ASHWINI KUMAR UPADHYAY V UNION OF INDIA AIR 2018 SC 4633

AUTHOR:- NAMITHASRI.S, A LAW STUDENT AT CHETTINAD SCHOOL OF LAW.

EDITED BY:- RUTVIJ VYAS, A LAW STUDENT AT FACULTY OF LAW, GLS UNIVERSITY.

•  ABSTRACT / HEADNOTE:

In this case, the petitioner has filed a mandamus writ petition under article 32 against the Government as public interest ligation to debar the advocates from practice who are also currently members of the parliament or legislative assembly.  The petitioner stated that the practising advocates should not hold any other business or employment during practice as per rule 49 of the Bar Council of India Rules and Advocates Act, 1961 which will lead to professional misconduct and conflict of interest. The respondent contended that no provision in the law prohibits a practising advocate from doing another job with the consent of the bar council and there is no express provision stating that an advocate should not be a member of the legislation. Hence the petition was dismissed and the declaration of rule 49 as unconstitutional was not commended by the Supreme Court of India.

Keywords: professional misconduct, Advocate, members of legislation, Practice, debar, Rule 49 of Bar Council of India Rules.

• CASE DETAILS

• INTRODUCTION AND BACKGROUND OF JUDGEMENT:

• Parliament or legislative members are elected by the people and get a salary for the work from a consolidated fund. The job of an advocate is also said to be a full-time professional and get remuneration from the clients.
• Considering this petitioner has filed a mandamus writ petition as per Article 32 of the Indian constitution to restrict the advocates who currently practice from being members of the legislation simultaneously.
• also, the advocates should not work under any person, office firm or government according to rule 49 of the Bar Council Rules

Rule 49 of Bar Council of India Rules:

• An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practice as an advocate so long as he continues in such employment.
• The petitioner also added that a practising advocate who is simultaneously a member of legislation will also contribute to professional misconduct because of conflict in the interest matters of both professions.
• But the respondent in reply contended that the members are not considered employees as they work for the government.
• They also stated that the member can be vacated from their seat only as per articles 101 and 102 of the Indian constitution. The misconduct is proved and said to be done only if the advocate violates rules 1 to 10 under section II and rules 11 to 33 under section III of part VI of Bar Council of India Rules.

Article 101 of the Indian Constitution:

Vacation of seats

Article 102 of the Indian Constitution:

Disqualification of members

Section II:

Duty towards the court

Section III:

Duty toward the client

• FACTS OF THE CASE:

• Procedural Background of the Case:

• The petitioner approached the Supreme Court of India by filing a mandamus writ petition to debar the legislators from the advocate practice as it is violative of rule 49 of the Bar Council of India Rules.
• Later on, this case was heard by D.Y.Chandrachud, A.M. Khanwilkar and Dipak Misra and they looked into Rule 49 of Bar Council rules and heard the petitioner side arguments and respondent side arguments.
• Finally, with this interpretation and arguments, the bench dismissed the petition and upheld the rights of the members of the legislative assembly or parliament.

• Factual Background of the Case:
  • In this case, the petitioner filed a mandamus writ against the simultaneous work as an advocate as well as holding a position as a member of the parliament or legislative assembly at the same time.
  • It is also stated by the petitioner that the advocate job and being a member of parliament or legislative assembly is a full-time job. So, there may arise a conflict of interest among the professions.
  • Chapter III of part VI of the Bar Council of India Rules discusses the conditions for the right of advocates to practice and section VII specifically deals with restrictions of the advocates with other employments.
  • Rule 49 of the Bar Council of India Rules states that advocates should not hold any employment under any person, government, firm, or any other corporation without any intimation.
  • The respondent in reply contended that the legislators are not considered as employees under the government only because they get a salary from consolidated funds.
  • Finally, it is prayed by the petitioner that the advocates should not be members of the legislation during the practice or else rule 40 of Bar Council rules should be made void.
  • In return, it is stated by the respondent that no legal provision restricts the simultaneous practice of advocating and holding a position as a member in the parliament or legislative assembly.

• LEGAL ISSUES RAISED:

• Whether the legislative members are debarred from advocate practice?
• Whether rule 49 of Bar Council rules should be declared void?

