the rules framed by maharastra state bar council , imposing to pay subscription for exercising the right of vote and making compulsory casting vote for at least 10 preferrences to make the vote valid – the rules are un constitutional as the state bar council has no power to frame those rules and as the indian bar council also cannot approve the same

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 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

 SPECIAL LEAVE PETITION (C) Nos. 18386-18387 of 2007

The Bar Council of Maharashtra & Goa ... Petitioners

 Versus

Manubhai Paragji Vashi & Ors. ... Respondents

 WITH 

 SPECIAL LEAVE PETITION NOs.18388-18389 OF 2007

Patil Rajiv Laxmna ... Petitioner

 Versus

Manubhai Paragji Vashi & Ors. ... Respondents

 O R D E R

A. K. PATNAIK, J.

 These two Special Leave Petitions under Article 136 of 

the Constitution are against the common judgments dated 

13.12.2006, 04.06.2007 and 21.06.2007 of the 

Bombay High Court in Writ Petition Nos. 903 of 

2004 and 1781 of 2004 (for short `the impugned 

 2

judgment') and relate to elections to the Bar Council of 

Maharashtra and Goa. 

2. The facts very briefly are that for elections to the Bar 

Council of Maharashtra and Goa (for short `the State Bar 

Council'), Electoral Roll was prepared in which the names of 

the Advocates on the roll of the State Bar Council who had 

not paid the subscription as per Rule 40, Chapter -II, Part 

VI of the Rules were deleted from the Electoral Roll. The 

names of these Advocates had to be deleted from the 

Electoral Roll because Rule 6(h) of the Bar Council of 

Maharashtra and Goa Rules (for short `the State Bar 

Council Rules') provided that the name of an Advocate 

appearing in the State Bar Council Roll shall not be on the 

Electoral Roll if he has not paid the subscription under Rule 

40, Chapter - II, Part VI of the Rules and obtained receipt 

from the State Bar Council. Respondent No.1, who was 

earlier a member of the State Bar Council, filed Writ Petition 

No. 903 of 2004 before the High Court on 31.12.2003 

praying that all the Advocates on the Roll of the State Bar 

Council be allowed to cast their votes and contest the 

elections without being disqualified for non-payment of the 

 3

amounts as per Rule 40, Chapter - II, Part VI of the Rules. 

While the Writ Petition was pending, elections to the State 

Bar Council were held and the result of the elections was 

declared on 04.03.2004. Respondent Nos. 1 and 7 to 30 

were declared elected to the State Bar Council and the State 

Bar Council was constituted for a fresh term of five years. 

Respondent No.1 amended the Writ Petition No. 903 of 2004 

and prayed for striking down Rule 6(h) of the State Bar 

Council Rules as ultra vires the powers of the State Bar 

Council. Under Rule 31 of the State Bar Council Rules, it 

was provided that a voter shall be entitled to mark his 

preferences to all the candidates appearing in the voting 

paper and Rule 32 (g) of the State Bar Council Rules 

provided that a voting paper shall be invalid in which 

preferences to less than ten candidates are communicated. 

Respondent No.1 also challenged these provisions in Rules 

31 and 32 and prayed for the deletion of the provision for 

communicating a minimum of ten preferences in the voting 

paper. On 07.06.2004, some other Advocates filed Writ 

Petition No. 1781 of 2004 seeking similar reliefs. In both 

 4

the Writ Petitions a prayer was made for setting aside the 

election to the State Bar Council held on 04.03.2004. 

3. After the replies were filed by the State Bar Council as 

well as the Bar Council of India, the Division Bench of the 

High Court heard the matter and the learned Judges 

delivered two separate judgments on 13.12.2006. While one 

learned Judge, Anoop V. Mohta, J. held Rules 6(h) and 32(g) 

