TaxTMI 
TaxTMI 
2018 (10) TMI 74
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....to work full-time for public causes. They also draw their salary from the consolidated fund. Being public servants, they cannot be permitted to practise as an advocate. For, if they are allowed to practice law they would charge fees from their private clients and, at the same time, continue to draw salary from the public exchequer, which will be nothing short of professional misconduct. It is urged that many legislators are actively practising as advocates before different courts. In the process, they end up in misusing their position as Members of Parliament/Members of the Legislative Assembly/Members of Legislative Council (for short, "MP/MLA/MLC"), as is perceived by the public. Further, they invariably make regular appearances on television and give interviews to media, which also entails in advertisement. It is urged that legal profession is a noble full-time profession. Resultantly, the legislators cannot be allowed to ride two full-time engagements - as an elected representative and as an Advocate. If they do so, they would end up becoming casual towards one of the two engagements and in a given situation be guilty of conflict of interest amounting to professional misconduct....
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....lhi & Anr.[ (1999) 1 SCC 330], Satish Kumar Sharma Vs. Bar Council of H.P.[ (2001) 2 SCC 365] and Madhav M. Bhokarikar Vs. Ganesh M. Bhokarikar (Dead) through LRs. [(2004) 3 SCC 607] 6. The petition is opposed on the argument that the substantive relief claimed by the petitioner, in effect, is to call upon this Court to impose restrictions on a distinct class of persons sans a law made in that behalf to practise before the court as advocates whilst they represent their constituency as elected people's representatives in the Parliament/Legislative Assembly. It is urged that there can be no relationship of an employee and employer between the MP/MLA/MLC and the Government as such, merely because they receive salary, allowances and pension in terms of the provisions of the 1954 Act as applicable to the Members of Parliament or similar enactment applicable to the Members of Legislative Assembly/Council. The nomenclature of salary for the amount received by the legislators from the consolidated fund per se does not create a relationship of employer and employee between the Government and the elected people's representative. Further, being an elected people's representative, the perso....
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....uing as advocates, however, must be reasonable restrictions. The right to practise any profession in that sense is not an absolute right. At the same time, the restriction must be expressly stated either in the Advocates Act, 1961 or the Rules framed thereunder. Chapter IV of the said Act deals with the right to practise as an advocate. Section 49 of the said Act empowers the Bar Council of India to make Rules for discharging its functions under the Act on matters specified in sub-section (1) (a) to 1(j) therein. The Bar Council has already framed Rules regarding restrictions on other employment, in exercise of powers under Sections 16 (3) and 49(1)(g) of the said Act. Section VII in Part VI of the said Rules deals with the said subject, which reads thus: "Section VII- Section on other Employments 47. An advocate shall not personally engage in any business; but he may be a sleeping partner in a firm doing business provided that in the opinion of the appropriate State Bar Council, the nature of the business is not inconsistent with the dignity of the profession. 48. An advocate may be Director or Chairman of the Board of Directors of a Company with or without any ordinarily....
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....ision is Rule 49, namely, when an advocate becomes a full-time salaried employee of any person, government, firm, corporation or concern. 12. Rule 49 came up for consideration before a three-Judge Bench of this Court in Satish Kumar Sharma (supra). In that case, the appellant after obtaining L.L.B. degree came to be appointed as Assistant (Legal) in H.P. State Electricity Board, which post was later redesignated as "Law Officer Grade II". Further, the Board permitted the appellant to act as an advocate on its behalf. The appellant was also enrolled by the Bar Council as an advocate and was issued a certificate in that behalf, in furtherance of which he represented the Board when necessary. The appellant after some time was posted as "Under-Secretary (Legal)-cum-Law Officer" on promotion whereupon the Bar Council moved into action for cancellation of his enrollment. In Paragraph 10 of the said decision, while considering the challenge, observed thus: "10. The profession of law is called a noble profession. It does not remain noble merely by calling it as such, unless there is a continued, corresponding and expected performance of a noble profession. Its nobility has to be pres....
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....alf of the Board even if they be, in our opinion, could not bring the appellant within the meaning of "Law Officer" in terms of para 3 of Rule 49. The decision in Sushma Suri v. Govt. of National Capital Territory of Delhi in our view, does not advance the case of the appellant. That was a case where meaning of expression "from the Bar" in relation to appointment as District Judge requiring not less than seven years' standing as an advocate or a pleader came up for consideration. The word "advocate" in Article 233(2) was held to include a Law Officer of the Central or State Government, public corporation or a body corporate who is enrolled as an advocate under exception to Rule 49 of Bar Council of India Rules and is practising before courts for his employee. Para 10 of the said judgment reads: (SCC pp. 336-37) "10. Under Rule 49 of the Bar Council of India Rules, an advocate shall not be a full-time employee of any person, Government, firm, corporation or concern and on taking up such employment, shall intimate such fact to the Bar Council concerned and shall cease to practise as long as he is in such employment. However, an exception is made in such cases of Law Officers....
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....ate from so being enrolled when he was already pursuing another full-time profession i.e. medical profession came up for consideration. The validity of the said provision was challenged on the ground that it suffered from the vice of excessive delegation of legislative power and was also violative of Article 19 (1) (g) of the Constitution of India and not falling under the exemption granted by sub Article (6) thereof. The validity of the said Rule was assailed also on the ground of being violative of Articles 14 and 21 of the Constitution. While considering the said challenge, the Court took note of the fact that the State Bar Councils are competent to lay down, by virtue of the Rules, conditions or restrictions which would be germane to the high and exacting standards of advocacy expected of new entrants into the fold of the profession. Implicit in the conferment of such rule-making power are the guidelines laid down by the legislature itself that the conditions must be commensurate with the fructification of the very purpose of the act of putting the profession of advocates on a sound footing so that a new entrant can well justify his/her role in being admitted to the fold of the....
