ASHWINI KUMAR UPADHYAY versus UNION OF INDIA & ANR.

[2018] 12 S.C.R.

ASHWINI KUMAR UPADHYAY

UNION OF INDIA & ANR.

(Writ Petition (Civil) No.95 of 2018)

BSEPTEMBER 25, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR AND

DR. D.Y. CHANDRACHUD, JJ.]

Constitution of India – Art.32 – Writ petitionfor issuing writ/direction to debar the legislators (MPs/MLAs/MLCs) from practisingCas an Advocate, during the period when they are Members ofParliament or of State Assembly/Council – Plea of petitioner thatu/r. 49, Bar Council of India Rules there is an express restriction onadvocates to take up other employment – Held: Rule 49 applieswhere an advocate is full-time salaried employee of any person,Dgovernment, firm, corporation or concern – Legislators cannot bestyled as full-time salaried employees as such, much less of thespecified entities – Status of legislators is of member of the House(Parliament/State Assembly) – Mere fact that they draw salary ordifferent allowances does not result in creation of relationship ofemployer and employee between the Government and the legislators,Edespite the description of payment received by them in the name ofsalary – Indeed, the legislators are deemed to be public servants,but their status is sui generis and certainly not one of full-timesalaried employee of any person, government, firm, corporation orconcern as such– Therefore, Rule 49 can not be applied to theFlegislators– There is no other express provision in the 1961 Act orthe Rules framed thereunder to even remotely suggest that anyrestriction has been imposed on MPs/MLAs/MLCs to continue topractise as advocates – In absence of an express restriction in thatbehalf, it is not open for Supreme Court to debar them frompractising during the period when they are MPs/MLAs/MLCs –GFurther, it is for the Bar Council of India to frame Rules to imposerestrictions as may be found appropriate – As of today, no rule hasbeen framed to restrict the elected people’s representatives frompractising as advocates – On the other hand, an unambiguous standis taken by the Bar Council that being legislators per se is not aH

disqualification to practice law – Reliefs claimed in the writ petitiondevoid of merit – Salary, Allowances and Pension of Members ofParliament Act, 1954 – Advocates Act, 1961 –ss.16 and 49 – BarCouncil of India Rules – Part VI – Chapter II – Section VII – r. 49.

Dismissing the writ petition, the Court

HELD: 1.1 Rule 49, Bar Council of India Rules applieswhere an advocate is full-time salaried employee of any person,government, firm, corporation or concern. Indubitably,legislators cannot be styled or characterized as full-time salariedemployees as such, much less of the specified entities. For, thereis no relationship of employer and employee. The status oflegislators (MPs/MLAs/MLCs) is of member of the House(Parliament/State Assembly). The mere fact that they draw salaryunder the Salary, Allowances and Pension of Members ofParliament Act, 1954 or different allowances under the relevantRules framed under the said Act does not result in creation of arelationship of employer and employee between the Governmentand the legislators, despite the description of payment receivedby them in the name of salary. Indeed, the legislators are deemedto be public servants, but their status is sui generis and certainlynot one of full-time salaried employee of any person,government, firm, corporation or concern as such. Even theexpansive definition of term “person” in the General ClausesAct will be of no avail. The term “Employment” may be anexpansive expression but considering the Constitutional scheme,the legislators being elected people’s representatives occupy aseat in the Parliament/Legislative Assembly or Council as itsmembers but are not in the employment of or for that matterfull-time salaried employees as such. They occupy specialposition so long as the House is not dissolved. The fact thatdisciplinary or privilege action can be initiated against them bythe Speaker of the House does not mean that they can be treatedas full-time salaried employees. Similarly, the participation of thelegislators in the House for the conduct of its business, by nostandards can be considered as service rendered to an employer.One ceases to be legislator, only when the House is dissolvedor if he/she resigns or vacates the seat upon incurringdisqualification to continue to be legislator. By no standards,

CDEFG

Atherefore, Rule 49 as whole can be invoked and applied to thelegislators. [Para 14] [109-E-H; 110-A-C]

1.2 There is no other express provision in the AdvocatesAct, 1961 or the Rules framed thereunder to even remotelysuggest that any restriction has been imposed on the electedBpeople’s representatives, namely, MPs/MLAs/MLCs to continueto practise as advocates. In absence of an express restriction inthat behalf, it is not open for Supreme Court to debar the electedpeople’s representatives from practising during the period whenthey are MPs/MLAs/MLCs. It is also not possible to strikedown Rule 49 on the ground that the stated class of persons isCexcluded from its sweep, not being case of discriminationbetween equals or unequals being treated equally. It is for theBar Council of India to frame Rules to impose restrictions asmay be found appropriate. As of today, no rule has been framedto restrict the elected people’s representatives from practisingDas advocates. On the other hand, an unambiguous stand is takenby the Bar Council that being legislators per se is not adisqualification to practice law. [Para 15] [110-D-F]1.3 The legislators (MP/MLA/MLC) occupy uniqueposition. They are not appointed but are elected by the electorsEfrom respective territorial constituencies. The fact that they haveto take oath administered by the President/Governor before theytake their seat in the House, does not mean that they areappointed by the President/Governor as such unlike in the caseof the Prime Minister/Chief Minister and Ministers in theCouncil of Ministers. Article 99 of the Constitution postulatesFthat every member of either House of Parliament, before takingthe seat shall make and subscribe before the President, or someperson appointed in that behalf by him, an oath and affirmationaccording to the form set out for the purpose in the ThirdSchedule. The form of oath does not suggest that the member isGappointed by the President as such. Further, the legislatorsvacate his/her seat only in situations specified in Article 101 ofthe Constitution. Article 102 of the Constitution provides fordisqualification for being chosen and for being member ofeither House of Parliament. As regards the legislators, Article

