The interpretive indices strongly suggest that 'Judges present' is entirely different from 'Judges present and voting.' We cannot judicially legislate by reading 'present' to mean 'present and voting.' It is impermissible. Of the 32 Judges present, PBSN did not get a two-thirds majority. He contends that-excluding abstentions, the figure of which is indeterminate-if we count the votes polled, he got 19-and no Judge opposed his request. So, he has secured a two-thirds majority.
99. First, no Judge abstained; all voted. Some Judges left the ballots blank. They did not express their choice. Designating an advocate as a Senior is a conscious act-an administrative one, though. The Judges deliberate and calibrate the applicant's merits as have been stated in Section 16 of the Act. However vigorous the deliberations may be, the element of subjectivity in the Judges' assessing the advocate's ability cannot be avoided. An advocate's securing majority, again, is an active measure, not a passive one. A state of affairs or a status already existing continues by default so long as those that can alter the position remain inert. On the other hand, a state of affairs to be brought about or a status to be conferred cannot be achieved by default unless there is express, positive, and active effort to bring about that situation. In the judicial parlance, a plaintiff losing does not amount to a defendant's winning. Similarly, an advocate's not getting a no-vote does not amount his getting a positive or a decisive vote. Abstentions apart, what an advocate must secure under Rule 6 of the Rules is two-thirds of positive or 'yes' votes of all the Judges present. Anything short of this does not enure to the applicant's benefit. I, therefore, hold that the High Court's destroying the ballot papers, and its failing to provide information to PBSN or any other applicant under the Right to Information Act does not alter the resulting position. Listed out, the conclusions are these:
"1. "Judges present" differs from "Judges present and voting". They both cannot be conflated; nor can they be taken as synonymous.
2. "Judges present" includes the Judges abstained or voted "blank."
3. Abstentions, if any, must be counted to reckon two-thirds majority unless the Rules make the position as the High Courts of Delhi and Gujarat have done.
4. The Courts making Rules is not a sine qua non for them to exercise their powers under Section 16 of the Act.
5. "[T]he Conditions subject to which an advocate shall be permitted to practice in the High Court" as prescribed under Section 34 of the Act encompasses the process of designating advocates as Seniors. And the Rules made by the High Court specifying Section 16 of the Act as the source of power do not fall foul.
6. Ballot papers are not part of the record to be preserved; they can be preserved only with the Full Court's consent, not at the request of an applicant.
IN THE HIGH COURT OF KERALA
W.P. (C) No. 21661 of 2016
Decided On: 22.05.2017
Saharsranaman P.B. Vs. Kerala High Court
Hon'ble Judges/Coram:
Dama Seshadri Naidu, J.
Citation: AIR 2017 Kerala 174