of the State Bar Council Rules valid, the other learned 

Judge, F.I. Rebello, J. held Rules 6(h) and 32(g) as ultra 

vires the powers of the State Bar Council. The matter was 

referred to a third learned Judge, D.K. Deshmukh, J., who 

on 04.06.2007 agreed with F.I. Rebello, J. and held that 

Rules 6(h) and 32(g) are ultra vires the powers of the State 

Bar Council. Rebello and Deshmukh, JJ., have held that 

under Section 49(1)(a) of the Advocates Act, 1961, (for short 

`the Act') it is the Bar Council of India which has the power 

to make Rules prescribing the conditions subject to which 

an Advocate may be entitled to vote at an election to the 

State Bar Council, including qualification or disqualification 

of voters, and under Section 15 of the Act a State Bar 

Council has only the power to make rules for election of the 

 5

members of the State Bar Council and for preparation and 

revision of Electoral Rolls and that Rules 6(h) and 32(g) of 

the State Bar Council Rules are not rules relating to the 

preparation and revision of Electoral Rules, but rules laying 

down the conditions subject to which an Advocate would be 

entitled to vote at an election of the State Bar Council, 

including the qualification and disqualification of voters, 

and therefore the State Bar Council had by making Rules 

6(h) and 32(g) of the State Bar Council Rules exceeded its 

powers and encroached on the power of the Bar Council of 

India. By the impugned common order dated 21.06.2007, 

the High Court allowed the Writ Petitions in terms of the 

judgment of Rebello, J. declaring Rules 6(h) and 32(g) of the 

State Bar Council Rules as ultra vires Section 49(1)(a) of the 

Act and directed the State Bar Council to have counted the 

votes which were declared invalid counted on the ground 

that voters had not cast ten preference votes. 

4. Mr. U.U. Lalit, learned senior counsel for the 

petitioner, submitted that Rule 6(1)(h) of the State Bar 

Council Rules provides that the name of an Advocate in the 

State Bar Council Roll shall not be on the Electoral Roll if he 

 6

has not paid the subscription under Rule 40, Chapter - II, 

Part VI of the Rules and obtained receipt from the State Bar 

Council, is really a rule made by the State Bar Council in 

relation to election of the members of the State Bar Council 

and relating to preparation of Electoral Roll and was 

therefore within the powers of the State Bar Council under 

Section 15(1) of the Act. He further submitted that Rule 

32(g) of the State Bar Council Rules which provided that a 

voting paper shall be invalid in which the preferences to less 

than ten candidates are communicated, is a rule relating to 

the validity of a ballot paper and was also within the powers 

of the State Bar Council under Section 15(1) of the Act to 

make rules in relation to election of its members. He 

submitted that the High Court therefore was not right in 

coming to the conclusion that Rules 6(1)(h) and 32(g) of the 

State Bar Council Rules are beyond the powers of the State 

Bar Council and were within the powers of the Bar Council 

of India. He further submitted that in any case the State 

Bar Council Rules made by the State Bar Council including 

Rules 6 and 32 were approved by the Bar Council of India 

under Section 15(3) of the Act. He cited the judgments of 

 7

this Court in Km. Shradha Devi v. Krishna Chandra Pant 

and Others [(1982) 3 SCC 389 (II)] and Ananga Uday Singh 

Deo v. Ranga Nath Mishra and Others [(2002) 1 SCC 499] in 

which the system of proportional representation by single 

transferable vote has been discussed and explained. 

5. In reply, Mr. Colin Gonsalves, learned senior counsel 

appearing for the respondents, submitted that in exercise of 

powers under Section 49(1)(a) of the Act the Bar Council of 

India has in Rule 1, Chapter - I, Part III of the Bar Council 

of India Rules, 1975, provided that every Advocate whose 

name is on the Electoral Roll of the State Bar Council shall 

be entitled to vote at an election. He submitted that this 

valuable right given to an advocate whose name is on the 

Electoral Roll of the State Bar Council to vote at an election 

of the State Bar Council cannot be taken away by the State 

Bar Council by providing that the vote cast by an Advocate 

will not be counted and will be held invalid if the Advocate 

has not communicated at least ten preferences in the ballot 

paper. He submitted that Rule 32(g) of the State Bar 

Council Rules made by the State Bar Council is therefore in 

direct conflict with Rule I, Chapter I, Part III of the Bar 

 8

Council of India Rules, 1975, made by the Bar Council of 

India in exercise of its powers under Section 49((1)(a) of the 

Act. He submitted that this Court has taken a view in the 

case of Lily Thomas v. Speaker, Lok Sabha [(1993) 4 SCC 

234] that voting means formal expression of will or opinion 

by the person entitled to exercise the right and this right 

will not only include the right in favour or against the 

motion or resolution, but also the right to remain neutral. 