105 provides for their powers and privileges. In the case of PrimeMinister and the Ministers, the Constitution of India expresslyprovides for their duties as predicated in Article 78. The fact thatthe legislators draw salary and allowances from the consolidatedfund in terms of Article 106 of the Constitution and the law madeby the Parliament in that regard, it does not follow that arelationship of full-time salaried employee(s) of theGovernment or otherwise is created. The fact that thelegislators receive payment in the form of salary, and allowancesor pension from the consolidated fund is not enough to debarthem from practising as advocates, sans being full-timesalaried employee of the specified entities. They continue toremain only as member(s) of the House representing theterritorial constituencies from where they have been elected untilthe House is dissolved or if he/she resigns including vacates theseat for having incurred disqualification as may be prescribed bylaw. [Para 17] [111-E-H; 112-A-D]

1.4 Merely because the advocate concerned is an electedpeople’s representative, it does not follow that he/she hasindulged in professional misconduct. That fact will have to bepleaded and proved before the Competent Authority. Similarly,the conferment of power on the legislators (MPs) to move animpeachment motion against the judge(s) of the ConstitutionalCourts does not per se result in conflict of interest or case ofimpacting constitutional morality or for that matter institutionalintegrity. Sans any express restriction imposed by the BarCouncil of India regarding the legislators to appear as anadvocate, the relief as claimed by the petitioner cannot becountenanced. The provisions of the 1961 Act and the Rulesframed thereunder, do not place any restrictions on thelegislators to practise as advocates during the relevant period.The closest rule framed by the Bar Council of India is Rule 49which, however, has no application to the elected people’srepresentatives as they do not fall in the category of full-timesalaried employee of any person, firm, government, corporationor concern. As there is no express provision to prohibit orrestrict the legislators from practising as advocates during the

ABC

Arelevant period, the question of granting relief, as prayed, todebar them from practising as advocates cannot be countenanced.Even the alternative relief to declare Rule 49 as unconstitutional,does not commend to this Court. The Bar Council of India hasmade its stand explicitly clear that no such prohibition can beplaced on the legislators. The reliefs claimed in this writ petitionBare devoid of merit. [Paras 19-20] [116-G; 117-A, C, D-F]

Kalpana Mehta v. Union of India(2018) 7 SCC 1 –relied on.

M. Karunanidhi v. Union of India and Anr. (1979) 3CSCC 431 : [1979] 3 SCR 254 ; Dr. Haniraj L. Chulaniv. Bar Council of Maharashtra & Goa (1996) 3 SCC342 : [1996] 1 Suppl. SCR 51 ; Sushma Suri v. Govt.of National Capital Territory of Delhi & Anr.(1999) 1SCC 330 : [1998] 2 Suppl. SCR 187 ; Satish KumarSharma v. Bar Council of H.P. (2001) 2 SCC 365 :D[2001] 1 SCR 34 ;Madhav M. Bhokarikar v. GaneshM. Bhokarikar (Dead) through LRs.(2004) 3 SCC607 : [2004] 2 SCR 1122 ;Manoj Narula v. Union ofIndia (2014) 9 SCC 1 : [2014] 11 SCR 712 ;Government of NCT of Delhi v. Union of India and OrsE2018 (8) SCALE 72 ;Krishnamoorthy v. Shivakumar& Ors.(2015) 3 SCC 467 : [2015] 4 SCR 987 –referred to.

Case Law Reference

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)No. 95 of 2018.

Under Article 32 of the Constitution of India.

K. K. Venugopal, AG, Shekhar Naphade, V. Shekhar, V. K. Shukla,Sr. Advs., R. D. Upadhyay, Shubhendu Anand, Mrs. Anil Katiyar,Ms. Hari Priya, Nachiketa Joshi, S. N. Bhat, Shashank Shekhar, JatinRajput, Prithviraj Singh, Ashwani Kumar Dubey, Dr. Ashutosh Garg,Avinash Kr. Jain, Omprakash Parihar, Jamshed Mistry, Dushyant Tiwari,Sanjai Kumar Pathak, Ms. Shashi Pathak, Arvind Kumar Tripathi,Akhilendra Singh, M. A. Chinnasamy, Ms. Anuja Kapur, Advs for theappearing parties.

Sanjeev Bhatnagar (Applicant-in-person).

The Judgment of the Court was delivered by

A.M. KHANWILKAR, J. 1.By this writ petition filed underArticle 32 of the Constitution of India as Public Interest Litigation, thepetitioner prays for issue of writ of mandamus or direction to debar thelegislators from practising as an Advocate (during the period when theyare Members of Parliament or of State Assembly/Council) in the spiritof 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 andultra-vires the Constitution and to permit all public servants to practiseas an advocate. During the pendency of this writ petition, multipleinterlocutory applications have been filed by different protagonistssupporting the relief claimed in the present writ petition.

2.According to the petitioner, the elected people’s representativestake constitutional oath to serve the people and are supposed to workfull-time for public causes. They also draw their salary from theconsolidated fund. Being public servants, they cannot be permitted topractise as an advocate. For, if they are allowed to practice law theywould charge fees from their private clients and, at the same time,continue to draw salary from the public exchequer, which will be nothingshort of professional misconduct. It is urged that many legislators areactively 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

Ainterviews to media, which also entails in advertisement. It is urged thatlegal profession is noble full-time profession. Resultantly, thelegislators cannot be allowed to ride two full-time engagements – as anelected representative and as an Advocate. If they do so, they wouldend up becoming casual towards one of the two engagements and in agiven situation be guilty of conflict of interest amounting to professionalBmisconduct. The petitioner has given multiple instances to buttress thepoint of conflict of interest.

3.It is thus urged that allowing legislators to practice law willhave the potential of permitting them to indulge in conflict of interestamounting to professional misconduct since they may appear in matters,Cin their capacity as advocates, challenging the wisdom of Parliament/State Legislature. It is possible that they may have participated in thedeliberation when the Bill to pass the stated law was introduced in theParliament/State Legislature. They may either take the same positionbefore the court or even completely opposite stand in their role as anDAdvocate. In either case, it would be serious issue of conflict ofinterest.

