Supreme Court Bar Association v. B.D. Kaushik (M.A. Diary No. 13992/2023 arising out of C.A. Nos. 3401-3402/2003)

Constitutional Framework: Supreme Court's Power Over Court-Annexed Bar Associations

The Supreme Court, in SCBA v. B.D. Kaushik (2011) 13 SCC 774, held that court-annexed bar associations constitute a separate class different from other lawyers' associations. They are always recognised by the court concerned. The very nature of such a Bar Association necessarily means and implies that it is an association representing members regularly practising in the court and responsible for proper conduct of its members in the court and for ensuring proper assistance to the court. Therefore, the right to vote and contest elections could be restricted and made subject to rules, and could be limited to 'regular practitioners' before the Supreme Court.

Paradigm Shift: COVID-19 and Virtual Hearings

The Court noted that even prior to COVID-19, several institutional and technological reforms had begun reshaping the justice delivery system. However, the pandemic significantly accelerated this process, compelling courts across the country to adopt virtual functioning. In In Re: Guidelines for Court Functioning Through Video Conferencing During Covid-19 Pandemic (Suo Motu Writ (Civil) No. 5/2020), the Court observed that access to justice is fundamental to preserve the rule of law, and that modern technology has enabled courts to enhance the quality and effectiveness of the administration of justice. The Court held that video conferencing is an advancement in science and technology that permits one to see, hear and talk with someone far away with the same facility and ease as if he is present before you.

The Court noted that it is safe to say that the changes are here to stay. The very changes that allow greater flexibility to advocates and parties in appearing before this Court as well as in marking appearances have necessitated a relook as to what it means to be a 'regular practitioner.'

Voting Eligibility – Revised Criteria

The Court accepted the recommendation that advocates with 50 appearances in the Supreme Court in the preceding two years would be eligible to vote. Female advocates were given a reduced threshold of 30 appearances. Advocates with disabilities were given a threshold of 5 appearances. The Court held that 75% of such appearances must be physical, while 25% of appearances may be virtual. Appearances shall be proved from the Record of Proceedings and may also be proved through court orders. Virtual appearances must be marked separately from physical appearance, and the portal must be amended accordingly. Proximity card entries are to be treated as corroborative only; eligibility cannot be determined solely on the basis of proximity card entries.

Advocates-on-Record (AOR) Eligibility

Advocates-on-Record with an average of 20 filings per year in the preceding two years will be eligible. AORs with disabilities with an average of 5 filings per year will be eligible.

Mediators and Veteran Members

Non-AOR members on the panel of mediators in the Supreme Court Mediation Centre, for two years with 20 mediation cases in two years, shall be eligible. Veteran members holding SCBA membership for more than 25 years will be eligible to vote. Veteran members with more than 25 years membership will be eligible to contest only if they have voted at least once in the immediately preceding 5 years.

Categories Removed

The Court removed the following categories as eligibility criteria: chamber allotment, being waitlisted for chamber allotment, fifty appearances in preceding three years for government counsel, use of proximity card for 60 days in the preceding year (now only corroborative), and empanelment of non-AOR members on the Amicus Curiae panel.

Senior Advocates

Senior Advocates residing in NCR (Delhi, Gurugram, Noida, Faridabad, Ghaziabad), including Senior Advocates designated by the Supreme Court, will be eligible to vote.

Eligibility to Contest Elections

A member must have a minimum of five years permanent membership of SCBA for contesting any post.

- President: 10 lead appearances in reported judgments in preceding 10 years, or 25 lead appearances in reported judgments in preceding 20 years.
- Vice President: 10 lead appearances in reported judgments in preceding 10 years.
- Secretary: 50 appearances in preceding two years (30 for women, 5 for disabled).
- Joint Secretary/Treasurer/Joint Treasurer: 40 appearances in preceding two years (25 for women, 5 for disabled).
- Executive Members: 50 appearances in preceding two years (30 for women, 5 for disabled).

Security Deposit

Candidates must make a refundable security deposit along with nomination fee. The security deposit would be refunded to all those who have received 15% or more of the valid votes.

Tenure of Executive Committee and Cooling-Off Period

The Court held that in one year, the elected body has an effective mandate of 8-9 months, which is too short to ensure meaningful improvements. Moreover, the logistical challenges and significant expenditure of resources and personnel in the conduct of elections was also noted. To prevent concentration of power, the tenure of the Executive Committee was increased from 1 to 2 years, effective from 2027. A cooling-off period of 1 term shall be applied after each term.

Reservation for Women and Disabled

The Court had already ordered one-third reservation for women in the Executive Committee and a post of Office Bearer for a woman candidate vide order dated 02.05.2024. The Court further directed that the Supreme Court may, on an annual basis, further reserve for women such additional posts as it may direct, but other than the post of President. Posts may also be reserved for advocates with disabilities as the Court may, by order, direct in a given year, but other than the post of President.

Disqualification

The Court held that a 'Model Code of Conduct' should contain a categorical disqualification for providing inducement in any form, cash or kind, in lieu of votes. A candidate found to have provided inducements must not only be disqualified from contesting the present election but the next election also. Mobile phones must not be permitted in the polling booth. A person convicted and sentenced to a term of imprisonment or barred from practice by the Bar Council is prohibited from contesting elections.

Other Recommendations

The Court directed that a common platform must be hosted on the SCBA website with the manifesto of all candidates. Members must be allowed to opt out of campaign messaging. Elected members must submit a self-appraisal report of their achievements and failures vis-à-vis respective manifestos on the conclusion of their term.

Significance for Development of Law

This judgment is of monumental significance for the governance of court-annexed bar associations in India. First, it recognises the paradigm shift brought about by virtual hearings and adapts the definition of 'regular practitioner' accordingly, allowing virtual appearances to count towards eligibility (up to 25%). Second, it reduces the threshold for women and disabled advocates, promoting inclusivity. Third, it increases the tenure of the Executive Committee to two years, allowing elected bodies more time to implement meaningful reforms. Fourth, it introduces a cooling-off period to prevent concentration of power. Fifth, it provides for reservation for disabled advocates, a progressive step. Sixth, it introduces strict disqualification for inducement, including a ban from the next election, to curb electoral malpractices. Seventh, it mandates transparency through manifestos on a common platform and self-appraisal reports. Eighth, it reaffirms the Supreme Court's power under Articles 141 and 144 to issue binding directions to court-annexed bar associations to align their rules with judicial pronouncements and to effect necessary reforms.