Former Delhi Bar Association president Rajiv Khosla explained his success in the Supreme Court in his battle against Delhi High Court Bar Association (DHCBA) president AS Chandhiok in the now-postponed DHCBA elections.
Chandhiok had allegedly requested an election-day restraint order against Khosla, who after failing in the Delhi high court (SC), succeeded getting the Supreme Court yesterday to stay tomorrow’s 13 December DHCBA polls.
Khosla said: “It has never happened in the history of the bar association that a restraint order is being sought against not only a rival [presidential candidate] but against anybody. Fortunately the Supreme Court came to our rescue.”
Life threats create history
Khosla told Legally India that Chandhiok had yesterday filed an application in Delhi HC Justice Vipin Sanghi’s court seeking a restraint order against Khosla and his associates. Chandhiok had asked that Khosla be restricted from entering the Delhi high court premises on the day of the DHCBA polls this time, and from campaigning through text messages. Legally India and Delhi HC advocates have received phone text messages requesting votes for various candidates, over several weeks now.
“Last time I lost by a narrow margin, so this time I was disqualified as a voter and there was also a restraint order against me on some flimsy grounds. [This is] all a scheme of Chandhiok. He had filed an application in Justice Sanghi’s court that he has been threatened and that his life is in danger.
“The majority in the Supreme Court were supporting me. Mr Ram Jethmalani, Rupinder Suri, Ashok Bhan, Mr Dwivedi were all standing out there. Because you cannot debar a person from elections. Make a person lose, but to deprive him from contesting elections is not done.”
Khosla had also alleged foul play after losing the presidential seat to senior advocate Adish Aggarwala in the Delhi Bar Association 2012-13 elections.
Poll policies
The SC yesterday postponed the polls, which were scheduled for 13 December, after hearing Khosla’s appeal asking for a stay on the amended election rules that disqualified him from contesting or voting in the elections this time.
According to the amendments, bar members who had voted in any other bar association elections in the last five years were not eligible to vote in the DHCBA elections. Office bearers of any other bar associations in the last three years could not contest for DHCBA offices. Also, a presidential candidate must have been a DHCBA member for at least 25 years.
Khosla had argued that the amendments were invalid because the DHCBA’s executive committee had come out with them without calling for the mandatory general body meeting (GBM). While Delhi HC Justice Sanghi had dismissed his petition, an appeal against Sanghi’s decision was admitted by a division bench of the court which after a week remanded the matter back to Sanghi.
However, Khosla chose to approach the Supreme Court at this point.
Yesterday at 2:30pm, the SC’s bench of justices RM Lodha and Kurian Joseph gave an order in favour of Khosla. A copy of the order is still awaited but Khosla confirmed that the SC had stayed the operation of all amendments except the “one bar one vote” rule that disqualifies voters from the DHCBA polls if they have already voted in other bar association elections.
“Not more than 200 or 300 people will be excluded [from the voting list]. Major bar association elections have not yet taken place. Only people who have cast vote in Dwarka, Shardah and BRT will be affected,” commented Khosla.
DHCBA polls 2013-14
According to Khosla, the “One bar one vote” rule is applicable only in respect of other bar association elections that have taken place this year and will not take into account voting over the last five years in various bar associations as was “shockingly” proposed by senior advocate Chandhiok.
He further explained that the court has formed the committee of Ashok Bhan, Arvind Nigam and VP Singh, as reported by Legally India yesterday, “not to look into” the “one bar one vote” proposal but merely to implement it for the polls this time by drawing up a voter list. The court has directed that the “one bar one vote” rule will not be followed in future elections of the DHCBA.
Khosla added that the court has assured an “expeditious” hearing in his suit to decide within one year on the validity of the other amendments brought about by the DHCBA executive committee.
He said that the elections will now be scheduled for any date before the end of February 2014.
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Your article is subject to much discussion at the Delhi High Court. With most people expressing their contempt against your tabloid manner of reporting. The article (and the one’s previously published on the subject) show that neither of you have made any efforts to explore the facts. Moreover, the articles always seem very one-sided without seeking comments from the DHCBA or Mr Chandhiok. This clearly shows your malafides to publish defamatory and false news with the clear intent of lowering the dignity of the legal profession.
First of all, Mr Chandhiok is a revered figure in the Delhi High Court. No other senior advocate or past president has given so much in terms of time, effort and dignity to the Bar or the profession than him. Today his juniors like Mr Rajiv Mehra is the Additional Solicitor General of India; several are standing counsels and hold other posts of import. Shivpriya Nanda (JSA) and Hemant Sahai (HAS) are some of the corporate law big-wigs that were trained under Mr. Chandhiok. On the other hand, the only feather in Mr. Khosla’s cap is that the CBI has lodged an FIR against him for mishandling a CBI team.
Now, let us address the statements made in your article:
Para 1: The DHCBA elections have not been postponed. They are cancelled. Read: courtnic.nic.in/supremecourt/temp/sc%203723213p.txt
Para 3: Mr Khosla is not a “rival presidential candidate”. Mr Chandhiok was/is not standing for elections. Moreover, the issue of restraint is still pending before the Single Judge of the DHC. It wasn’t even an issue before SC.