4.Reliance has been placed on Rule 49 of the Rules in particularto contend that there is an express restriction on advocates to take upother employment. It is also urged that being an elected people’sErepresentative, by the very nature of his/her duty as law maker andlegislator, it is full-time engagement, coupled with the fact that theemoluments paid to them is under The Salary, Allowances and Pensionof Members of Parliament Act, 1954 (for short, ‘the 1954 Act’).Similarly, allowances are paid as per the rules framed for different headsunder the 1954 Act (e.g. Travelling and Daily Allowances Rules, 1957;FHousing and Telephone Facilities Rules, 1956; Medical Facilities Rules,1959; Allowances for Journeys Abroad Rules, 1960; ConstituencyAllowance Rules, 1986; Advance for the Purchase of ConveyancesRules, 1986; and Office Expenses Allowance Rules, 1986). Consideringthe obligation towards the constituency represented by them, the electedGpeople’s representatives are obliged to work full-time for the public causeand for which reason it would be neither feasible nor practicable forthem to perform to the best of their ability as advocates, who arerequired to give wholehearted and full-time attention to their profession.Resultantly, legislators cannot be allowed to practise as advocatesduring the relevant period.H

5.To buttress the aforementioned arguments, reliance is placedon the decisions of this Court in M. Karunanidhi Vs. Union of Indiaand Anr.[1], Dr. Haniraj L. Chulani Vs. Bar Council of Maharashtra& Goa[2], Sushma Suri Vs. Govt. of National Capital Territory ofDelhi & Anr.[3], Satish Kumar Sharma Vs. Bar Council of H.P.[4]andMadhav M. Bhokarikar Vs. Ganesh M. Bhokarikar (Dead) throughLRs.[5]

6.The petition is opposed on the argument that the substantiverelief claimed by the petitioner, in effect, is to call upon this Court toimpose restrictions on distinct class of persons sans law made in thatbehalf to practise before the court as advocates whilst they representtheir constituency as elected people’s representatives in the Parliament/Legislative Assembly. It is urged that there can be no relationship of anemployee and employer between the MP/MLA/MLC and theGovernment as such, merely because they receive salary, allowancesand pension in terms of the provisions of the 1954 Act as applicable tothe Members of Parliament or similar enactment applicable to theMembers of Legislative Assembly/Council. The nomenclature of salaryfor the amount received by the legislators from the consolidated fundper se does not create relationship of employer and employeebetween the Government and the elected people’s representative.Further, being an elected people’s representative, the person is notengaged in trade, business or profession much less being full-timesalaried employee of the Government. So understood, the provisionregarding restriction on other employment, as articulated in the presentform, has no application.

7.In other words, as of now, there is no express prohibition eitherunder the provisions of the Advocates Act, 1961 or the Rules framedthereunder, including by the Bar Council of India such as in Part VI,Chapter II of the said Rules governing restrictions on advocates, inparticular Section VII thereof titled as ‘Section on other Employments’.The Bar Council of India has filed its response to this writ petition andhas placed on record minutes of the meeting of its General Council heldon 31[st] March, 2018 bearing item No.1420 of 2018. The Bar Council1 (1979) 3 SCC 4312 (1996) 3 SCC 3423 (1999) 1 SCC 3304 (2001) 2 SCC 3655 (2004) 3 SCC 607

Ahad appointed Sub-Committee to examine the question raised in thepresent writ petition. The Sub-Committee was of the considered opinionthat legislators could not be prohibited from practising law. The saidrecommendation was eventually accepted by the General Council of theBar Council of India in its meeting convened on 31[st] March, 2018.

B8.We have heard Mr. Shekhar Naphade, learned senior counselfor the petitioner, Mr. K.K. Venugopal, learned Attorney General forIndia, Mr. Arvind Verma, Mr. S.R. Singh, Mr. V. Shekhar andMr. Sukumar Pattajoshi, learned senior counsel, Mr. S.N. Bhatt,Mr. Sanjai Kumar Pathak, Dr. Dinesh Rattan Bhardwaj, Mr. Om PrakashAjit Singh Parihar and Mr. M.A. Chinnasamy learned counsel for theCparties.

9. The core issue is: whether legislators can be debarred frompractising as advocates during the period when they continue to be theMembers of Parliament or the State Assembly/Council? We are notconcerned with any other issue including the issue as to whether, byDvirtue of such practice, the concerned elected people’s representativemay incur disqualification to continue to be member of the concernedHouse on the ground of office of profit or any other ground resulting inhis/her disqualification provided by the Constitution or any law made bythe Parliament/State Legislature in that regard.

10.It is indisputable that the Bar Council of India is bestowedwith the function and duty to regulate enrollments of advocates and theterms and conditions of professional conduct of advocates. Theconditions to be fulfilled for continuing as advocates, however, must bereasonable restrictions. The right to practise any profession in that senseFis not an absolute right. At the same time, the restriction must beexpressly stated either in the Advocates Act, 1961 or the Rules framedthereunder. Chapter IV of the said Act deals with the right to practise asan advocate. Section 49 of the said Act empowers the Bar Council ofIndia to make Rules for discharging its functions under the Act onmatters specified in sub-section (1) (a) to 1(j) therein. The Bar CouncilGhas already framed Rules regarding restrictions on other employment,in exercise of powers under Sections 16 (3) and 49(1)(g) of the saidAct. 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; buthe may be sleeping partner in firm doing business providedthat in the opinion of the appropriate State Bar Council, the natureof the business is not inconsistent with the dignity of theprofession.

48. An advocate may be Director or Chairman of the Board ofDirectors of Company with or without any ordinarily sitting free,provided none of his duties are of an executive character. Anadvocate shall not be Managing Director or Secretary of anyCompany.

49. An advocate shall not be full-time salaried employee of anyperson, government, firm, corporation or concern, so long as hecontinues to practice, and shall, on taking up any suchemployment, intimate the fact to the Bar Council on whose rollhis name appears and shall thereupon cease to practice as anadvocate so long as he continues in such employment.

