1. Public Interest Litigation seeking to debar legislators from practicing as advocates during their tenure based on the Bar Council of India Rules. (Para 1 , 2 )
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2018 Supreme(SC) 914
SUPREME COURT OF INDIA
Dipak Misra, CJI., A.M. Khanwilkar, D.Y. Chandrachud, JJ.
Ashwini Kumar Upadhyay – Petitioner
Versus
Union of India & Anr. – Respondents
Writ Petition (Civil) No. 95 of 2018
Decided On : 25-09-2018
Important Points
Legislators (MPs/MLAs/MLCs) are not 'full-time salaried employees' under Rule 49 of the Bar Council of India Rules. Absent an express statutory prohibition in the Advocates Act, 1961, or BCI Rules, they cannot be debarred from practicing as advocates while serving as elected representatives.
Subject
Constitutional Law - Legal Profession
Act Referred
Headnote
(a) Bar Council of India Rules – Rule 49 – Prohibiting advocates from becoming full-time salaried employee – Legislators – Held not covered – They are not employees – No employer-employee relationship – Drawing salary and other allowances and being amenable to disciplinary action by Speaker or Chairman of the House does not create an employer-employee relationship – No restrictions placed on legislatorss on practicing as advocate. (Para 14, 15)
(1996) 3 SCC 342; (2001) 2 SCC 365 – Relied upon
(1999) 1 SCC 330; (2004) 3 SCC 607 – Referred
(1979) 3 SCC 431 – Distinguished
(b) Bar Council of India Rules – Chapter II, Section II, Rules 11 to 33 – Conflict of interest – It cannot be said that by becoming a public representative an advocate indulges in professional misconduct – Similarly, 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. (Para 19)
(2018) 7 SCC 1 – Relied upon
(2014) 9 SCC 1; (2018) 8 SCALE 72; (2015) 3 SCC 467 – Referred
Facts of the case:
By this PIL, the petitioner prays for issue of a writ of mandamus or direction to debar the legislators from practising as an Advocate (during the period when they are Members of Parliament or of State Assembly/Council) in the spirit of Part-VI of the Bar Council of India Rules or, in the alternative, declare that Rule 49 of the Rules is arbitrary and ultra-vires the Constitution and to permit all public servants to practise as an advocate.
Finding of the Court:
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.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Petitioner claims legislators are full-time public servants whose practice creates conflict of interest; respondents argue no express law prohibits such practice or establishes employment. (Para 2 , 3 , 4 , 6 , 7 )
3. Legislators occupy a unique constitutional position and are not full-time salaried employees under Rule 49, as no employer-employee relationship exists with the government. (Para 10 , 11 , 14 , 17 )
4. Absent express statutory or rule-based prohibition, legislators cannot be debarred from practicing law as they are not full-time salaried employees. (Para 14 , 15 , 20 )
5. Writ petition dismissed; legislators are not prohibited from practicing as advocates during their tenure. (Para 20 , 21 )
6. Do legislators fall under the prohibition of full-time salaried employees under Rule 49 of the BCI Rules?
No. Legislators are elected members of the House and occupy a unique position. Drawing salary and allowances from the consolidated fund does not create an employer-employee relationship between the government and the legislator. (Para 14 , 17 )
7. Can legislators be debarred from practicing law based on a general presumption of conflict of interest or professional misconduct?
No. Professional misconduct or conflict of interest must be pleaded and proved on a case-by-case basis. Such a condition cannot be presumed merely because a person is a legislator. (Para 18 , 19 )
8. What is the requirement for imposing restrictions on an advocate's right to practice?
Restrictions on the right to practice must be reasonable and expressly stated either in the Advocates Act, 1961, or the Rules framed thereunder by the Bar Council of India. (Para 10 , 15 )
JUDGMENT :
A.M. Khanwilkar, J.
1. By this writ petition filed under Article 32 of the Constitution of India as a Public Interest Litigation, the petitioner prays for issue of a writ of mandamus or direction to debar the legislators from practising as an Advocate (during the period when they are Members of Parliament or of State Assembly/Council) in the spirit of Part-VI of the Bar Council of India Rules (for short, ‘the Rules’) or, in the alternative, declare that Rule 49 of the Rules is arbitrary and ultra-vires the Constitution and to permit all public servants to practise as an advocate. During the pendency of this writ petition, multiple interlocutory applications have been filed by different protagonists supporting the relief claimed in the present writ petition.
2. According to the petitioner, the elected people’s representatives take a constitutional oath to serve the people and are supposed 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. The petitioner has given multiple instances to buttress the point of conflict of interest.
3. It is thus urged that allowing legislators to practice law will have the potential of permitting them to indulge in conflict of interest amounting to professional misconduct since they may appear in matters, in their capacity as advocates, challenging the wisdom of Parliament/State Legislature. It is possible that they may have participated in the deliberation when the Bill to pass the stated law was introduced in the Parliament/State Legislature. They may either take the same position before the court or even a completely opposite stand in their role as an Advocate. In either case, it would be a serious issue of conflict of interest.
4. Reliance has been placed on Rule 49 of the Rules in particular to contend that there is an express restriction on advocates to take up other employment. It is also urged that being an elected people’s representative, by the very nature of his/her duty as a law maker and legislator, it is a full-time engagement, coupled with the fact that the emoluments paid to them is under The Salary, Allowances and Pension of Members of Parliament Act, 1954 (for short, ‘the 1954 Act’). Similarly, allowances are paid as per the rules framed for different heads under the 1954 Act (e.g. Travelling and Daily Allowances Rules, 1957; Housing and Telephone Facilities Rules, 1956; Medical Facilities Rules, 1959; Allowances for Journeys Abroad Rules, 1960; Constituency Allowance Rules, 1986; Advance for the Purchase of Conveyances Rules, 1986; and Office Expenses Allowance Rules, 1986). Considering the obligation towards the constituency represented by them, the elected people’s representatives are obliged to work full-time for the public cause and for which reason it would be neither feasible nor practicable for them to perform to the best of their abili