Para 4 and 5: Mr Khosla has made innumerable violent threats against Mr Chandhiok and other office bearers. He has openly threatened to violently disrupt election day. His text messages are filled with vile language. On 29.11.13, Mr Khosla and his gang of lawyers (if at all!) made two attempts to attack Mr Chandhiok in front of other lawyers. In fact, it was the quick thinking of the Delhi Police that they ushered Mr Chandhiok inside the court complex and locked the doors. Mr Chandhiok had to be escorted in a judge’s car to safety. So forgive him for requesting the DHC for ensuring the safety of his colleagues. Ask the CBI team – they will bear testament to this fact. If you need more proof of his violent streaks, see: indiatoday.intoday.in/story/original-hell-raising-lawyer-rajiv-khosla-becomes-respectable/1/306533.html.
Para 6: Several senior advocates including Mr. K.K. Venugopal and Mr Ranjit Kumar appeared for the DHCBA. We are not sure what “majority” is being referred to. In fact, the actual “majority” congratulated Mr Chandhiok, Mr J.P. Sengh, Mr Mohit Mathur, Mr. Shyam Sharma and other office bearers for the getting the “one bar one vote” principle applied. In the words of one lawyer, it was a “major coup” for the DHCBA. In fact, the Supreme Court in the morning stated that it was not inclined to interfere in the matter and will let the Hon’ble Single Judge decide the matter. Mr Jetmalani stated that the Single Judge had previously given a 38 page order dismissing Mr Khosla’s case. These aspersions were not received well by the SC Bench. After further debate, the SC Bench noted that “one bar one vote” principle was the “law of the land” and should be applied in this case. At which point, Mr Khosla and other lawyers reacted sharply. The court heard the matter again at 2pm. Mr Jetmalani resisted the “one bar one vote” suggestion but eventually conceded to their lordships. Mr Khosla then broke down in court and pleaded that the district court lawyers “will kill him” if this became law. Finally, Mr Diwedi got up and stated that perhaps his client did not understand the SC Bench’s suggestion and then proceeded to explain the proposed order in open court. Once, Mr Diwedi finished, Mr Jetmalani looked at Mr Khosla at screamed “you FOOL!!”. Mr. Khosla was naturally embarrassed that he despite being a lawyer, a simple suggestion of the court had to be explained to him in open court.
Para 9: your reading of the rules is incorrect. The amended rules do not disqualify anyone for having voted in any other bar association. The office bearers of other associations can contest DHCBA elections after a short cooling off period. There is no bar as claimed in your article.
Para 11: your article fails to record that even the DHCBA filed an SLP before the SC against the Division Bench order.
Para 12: the SC Bench comprised of HMJ RM Lodha, HMJ Kurian Joseph and HMJ Shiva Kirti Singh.
Para 15: the five year suggestion is the “law of the land” in the B.D. Kaushik case.
Para 16: the committee formed by the SC will have to interpret what the “one bar one vote” principle. There cannot be any mechanical application of the principle as Mr. Khosla seems to suggest.
Kian: we would also urge you not to report court orders without verifying the contents. Misreporting can amount to contempt of court. In case you do, make sure you go to Mr. Chandhiok for advice. He’ll probably appear for you for free. Because that’s the sort of person he is.
Best
Lawyers of the Delhi High Court
Thanks to Rajiv Khosla and R K Sharma who fought to uphold the democratic traditions of the Delhi High Court Bar Association (DHCBA), a three Judge Supreme Court (SC) Bench presided over by Justice Lodha has cancelled the illegal DHCBA elections that A S Chandhiok had scheduled for 13 December 2013.
The SC has directed that elections will be held according to the old unamended rules, thereby accepting that the new alleged rules drafted by A S Chandhiok without convening a General Body Meeting were illegal.
However, the direction of J. Lodha that the “ensuing” elections to be held by 28 February 2014, will follow the principle of one bar one vote is illegal, unconstitutional and wrong.
Even though the SC Bench clarified that their direction to apply the principle of one bar one vote would only be applicable to the current elections, it is important to recognise that this direction is prima facie wrong.
All lawyers have the fundamental right to associate and organize professionally. This is our fundamental right under Article 19 of the Constitution of India.
The Bench or the Supreme Court has no legal or moral authority to dictate to the Bar how they should organise and how the affairs of Bar Associations should be managed. The Supreme Court has no authority to dictate which lawyers can be members of a bar association and to curtail the voting rights of members of Bar Associations whether on the alleged principle of one bar one vote or on any other ground.
The decisions in the B D Kaushik case are not the “law of the land” and do not automatically apply to all bar associations. These B D Kaushik decisions apply only to the SCBA as they were based upon a specific fact situation.
In B D Kaushik, the facts were that the SCBA had by special resolution elected to apply the principle of one bar one vote. The SC merely dismissed a legal challenge to this resolution.