• PETITIONER/ APPELLANT’S ARGUMENTS:

• The petitioner council submits before the court that both the members of the parliament or legislative assembly and the advocate’s salary for their respective works are from consolidated funds and clients.
• They also argued that the practice of two professions at the same time would lead to a conflict of interest among the professional ethics and lead to professional misconduct if they draw salaries from both advocates and a member of the legislative assembly or parliament.
• Further it is also stated that as per rule 49 of Bar Council of India Rules advocates should not hold any employment under any person, government, firm, or any other corporation without any intimation.
• The petitioner claimed against the respondent that the advocates should not hold the membership position in the parliament or legislation or seek an alternative remedy of declaring rule 49 of bar council rules as void.

• RESPONDENT’S ARGUMENTS:

• • The counsels for Respondent submitted that as the members of the legislative assembly or parliament get a salary from the consolidated fund it doesn’t mean that the relationship between the government and members is an employer and employee relationship.
  • They also stated that there is no express provision in the Advocate Act also which prohibits the members of the legislative assembly or the parliament from practising as advocates during the course of membership in the house.
  • Further it also highlighted the recommendation given by the sub-committee which is formed by the Bar Council of India on the issue of prohibition of members from practising as advocates which is of the opinion that they should not be restricted from practising as advocates.
  • Further they argued that according to rule 49 of the Bar Council rules of India the advocates should not hold any employment under any person, firm, government or corporation only without the intimation about the employment.
  • They stated that no provision in the rules restricts any person who is practising as an advocate from performing any other employment with the consent of the bar council.

• RELATED LEGAL PROVISIONS:
  • Section 49 (1) (c) of Advocates Act, 1961:

Deals with the standards of professional conduct and etiquette to be observed by advocates

• • chapter II in part VI of Bar Council Rules of India:

Preamble: 

An Advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an Advocate. Without prejudice to the generality of the foregoing obligation, an Advocate shall fearlessly uphold the interests of his client, and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides, yet the specific mention thereof shall not be construed as a denial of the existence of other equally imperative though not specifically mentioned

Section I:

Deals with the Duty to the court.

Rules 1 to 10

Section II:

Deals with the  Duty to the clients

Rule 11 to 33.

Section VII-Restriction on other Employments:

Rule 49: An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practise as an advocate so long as he continues in such employment.

• JUDGEMENT:
  • RATIO DECIDENDI:
    • By considering all the facts, issues and arguments it is concluded that:

• No rules in the Bar Council state that professional misconduct is caused because of getting salary simultaneously from both jobs 
• The members of the legislative assembly or the parliament cannot be considered employees under the government only because they get a salary from the government side.
• There is no legal provision which can restrict the practising advocate from performing any other work with bar council consent and also no legal provision can restrict the legislators from advocate practice.
• So, the petition has been dismissed by the Supreme Court and the alternative remedy of making rule 49 of the Bar Council rules void is also not granted by the Supreme Court.

• • OBITER DICTA:
    • Taking into account all the facts, issues and arguments recognized that:

• The relationship between the members and the government is not an employer-and-employee relationship.
• The professional misconduct be solely determined based on the practice as an advocate by the members of the parliament or the legislative assembly.
• Only the bar council has the right to restrict the advocates from professing any other work but here no provision restricts the advocate from being a member of the legislation.

• CONCLUSION & COMMENTS:

Both the advocates and members of the parliament or legislative assembly work full time and get salaries from the client and consolidated fund. The main issue in simultaneously being a member of legislation and practising as an advocate would be a conflict of interest in the subject matters. Hence the advocates being a member of the parliament need not be barred unless there arises any dispute over the interest matters of the professions and unless any rule or law prohibits it. So, the dismissal of the petition by the Supreme Court is valid.

• REFERENCES:
  • Important Cases Referred:
    • M. Karunanidhi v. Union of India:

In this case, the court held that the advocate cannot carry out another profession at the same time while practising as an advocate and the provision which restricts this dual profession is not considered as arbitrary as they protect the professional standards of an advocate.

• • • Dr Haniraj L. Chulani v. Bar Council of Maharashtra & Goa:

In this case, the court held that restricting entry into the legal profession who are already working in a full-time profession is justified as the legal profession requires full-time attention and concentration.

• • • Kalpana Mehta v. Union of India:

In this case, it is held that unless any express provision laid down by the Bar Council of India restricts the legislators from practising as advocates, the relief which is claimed by the petitioner cannot be entertained.

• • Important Statutes Referred
    • Bar Council of India Rules
    • Advocates Act, 1961
    • Constitutional law of India