Holding

Legislators are not full‑time salaried employees; therefore Rule 49 does not apply to them and, in the absence of any express statutory restriction, they cannot be debarred from practising as advocates.

Summary

The petitioner filed a writ petition under Article 32 seeking a direction to bar Members of Parliament, Legislative Assemblies and Councils from practising as advocates while holding office, invoking Bar Council of India Rule 49 which prohibits advocates from being full‑time salaried employees. The Court examined whether legislators qualify as full‑time salaried employees and whether any provision in the Advocates Act, 1961 or its Rules restricts their legal practice. It held that legislators are not full‑time salaried employees, that Rule 49 applies only to such employees, and that there is no express restriction in the Act or Rules on legislators practising law. Consequently, the Court could not debar them nor declare Rule 49 unconstitutional. The writ petition was dismissed with no order as to costs, and related interlocutory applications were also disposed of.

Issues considered

Whether Rule 49 of the Bar Council of India Rules applies to legislators (MPs/MLAs/MLCs) as full‑time salaried employees, thereby prohibiting them from practising as advocates.
Whether any other provision in the Advocates Act, 1961 or its Rules imposes a restriction on legislators practising law.
Whether the Supreme Court can issue a writ directing debarment of legislators or declare Rule 49 ultra vires in the absence of an express statutory restriction.
Whether the status of legislators as public servants creates a conflict of interest that warrants disqualification from legal practice.

Legislation cited

Advocates Act, 1961s. 16, s. 49
Constitution of Indias. Article 101, s. Article 102, s. Article 105, s. Article 106, s. Article 99
General Clauses Act, 1897
Indian Penal Code, 1860s. 21(12)
Salary, Allowances and Pension of Members of Parliament Act, 1954

Subjects

Advocates ActBar Council of IndiaRule 49LegislatorsMPMLAMLCProfessional misconductConflict of interestPublic servantFull‑time salaried employeeWrit petitionArticle 32Constitution of India

Judgment

92 [2018]REPORTS
SUPREME COURT 12 S.C.R. 92 [2018] 12 S.C.R.

A ASHWINI KUMAR UPADHYAY
v.
UNION OF INDIA & ANR.
(Writ Petition (Civil) No.95 of 2018)
B SEPTEMBER 25, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D.Y. CHANDRACHUD, JJ.]
Constitution of India – Art.32 – Writ petition for issuing writ/
direction to debar the legislators (MPs/MLAs/MLCs) from practising
C
as an Advocate, during the period when they are Members of
Parliament or of State Assembly/Council – Plea of petitioner that
u/r. 49, Bar Council of India Rules there is an express restriction on
advocates to take up other employment – Held: Rule 49 applies
where an advocate is a full-time salaried employee of any person,
D government, firm, corporation or concern – Legislators cannot be
styled as full-time salaried employees as such, much less of the
specified entities – Status of legislators is of a member of the House
(Parliament/State Assembly) – Mere fact that they draw salary or
different allowances does not result in creation of a relationship of
employer and employee between the Government and the legislators,
E
despite the description of payment received by them in the name of
salary – Indeed, the legislators are deemed to be public servants,
but their status is sui generis and certainly not one of a full-time
salaried employee of any person, government, firm, corporation or
concern as such– Therefore, Rule 49 can not be applied to the
F legislators– There is no other express provision in the 1961 Act or
the Rules framed thereunder to even remotely suggest that any
restriction has been imposed on MPs/MLAs/MLCs to continue to
practise as advocates – In absence of an express restriction in that
behalf, it is not open for Supreme Court to debar them from
practising during the period when they are MPs/MLAs/MLCs –
G
Further, 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
H
92
ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ANR. 93

