C D SEKKIZHAR Vs. SECRETARY BAR COUNCIL MADRAS

JUDGEMENT

(1.) THE petitioner is an advocate of this Court with a standing of eight years at the bar. As a member of the profession, he applies under Art, 226 of the Constitution for rule forbidding the respondent from conducting the election to the Bar Council of Madras, which was originally fixed to be held on 5-11-1965 but stayed by this court. The petitioner contends that Rule 7 (2) of the Election Rules framed by the madras Bar Council on 20-4-1963 and approved by the Bar Council of India on 24/25-8-1963 is invalid in so far as it forbids any announcement or canvassing as provided for by the Explanation to the rule. The ground of invalidity, it is said, is that the Explanation is unreasonable. The petition is opposed not only of the ground that the Explanation is in keeping with the ethics and standards of the noble profession but also on the ground that the alleged invalidity of the explanation in is more properly agitated by means of an election petition under R. 35 of the Election Rules.

(2.) THE Advocates Act, 1961 by S. 3 in Ch. H provides for constitution of a Bar council for such State and fixes its strength besides the provision for the Advocate general of the State being an ex officio member thereof. Section 6 (1) enumerates the functions of a State Bar Council one of the members of the Bar Council one of which under clause (g) is to provide for election of the members of the Bar council. The term of office of members of the Bar Council is regulated by S. 8. By this provision the term of office of the elected members of a State Bar Council shall be six years, but as nearly as possible one third of the members first elected to the Council shall retire on the expiration of every second year in the manner prescribed. The vacancies so arising should be filled by election of new members in the prescribed manner. Section 15 contains rule-making power of a Bar Council, Rules may be framed by the Council to carry out the purposes of Ch. II. Among the specified items of power to make rules in sub-section (1) of S. 15 is the power of make rules for election of members of a Bar Council and the power extends to make rules as to the conditions subject to which persons can exercise the right to vote, the preparation and revision of electoral rolls, the manner in which election shall be held and the manner in which results of election shall be published. In exercise of this power the Election Rules mentioned at the outset have been framed. These rules cover various matters which need not be detailed here. They include provision for notice of election and as to how the candidates for election may be proposed. Rule 7 places a bar upon an advocate in certain circumstances from standing for election or from holding an office or continuing in it in certain circumstances. As this is the rule that is under attack, it may be set out: "7 (1) No Advocate found guilty of professional misconduct by the present or previous Bar Council or convicted of any criminal offence involving moral turpitude and not being merely of a political nature, shall be qualified to stand for election or continue in officer after such disciplinary proceedings or conviction. (2) No advocate found guilty of any electoral misconduct in the election shall be entitled to hold office of a member of the Bar Council for a period of six years from the date of such finding. Explanation to Rule 7 (2): "electoral misconduct" shall include any announcement or canvassing in person, by post or otherwise by any advocate, of his candidature to the Bar Council or the candidature to the bar Council of some other advocate other than himself. Provided that a nomination to the Bar Council or announcement by the Bar Council shall not be deemed to come within this rule". The attack in this provision is confined to the validity of the Explanation to sub-rule (2 ). Learned counsel for the petitioner does not say, I think, quite rightly, that prohibition of canvassing in person, by post or otherwise by an advocate is unreasonable. His argument is confined to the prohibition of any announcement in person, by post or otherwise by an Advocate of his candidature to the Bar Council or the candidature to the Bar Council of some other advocate. Learned counsel is not, however, clear how this prohibition is unreasonable and from what point of view. All that he says is that if for instance there are two persons in the profession with the same name and one of them stands as a candidate, in the absence of announcement of the identity of the particular candidate, there may be confusion in the minds of the voters. It is urged therefore, that the explanation to that extent is unreasonable.

(3.) THE difficulty in the illustration given by counsel rarely occurs, if at all, and is one which is not comprehended by and is not relevant to the Explanation. It cannot be held to be unreasonable merely by reason of what it does not provide for. The whole object of R. 7 including the explanation is obviously that having regard to the high ideals and place of the noble profession, no advertisement, canvassing or announcement in any manner should be permitted. I consider that this is perfectly legitimate and what should be expected. The position of the profession and its standards cannot be judged by the same yard stick as applies to the general public. The profession is a fraternity by itself and is the master of its own affairs. It is entitled to prescribe rules of etiquette, conduct, standard and professional ethics for the members of the community. It is hardly necessary to point out that the profession of law is one of the most evolved and learned of all the professions, and has certainly special privileges and, therefore, also special responsibilities. Consistent with a view them, therefore, it is eminently reasonable, i think, that Rule 7 has been framed with a view to avoid any kind of advertisement by an advocate under the guise of his standing for the Bar Council election or of his colleague.