[***] [6]

50. An advocate who has inherited, or succeeded by survivorshipto family business may continue it, but may not personallyparticipate in the management thereof. He may continue to hold ashare with others in any business which has descended to him bysurvivorship or inheritance or by will, provided he does notpersonally participate in the management thereof.

51. An advocate may review Parliamentary Bills for aremuneration, edit legal text books at salary, do press-vettingfor newspapers, coach pupils for legal examination, set andexamine question papers; and subject to the rules against

advertising and full-time employment, engage in broadcasting,

6 Paras 2 and 3 deleted by the Bar Council of India, Resolution No.65/2001, dated22[nd] June, 2001, which read as:

“Nothing in this rule shall apply to Law Officer of the Central Government of aState or of any Public Corporation or body constituted by statute who is entitled to beenrolled under the rules of his State Bar Council made under Section 28 (2) (d) read withSection 24 (1) (e) of the Act despite his being full time salaried employee. Law Officer for the purpose of these Rules means person who is so designatedby the terms of his appointment and who, by the said terms, if required to act and/orplead in Courts on behalf of his employer.”

Ajournalism, lecturing and teaching subjects, both legal andnon-legal.

52. Nothing in these rules shall prevent an advocate fromaccepting after obtaining the consent of the State Bar Council,part-time employment provided that in the opinion of the StateBBar Council, the nature of the employment does not conflict withhis professional work and is not inconsistent with the dignity ofthe profession. This rule shall be subject to such directives if anyas may be issued by the Bar Council of India from time to time.”

11.For considering the issue articulated in paragraph 9Chereinabove, the efficacy of Rule 49 may be of some import and thatrule alone has been pressed into service by the petitioner andinterventionists. For, Rule 47 deals with situation where the advocateis engaged in business, Rule 48 is attracted when the advocate is aDirector or Chairman of the company, Rule 50 becomes applicable whenthe advocate inherits family business, Rule 51 becomes applicable whenDthe advocate is engaged in other specified activities, Rule 52 isapplicable when an advocate accepts part time employment. None ofthis is applicable to an elected people’s representative. The closestprovision is Rule 49, namely, when an advocate becomes full-timesalaried employee of any person, government, firm, corporation orEconcern.

12.Rule 49 came up for consideration before three-Judge Benchof this Court in Satish Kumar Sharma (supra). In that case, theappellant after obtaining L.L.B. degree came to be appointed asAssistant (Legal) in H.P. State Electricity Board, which post was laterFredesignated as “Law Officer Grade II”. Further, the Board permittedthe appellant to act as an advocate on its behalf. The appellant was alsoenrolled by the Bar Council as an advocate and was issued certificatein that behalf, in furtherance of which he represented the Board whennecessary. The appellant after some time was posted as“Under-Secretary (Legal)-cum-Law Officer” on promotion whereuponGthe Bar Council moved into action for cancellation of his enrollment. InParagraph 10 of the said decision, while considering the challenge,observed thus:

“10. The profession of law is called noble profession. It doesnot remain noble merely by calling it as such, unless there is

continued, corresponding and expected performance of nobleprofession. Its nobility has to be preserved, protected andpromoted. An institution cannot survive on its name or on its pastglory alone. The glory and greatness of an institution depends onits continued and meaningful performance with grace and dignity.The profession of law being noble and an honourable one, it hasto continue its meaningful, useful and purposeful performanceinspired by and keeping in view the high and rich traditionsconsistent with its grace, dignity, utility and prestige. Hence theprovisions of the Act and the Rules made thereunder inter aliaaimed to achieve the same ought to be given effect to in their trueletter and spirit to maintain clean and efficient Bar in the countryto serve the cause of justice which again is noble one.”

In paragraphs 19 to 21, the Court went on to examine the facts ofthe case under consideration and concluded thus:

“19. It is an admitted position that no rules were framed by therespondent entitling Law Officer appointed as full-time salariedemployee coming within the meaning of para 3 of Rule 49 to enrolas an advocate. Such an enrolment has to come from the rulesmade under Section 28(2)(d) read with Section 24(1)(e) of theAct. Hence it necessarily follows that if there is no rule in thisregard, there is no entitlement. In the absence of express or positiverule, the appellant could not fit in the exception and the barcontained in the first paragraph of Rule 49, was clearly attractedas rightly held by the High Court. ......In short and substance we find that the appellant was/is afull-time salaried employee and his work was not mainly orexclusively to act or plead in court. Further, there may be variouschallenges in courts of law assailing or relating to the decisions/actions taken by the appellant himself such as challenge to issueof statutory regulation, notification or order; construction ofstatutory regulation, statutory orders and notifications, theinstitution/withdrawal of any prosecution or other legal/quasi-legalproceedings etc. In given situation the appellant may be amenableto disciplinary jurisdiction of his employer and/or to the disciplinaryjurisdiction of the Bar Council. There could be conflict of dutiesand interests. In such an event, the appellant would be in an

embarrassing position to plead and conduct case in court oflaw. Moreover, mere occasional appearances in some courts onbehalf of the Board even if they be, in our opinion, could not bringthe appellant within the meaning of “Law Officer” in terms ofpara 3 of Rule 49. The decision in Sushma Suri v. Govt. ofNational Capital Territory of Delhi in our view, does not advancethe case of the appellant. That was case where meaning ofexpression “from the Bar” in relation to appointment as DistrictJudge requiring not less than seven years’ standing as an advocateor pleader came up for consideration. The word “advocate” inArticle 233(2) was held to include Law Officer of the Centralor State Government, public corporation or body corporate whois enrolled as an advocate under exception to Rule 49 of BarCouncil of India Rules and is practising before courts for hisemployee. Para 10 of the said judgment reads: (SCC pp. 336-37)

