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 ability