He submitted that when an Advocate votes for even one 

candidate and does not communicate his preferences for 

any other candidate on the ground that according to his 

opinion none other candidate was suitable for being elected 

as a member of the State Bar Council, his vote cannot be 

discarded. He relied on the decision of this Court in 

Shradha Devi v. Krishna Chandra Pant and Others (supra) in 

support of his submission that every elector has one vote 

and indicating other preferences is optional for the elector 

and if he has not communicated other preferences his ballot 

paper cannot be rejected as invalid. He submitted that in 

Bar Council of Delhi and Others v. Surjeet Singh and Others 

[(1980) 4 SCC 211] this Court has held that mere approval 

 9

of the Bar Council of India could neither validate or 

otherwise ultra vires a rule, nor have the effect of making up 

a rule made by the Bar Council of India itself. He submitted 

that the approval of the Bar Council of India to Rule 32(g) of 

the State Bar Council Rules will therefore not make the rule 

valid. 

6. The relevant provisions of Section 15 and Section 49 of 

the Act are extracted hereinbelow: 

 15. Power to make rules.--

 (1) ......

 (2) In particular, and without prejudice to the 

 generality of the foregoing power, such rules may 

 provide for--

 (a) the election of members of the Bar Council by 

 secret ballot including the 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 result of election shall be 

 published;

 .........................................................................

 (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.

 49. General power of the Bar Council of India 

 to make rules.--

 10

 (1) The Bar Council of India may make rules for 

 discharging its functions under this Act, and, in 

 particular, such rules may prescribe--

 (a) the conditions subject to which an advocate 

 may be entitled to vote at an election to the State 

 Bar Council including the qualifications or 

 disqualifications of voters, and the manner in 

 which an electoral roll of voters may be prepared 

 and revised by a State Bar Council;

 Rules 6(h), 31 and 32 of the State Bar Council Rules 

are extracted hereinbelow:

 "6. The name of an Advocate appearing in 

 the Bar Council Roll shall not be on the Electoral 

 Roll, if on information received or otherwise 

 obtained by the Bar Council that :-

 (a) ..... 

 (b) .....

 (c) ..... 

 (d) .....

 (e) .....

 (f) ......

 (g) .....

 (h) If he has not paid the subscription under 

 Rule 40, Chapter - II, Part VI of the Rules and 

 obtained receipt from the State Bar Council. 

 31. Method of Voting : - (1) Voter shall be 

 entitled to mark his preferences to all the 

 candidates appearing in the voting paper in the 

 form mentioned hereinbelow and such 

 preferences shall not be less than to ten 

 candidates. 

 32. Voting papers when invalid:- A voting 

 paper shall be invalid in which:- 

 11

 (a) ..... 

 (b) .....

 (c) ..... 

 (d) .....

 (e) .....

 (f) ......

 (g) Preference to less than ten candidates are 

 communicated."

7. It will be clear from the language of Section 49(1)(a) of 

the Act that the Bar Council of India has the power to make 

rules prescribing the conditions subject to which an 

Advocate may be entitled to vote at an election to the State 

Bar Council, including the qualification or disqualification of 

voters, and the manner in which the Electoral Roll of voters 

may be prepared and revised by the State Bar Council. In 

exercise of its power the Bar Council of India has made 

rules in Part III, Chapter - I of the Bar Council of India 

Rules, 1975. Rule (1) and 2(h) of these rules are quoted 

hereinbelow: 

 "1. Every advocate whose name is on the 

 electoral roll of the State Council shall be 

 entitled to vote at an election.

 2. The name of an advocate appearing in the 

 state roll shall not be on the electoral roll, if on 

 information received or obtained by the State 

 12

 Bar Council concerned on the basis of which it 

 is satisfied that-

 x x x x x x x x x x x x x x

 (h) if he has not paid the subscription under 

 Rule 40 Chapter-II, Part VI of the Rules and 

 obtained receipt from the State Bar Council;"