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....s preparation as advocate would suffer and naturally it would reflect upon his performance in the court next day. If on the other hand he chooses to cater to the needs of his clients and his legal work, his patients may suffer and may in given contingency even stand to lose their lives without the aid of his expert hand as a surgeon. Thus he would be torn between two conflicting loyalties, loyalty to his clients on the one hand and loyalty to his patients on the other. In a way he will instead of having the best of both the worlds, have the worst of both the worlds. Such a person aspiring to have simultaneous enrolment both as a lawyer and as a medical practitioner will thus be like 'trishanku' of yore who will neither be in heaven nor on earth. It is axiomatic that an advocate has to burn the midnight oil for preparing his cases for being argued in the court next day. Advocates face examination every day when they appear in courts. It is not as if that after court hours an advocate has not to put in hard work on his study table in his chamber with or without the presence of his clients who may be available for consultation. To put forward his best performance as an advocate he is ....
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.... on continuing to carry on such profession, while it prohibits entry of such a person to the legal profession. If the contention of the learned Senior Counsel for the appellant is countenanced and any person professing any other profession is permitted to join the legal profession having obtained the Degree of Law and having fulfilled the other requirements of Section 24, then even chartered accountants, engineers and architects would also legitimately say that during court hours they will practise law and they will simultaneously carry on their other profession beyond court hours. If such simultaneous practices of professionals who want to carry on more than one profession at a time are permitted, the unflinching devotion expected by the legal profession from its members is bound to be adversely affected. If the peers being chosen representatives of the legal profession constituting the State Bar Council, in their wisdom, had thought it fit not to permit such entries of dual practitioners to the legal profession it cannot be said that they have done anything unreasonable or have framed an arbitrary or unreasonable rule." 14. The elucidation by the three-Judge Bench of this Cour....
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.... whether the nature of duty of the legislators is such that it entails into a full-time engagement and that the person concerned will not be in a position to pay full attention towards the legal profession. That is a matter for the Bar Council to consider. 15. There is no other express provision in the Act of 1961 or the Rules framed thereunder to even remotely suggest that any restriction has been imposed on the elected people's representatives, namely, MPs/MLAs/MLCs to continue to practise as advocates. In absence of an express restriction in that behalf, it is not open for this Court to debar the elected people's representatives from practising during the period when they are MPs/MLAs/MLCs. It is also not possible to strike down Rule 49 on the ground that the stated class of persons is excluded from its sweep, not being a case of discrimination between equals or unequals being treated equally. As expounded in the case of Dr. Haniraj L. Chulani (supra), it is for the Bar Council of India to frame Rules to impose restrictions as may be found appropriate. As of today, no rule has been framed to restrict the elected people's representatives from practising as advocates. On the ot....
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....ath administered by the President/Governor before they take their seat in the House, does not mean that they are appointed by the President/Governor as such unlike in the case of the Prime Minister/Chief Minister and Ministers in the Council of Ministers. Article 99 postulates that every member of either House of Parliament, before taking the seat shall make and subscribe before the President, or some person appointed in that behalf by him, an oath and affirmation according to the form set out for the purpose in the Third Schedule. The form of oath does not suggest that the member is appointed by the President as such. Further, the legislators vacate his/her seat only in situations specified in Article 101 of the Constitution. Article 102 of the Constitution provides for disqualification for being chosen and for being a member of either House of Parliament. As regards the legislators, Article 105 provides for their powers and privileges. In the case of Prime Minister and the Ministers, the Constitution of India expressly provides for their duties as predicated in Article 78. Suffice it to observe that the exposition in the case of M. Karunanidhi (supra), will be of no avail while c....
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....himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an Advocate. Without prejudice to the generality of the foregoing obligation, an Advocate shall fearlessly uphold the interests of his client, and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as a denial of the existence of other equally imperative though not specifically mentioned. SECTION I - DUTY TO THE COURT xxx xxx xxx SECTION II - DUTY TO THE CLIENT 11. An Advocate is bound to accept any brief in the Courts or Tribunals or before any other authority in or before which he professes to practise at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief. 12. An Advocate shall not....
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.... document of title to goods. 22. An Advocate shall not, directly or indirectly, bid for or purchase, either in his own name or in any other name, for his own benefit or for the benefit of any other person, any property sold in the execution of a decree or order in any suit, appeal or other proceeding in which he was in any way professionally engaged. This prohibition, however, does not prevent an Advocate from bidding for or purchasing for his client any property, which his client may, himself legally bid for or purchase, provided the Advocate is expressly authorised in writing in this behalf. 22A. An advocate shall not directly or indirectly bid in court auction or acquire by way of sale, gift, exchange or any other mode of transfer either in his own name or in any other name for his own benefit or for the benefit of any other person any property which is subject matter of any suit appeal or other proceedings in which he is in any way professionally engaged. 23. An Advocate shall not adjust fee payable to him by his client against his own personal liability to the client, which liability does not arise in the course of his employment as an Advocate. 24. An Advocate ....
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....r other matter or has drawn pleadings, or acted for a party shall not act, appear or plead for the opposite party. xxx xxx xxx" Resultantly, the case of professional misconduct will have to be pleaded and proved on case to case basis. 19. Thus, 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. In the context of the relief claimed in the main petition, we do not wish to dilate on the other arguments that India needs dedicated and full-time legislators, who will sincerely attend Parliament on all working days when called upon to do so. For, the limited question considered by us is whether legislators are and can be prohibited from practising as advocates during the relevant period. That can be answered on the basis of the extant statutory provisions governing the conduct of advocates. As observed in Kalpa....