Bar association not state under Article 12, bar issues not subject to writ jurisdiction: J&K High Court

The High Court of Jammu and Kashmir and Ladakh on Monday observed that it cannot invoke its writ jurisdiction under Article 226 of the Constitution of India to settle the internal election disputes of a Bar Association [Advocate Abdul Basit Bhat V/s District Bar Association, Shopian].

Pertinently, Justice Wasim Sadiq Nargal held that a bar association or bar body is not “State” within the meaning of Article 12 of the Constitution and writ jurisdiction can't be invoked against it.

The Court made the observation while dismissing a writ petition challenging the Shopian District Bar Association's decision to modify the eligibility criteria for lawyers to contest elections to the posts of its officer bearers.

"The District Bar Association, Shopian is not amenable to the writ jurisdiction of this Court in respect of the dispute raised in the present petition. The controversy pertains to the internal affairs and electoral governance of a voluntary association and does not involve the discharge of any public duty or disclose the existence of a public-law element. The challenge to the eligibility conditions prescribed for holding office under the Constitution of the Association, therefore, does not warrant interference in the exercise of jurisdiction under Article 226 of the Constitution. Accordingly, the writ petition is dismissed as not maintainable," the Court ruled.

The Court observed that a District Bar Association, being a voluntary association of advocates governed by its own Constitution and bye-laws, is neither a statutory body nor “State” within the meaning of Article 12 of the Constitution.

Disputes concerning such a body's internal affairs are, therefore, not amenable to the High Court's writ jurisdiction, the Court held. Writ jurisdiction is a public law remedy that can be invoked when the State acts in a manner that violates a person's rights.

"The jurisdiction under Article 226 is essentially a public law remedy. It is not intended to adjudicate every dispute arising between members of a private association and the association itself," the Court explained.

The Court clarified that its writ jurisdiction may at times be invoked against non-State entities as well, but only if the action being complained of involves an element of public interest. However, such a public interest element was not sufficiently made out in the present case.

"In the present case, the challenge is directed against the amendment of the Constitution of the Association whereby the eligibility criteria for contesting the offices of President, Vice-President and Secretary have been altered ... Such a function is neither statutory in character nor shown to be a public duty owed by the Association to the public at large. The dispute, therefore, lacks the requisite public-law element necessary to invoke the extraordinary jurisdiction of this Court under Article 226," the Court found.

The petition before the Court was filed by a lawyer who challenged amendments made to the Constitution of the Shopian District Bar Association.

The amendments enhanced the minimum professional standing required for advocates to contest elections to key posts of the association. Under the amended Constitution, the eligibility requirement for the posts of president and vice-president was increased from 10 years to 15 years of minimum professional standing. Similarly, the requirement for the post of secretary was enhanced from 7 years to 10 years.

The amendments were challenged on allegations that they were carried out without following a prescribed procedure, without convening a valid general body Meeting and without obtaining approval from the members of the Bar Association. 

It was also alleged that the enhanced eligibility criteria were arbitrary and intended to exclude younger advocates from contesting the elections.

The bar association's representatives opposed the petition, arguing that a general body meeting had been duly convened to discuss the amendments, that a notice was circulated among members of the association about the same and that the amendments had been approved by a majority.

The bar association also contended that a writ petition cannot be entertained by the High Court in such disputes about the internal affairs of a lawyers' body.

In its verdict, the Court observed that the Shopian District Bar Association did not owe its origin to any law, nor was it created under the Advocates Act, 1961 or any other enactment. Rather, the association was governed by a Constitution framed by its own members.

The association's office-bearers are elected by member advocates, and it does not exercise statutory powers or discharge governmental functions, the Court noted.

Thus, it held that the association cannot be termed a "State" for it to be amenable to the High Court's writ jurisdiction under Article 226.

The High Court, therefore, dismissed the writ petition as not maintainable, while observing that the appropriate remedy in such matters lies before civil courts.

The petitioner, advocate Abdul Basit Bhat, argued the matter in person.

The District Bar Association of Shopian was represented by advocate Mohammad Mubashir Gatoo.

[Read Judgment]