“10. Under Rule 49 of the Bar Council of India Rules, anadvocate shall not be full-time employee of any person,Government, firm, corporation or concern and on takingup such employment, shall intimate such fact to the BarCouncil concerned and shall cease to practise as long ashe is in such employment. However, an exception ismade in such cases of Law Officers of the Governmentand corporate bodies despite his being full-time salariedemployee if such Law Officer is required to act or pleadin court on behalf of others. It is only to those who fallinto other categories of employment that the bar underRule 49 would apply. An advocate employed by theGovernment or body corporate as its Law Officer even onterms of payment of salary would not cease to be an advocatein terms of Rule 49 if the condition is that such advocate isrequired to act or plead in courts on behalf of the employer.The test, therefore, is not whether such person isengaged on terms of salary or by payment ofremuneration, but whether he is engaged to act or pleadon its behalf in court of law as an advocate. In thatevent the terms of engagement will not matter at all.What is of essence is as to what such Law Officer engaged

by the Government does — whether he acts or pleads in courton behalf of his employer or otherwise? If he is not acting orpleading on behalf of his employer, then he ceases to bean advocate. If the terms of engagement are such that hedoes not have to act or plead, but does other kinds ofwork, then he becomes mere employee of the Governmentor the body corporate. Therefore, the Bar Council of Indiahas understood the expression ‘advocate’ as one who isactually practising before courts which expression wouldinclude even those who are Law Officers appointed as suchby the Government or body corporate.”

20. As stated in the above para the test indicated is whethera person is engaged to act or plead in court of law as anadvocate and not whether such person is engaged on termsof salary or payment by remuneration. The essence is as towhat such Law Officer engaged by the Government does.

21. In the present case, on facts narrated above, relating to hisemployment as well as in the absence of rule made by therespondent entitling Law Officer to enrol as an advocate despitebeing full-time salaried employee, the appellant was not entitledto enrolment as an advocate. Hence, the appellant cannot takebenefit of the aforementioned judgment.”

(emphasis supplied)

13.This Court had also referred to previous three-Judge Benchjudgment in Dr. Haniraj L. Chulani (supra), wherein Rule 1(1) framedby the State Bar Council of Maharashtra and Goa restricting personqualified to be enrolled as an advocate from so being enrolled when hewas already pursuing another full-time profession i.e. medicalprofession came up for consideration. The validity of the said provisionwas challenged on the ground that it suffered from the vice of excessivedelegation of legislative power and was also violative of Article 19 (1)(g) of the Constitution of India and not falling under the exemption grantedby sub Article (6) thereof. The validity of the said Rule was assailed alsoon 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 thatthe State Bar Councils are competent to lay down, by virtue of the Rules,

Aconditions or restrictions which would be germane to the high andexacting standards of advocacy expected of new entrants into the foldof the profession. Implicit in the conferment of such rule-making powerare the guidelines laid down by the legislature itself that the conditionsmust be commensurate with the fructification of the very purpose of theact of putting the profession of advocates on sound footing so that aBnew entrant can well justify his/her role in being admitted to the fold ofthe noble profession to which he/she seeks admission. In paragraph 20,the Court considered the question of whether person carrying onanother profession can validly be denied enrollment as an advocate bythe State Bar Council. While considering that question, the CourtCobserved thus:

“20. ….. In our view looking to the nature of the legal professionto which we have made detailed reference earlier the State BarCouncil would be justified in framing such rule prohibiting theentry of professional who insists on carrying on otherDprofession simultaneously with the legal profession. As we haveseen earlier legal profession requires full-time attentionand would not countenance an advocate riding two horsesor more at time. He has to be full-time advocate or notat all……..……….

EIt is obvious that even though medical profession also may be adignified profession person cannot insist that he will be apractising doctor as well as practising advocate simultaneously.Such an insistence on his part itself would create an awkwardsituation not only for him but for his own clients as well aspatients. It is easy to visualise that practising surgeon like theFappellant may be required to attend emergency operation evenbeyond court hours either in the morning or in the evening. Onthe other hand the dictates of his legal profession mayrequire him to study the cases for being argued the nextday in the court. Under these circumstances his attentionGwould be divided. He would naturally be in dilemma as towhether to attend to his patient on the operation table in the eveningor to attend to his legal profession and work for preparing casesfor the next day and to take instructions from his clients forefficient conduct of the cases next day in the court. If he is an

original side advocate he may be required to spend his eveningsand even late nights for making witnesses ready for examinationin the court next day. Under these circumstances as practisingadvocate if he gives attention to his clients in his chamber aftercourt hours and if he is also required to attend an emergencyoperation at that very time, it would be very difficult for him tochoose whether to leave his clients and go to attend his patient inthe operation theatre or to refuse to attend to his patients. If heselects the first alternative his clients would clamour, hispreparation as advocate would suffer and naturally it wouldreflect upon his performance in the court next day. If on the otherhand he chooses to cater to the needs of his clients and his legalwork, his patients may suffer and may in given contingency evenstand to lose their lives without the aid of his expert hand as asurgeon. Thus he would be torn between two conflictingloyalties, loyalty to his clients on the one hand and loyaltyto his patients on the other. In way he will instead ofhaving the best of both the worlds, have the worst of boththe worlds. Such person aspiring to have simultaneousenrolment both as lawyer and as medical practitioner will thusbe like ‘trishanku’ of yore who will neither be in heaven nor onearth. It is axiomatic that an advocate has to burn themidnight oil for preparing his cases for being argued in thecourt next day. Advocates face examination every day whenthey appear in courts. It is not as if that after court hours anadvocate has not to put in hard work on his study table inhis chamber with or without the presence of his clients whomay be available for consultation. To put forward his bestperformance as an advocate he is required to givewhole-hearted and full-time attention to his profession. Anyflinching from such unstinted attention to his legalprofession would certainly have an impact on hisprofessional ability and expertise. If he is permitted tosimultaneously practise as doctor then the requirement of hisfull-time attention to the legal profession is bound to be adverselyaffected. Consequently however equally dignified may be theprofession of doctor he cannot simultaneously be permitted topractise law which is full-time occupation. It is for ensuring

