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Synopsis

The Supreme Court has on April 22, 2025 said a Muslim member of the Bar Council appointed to the Waqf Board cannot continue to the post after he ceased to be a member of the regulatory body of the legal profession and education.

A bench of Justices M M Sundresh and Rajesh Bindal, while allowing the appeal observed that the term of a Bar Council Member serving on the Board, is co-terminus with their membership in the Bar Council itself. 

The court said the object of any provision must be seen in light of the provisions surrounding it, which includes the proviso(s) and the explanation(s) appended to it. 

"When a right accrues to a person pursuant to a position that they hold, it ultimately becomes a qualification. Once such qualification ceases to exist, that person would not be eligible to hold any other post based on his earlier position, unless the statute categorically facilitates the same," the bench said. 

The court also added that an explanation, which is simply in the nature of a clarification as regards certain categories, cannot be read in a manner which is violative of the substantive part of the provision; Although normally, a proviso cannot be used to understand the substantive part of the provision, there is no absolute bar in doing so, particularly in cases where the statute is peculiar and the proviso does not create any exception, Court noted.

"In other words, if a proviso or an explanation, as the case may be, is phrased in a manner which throws more light on the objective behind the substantive part of the provision, there would be no difficulty in appreciating the same. Ultimately, a proviso or an explanation may be used for several purposes. Therefore, what is required is that courts appreciate the context of such usage before rendering an interpretation to a provision vis-a-vis the proviso or explanation contained therein," the bench added.

The court also pointed out that the decision rendered by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Shri Asif S/o Shaukat Qureshi Versus The State of Maharashtra and Anr decided on December 22, 2016 was not a good law. 

"This makes it clear that an ex-Member of the Bar Council would constitute the electoral college only when there is no eligible Member as provided for in Section 14(1)(b)(iii) of the 1995 Act, and the proviso contained therein. This means that if there is no serving Muslim Member in the Bar Council and also no Senior Muslim advocate who is available, only then would an ex-Member of the Bar Council be eligible to be a Member of the Board," the bench further held. 

Brief Background

Respondent no. 3 filed a writ petition in Manipur High Court, challenging the order of February 8, 2023 appointing the appellant as a member of the Waqf Board in Manipur. The Single Judge dismissed the writ petition as the respondent no 3 had lost the Bar Council election held on December 17, 2022, and therefore, as per the mandate of Explanation II to Section 14(1)(b) of the 1995 Act, he cannot be a Member of the Board, any longer.         

By the impugned judgment of November 23, 2023, the division bench of the High Court, placing reliance on Explanation II to Section 14(1)(b) of the 1995 Act, arrived at the conclusion that the said Explanation only speaks about instances wherein a Member of the Board, who ceases to be a Member of Parliament or Member of the State Legislative Assembly, as the case may be, would be deemed to have vacated their position in the Board. It further concluded that the said Explanation does not apply to a Member of the Board, who ceases to hold their position as a Muslim Member of the concerned Bar Council. 

A Gazette notification had been issued by the Bar Council of Manipur stating that the appellant had been elected as a Member of the Bar Council. Therefore, as such, a Member of the Bar Council was available, who was subsequently elected as a Member of the Board, in accordance with Section 14(1)(b)(iii) of the 1995 Act. 

Case Title: Md. Firoz Ahmad Khalid v State Of Manipur