2018 (10) TMI 74 - SC - Indian Laws

Legislators can practice law while in office, exempt from Bar Council rules.

Ashwini Kumar Upadhyay Versus Union of India & Anr.

The court held that legislators cannot be debarred from practising as advocates during their tenure as Members of Parliament or State Assembly/Council. ... Whether legislators can be debarred from practising as advocates during the period when they continue to be the Members of Parliament or the State Assembly/Council? Held that:- The fact that the legislators draw salary and allowances from the consolidated fund in terms of Article 106 of the Constitution and the law made by the Parliament in that regard, it does not follow that a relationship of a full-time salaried employee(s) of the Government or otherwise is created. The legislators receive payment in the form of salary, and allowances or pension from the consolidated fund is not enough to debar them from practising as advocates, sans being a full-time salaried employee of the specified entities. They continue to remain only as member(s) of the House representing the territorial constituencies from where they have been elected until the House is dissolved or if he/she resigns including vacates the seat for having incurred disqualification as may be prescribed by law. Merely because the advocate concerned is an elected people‘s representative, it does not follow that he/she has indulged in professional misconduct. Similarly, the conferment of power on the legislators (MPs) to move an impeachment motion against the judge(s) of the Constitutional Courts does not per se result in conflict of interest or a case of impacting constitutional morality or for that matter institutional integrity. The provisions of the Act of 1961 and the Rules framed thereunder, do not place any restrictions on the legislators to practise as advocates during the relevant period. The closest rule framed by the Bar Council of India is Rule 49 which, however, has no application to the elected people‘s representatives as they do not fall in the category of full-time salaried employee of any person, firm, government, corporation or concern. As there is no express provision to prohibit or restrict the legislators from practising as advocates during the relevant period, the question of granting relief, as prayed, to debar them from practising as advocates cannot be countenanced. Even the alternative relief to declare Rule 49 as unconstitutional, does not commend to us. As of now, the Bar Council of India has made its stand explicitly clear that no such prohibition can be placed on the legislators - the reliefs claimed in this writ petition are devoid of merit. Petition dismissed. Issues Involved:1. Whether legislators can be debarred from practising as advocates during their tenure as Members of Parliament (MP) or State Assembly/Council (MLA/MLC).2. Whether Rule 49 of the Bar Council of India Rules is arbitrary and ultra-vires the Constitution.Issue-wise Detailed Analysis:1. Debarring Legislators from Practising as Advocates:The core issue was whether legislators could be debarred from practising as advocates during their tenure. The petitioner argued that legislators, being public servants drawing salary from the consolidated fund, should not be allowed to practice law as it would amount to professional misconduct and conflict of interest. The petitioner cited instances of legislators misusing their position and engaging in activities inconsistent with the dignity of the legal profession.The opposition contended that there was no express prohibition under the Advocates Act, 1961, or the Bar Council of India Rules against legislators practising law. They argued that legislators are not full-time salaried employees of the government and thus do not fall under the restrictions of Rule 49. The Bar Council of India supported this view, stating that legislators could not be prohibited from practising law.The judgment concluded that Rule 49, which restricts full-time salaried employees from practising as advocates, does not apply to legislators. Legislators are not considered full-time salaried employees of any person, government, firm, corporation, or concern. The court emphasized that legislators occupy a unique position as elected representatives and are not in an employer-employee relationship with the government. Therefore, there is no express provision in the Advocates Act or the Bar Council Rules to debar legislators from practising law.2. Constitutionality of Rule 49:The petitioner sought an alternative relief to declare Rule 49 of the Bar Council of India Rules as arbitrary and ultra-vires the Constitution. The court examined the scope of Rule 49, which restricts advocates from taking up full-time salaried employment. The court noted that Rule 49 applies to full-time salaried employees and not to legislators, who are not in an employer-employee relationship with the government.The court referred to previous judgments, including Satish Kumar Sharma v. Bar Council of H.P. and Dr. Haniraj L. Chulani v. Bar Council of Maharashtra & Goa, which emphasized the need for advocates to devote full-time attention to their profession. However, these cases did not address the specific issue of legislators practising law.The court concluded that there is no express provision in the Advocates Act or the Bar Council Rules to restrict legislators from practising law. The Bar Council of India has explicitly stated that no such prohibition exists. Therefore, the court found no merit in the argument to declare Rule 49 unconstitutional.Conclusion:The court held that the provisions of the Advocates Act, 1961, and the Bar Council of India Rules do not place any restrictions on legislators practising as advocates during their tenure. Rule 49, which restricts full-time salaried employees, does not apply to legislators. As there is no express provision to prohibit or restrict legislators from practising law, the relief sought by the petitioner to debar them from practising as advocates was dismissed. The alternative relief to declare Rule 49 unconstitutional was also rejected. The writ petition was dismissed with no order as to costs, and the interlocutory applications were disposed of accordingly.