the full-time attention of legal practitioners towards theirprofession and with view to bringing out their best sothat they can fulfil their role as an officer of the court andcan give their best in the administration of justice, that theimpugned rule has been enacted by the State Legislature.It, therefore, cannot be said that it is in any way arbitrary or thatit imposes an unreasonable restriction on the new entrant to theprofession who is told not to practise simultaneously any otherprofession and if he does so to deny to him entry to the legalprofession. It is true as submitted by the learned Senior Counselfor the appellant that the rule of Central Bar Council does notcountenance an advocate simultaneously carrying on anybusiness and it does not expressly frown upon any simultaneousprofession. But these are general rules of professional conduct.So far as regulating enrolment to the profession isconcerned it is the task entrusted solely to the State BarCouncils by the legislature as seen earlier whileconsidering the scheme of the Act. While carrying on thattask if the entry to the profession is restricted by the StateBar Council by enacting the impugned rule for not allowingany other professional to enter the Bar when he does notwant to give up the other profession but wants to carry onthe same simultaneously with legal practice, it cannot besaid that the Bar Council has by enacting such ruleimposed any unreasonable restriction on the fundamentalright of the prospective practitioner who wants to enterthe legal profession.”

(emphasis supplied)

Having said thus, in paragraph 21 the Court observed as follows:“21………In our view the impugned rule does not impose anyunreasonable restriction on the right of the professional carryingon any other avocation and insisting on continuing to carry onsuch profession, while it prohibits entry of such person to thelegal profession. If the contention of the learned Senior Counselfor the appellant is countenanced and any person professing anyother profession is permitted to join the legal profession havingobtained 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 duringcourt hours they will practise law and they will simultaneouslycarry on their other profession beyond court hours. If suchsimultaneous practices of professionals who want to carry on morethan one profession at time are permitted, the unflinching devotionexpected by the legal profession from its members is bound to beadversely affected. If the peers being chosen representatives ofthe legal profession constituting the State Bar Council, in theirwisdom, had thought it fit not to permit such entries of dualpractitioners to the legal profession it cannot be said that theyhave done anything unreasonable or have framed an arbitrary orunreasonable rule.”

14.The elucidation by the three-Judge Bench of this Courtreferred to above is irrefutable. The question, however, is whether therestriction imposed by the Bar Council of India under the Rules as framed,encompasses the elected people’s representatives or legislators. Asaforesaid, the closest rule framed by the Bar Council of India is Rule 49.However, Rule 49 applies where an advocate is full-time salariedemployee of any person, government, firm, corporation or concern.Indubitably, legislators cannot be styled or characterized as full-timesalaried employees as such, much less of the specified entities. For,there is no relationship of employer and employee. The status oflegislators (MPs/MLAs/MLCs) is of member of the House(Parliament/State Assembly). The mere fact that they draw salaryunder the 1954 Act or different allowances under the relevant Rulesframed under the said Act does not result in creation of relationship ofemployer and employee between the Government and the legislators,despite the description of payment received by them in the name ofsalary. Indeed, the legislators are deemed to be public servants, but theirstatus is sui generis and certainly not one of full-time salariedemployee of any person, government, firm, corporation or concern assuch. Even the expansive definition of term “person” in the GeneralClauses Act will be of no avail. The term “Employment” may be anexpansive expression but considering the Constitutional scheme, thelegislators being elected people’s representatives occupy seat in theParliament/Legislative Assembly or Council as its members but are not

Ain the employment of or for that matter full-time salaried employees assuch. They occupy special position so long as the House is notdissolved. The fact that disciplinary or privilege action can be initiatedagainst them by the Speaker of the House does not mean that they canbe treated as full-time salaried employees. Similarly, the participation ofthe legislators in the House for the conduct of its business, by noBstandards can be considered as service rendered to an employer. Oneceases to be legislator, only when the House is dissolved or if he/sheresigns or vacates the seat upon incurring disqualification to continue tobe legislator. By no standards, therefore, Rule 49 as whole can beinvoked and applied to the legislators. Resultantly, it is not necessary toCdilate on the question as to whether the nature of duty of the legislatorsis such that it entails into full-time engagement and that the personconcerned will not be in position to pay full attention towards the legalprofession. That is matter for the Bar Council to consider.15.There is no other express provision in the Act of 1961 or theDRules framed thereunder to even remotely suggest that any restrictionhas been imposed on the elected people’s representatives, namely, MPs/MLAs/MLCs to continue to practise as advocates. In absence of anexpress restriction in that behalf, it is not open for this Court to debar theelected people’s representatives from practising during the period when

they are MPs/MLAs/MLCs. It is also not possible to strike down RuleE49 on the ground that the stated class of persons is excluded from itssweep, not being case of discrimination between equals or unequalsbeing 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 ruleFhas been framed to restrict the elected people’s representatives frompractising as advocates. On the other hand, an unambiguous stand istaken by the Bar Council that being legislators per se is not adisqualification to practice law.

