Bar Council of India Notification: Rules and Code of Conduct for State Bar Council and Bar Council of India Elections 2023
The Bar Council of India has released a new notification outlining the rules and code of conduct for the elections of State Bar Council and Bar Council of India. The aim is to improve the standards of Bar Councils and ensure the inclusion of practicing Advocates with no criminal antecedents or misconduct. This notification provides qualifications, disqualifications, and procedures involved in the elections.
The notification introduces qualifications and disqualifications for voters and members of State Bar Councils, highlighting the importance of regular practice and a clean record. It emphasizes the need for valid certificates and degrees recognized by the State Government. The code of conduct for members of Bar Councils and the guidelines for fair elections and counting process are also outlined. The notification establishes the Central Election Appellate Committee/Tribunal of Bar Council of India to address election disputes and ensures transparency and fairness in the electoral process.
Full Text of the notification is as below:-
Bar Council of India Rules (for qualification/Disqualification and produce for election and code of conduct for the elections of S.B.C/B.C.I.) 2023
BAR COUNCIL OF INDIA
NOTIFICATION
New Delhi, the 23rd June, 2023
F. No. BCI:D:3429/2023.—Bar Council of India Rules (for qualification/Disqualification and produce for election and code of conduct for the elections of S.B.C/B.C.I.) 2023
Rules and Amendments: –
In order to improve the standard of the Bar Councils and to ensure the elections only of practicing Advocates as Member of Bar Councils, who have no bad antecedents and to stop the inclusion/election and/or continuation of Advocates having criminal antecedents or misconduct, the Council has resolved to make the following Rules and Code of conducts. The Rules are being framed under Section 7(1)(b), (d), (g), (e) read with Section 49(1)(a), (ah), (i) of the Advocates Act, 1961. The Hon’ble Members also raised the issue of laying down the qualifications and disqualifications for being a voter in the State Bar Council and for becoming and/or remaining a Member of State Bar Council and Bar Council of India.
Accordingly, the office has framed and proposed the Rules for such qualifications and disqualifications and also certain Code of Conduct has been provided for the candidates contesting the elections of State Bar Council and Bar Council of India.
A Code of Conduct is also equally important for the Members of Bar Councils. The House accordingly resolves to make the following Rules under Section-7 r/w Section-49 of the Advocates’ Act, 1961. Besides some mandatory guidelines for fair election and to avoid unnecessary delays in counting process are also necessary to be considered, which are prescribed herewith.
Further, the Bar Council of India vide its resolution dated 9th June 2023 has resolved that any other previous Rules/ provisions in this regard, which are in anyway contrary or are in conflict with these Rules, shall be deemed to have been repealed, and these Rules shall have overriding effect over all other previous Rules.
As per the verdict of Hon’ble Supreme Court dated 5.2.2018 passed in T.C. No. 126 of 2015, the three men-Central Election Committees/Tribunals headed by a former Chief Justice of some High Court and consisting of two former Judges of any High Court(s) was to be constituted by the Bar Council of India; and the B.C.I. has already notified Rules in this regard vide Notification dated 30.12.2020 in accordance with the verdict of Hon’ble Apex Court. The part of those Rules which are not in any way contrary to this Rules shall remain operative.
In order to bring certain reforms in the Rules and procedure of elections of Bar Councils, these resolutions were also brought on record of Hon’ble Supreme Court of India vide I.A. No.51257 of 2023 in M.A. No. 859 of 2020 in S.L.P. (C) No. 5440 of 2020 and in W.P. No. 82 of 2023. The Council, thereafter, reconsidered all these Resolutions again on 9th June, 2023 and the decision to get it published in Official Gazette was taken after minor modifications. Therefore, any other previous Rule/resolution or provision notified prior or subsequent to 30.12.2020, if is contrary to the above order of Hon’ble Apex Court, shall be treated to have been repealed.
Chapter-I
Qualifications and disqualifications:-
1. Qualifications for being a voter in the elections of State Bar Council: –
Any Advocate enrolled with the concerned State Bar Council who is a regular practitioner as per Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015 (as amended from time to time) shall be entitled to be a voter in the elections of Bar Council subject to other conditions mentioned herein.
