Case: ASHWINI KUMAR UPADHYAY Vs. UNION OF INDIA

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 ofof the Bar Council of India Rules (for short, =the Rules?) or, in the alternative, declare that Rule 49 of the Rules is arbitrary andthe 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.

Reasoning: 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.