Part-III

Certain matters relating to state council

Chapter-I

Electoral roll, disqualification of membership and vacation of office

(Rules under Sections 3 (4), 10B, 15 (2) (a) and 49 (1) (a) and (ab) of the Act)

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 Bar Council concerned on the basis of which it is satisfied that-

(a)  his name has at any time been removed;

(b)  he has been suspended from practice, provided that his disqualification shall operate only for a period of five years from the date of the expiry of the period of suspension;

(c)  he is an undischarged insolvent;

(d)  he has been found guilty of an election offence in regard to an election to the State Council by an election tribunal, provided however, that such disqualification shall not operate beyond the election next following after such finding has been made;

(e)  he is convicted by a competent court for an offence involving moral turpitude, provided that this disqualification shall cease to have effect after a period of two years has elapsed since his release;

(f)   he is in full-time service or is in such part-time business or other vocation not permitted in the case of practising advocates by the rules either of the State Council concerned or the Council ;

(g)  he has intimated voluntary suspension of practice and has not given intimation of resumption of practice ;

(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 ;

(i)   he has incurred any disqualification mentioned in the Act or the rules made thereunder*.

Explanation:

If an advocate who has incurred any disqualification as referred to in rule 2 and does not furnish details about it as required in the notice under rule 4 of these rules within the time specified shall be deemed to have committed an act of other misconduct as referred to in Section 35(1) of the Act.

3. Subject to the provisions of rule 2, the name of every advocate entered in the State Roll shall be entered in the electoral roll of the State Council.

4. (1) In preparing the electoral roll, unless the State Bar Council concerned is already maintaining a list of advocates who are entitled to be voters in terms of Rule 2 of these Rules, at least 150 days before the date of election, shall publish notice issued by the Secretary of the State Bar Council concerned in prescribed form in the official gazette and in two or more local newspapers, one English and the other in a local language, as may be decided by the State Bar Council, asking each of the advocates on the roll of the concerned State Bar Council to intimate the State Bar Council within the time to be specified in the said notice or within such extended time as may be given/allowed by the State Bar Council for reasons to be recorded, as to whether he has incurred any disqualification mentioned in Rule 2 of these rules and quote rule 2 of these rules in the said notice.

(2) A preliminary electoral roll containing the names of all advocates whose names are required to be included under these rules shall be put up on the notice board of the State Council within 120 clear days before the expiry of the term of the members of the said State Council necessitating the election (and relevant portion thereof shall be sent to such Bar Associations as the Secretary considers fit).

Provided that the Bar Councils whose term of office already expired or shall expire within 120 days from the date of commencement of these rules shall, as far as possible, publish the electoral roll forthwith and fix the elections for a date after not less than 120 clear days from the date of publication of the electoral rolls.

(3) Before final publication of the electoral Roll, a State Bar Council may, if satisfied, on an application made by any particular advocate giving sufficient reasons, allow his name to be included in the electoral roll in question, and on such inclusion the advocate concerned shall be entitled to take part in the election.

5. The final electoral roll shall be prepared after incorporating such changes as may be necessary including the addition of the names of advocates enrolled after the preparation of the preliminary roll and put up on the notice board of the State Council not more than 75 clear days and not less than 60 clear days before the date of election. (Intimation of such publication shall be given within a week after the publication to the Bar Association aforesaid).

6. Revision of electoral roll: If for any reason the election to the State Council is postponed beyond the date of expiry of the term of its members the preliminary or the final electoral roll shall be revised so as to include there in the names of advocates enrolled up to 75 clear days before the date of the election.

Particulars to be maintained in the electoral roll

7. The electoral roll of the State Council shall inter alia contain the following particulars :

       (i)    serial number,

      (ii)    number on the state roll,

     (iii)    name of advocates as on the roll; and

     (iv)    address of the advocate.

Disqualification for being a candidate in the election

8. The nomination of any person who at the date of scrutiny thereof is subject to any of the disqualifications referred to in Rule 2 shall be rejected.

