Supreme Court Judgment- Ashwini Kumar Upadhyay vs. Union of India & Anr (writ petition (civil)No.95 of 2018)
This petition was filed under article 32 of Indian Constitution as Public Interest Litigation in Supreme Court of India. In this petition it was prayed by the petitioner that the legislators or Members of Parliament and Legislative Assemblies who had degree of law and registered as lawyers be prohibited to practice as advocates in courts.
Following are the brief facts of this instant case:
- That this Public Interest Litigation was filed by the petitioner seeking directions of the apex court for prohibiting legislators/Members of Parliament/lawmakers/Members of Legislative Assemblies and Members of Legislative Councils from practicing law.
- That it was contended by the petitioner that the MPs/MLAs and MLCs are elected by the public in large and called public representatives.
- That the argument was made by the petitioner that such persons are duty bound to work for public cause which is a full time engagement.
- That practice of law is also a full time work and a noble profession. If these people work as public servant as well as they practice law being an advocate, they cannot justify both the works simultaneously.
- That the petitioner contended against such people who are seen regularly in courts as advocate and they are Members of Parliament as well. It was also argued that such people frequently come in media, give interview and appear on TV channels. They can influence the litigants and courts too.
- That it was also contended by the petitioner that such people practice law and they charge high amount of fees from their clients and they get allowances/ funds and pension from the government as well.
- That it was also argued by the petitioner that there can be professional misconduct on their part if they don’t justify their role as an advocate.
- That there are chances that at the time of the bill of any law (when law was being made in legislative assembly or parliament) they may be present in parliament and play a deliberate role and give contradictory opinion in court at the time of practicing such law by challenging the wisdom of parliament. This may cause a conflict of interest.
- That the rule 49 of Bar Council of India Rules was referred by petitioner which prohibits the practicing advocate from taking any other employment.
- That the petition was opposed on the ground that there is no such relation of employer and employee between legislators and government merely by receiving salary, allowances and pension.
- That it was also the contention of respondent that there is no such clear provision restricting legislators from practicing in law field.
- That on the point of Employment, there was a meeting conducted by Bar Council of India and it was opined that no such ban from practicing can be imposed on legislators.
- That it was the duty of Bar Council of India to frame rules related to the practice of advocates and no such clear rule was made out by the Bar Council of India expressively prohibiting legislators from practicing.
- Whether the legislators/Members of Parliament or the State Assembly/State Council can be debarred from practicing as advocates in courts during the period of their membership?
Judgment and Decision-
- The Supreme Court of India held that in the absence of any rule which clearly and expressively prohibit the legislators from practicing as advocates Rule 49 of the rules framed by Bar Council of India does not apply.
- It was held that rule 49 of the Bar Council of India Rules provides that an advocate should not be the full time employee of anybody. It includes any person, firm, organization or government. If any advocate takes any such employment he has to inform the Bar Council about the employment and he ceases to be an advocate and from practicing law till the course of employment.
- It was held by the Supreme Court that State Bar Councils can frame the rules regarding restrictions and conditions for the practicing advocates.
- Court held that advocacy is a noble work which requires full time engagement. Rules can be made for putting restriction on legal practitioners so that they can pay full attention towards their clients and the cases.
- Apex court also held that if States Bar Council frames any such rules providing condition for advocates who are in practice that would not amount to breach of their fundamental right of freedom of trade, then it would be justified.
- Supreme Court held that the case of professional misconduct will have to be proved beyond reasonable doubt and it may vary from case to case.
- Court held that rule 49 does not impose any unreasonable restriction on the advocates. The mere fact that law makers or legislators or member of parliament/legislative assemblies/councils withdraw salaries and pension or allowances does not bring them into the ambit of rule 49.
- Supreme Court also held that there is no express provision prohibiting MPs/MLAs/MLCs having a law degree from practicing as advocate in court of law during the relevant period. The only rule framed by Bar Council of India which is closer is rule 49 but it talks about other employment.
- The Supreme Court of India dismissed this particular petition on the above mentioned grounds by making it clear that no such ban/restriction can be imposed on the legislators/elected people’s representatives under the light of rule 49 of Bar Council of India Rules.