16.Our attention was invited to the judgment of the Constitution

GBench in M. Karunanidhi (supra). In that case, the Court was calledupon to examine the purport of Section 21(12) of the Indian Penal Codewherein the expression “public servant” has been defined to denote aperson falling under any of the descriptions specified therein. Clause(12) of Section 21 postulates that every person in the service or “pay ofthe Government” or remunerated by fees or commission for theH

performance of any public duty by the Government. The questionbefore the Constitution Bench was whether the Chief Minister or aMinister is deemed to be public servant in any sense of the term. TheCourt noted that even though the Chief Minister may not stricto sensube in the service of the Government which undoubtedly signifies therelationship of master and servant where the employer employsemployee on the basis of salary or remuneration; but then the Courtwent on to observe that so far as the second limb of Section 21(12) ofIPC is concerned it predicates “in the pay of the Government”. Thatwas of much wider amplitude so as to include within its ambit evenpublic servant who may not be regular employee receiving salary fromhis master. The Court then proceeded to consider the constitutionalscheme whereunder the Chief Minister is “appointed” by the Governorand the duties to be performed by him in that capacity are defined. Asthe Court arrived at the conclusion that the Governor “appoints” theChief Minister and is also paid salary according to the statute made bythe Legislature, from the Government funds it went on to conclude thatthe Chief Minister becomes person “in the pay of the Government” soas to fall squarely within clause (12) of Section 21 of IPC.17.In the present case, however, we are dealing with theexpression “a full-time salaried employee” of specified entities as isexplicated in Rule 49 and more so with the issue of debarring anadvocate from practicing law whilst he/she is legislator during therelevant period. As regards the legislators (MP/MLA/MLC) theyoccupy unique position. They are not appointed but are elected by theelectors from respective territorial constituencies. The fact that theyhave to take oath administered by the President/Governor before theytake their seat in the House, does not mean that they are appointed bythe President/Governor as such unlike in the case of the Prime Minister/Chief Minister and Ministers in the Council of Ministers. Article 99postulates that every member of either House of Parliament, beforetaking the seat shall make and subscribe before the President, or someperson appointed in that behalf by him, an oath and affirmationaccording to the form set out for the purpose in the Third Schedule. Theform of oath does not suggest that the member is appointed by thePresident as such. Further, the legislators vacate his/her seat only insituations specified in Article 101 of the Constitution. Article 102 of theConstitution provides for disqualification for being chosen and for being

Aa member of either House of Parliament. As regards the legislators,Article 105 provides for their powers and privileges. In the case of PrimeMinister and the Ministers, the Constitution of India expressly providesfor their duties as predicated in Article 78. Suffice it to observe that theexposition in the case of M. Karunanidhi (supra), will be of no availwhile considering the purport of Rule 49, which is attracted when theBadvocate is full-time salaried employee of any person, firm,government, corporation or concern. The fact that the legislators drawsalary and allowances from the consolidated fund in terms of Article106 of the Constitution and the law made by the Parliament in thatregard, it does not follow that relationship of full-time salariedCemployee(s) of the Government or otherwise is created. The legislatorsreceive payment in the form of salary, and allowances or pension fromthe consolidated fund is not enough to debar them from practising asadvocates, sans being full-time salaried employee of the specifiedentities. They continue to remain only as member(s) of the Houserepresenting the territorial constituencies from where they have beenDelected until the House is dissolved or if he/she resigns including vacatesthe seat for having incurred disqualification as may be prescribed bylaw.

18.The argument then proceeds on the principle of constitutionalmorality, affirmative equality and institutional integrity. During arguments,Eemphasis was placed on the dictum of this Court in Manoj Narula Vs.Union of India[7],Government of NCT of Delhi Vs. Union of Indiaand Ors[8]and Krishnamoorthy Vs. Shivakumar & Ors.[9] Thisargument, in effect, is to assert that the legislators who are practising asadvocates are per se guilty of professional misconduct including conflictFof interest. This is sweeping comment. For, whether it is case ofconflict of interest or professional misconduct would depend on the factsof each case. That fact will have to be pleaded and proved before theCompetent Authority. There can be no presumption in that regard, merelyon account of the status of being legislator. The standards ofprofessional conduct and etiquette have been delineated in the RulesGframed by the Bar Council Chapter II in Part VI dealing with the rulesgoverning Advocates, framed under Section 49(1)(c) of the Act readwith the proviso thereto. The relevant portion thereof reads thus:-

7 (2014) 9 SCC 18 Judgment delivered on 4th July, 2018 in Civil Appeal No.2357 of 2017; (2018) 8SCALE 72H9 (2015) 3 SCC 467

“CHAPTER II

STANDARDS OF PROFESSIONAL CONDUCT ANDETIQUETTE

[Rules under Section 49(1)(c) of the Act read with the Provisothereto]

Preamble

An Advocate shall, at all times, comport himself in mannerbefitting his status as an officer of the Court, privileged memberof the community, and gentleman, bearing in mind that whatmay be lawful and moral for person who is not member of theBar, or for member of the Bar in his non-professional capacitymay still be improper for an Advocate. Without prejudice to thegenerality of the foregoing obligation, an Advocate shall fearlesslyuphold the interests of his client, and in his conduct conform to therules hereinafter mentioned both in letter and in spirit. The ruleshereinafter mentioned contain canons of conduct and etiquetteadopted as general guides; yet the specific mention thereof shallnot be construed as denial of the existence of other equallyimperative though not specifically mentioned.

SECTION I - DUTY TO THE COURT

xxxxxx

SECTION II - DUTY TO THE CLIENT

11. An Advocate is bound to accept any brief in the Courts orTribunals or before any other authority in or before which heprofesses to practise at fee consistent with his standing at theBar and the nature of the case. Special circumstances mayjustify his refusal to accept particular brief.

12. An Advocate shall not ordinarily withdraw from engagementsonce accepted, without sufficient cause and unless reasonableand sufficient notice is given to the client. Upon his withdrawalfrom case, he shall refund such part of the fee as has not beenearned.

13. An Advocate should not accept brief or appear in case inwhich he has reason to believe that he will be witness and ifbeing engaged in case, it becomes apparent that he is witness

on material question of fact, he should not continue to appear asan Advocate if he can retire without jeopardising his client’sinterests.

14. An Advocate shall at the commencement of his engagementand during the continuance thereof make all such full and frankdisclosures to his client relating to his connection with the partiesand any interest in or about the controversy as are likely to affecthis client’s judgment in either engaging him or continuing theengagement.

15. It shall be the duty of an Advocate fearlessly to uphold theinterests of his client by all fair and honourable means withoutregard to any unpleasant consequences to himself or any other.He shall defend person accused of crime regardless of hispersonal opinion as to the guilt of the accused, bearing in mindthat his loyalty is to the law which requires that no man should beconvicted without adequate evidence.