9. Application of these rules :

These rules shall govern the elections of all State Bar Councils to be held after these rules are enforced, and all State Bar Councils holding the elections of their members shall prepare their electoral rolls in terms of these rules.

10.  An elected member of the State Council shall be deemed to have vacated his office-

(a)    if he is suspended from practice, or his name is removed from the roll by an order of a competent authority or for any reason whatsoever he ceases to be an advocate,

(b)   if he is adjudicated as insolvent, or

(c)    if his name is transferred to the roll of another State Council.

11. No election shall be called in question for any non-compliance of the provisions of the Act or of any rules made thereunder unless the results of the election insofar as it concerns a returned candidate or candidates have been materially affected*.

Form of notice under rule 4

It is hereby notified that for the purpose of preparing final electoral roll in accordance with rules 2 and 3 of chapter I, Part III of the rules framed by the Bar Council of India under Sections 3 (4), 10B, 15(2) (a), 49 (1) (a) and (ab) of the Advocates Act, 1961, for the next election of members to this Council, the particulars as to any of the disqualifications as referred to in clauses (a) to (i) of rule 2 shall be furnished by an advocate who has incurred them to the State Council within the time specified in the notice issued under rule 4. (Herein below to reproduce Rule 2 with Explanation).

Dated the                                                                secretary

 

Number on the State Roll :

1.  Name of the advocate as on the roll:

     (in block letters)

2.   (a) Address of the advocate

             (as on the State roll)

      (b)  Present address :

3.   (a)   Have you incurred any of the disqualifications mentioned in rule 2 of Chapter I, Part III of the rules of the Bar Council of India ? 

4.  Are you a member of any Bar Association?

     (If so, give the name)

5.  Where do you intend to cast your vote?

     (If you are not a voter entitled to vote by postal ballot)

I. hereby declare and affirm that the foregoing statements are true to my knowledge and I have not concealed anything thereto.

Date                                                                        .............................

                                                                                    Signature in full.

Note : These rules have come into effect from 1st January, 1991

 

 

 

 

 

 

Chapter-II

Rules to secure at least a minimum number of advocates of 10 years’ standing

[Rules under Section 3 (2) (b) and proviso, Sections 3 (5) and 49 (1) (ac) of the Act]

1. (a) These rules shall apply to the election of members of all the State Councils in India.

(b) In the case of any repugnancy between these rules and any rule or rules of any of the State Councils, these rules shall prevail and rules framed by the State Councils shall be void to the extent of such repugnancy.

2. The elections of members of the State Councils shall be in conformity with the proviso to Section 3 (2) of the Act and these rules.

3. There shall be no limit to the number of candidates on the State rolls for at least 10 years that could be declared elected under these rules.

4. In the case of an election by a State Council for electing all the members specified in Section 3 (2) (b) of the Act, the following procedure shall be adopted in the counting of votes :

Election of candidates with quota :

(a)  If, at the end of any count, or the end of the transfer of any parcel or sub-parcel of an excluded candidate the value of the voting papers credited to a candidate is equal to or greater than the quota, then, he shall be declared elected.

Provided that

(i)   No candidate whose name has not been on the State Roll of at least 10 years shall be elected under Section 3 (2) (b) and the proviso thereto of the Act.

      (a)   if 7 candidates of less than 10 years’ standing in the case of a State Council where 15 members are to be elected, have been declared elected; or

      (b)   if 10 candidates of less than 10 years’ standing in the case of a State Council where 20 members are to be elected, have been declared elected;or

      (c)   If 12 candidates of less than 10 years’ standing in the case of a State Council where 25 members are to be elected, have been declared elected.

(ii)  If at the end of any count, there are two or more candidates, who have not been on the State Rolls for at least 10 years, getting more than the quota as aforesaid, but the number of candidates that can yet be elected from such category under the proviso to Section 3 (2) (b) is less than that number, the candidate who has obtained the greater value of votes shall be declared elected in preference to the candidate whose value of votes is less.

(iii)   In the case of two or more persons of the category referred to in proviso (ii) above, getting the same value of votes at the end of any count, the Secretary or other Returning Officer conducting the election shall decide by lot which of such persons shall be declared elected.