2. Disqualifications for being a voter: –
If an Advocate is a convict in any Criminal Case or in Contempt Case, he/she shall not be qualified to be a voter of State Bar Council. Any Advocate who is a defaulter under Rule-40 of Bar Council of India Rules (prior to nine months from the date of election) shall not be a voter for the elections of State Bar Council. (Howere, the State Bar Council may waive this condition and include the name of any Advocate in th list of voter, if he/she clear the dues under Rules 40 before the publication of final elctorla roll)
3. Qualification for being a Member of State Bar Council(s):-
Any Advocate who is a regular practitioner and not a convict and who has not been punished by any Disciplinary Committee (of Bar Council or Bar Council of India till the period before 9 months of the election), shall be entitled to contest the election of State Bar Council. The Advocate should have a valid certificate & degrees duly recognized by concerned State Government. Any enrolment procured on the basis of an invalid certificate or degree shall not be treated to be valid for being a Member of any State Bar Council, irrespective of the inclusion of such Advocate on the State-roll.
4. Disqualification for being a Member of State Bar Council(s) and Bar Council of India: –
An Advocate, for being a Member of any Bar Council should not have been punished by any Disciplinary Committee and/or should not be a convict. There should be no Criminal case of serious nature (prescribing punishment for 7 years or more) pending against him/her prior to 9 months of the election. There should be no Disciplinary Committee Case pending before 9 months of election against him/her. He/she should be regular in practice and should not be in any other job or occupation. Any Advocate doing work of Handwriting expert or appearing as a witness in support of any litigant, shall not be eligible to be a Member of any Bar Council.
NOTE:- The nomination form of every such election of State Bar Council/Bar Council of India should contain the column to the aforesaid effect and the proposer/seconder and the candidate shall be required to make the declarations in accordance with these Rules, failing which the nomination paper shall be rejected. Any concealment shall attract appropriate disciplinary and criminal action, besides the cancellation of candidature and/or removal from Membership of concerned Bar Council/Bar Council of India.
Chapter-II
5. Code of Conduct for Members of Bar Council:-
Flashing/Publishing any fake news wilfully or deliberately OR propaganda making any dirty or threatening statement with ulterior motive to malign image of anybody (Judge or Advocate), or with an intent to gain cheap popularity or for any illegal self-gain shall amount to misconduct, which may result in cancellation of candidature in election or removal of a Member from any Bar Council.
6. Code of Conduct for State Bar Council Elections:-
A. Offering or accepting anything either in cash or in kind for casting vote in favour of any candidate shall be treated to be a serious corrupt practice. Any complaint in this regard, if proved before the Central Election Tribunal/Committee (constituted vide Notification as per order of Hon’ble Apex Court in T.C. Case No. 126/2015 dated 5th February, 2020) shall result in cancellation of the candidature of such person; or such member may also be removed, from the Bar Council, even after result of election. In case of such removal, the last candidate who was in the queue of elimination, shall be inducted as a Member of State Bar Council.
B. Taking shelter of mal-practice, using hate speech or anti-national or anti-institutional speech, using offensive or defamatory words or threatening words against any Judge, Bar Council or any candidate or making false or vague or bald allegation with an intent to damage the reputation or image of any candidate or Member shall be treated to be serious misconduct and corrupt practice; and if proved finally before the Central Election Committee/Tribunal, such conduct/practice may debar such candidate from contesting election; And if any such person has been declared elected, the Central Election Tribunal/Committee may remove such person from the membership of the Bar Council or Bar Council of India.
C. Any offensive or defamatory or provocative message or statement or video or audio or speech made viral on social, electronic or print media may be a material and substantive evidence to attract the provisions of these Rules and may be sufficient for the punishment under these Rules.
D. Any such offensive/defamatory message or statement or video or audio or speech or threat on any media (social, electronic or print) may disqualify a candidate from becoming a Member of State Bar Council or Bar Council of India.
E. The Central Election Tribunal/Committee may also debar such persons from contesting the next election or if the charges are very serious, he/she may be debarred from contesting any election of any Bar Council in future by the Central Election Tribunal/Committee.
Chapter-III
7. Procedure regarding complaint/ disputes: –
The complaint of mal or corrupt practice or violation of Code of Conduct if made during or prior to the election of State Bar Council, may be made by any Advocate or anybody to the Returning Officer who shall report the matter to the Returning Officer (R.O.) or Observer and the R.O. or the Observer (as the case may be) shall refer the matter to the Central Election Tribunal/Committee alongwith the complaint and the other materials for the final decision. The complaints/Reports/Recommendations may be made online or offline or both.
