

PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL1001 OF M.P. & ORS. [SWATANTER KUMAR, J.]

which, in some cases, can be a part of legislative provisions. A In view of the above factual matrix, it has to be held that this controversy does not require any further consideration by the Court.

34Copy pinpoint34. The provisions with which we are primarily concerned B in the present case are contained in Chapter XVIII of the M.P. Rules. They read as under:

"118. The Bar Council shall elect a Chairman and a Vice- Chairman from amongst its members for two years. c

119. Any candidate for the office of Chairman or Vice- Chairman shall be proposed by one member and seconded by another member.

120. The election of Chairman or Vice-Chairman unless unanimously agreed upon by all the members present at 0 the meeting, shall be by show of the hands. In case of the tie, the election shall be decided by drawing of lots.

121. The Chairman, the Vice-Chairman and the Treasurer of the Council, shall hold office for a period of two years E or till they cease to be members whichever is earlier.

122-A The Chairman, Vice-Chairman or the Treasurer of the Council could be removed by a vote of no confidence passed by majority of the members, present and voting in F a meeting of the Council especially called for the purpose, provided that at least 7 members of the Council have signed the requisition for holding such a special meeting, and such meeting shall be called within a period of 21 days from the date of receipt of the requisition by the secretary. G

122-B That the Bar Council by a resolution may reconstitute any of. its commil1~e17:, elected earlier by it, provided that the requisition for 1."1e purpose signed by at least 7 members of the Council is received by the Secretary, and such a special meeting shall be called H

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A within 21 days from the date of receipt of the requisition by the Secretary."

35Copy pinpoint35. Rule 122-A of the above Rules deals with the removal of the Chairman, Vice-Chairman or the Treasurer of the State B Bar Council by moving a 'no confidence motior1'. Existence of such a provision is not exceptional, but is a common provision in any electoral system. Our parliamentary system is the most significant example of a democratic process, where the 'no confidence motion' under Article 75(3) of the Constitution is an integral part of the process of election. Similarly, under Rule 22 of the Rules, a provision has been made for moving a 'no confidence motion' and where such motion is passed by a majority of not less than three-fourth of the members, present and voting, and such majority passing the 'no confidence motion' is more than two-third of the total number of members constituting the State Bar Council for the time being, it results in the removal of the Chairman, Vice-Chairman or any other office bearer. Upon passing of such a resolution, the person shall cease to hold the office forthwith. Every democratic process is based upon the freedom to elect and freedom to remove, in accordance with law. Rule 122-A of the M.P. Rules contemplates moving of a 'no confidence motion' and upon such motion being passed by majority of the members, present and voting, the office bearer against whom such a motion is moved shall be liable to be removed from such office. For F successful application of Rule 122-A, the law requires the following minimal conditions to be satisfied:

1. At least 7 members have signed the requisition calling for a meeting of the Council;

G 2. Such meeting shall be called within 21 days from the date of receipt of requisition by the Secretary.

3. Such 'no confidence motion' has to be passed by a majority of the members present and voting, in the H

PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL1003 OF M.P. & ORS. [SWATANTER KUMAR, J.]

meeting of theCouncil, especially caned for this purpose.

36Copy pinpoint36. Once the above conditions are satisfied 'no confidence motion' can be passed and upon passing of such motion, the person is liable to be removed from the office which he held in the State Bar Council prior to the holding of such meeting. The spirit behind this provision is that where a person is elected by following a process of election to the post of an office in the State Bar Council, he could be removed by following the prescribed procedure in accordance with the Rules. c

37Copy pinpoint37. This Court in the case of Mohan Lal Tripathi v. District Magistrate [(1992) 4 sec 80], examined the validity of a 'no confidence motion' passed by the Board on 28th March, 1990 under Section 87-A of the U.P. Municipalities Act against the President who was directly elected by the electorate under D Section 43(2) of the Act. The basic argument raised was that he was sought to be removed or recalled by the other elected members, which was a smaller and different body than the one that had elected him and, thus, was violative of the democratic mandate. While rejecting this argument, the Court held as under: E

"2. Democracy is a concept, a political philosophy, an ideal practised by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a F 'fundamental right' nor a 'common law right' but a special right created by the statutes, or a 'political right' or 'privilege' and not a 'natural', 'absolute' or 'vested right'. 'Concepts familiar to common law and equity must remain strangers to Election Law unless statutorily embodied.' G Right to remove an elected representative, too, must stem out of the statute as 'in the absence of a constitutional restriction it is within the power of a legislature to enact a law for the recall of officers'. Its existence or validity can be decided on the provision of the Act and not, as a matter H

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