(iv)   The other candidate or candidates not declared elected as aforesaid by reason of the proviso to Section 3 (2) (b) of the Act and these rules shall be excluded from the poll as provided in Rule 4 (b) of these rules.

Exclusion of candidates lowest on poll or who have been on rolls for less than 10 years

(b) (1) The Secretary or Returning Officer conducting the election shall exclude from the poll-

      (i)      when there are two or more candidates who have obtained more than the quota the candidate who cannot be declared elected under proviso (i) to rule 4 (a) of these rules ;

      (ii)      the candidates lowest in the poll in the following order, after all the surpluses have been transferred as provided in the rules of the State Council with regard to transfer of surplus and the number of candidates elected is less than the required number and after the exclusion from the poll; if any, under sub-clause (i) of this sub-rule.

First such candidates whose names are on the State Roll for less than 10 years, if the number of such candidates declared elected as provided for in these rules :-

(a)   7 in the case of a State Council where in all 15 members have to be elected; or

(b)   10 in the case of a State Council where in all 20 members have to be elected ; or

(c)   12 in the case of a State Council where in all 25 members have to be elected;

Next the other candidates

Illustration No 1: At an election to a State Council where under the Act and these rules, the total number of elected members is 20,300 is arrived at as the quota. At the end of a count, when there is no further surplus to be distributed, M and N are the contesting candidates.

       M whose name has not been on the State Rolls for at least 10 years gets 150, and

       N whose name has been on the State Rolls for more than 10 years gets 100.

       Only 9 candidates whose names have been on State Roll for at least 10 years have already been declared elected. Hence M has to be excluded and the voting papers of M will be thereafter transferred as provided for in these rules.

       If in the same case, 10 candidates whose names have been on as State Roll for not less than 10 years had already been declared elected, N will be excluded. The voting papers of N will be transferred as provided in these rules.

Illustration No. 2 : At an election to a State Council where under the Act and these rules, the total number of elected members is 15, 300 is arrived at as the quota. At the end of a count, when there is no further surplus to be distributed, M and N are the contesting candidates.

       M whose name has not been on the State Rolls for at least 10 years gets 100.

       N whose name has been on the State Rolls for more than 10 years gets 100.

       Only 7 candidates whose names have been on a State roll for at least 10 years have already been declared elected. Hence M has to be excluded and the voting papers of M will be thereafter transferred as provided in these rules.

       If in the same case, 8 candidates whose names have been on a State roll for not less than 10 years had already been declared elected, N will be excluded, The voting papers of N will be transferred as provided for in these rules.

Illustration No. 3 : At an election to a State Council where under the Act and these rules the total number of elected members is 25, 300 is arrived at as the quota. At the end of a count, when there is no further surplus to be distributed, M and N are the contesting candidates.

       M whose name has not been on the State rolls for at least 10 years gets 150, and

       N whose name has been on the State rolls for more than 10 years gets 100.

       Only 12 candidates whose names have been on a State roll for at least 10 years have already been declared elected. Hence M has to be excluded and the voting papers of M will be thereafter transferred as provided for in these rules.

       If in the same case, 13 candidates whose names have been on a State roll of not less than 10 years had already been declared elected, N will be excluded. The voting papers of N will be transferred as provided for in these rules.

2.        (i)    The Secretary or other Returning Officer shall distribute the unexhausted papers of the candidates excluded under these rules among the continuing candidates according to the next preference recorded therein and all exhausted papers shall be set apart as finally dealt with.

          (ii)    The papers containing original votes of an excluded candidate shall first be transferred, the transfer value of each paper being one hundred.

         (iii)    The papers containing votes of an excluded candidate shall then be transferred in the order of the transfers in which and at the value at which he obtained them.

         (iv)    Each of such transfers shall be deemed to be a separate transfer, but not a separate count.

          (v)    If, as a result of the transfer of papers, the value of the votes obtained by a candidate is equal to or greater than the quota, the counting then proceeding shall be completed, but no further papers shall be transferred to him.

