“Co-opted Members Cannot Be Differentiated from Elected Members”: Kerala High Court Upholds Equal Continuity Rights in Extended Bar Council Term
Sanchayita Lahkar
The High Court of Kerala, Single Bench of Justice C.S. Dias, allowed a writ petition filed by two co-opted members of the Bar Council of Kerala and declared that they are entitled to continue as members during the extended term of the council. The court held that the resolution extending the tenure of the XIIth Bar Council of Kerala shall also apply to the petitioners and directed that they be granted all rights and privileges available to elected members until the council is dissolved.
The writ petition filed by two co-opted members of the Bar Council of Kerala, holding that they are entitled to the same rights and privileges as elected members during the extended term of the council. The court recorded that the Bar Council of India had extended the tenure of the XIIth Bar Council to facilitate the verification of advocates and completion of the electoral roll. It was observed that the Act and the Rules “do not treat co-opted members as a separate or distinct class,” and the term “elected members” in the extension order must include co-opted members. The court allowed the petition and ordered that the petitioners be treated on par with elected members of the council.
The petitioners were members of the Bar Council of Kerala (BCK) who were co-opted to two vacancies that arose due to the death and resignation of elected members. The first petitioner was co-opted by Resolution No. 161 of 2022 dated 20.03.2022, and the second petitioner was co-opted by Resolution No. 254 of 2023 dated 20.08.2023. The original term of the XIIth BCK expired on 06.11.2023, following the completion of five years as stipulated under Section 8 of the Advocates Act, 1961.
Due to the delay in the electoral process, the Bar Council of India (BCI) extended the term of the BCK by six months under the proviso to Section 8 of the Act. This extension expired on 06.05.2024. Thereafter, invoking its powers under the amended Rule 32 of the Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015, the BCI further extended the tenure of the council by an additional 18 months. By communication dated 20.05.2024 (Exhibit P1), the BCI nominated a few among the 25 BCK members to three committees: Office Bearers, Executive Committee, and Enrolment Committee.
The petitioners contended that despite the extension granted under the amended Rule 32, they were not being invited to participate in council functions. They submitted that they were being excluded on the ground that they were co-opted and not directly elected members. The petitioners argued that the statutory scheme under the Advocates Act and the Bar Council of Kerala Rules, 1979, makes no such distinction and that co-opted members are legally part of the council’s full strength of 25, as required under Section 3(2)(b) of the Act.
The petitioners further contended that Rule 17 of Chapter IV of the Bar Council of Kerala Rules provides for filling casual vacancies through co-option and that they had been co-opted through proper procedure. It was submitted that exclusion from meetings and enrolment proceedings was arbitrary and violative of their statutory rights.
The first respondent, the BCI, filed a statement through its standing counsel contending that the petitioners had no right to continue after the expiry of the extended term on 06.05.2024. It was submitted that after the expiry of the term, the BCI had constituted special committees under Rule 32 to carry out the council’s essential functions. It was stated that the BCI’s decision to limit participation to elected members was in accordance with Rule 32, which referred specifically to elected members.
Respondents 2 and 3 also filed a counter affidavit, stating that challenges to Rule 32 were pending before the Supreme Court, and conflicting interpretations should be avoided. They submitted that the extension was granted to elected members alone and that the term had been extended to complete the verification of practising advocates. The BCI’s extension of tenure by 18 months and constitution of committees had already been upheld by this court in connected writ petitions.
The court heard submissions from the petitioners and counsel for the respondents. During the hearing, counsel for the petitioners submitted that they were not pressing the prayer challenging the constitution of the three committees.
The court began by noting that the petitioners were co-opted under Rule 17 of Chapter IV of the Bar Council of Kerala Rules, 1979, following the resignation and death of two members. It was recorded that “there is no dispute that the petitioners were elected by the members and co-opted to the XIIth BCK, as per the procedure contemplated under the Rules, to ensure that the BCK functions with the statutory strength.”
The court reviewed the timeline of the council's term and the various extensions granted by the BCI. It recorded that the original five-year term ended on 06.11.2023, followed by a six-month extension under the proviso to Section 8 of the Act. Subsequently, on a request made by the BCK (Exhibit R2(a)), the BCI passed a resolution (Exhibit R2(b)) extending the tenure of elected members by 18 months under the amended Rule 32 of the Verification Rules.
Quoting Rule 32, the court recorded that the BCI has the authority to allow elected members and office bearers of a State Bar Council to continue beyond their extended tenure in order to complete the verification of non-practising advocates and prepare for fresh elections. The court stated: “The above Rule bestows the BCI with the power to extend the term of a State Bar Council up to 18 months to identify non-practising Advocates and verify their certificates to conduct the fresh election.”
However, addressing the exclusion of the petitioners, the court found that the wording of the resolution could not be interpreted to exclude co-opted members. It recorded: “Since BCI has extended the term of the XIIth BCK by Ext. R2(b) resolution, irrespective of the fact that the petitioners were co-opted to the BCK at a later stage, the petitioners cannot be differentiated from the elected members.”
It was further observed: “The Act and the Rules do not treat co-opted members as a separate or distinct class.” The court held that the continuity of membership must be extended to co-opted members as well, particularly since they had been elected and co-opted in accordance with the statutory scheme and rules.
The court disagreed with the submission that the XIIth BCK had been dissolved. It observed: “If that is the case, in view of Rule 32 of the Verification Rules, the BCI is not empowered to extend the term of the members and is bound to constitute a Special Committee under Section 8A of the Act.” On that basis, it held that the council was still in existence and functioning through the three committees constituted under Exhibit R2(c).
In relation to the rights of co-opted members, the court stated: “The petitioners have the right to continue as members of the XIIth BCK until it is dissolved.” The phrase “elected members” in the resolution extending tenure must be interpreted to include co-opted members for purposes of continuity and participation in council functions.
The court allowed the writ petition and issued a declaration to clarify the status of the petitioners. It recorded the following:
“I allow the writ petition by declaring that the elected members of the XIIth Bar Council of Kerala in Ext R2 (b) resolution shall also mean and include the petitioners.”
The court further directed that:
“The petitioners shall be entitled to all the rights and privileges of elected members of the Bar Council of Kerala as mentioned in Ext.R2 (b) resolution.”
Advocates Representing the Parties
For the Petitioners: Thomas Abraham, Advocate; Merciamma Mathew, Advocate; Aswin P. John, Advocate; R. Ananthapadmanabhan, Advocate; Paul Baby, Advocate; Swathy A.P., Advocate; Thara Elizabeth Thomas, Advocate
For the Respondents: M.U. Vijayalakshmi, Advocate; K. Jaju Babu, Advocate; Rajit, Advocate
Case Title: Aisha P. and Another v. Bar Council of India and Others
Neutral Citation: 2025:KER:27410
Case Number: W.P (C) No. 26651 of 2024
Bench: Justice C.S. Dias
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