The Central Election Tribunal/Committee shall give the complainant and the candidate/member (as the case may be) an opportunity of hearing before cancelling the candidature of the candidate or before taking a final decision on the complaint. The Central Election Commission/Tribunal shall assign the reason for its decision. The hearings shall be made in hybrid mode depending on the convenience of the parties.
8. Procedure for removal from Membership of Bar Council: –
If the Member of any Bar Council commits such misconduct or adopts corrupt practice or violates the Code of Conduct, as presecrbed under chapter-II of these Rules, the General House of Bar Council may pass a resolution for the removal of such member and refer the matter to Central Election Tribunal/Committee for its final approval. The Central Election Tribunal/Committee shall take its decision on the matter of approval or disapproval after giving an opportunity of hearing to the concerned Member and shall pass a seasoned order.
The Central Election Tribunal/Committee shall frame its own Regulations laying down the details of procedure in this regard.
Chapter-IV
9. Central Election Appellate Committee/Tribunal of Bar Council of India:-
In order to secure transparency and fairness and also to avoid the multiplicity of litigations in courts and for early disposal of the election disputes, there shall be an Election Appellate Committee of Bar Council of India consisting of a former Judge of Supreme Court of India to be nominated by Bar Council of India in consultation with Hon’ble the Chief Justice of India and two former Judges of High Court(s) to be nominated by Bar Council of India. Any final order/decision passed by the Central Election Committee/Tribunal can be challenged before this Election Appellate Committee (which may also be called the Election Appellate Tribunal of Bar Council of India) within a period of 15 days of the order/decision of Central Election Committee/Tribunal.
The Central Election Committee and the Appellate Committee shall have their secretariate in the premises of Bar Council of India.
The Appellate Election Committee shall frame its own Regulations for the disposal of appeals. The hearings before the Appellate Committee shall be in Hybrid Mode depending upon the convenience of the parties. The pleadings of petitioners/appeals/Replies/Rejoinders may be online or offline as per convenience of the parties.
Chapter-V
10. Mandatory Rules and Guidelines for election and counting:-
10. (A) The Returning Officer should be either a former Judge of High Court or a Senior Advocate. However, if the Returning Officer is a Senior Advocate, the Bar Council should appoint a former Judge of High Court as the Observer for the election. Provided that a Bar Council can appoint former Judges as Returning Officer and Observer both.
The Bar Council may consult the Bar Council of India in the matters of appointments of Returning Officer and Observer, if need be. However, if required, the Central Election Tribunal/Committee may also appoint Returning Officer/Observer, when there is any serious dispute in any Bar Council in this regard. The Order of Central Election Tribunal/Committee shall be final in such matters.
NOTE: Serious dispute means a dispute where there is a sharp division among the members on the name of any Returning Officer or Observer or Assistant Returning Officer(s) or Co-observers.
(B) The entire process of the counting of votes is to be videographed and the videography is to be kept in a pen-drives; one pen-drive shall be sent to the Central Election Tribunal/Committee by the R.O..
(C) In order to ensure fair, but, peaceful counting process and to ensure safety of ballot boxes, packets, voting papers, strong-rooms, the candidates and/or their agents should not be permitted to enter into the counting hall’s internal sections (or to have physical access to the boxes, packets or voting papers). They shall not enter in the cabins, inside barricade where voting papers are counted. Nobody should be allowed to go near the counting staff; and the candidates/agents should keep at least a distance of 9 feet away from the place where the counting is takes place.
(D)The signature of either polling officer or any Assistant Returning Officer or Co-observer shall be sufficient proof the validity of any voting paper/used ballot paper. Moreover, the Bar Councils should (as far as is practicable) try to avoid the booth-wise counting, as it encourages groupism and nepotism in the Institution.
(E) After the voting is complete on any polling booth, the ballot boxes and packets (if any), shall be sealed with the signature of polling officer. The polling officer will mention the details of (i) Total number of ballot papers received by them; (ii) Total number of votes polled; (iii) Total number of unused ballots; and (iv) Total number of boxes and packets. All these details shall be mentioned on a register (page) supplied by the Returning Officer/Assistant Returning Officer (at the place where strong room is located) through the Secretary of Bar Council (who is a permanent Officer/employee of the State Bar Council). The relevant page of register should be duly signed by the polling officer or should be signed by any one of the Assistant Returning Officer(s) or any one of the Co-Observers.
