Case: ASHWINI KUMAR UPADHYAY Vs. UNION OF INDIA

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 shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client. 25. An Advocate should keep accounts of the client‘s money entrusted to him, and the accounts should show the amounts received from the client or on his behalf, the expenses incurred for him and the debits made on account of fees with respective dates and all other necessary particulars. 26. Where moneys are received from or on account of a client, the entries in the accounts should contain a reference as to whether the amounts have been received for fees or expenses, and during the course of the proceedings, no Advocate shall, except with the consent in writing of the client concerned, be at liberty to divert any portion of the expenses towards fees. 27. Where any amount is received or given to him on behalf of his client the fact of such receipt must be intimated to the client as early as possible. 28. After the termination of the proceeding the Advocate shall be at liberty to appropriate towards the settled fee due to him any sum remaining unexpended out of the amount paid or sent to him for expenses, or any amount that has come into his hands in that proceeding. 29. Where the fee has been left unsettled, the Advocate shall be entitled to deduct, out of any moneys of the client remaining in his hands, at the termination of the proceeding for which he had been engaged, the fee payable under the rules of the Court, in force for the time being, of by then settled and the balance, if any, shall be refunded to the client. 30. A copy of the client‘s account shall be furnished to him on demand provided the necessary copying charge is paid. 31. An Advocate shall not enter into arrangements whereby funds in his hands are converted into loans. 32. An Advocate shall not lend money to his client for the purpose of any action or legal proceedings in which he is engaged by such client. Explanation:- An Advocate shall not be held guilty for a breach of this rule, if in the course a pending suit or proceeding, and without any arrangement with the client in respect of the same, the Advocate feels compelled by reason of the rule of the Court to make a payment to the Court on account of the client for the progress of the suit of proceeding. 33. An Advocate who has, at any time, advised in connection with the institution of a suit, appeal or 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 Kalpana Mehta Vs. Union of India 10 , the Court cannot usurp the functions assigned to the legislature. In other words, sans any express restriction imposed by the Bar Council of India regarding the legislators to appear as an advocate, the relief as claimed by the petitioner cannot be countenanced. 20. To sum up, we hold that 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 10 (2018) 7 SCC 1 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. As a result, the reliefs claimed in this writ petition are devoid of merit.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. It is indisputable that the Bar Council of India is bestowed with the function and duty to regulate enrollments of advocates and the terms and conditions of professional conduct of advocates. The conditions to be fulfilled for continuing 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(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.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 other hand, an unambiguous stand is taken by the Bar Council that being legislators per se is not a disqualification to practice law.Our attention was invited to the judgment of the Constitution Bench in M. Karunanidhi (supra). In that case, the Court was called upon to examine the purport of Section 21(12) of the Indian Penal Code wherein the expression "public servant" has been defined to denote a person falling under any of the descriptions specified therein. Clause (12) of Section 21 postulates that every person in the service or "pay of the Government" or remunerated by fees or commission for the performance of any public duty by the Government. The question before the Constitution Bench was whether the Chief Minister or a Minister is deemed to be a public servant in any sense of the term. The Court noted that even though the Chief Minister may not stricto sensu be in the service of the Government which undoubtedly signifies the relationship of master and servant where the employer employs employee on the basis of salary or remuneration; but then the Court went on to observe that so far as the second limb of Section 21(12) of IPC is concerned it predicates "in the pay of the Government". That was of much wider amplitude so as to include within its ambit even public servant who may not be a regular employee receiving salary from his master. The Court then proceeded to consider the constitutional scheme whereunder the Chief Minister is "appointed" by the Governor and the duties to be performed by him in that capacity are defined. As the Court arrived at the conclusion that the Governor"appoints" the Chief Minister and is also paid a salary according to the statute made by the Legislature, from the Government funds it went on to conclude that the Chief Minister becomes a person "in the pay of the Government" so as to fall squarely within clause (12) of Section 21 of IPC.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 andlegislators, 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 Kalpana Mehta Vs. Union of India 10 , the Court cannot usurp the functions assigned to the legislature. In other words, sans any express restriction imposed by the Bar Council of India regarding the legislators to appear as an advocate, the relief as claimed by the petitioner cannot be countenanced.To sum up, we hold that 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 ofsalaried 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 10 (2018) 7 SCC 1  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. As a result, the reliefs claimed in this writ petition are devoid of merit.