16. An Advocate appearing for the prosecution in criminal trialshall so conduct the prosecution that it does not lead to convictionof the innocent. The suppression of material capable ofestablishing the innocence of the accused shall be scrupulouslyavoided.

17. An Advocate shall not directly or indirectly, commit breachof the obligations imposed by Sec. 126 of the Indian EvidenceAct.

18. An Advocate shall not at any time, be party to fomenting oflitigation.

19. An Advocate shall not act on the instructions of any personother than his client or his authorised agent.

20. An Advocate shall not stipulate for fee contingent on theresults of litigation or agree to share the proceed thereof.

21. An Advocate shall not buy or traffic in or stipulate for oragree to receive any share or interest in any actionable claim.Nothing in this Rule shall apply to stock, shares and debentures orGovernment securities, or to any instruments, which are, for thetime being, by law or custom negotiable, or to any mercantiledocument of title to goods.

22. An Advocate shall not, directly or indirectly, bid for orpurchase, either in his own name or in any other name, for hisown benefit or for the benefit of any other person, any propertysold in the execution of decree or order in any suit, appeal orother proceeding in which he was in any way professionallyengaged. This prohibition, however, does not prevent anAdvocate from bidding for or purchasing for his client anyproperty, which his client may, himself legally bid for or purchase,provided the Advocate is expressly authorised in writing in thisbehalf.

22A. An advocate shall not directly or indirectly bid in courtauction or acquire by way of sale, gift, exchange or any othermode of transfer either in his own name or in any other name forhis own benefit or for the benefit of any other person anyproperty which is subject matter of any suit appeal or otherproceedings in which he is in any way professionally engaged.

23. An Advocate shall not adjust fee payable to him by his clientagainst his own personal liability to the client, which liability doesnot arise in the course of his employment as an Advocate.

24. An Advocate shall not do anything whereby he abuses ortakes advantage of the confidence reposed in him by his client.

25. An Advocate should keep accounts of the client’s moneyentrusted to him, and the accounts should show the amountsreceived from the client or on his behalf, the expenses incurredfor him and the debits made on account of fees with respectivedates and all other necessary particulars.

26. Where moneys are received from or on account of client,the entries in the accounts should contain reference as to whetherthe amounts have been received for fees or expenses, and duringthe course of the proceedings, no Advocate shall, except with theconsent in writing of the client concerned, be at liberty to divertany portion of the expenses towards fees.

27. Where any amount is received or given to him on behalf of hisclient the fact of such receipt must be intimated to the client asearly as possible.

28. After the termination of the proceeding the Advocate shall beat liberty to appropriate towards the settled fee due to him anysum remaining unexpended out of the amount paid or sent to himfor expenses, or any amount that has come into his hands in thatproceeding.

29. Where the fee has been left unsettled, the Advocate shall beentitled to deduct, out of any moneys of the client remaining in hishands, at the termination of the proceeding for which he had beenengaged, the fee payable under the rules of the Court, in force forthe time being, of by then settled and the balance, if any, shall berefunded to the client.

30. copy of the client’s account shall be furnished to him ondemand provided the necessary copying charge is paid.

31. An Advocate shall not enter into arrangements whereby fundsin his hands are converted into loans.

32. An Advocate shall not lend money to his client for the purposeof any action or legal proceedings in which he is engaged by suchclient.

Explanation:- An Advocate shall not be held guilty for breach ofthis rule, if in the course pending suit or proceeding, and withoutEany arrangement with the client in respect of the same, theAdvocate feels compelled by reason of the rule of the Court tomake payment to the Court on account of the client for theprogress of the suit of proceeding.

33. An Advocate who has, at any time, advised in connection withFthe institution of suit, appeal or other matter or has drawnpleadings, or acted for party shall not act, appear or plead forthe opposite party.

xxxxxxxxx”

Resultantly, the case of professional misconduct will have to beGpleaded and proved on case to case basis.

19.Thus, merely because the advocate concerned is an electedpeople’s representative, it does not follow that he/she has indulged inprofessional misconduct. Similarly, the conferment of power on thelegislators (MPs) to move an impeachment motion against the judge(s)

of the Constitutional Courts does not per se result in conflict of interestor case of impacting constitutional morality or for that matterinstitutional integrity. In the context of the relief claimed in the mainpetition, we do not wish to dilate on the other arguments that India needsdedicated and full-time legislators, who will sincerely attend Parliamenton all working days when called upon to do so. For, the limited questionconsidered by us is whether legislators are and can be prohibited frompractising as advocates during the relevant period. That can be answeredon the basis of the extant statutory provisions governing the conduct ofadvocates. As observed in Kalpana Mehta Vs. Union of India[10], theCourt cannot usurp the functions assigned to the legislature. In otherwords, sans any express restriction imposed by the Bar Council of Indiaregarding the legislators to appear as an advocate, the relief as claimedby the petitioner cannot be countenanced.

20.To sum up, we hold that the provisions of the Act of 1961 andthe Rules framed thereunder, do not place any restrictions on thelegislators to practise as advocates during the relevant period. Theclosest rule framed by the Bar Council of India is Rule 49 which,however, has no application to the elected people’s representatives asthey do not fall in the category of full-time salaried employee of anyperson, firm, government, corporation or concern. As there is noexpress provision to prohibit or restrict the legislators from practising asadvocates during the relevant period, the question of granting relief, asprayed, to debar them from practising as advocates cannot becountenanced. Even the alternative relief to declare Rule 49 asunconstitutional, does not commend to us. As of now, the Bar Council ofIndia has made its stand explicitly clear that no such prohibition can beplaced on the legislators. As result, the reliefs claimed in this writpetition are devoid of merit.

21. Accordingly, this writ petition is dismissed with no order as tocosts and as consequence thereof, the interlocutory applications arealso disposed of.

Divya Pandey

Writ Petition dismissed.

10 (2018) 7 SCC 1