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Yesterday, Siddharth Mridul J of the Delhi High Court adjourned a petition that has been the hot topic of discussion in the High Court Bar Rooms for a while now. Less than two weeks before the elections for the Delhi High Court Bar Association are to be held, the exact procedure to be followed remains mired in litigation.
The dispute over the election rules can actually be traced back to nearly five years ago, when the DHCBA election rules were amended. These amended rules introduced five substantial changes in the election process. One, the DHCBA President would have to be an association member for at least twenty-five years. Two, an incumbent could not stand for elections to the same post in consecutive elections. Three, the definition of DHCBA “members” was limited to those whose principle court of practice was the Delhi High Court. Four, the principle of one bar one vote was to apply, and five, the tenure of the office bearers was increased to two years.
However, DHCBA President, Rajiv Khosla initiated a suit against these rules, arguing that due process had not been followed while making these amendments. Had these new election rules been enforced, Khosla would not have been able to contest for the post of the President at all.
The challenge by Khosla eventually reached the Supreme Court with senior counsel Ram Jethmalani appearing for Khosla and KK Venugopal for the DHCBA. On December 11, 2013, a 3-judge bench directed that the elections be conducted as per the old rules as an interim measure. The apex court also said that the principle of One-Bar-One-Vote would be applicable to the elections. As for the dispute over the amended rules, the apex court asked the Delhi High Court to decide the matter within a year’s time.
In accordance with the December 11 order, elections were held, and Khosla was appointed President in March of 2014. Oddly enough, the office bearers enjoyed a tenure for two years.
Meanwhile the Delhi High Court however, could not resolve the matter within the stipulated timeline. In December of 2015, a change of jurisdiction meant that the case was to be heard in the Patiala House district courts.
On September 19 this year, ADJ Surinder Rathi ruled that the elections could be held on October 7, and under the old DHCBA Rules. Relying on the Supreme Court’s order, the ADJ observed that,
“….the only saving grace available for resolution of the current stalemate shall undeniably [be] the orders of Hon’ble Supreme Court…..The relevance of this order and its mandatory application in the current scenario cannot be denied on account of the fact that per se there is no change in the relevant surrounding circumstances……there cannot be a better guiding light then the arrangement made by Hon’ble Supreme Court….”
The only change introduced by the ADJ to the Supreme Court order was a reconstitution of the Election Commission.The previous Election Commission included the following senior advocates:
The ADJ reconstituted a new Election Commission that had the following senior counsel:
Matter reaches the Delhi High Court
Forty-eight hours after ADJ Rathi passed the order, a petition against the order was filed by the DHCBA in the Delhi High Court. The association has not challenged the use of the old un-amended rules, rather the challenge lies to the reconstitution of the Election Commission.
Secretary of the DHCBA, Abhijat told Bar & Bench,
“The order passed was part of a judicial process and the learned judge was well within his jurisdiction to do so, but in my opinion to reconstitute the Election Commission was an act of judicial overreach.”
On September 22, Justice Mridul directed the restoration of the original Election Commission and an addition to include Senior Advocate Ashok Bhan on Khosla’s suggestion and stated that another last member of the Election Commission will be appointed by the Court via a detailed order.
It is quite surprising that the implementation of the old rules was not challenged in the High Court because as things stand, the election is as per the old rules, while the office term itself is as per the new rules. In effect the current office bearers are holding office for an extended term without the new restrictions as to their eligibility and candidature.
Bar & Bench spoke to Kirti Uppal about this convenient application of the DHCBA rules by the “people in power”.
“Lawyers have no regard for the law when it comes to implementing it themselves! It is very convenient that propagators of the old rules fall back on the new rules whenever it suits them.”
So what is the issue now?
The main issue for consideration before the High Court now is not the Election Commission but the implementation of the One-Bar-One-Vote principle. On September 21, all the parties agreed that the elections should be conducted in accordance with One-Bar-One-Vote. The problem however is that there is no mechanism in place to determine the authenticity of the declarations submitted by the members.
None of the other district Bar Associations have submitted a list of the voters and without a verification mechanism in place, the principle adopted in the P.K. Dash judgment might stand defeated.
The matter will now come up this Friday.