         (vi)    The process directed by this rule shall be repeated on the successive exclusion one after another of the candidates lowest on the poll until such seat is filled either by the election of a candidate with the quota or as otherwise provided in these rules.

        (vii)    If at any time it becomes necessary to exclude a candidate and two or more candidates have the same value of votes and are the lowest on the poll, regard shall be had to the original votes of each candidate and the candidate for whom fewest original votes are recorded, and if the values of their original votes are  equal, the candidate with smallest value at the earlier count at which these candidates had unequal votes shall be excluded.

       (viii)    If two or more candidates are lowest on the poll and each has the same value of votes at all counts, the Returning Officer shall decide by lot which candidate shall be excluded.

         (ix)    If during a count, any candidate getting the quota or more has to be excluded by reason of rule 4 (a) above, the transfer of his votes shall be deferred and made immediately after the other candidate having got the above quota in that count are declared, and their votes transferred as provided for in these Rules.

Filling last vacancies

(c) (1) When at the end of any count the number of continuing candidates is reduced to the number of seats remaining unfilled, the continuing candidate shall be declared elected subject to the following :

If the total number of candidates so far declared elected from amongst the advocates whose names have been on the Sate roll for at least 10 years at the relevant date is less than :-

        (i)     8 in the case of a State Council where 15 members are to be elected, or

       (ii)     10 in the case of a State Council where 20 members are to be elected, or

       (iii)     13 in the case of the State Council where 25 members are to be elected,

then, the requisite number of candidates of such standing shall first be declared elected and only the balance from amongst other candidates shall be declared elected.

(2) When at the end of any count only one seat remains unfilled and the value of the papers of some one candidate exceeds the total value of the papers of all the other continuing candidates together with any surplus not transferred; that candidate shall be declared elected. Such candidate shall not, however, be declared elected if he has been on the State Roll for less than 10 years and if the total number of candidates so far declared elected from amongst advocates on the State Roll for at least 10 years as provided in these rules is less than 8 or 10 or 13 as aforesaid as the case may be.

(3) When at the end of any count only one seat remains unfilled and there are only 2 continuing candidates, and each of them has the same value of votes and no surplus papers can be transferred, the Returning Officer shall decide by lot which of them shall be excluded, and, after excluding him in the manner aforesaid, declare the other candidate to be elected.

Provided that if the total number of candidates who have been on the State Roll for at least 10 years on the relevant date so far elected is less than the required number, then that candidate who will be on that State roll for at least 10 years shall be declared elected and the other candidate shall be excluded.

Filling up vacancies or co-option

(4) In the case of any election to fill vacancy amongst the members of the State Council, or while co-opting a member, the State Council shall conform to the requirement of Section 3 (2) (b) of the Act, and the principles laid down in these rules.

Particulars regarding seats to be filled

(5) In the case of every election of members of a State Council, the State Council shall :

(a)   notify the minimum number of seats should be filled up from amongst advocates who, on the relevant date, will be advocates on a State Roll for at least 10 years.

(b)   require every candidate to specify in his nomination paper the date of his enrolment and the period for which his name had been on the roll of one or more High Courts under the Indian Bar Councils Act, 1926, and the roll or rolls of State Councils under the Advocates Act, 1961 with full particular thereof.

(c)   indicate on the voting paper which of the candidates have been on a State Roll for at least 10 years as required.

       Provided that this rule shall not be applicable to any election held by any State Council before these rules have come into force.

Computation of period

(6) For the purpose of computing the minimum period of 10 years provided for in the proviso to Section 3 (2) (b) of the Act, and these
rules :-             

       (i)    the period during which an advocate may have been on the roll of any other State Council or Councils on the roll of any High Court or High Courts under the Indian Bar Councils act, 1926, shall be taken into account, and

      (ii)    the period shall be computed as on the last date notified for receiving the nominations for the election.


 



* Sub-clause (h)(i) of Rule 2 came into force w.e.f. August 1997 vide Resolution No. 10/97.

* The rule added w.e.f. 2-5-1981.