(F) In case of any dispute with regard to signature (either of polling officer or of Assistant Returning Officer or of Assistant Observer) any one signature if found genuine (by the Returning officer or Observer) shall be sufficient to prove the validity and genuineness of the polling at any polling station/booth.
(G) In no event the process of counting shall be stopped on the basis of any sort of complaint in this regard.
Provided that, if there is a genuine demand, the Observer may permit any candidate to enter into counting place in order to remove any sort of doubt. But not more than one candidate shall be permitted to enter the counting hall at one time; And soon after verifying the things, the candidate shall leave the hall/place.
Provided further that, through videography each ballot/voting paper and the relevant mark of voting shall be shown to the candidates/their agents through as many TV Screen(s) as required and it should be recorded and stored in pen-drives. No counting shall be held without showing the actual voting mark(s) to the candidates/their agents in course of videography
Chapter-VI
11. Consequences of Misconduct during counting: –
11. The Returning Officer or the Observer may recommend the cancellation of the candidature of anyone who is found to indulge in any sort of hooliganism, baseless protest, shouting slogans against the Returning Officer, Observer or counting team etc. and/or if any candidate or his agent is found to indulge unnecessary disturbance causing hurdle or in manhandling or marpit either in course of counting or the election, the candidature of such candidate may be recommended for cancellation to the Central Election Tribunal/Committee along with the materials.
Any order of cancellation of candidature of any candidate shall be required to be passed by the Central Election Tribunal/Committee within 24 hours of receipt of order of Returning Officer/Observer.
The Central Election Committee shall pass its reasoned order after hearing the candidates against whom the complaint is made.
Chapter-VII
Resolution of Dispute:-
Any candidate, if feels aggrieved, or has any complaint in these matters may file an election petition before the Central Election Tribunal/Committee of Bar Council of India within 15 days of publication of result.
However, for filing a valid election petition, the candidate shall be required to lodge his complaint before the Returning Officer and/or the Observer on the same day when the cause of action arises.
The complaint shall disclose details of grounds and the evidence, if any.
Once such complaint is received in the office of Retuning Officer and the Observer, the Returning Officer and/or the Observer may issue an Order to the Office to keep the concerned Documents/ Register in safe custody (with the xerox copy to be kept in sealed cover), which may be called for by Central Election Tribunal/Committee anytime during the hearing of Election Petition.
Chapter-VIII
12. In order to make the verification Rules 2015 more effective and purposeful in the light of the order (s) of Hon’ble Supreme Court in T.C. (Case) No. 126/2015 and W.P. No. 82/2023 following Rule – 8A is being added herewith in Bar Council of India Certificate and Place of Practice (verification) Rules, 2015
The relevant amended Rules shall be as follows: –
Rule – 8(A) :-The State Bar Council shall send the xerox copies of certificates for verification to the concerned Examination Boards/Universities at the earliest. The State Bar Council shall take its decision on the basis of report of verification. If any certificate is found to be fake or forged or unrecognised or invalid, the concerned State Bar Council shall bring into the notice of the Bar Council of India and Bar Council of India shall remove the name of such person from the roll of advocates after giving him/her an opportunity of being heard.
It is made clear that any certificate or degree, if it is found to be not verified by the concerned Board/University or if the certificate or degree is issued by a Board/University not recognised by the State Govt., such certificate or Degree shall be treated to be invalid; and the name of such person shall be removed from the roll of Advocates. This provision shall have retrospective effect in order to remove the holders of fake or invalid or unrecognised degrees or certificates.
Chapter-IX
Miscellaneous
13. Rules to have overriding effect:-
The provisions of these Rules shall have overriding effect over all the previous resolutions/rules or rules of Bar Council of India or any other State Bar Council with regard to elections of State Bar Council or Bar Council of India.
14. Removal of difficulties:-
In case of any doubt or dispute as to the meaning, interpretation, execution of these Rules arises, the Bar Council of India shall be the final authority to settle such issues and its decision thereon shall be final.
SRIMANTO SEN, Secy.
[ADVT.-III/4/Exty./223/2023-24]