The DHCBA has not passed a special resolution in General Body adopting the principle of one bar one vote.
The Supreme Court Bench headed by J. Lodha therefore had no authority to insist that the “ensuing” elections will be covered by this alleged principle.
The alleged principle of one bar one vote is against the interests of lawyers and against judicial reform. Entrenched corrupt interests within the judicial system are pushing for this alleged principle so as to curtail the power of the bar and to divide and rule.
In Sudha v President Advocates Association, Chennai reported in 2010 14 SCC 114, the Supreme Court had itself directed that alleged new rules (incorporating the one bar one vote principle) and drafted for the Chennai lawyers association by a Chennai High Court appointed committee and accepted by the Chennai High Court, could only take effect after and if they were accepted by the General Body of the Chennai lawyers association.
The alleged principle of one bar one vote must be first widely debated in the Bar and it can only be accepted if the General Body of the DHCBA elects to apply this principle by passing a special resolution.
It will be a mistake for the Bar to believe that this is a harmless direction in that it applies only to a single election and that thereafter the DHCBA will be free to decide whether or not to apply this alleged principle to future elections. Once the one bar one vote principle is implemented in even a single DHCBA election, it will be impossible for the DHCBA to depart from this principle in future.
There is another problem with the SC order. It has directed that as a consequence of the alleged one bar one vote principle, any DHCBA member who has either contested or voted in the election process of any other bar association in the year 2013 will stand disqualified from either contesting or voting in the ensuing DHCBA election.
This direction amounts to a retrospective application of the alleged one bar one vote principle. For example several DHCBA members have voted in the 2013 elections of at least one district bar association. The SC order will result in the disqualification of such DHCBA members from either contesting or voting in the ensuing DHCBA elections. This disqualification from the ensuing DHCBA elections will follow even though at the time when such members participated in elections of another bar association, they could not have anticipated that this would result in disqualifying them from the ensuing DHCBA election as no such bar existed at that point in time. Such a retrospective application of a disqualification rule is unfair and unlawful.
All lawyers enrolled with the Bar Councils have the right of audience in all courts. All lawyers resident in Delhi and practicing law in Delhi have the right of audience in all Delhi courts including district courts, the High Court, the Supreme Court and before special tribunals and other quasi judicial bodies.
It is the prerogative of lawyers acting individually and collectively to decide if they want to associate with or establish a particular bar association and there can be no legal bar against a lawyer electing to be a voting member of more than one bar association.
Most litigating lawyers have court matters in more than one court and it would be reasonable to expect these lawyers to want to associate with other lawyers through bar associations based in these courts.
If a lawyer has a right of audience before a court, he/she also has the right to associate and organise professionally with other lawyers based in that court or affiliated to it or interested in that court.
The Supreme Court decision in B D Kaushik is based upon a misconception of the purpose and role of a bar association. A bar association does not exist mainly to provide chambers, canteen and library facilities to lawyers as the B D Kaushik decision mistakenly emphasizes. (In fact, a bar association is only able to provide chambers to a tiny fraction of its members). Rather the foremost objective and purpose of a bar association is to protect the rights and interests of its members (both individual and collective).
Imagine a situation, where a lawyer practicing mainly in a district court, comes to the High Court for a single matter and that lawyer is unfairly and unlawfully victimised by the judge or any other authority connected to the Delhi High Court. Such a lawyer will require support from the DHCBA. Such as lawyer is unlikely to receive much support from the DHCBA unless he/ she is a DHCBA member.
As in the B D Kaushik decision, during the hearing on 11 December 2013, the view was verbally expressed by the SC Bench that the one bar one vote principle would only curtail voting rights and not membership rights and that therefore this principle should be acceptable to all.
This statement by the Bench is fallacious. How will a DHCBA member enforce his/ her rights if he/she does not have the right to vote either in the elections or in the General Body Meetings? Such a member with no voting rights will have no real say in the functioning of the DHCBA.
The basic tenet of democratic representation is the right to vote and elect representatives who are then expected to act in the interests of those who elected them to office. A DHCBA member who cannot vote cannot be represented by those executive committee members he/ she did not elect.
The right to vote is an indispensable component of the right to participation in the democratic functioning of an institution like the DHCBA. Right to membership of the DHCBA without a right to vote as part of the DHCBA is a mere illusory right. There can be no democratic representation without a right to vote.
Lawyers do not join bar associations merely to obtain chambers. They join bar associations expecting such associations to protect their individual rights and interests, their collective rights and interests, and the rights and interests of the bar association as institutions connected to the administration of justice.
The alleged one bar one vote principle needs to be vigorously opposed because it is deeply detrimental to the interests of lawyers and to their Article 19 right to associate and organise professionally. Adoption of this principle will only result in the creation of insiders and outsiders among practicing lawyers.
The story is fabricated, presents twisted facts and does not contain even an iota of truth. Even the supreme court order has been interpreted wrongly.
Request you to pay more attention on the content than the gossips and the tabloids.
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