8. The language of Rule (1) is clear that every Advocate 

whose name is on the Electoral Roll of the State Council 

shall be entitled to vote at an election. Rule 2(h), however, 

states that the name of an Advocate appearing in the State 

Roll shall not be on the Electoral Roll if he has not paid the 

subscription under Rule 40, Chapter - II, Part VI of the 

Rules and obtained receipt from the State bar Council. The 

language of Rule 2(h) is therefore verbatim the same as Rule 

6(h) of the State Bar Council Rules made by the State Bar 

Council and lays down a condition subject to which an 

Advocate will be entitled to vote inasmuch as it provides 

that he will be entitled to vote provided he has paid his 

subscription. The State Bar Council could not have made 

such a provision in Rule 6(h) of the State Bar Council Rules 

in exercise of its powers under Section 15 of the Act and 

such a provision could only be made by Bar Council of India 

 13

under Section 49(1)(a) of the Act. The High Court was, 

therefore, right in holding that Rule 6(h) of the State Bar 

Council Rules was ultra vires Section 49(1)(a) of the Act. 

However, as Rule 2(h) of the Bar Council of India Rules 

makes exactly the same provision, names of the Advocates 

who had not paid the subscription had to be deleted from 

the Electoral Roll. 

9. Regarding Rule 32(g) of the State Bar Council Rules 

made by the State Bar Council, it is clear from Rule 32(g) 

that by the said rule a vote cast by an Advocate is rendered 

invalid if he has indicated in the ballot paper less than ten 

preferences. The effect of this rule is that an Advocate 

whose name is on the Electoral Roll of the State Bar Council 

and is entitled to vote at an election under Rule 1, Chapter - 

I, Part III of the Bar Council of India Rules, 1975, will not be 

able to cast his vote in favour of even a single candidate to 

whom he may have communicated his first preference vote. 

In other words, Rule 32(g) has the effect of taking away the 

right conferred on an Advocate whose name is on the 

Electoral Roll of the State Bar Council to vote at an election 

under Rule 1, Chapter - I, Part III of the Bar Council of 

 14

India Rules, 1975, made under Section 49((1)(a) of the Act. 

To say, as is said in Rule 32(g), that the vote of an Advocate 

whose name is on the Electoral Roll will not be accepted is 

to lay down that he can vote provided he indicates a 

minimum of ten preferences in the ballot paper. Rule 32(g), 

therefore, is not a rule relating to validity of ballot paper but 

a rule relating to a condition subject to which an Advocate 

can vote and was beyond the powers of the State Bar 

Council under Section 15(2)(a) of the Act. In Shradha Devi 

v. Krishna Chandra Pant and Others (supra), this Court 

held:

 "12.....It, therefore, necessarily follows that 

 when voting is in accordance with the 

 proportional representation by means of the 

 single transferable vote it is obligatory to cast 

 the first preference vote for ensuring the 

 validity of the ballot-paper and the first 

 preference vote must be so cast as not to 

 leave any one in doubt about it. The 

 remaining preferences are optional with the 

 elector. He may or may not exercise his 

 franchise for the remaining preferences. If he 

 chooses not to exercise remaining preferences 

 the ballot-paper cannot be rejected as invalid 

 for failure to exercise the remaining 

 preferences......." 

 15

10. Once we hold that Rules 6(h) and 32(g) of the State Bar 

Council Rules are ultra vires the Act, the fact that Bar 

Council of India has approved the two provisions made by 

the State Bar Council under Section 15(3) of the Act will not 

validate Rules 6(h) and 32(g) of the State Bar Council Rules. 

In Bar Council of Delhi and Others v. Surjeet Singh and 

Others (supra), this Court has observed:

 "8-A........But the approval of the Bar Council 

 of India can make the rule made by the State 

 Bar Council valid and effective only if the rule 

 made is within the competence of the State 

 Bar Council, otherwise not. Mere approval by 

 the Bar Council of India to a rule ultra vires 

 the State Bar Council cannot make the rule 

 valid. Nor has it the effect of a rule made by 

 the Bar Council of India. Making a rule by 

 the Bar Council of India and giving approval 

 to a rule made by the State Bar Council are 

 two distinct and different things. One cannot 

 take the place of the other."

11. For the aforesaid reasons, we are not inclined to 

entertain these Special Leave Petitions and we accordingly 

dismiss the same. There shall be no order as to costs. 

 .............................J.

 (R. V. Raveendran)

 16

 .............................J.

 (A. K. Patnaik)

New Delhi,October 13, 2011. 

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