disqualification to practice law – Reliefs claimed in the writ petition A
devoid of merit – Salary, Allowances and Pension of Members of
Parliament Act, 1954 – Advocates Act, 1961 –ss.16 and 49 – Bar
Council 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 applies B
where an advocate is a full-time salaried employee of any person,
government, firm, corporation or concern. Indubitably,
legislators cannot be styled or characterized as full-time salaried
employees as such, much less of the specified entities. For, there
is no relationship of employer and employee. The status of C
legislators (MPs/MLAs/MLCs) is of a member of the House
(Parliament/State Assembly). The mere fact that they draw salary
under the Salary, Allowances and Pension of Members of
Parliament Act, 1954 or different allowances under the relevant
Rules framed under the said Act does not result in creation of a
relationship of employer and employee between the Government D
and the legislators, despite the description of payment received
by them in the name of salary. Indeed, the legislators are deemed
to be public servants, but their status is sui generis and certainly
not one of a full-time salaried employee of any person,
government, firm, corporation or concern as such. Even the E
expansive definition of term “person” in the General Clauses
Act will be of no avail. The term “Employment” may be an
expansive expression but considering the Constitutional scheme,
the legislators being elected people’s representatives occupy a
seat in the Parliament/Legislative Assembly or Council as its
members but are not in the employment of or for that matter F
full-time salaried employees as such. They occupy a special
position so long as the House is not dissolved. The fact that
disciplinary or privilege action can be initiated against them by
the Speaker of the House does not mean that they can be treated
as full-time salaried employees. Similarly, the participation of the G
legislators in the House for the conduct of its business, by no
standards can be considered as service rendered to an employer.
One ceases to be a legislator, only when the House is dissolved
or if he/she resigns or vacates the seat upon incurring
disqualification to continue to be a legislator. By no standards,
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94 SUPREME COURT REPORTS [2018] 12 S.C.R.

A therefore, Rule 49 as a whole can be invoked and applied to the
legislators. [Para 14] [109-E-H; 110-A-C]
1.2 There is no other express provision in the Advocates
Act, 1961 or the Rules framed thereunder to even remotely
suggest that any restriction has been imposed on the elected
B 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 Supreme 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
C excluded from its sweep, not being a case of discrimination
between equals or unequals being treated equally. 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
D 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. [Para 15] [110-D-F]
1.3 The legislators (MP/MLA/MLC) occupy a unique
position. They are not appointed but are elected by the electors
E from respective territorial constituencies. The fact that they have
to take oath administered by the President/Governor before they
take their seat in the House, does not mean that they are
appointed by the President/Governor as such unlike in the case
of the Prime Minister/Chief Minister and Ministers in the
Council of Ministers. Article 99 of the Constitution postulates
F that every member of either House of Parliament, before taking
the seat shall make and subscribe before the President, or some
person appointed in that behalf by him, an oath and affirmation
according to the form set out for the purpose in the Third
Schedule. The form of oath does not suggest that the member is
G appointed by the President as such. Further, the legislators
vacate his/her seat only in situations specified in Article 101 of
the Constitution. Article 102 of the Constitution provides for
disqualification for being chosen and for being a member of
either House of Parliament. As regards the legislators, Article

H
ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ANR. 95

105 provides for their powers and privileges. In the case of Prime A
Minister and the Ministers, the Constitution of India expressly
provides for their duties as predicated in Article 78. The fact that
the legislators draw salary and allowances from the consolidated
fund in terms of Article 106 of the Constitution and the law made
by the Parliament in that regard, it does not follow that a
B
relationship of a full-time salaried employee(s) of the
Government or otherwise is created. The fact that the
legislators receive payment in the form of salary, and allowances
or pension from the consolidated fund is not enough to debar
them from practising as advocates, sans being a full-time
salaried employee of the specified entities. They continue to C
remain only as member(s) of the House representing the
territorial constituencies from where they have been elected until
the House is dissolved or if he/she resigns including vacates the
seat for having incurred disqualification as may be prescribed by
law. [Para 17] [111-E-H; 112-A-D]
D
1.4 Merely because the advocate concerned is an elected
people’s representative, it does not follow that he/she has
indulged in professional misconduct. That fact will have to be
pleaded and proved before the Competent Authority. Similarly,
the conferment of power on the legislators (MPs) to move an
impeachment motion against the judge(s) of the Constitutional E
Courts does not per se result in conflict of interest or a case of
impacting constitutional morality or for that matter institutional
integrity. 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 F
countenanced. The provisions of the 1961 Act 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 G
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

H
96 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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 not commend to this Court. The Bar Council of India has
made its stand explicitly clear that no such prohibition can be
placed on the legislators. The reliefs claimed in this writ petition
B
are 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) 3
C SCC 431 : [1979] 3 SCR 254 ; Dr. Haniraj L. Chulani
v. Bar Council of Maharashtra & Goa (1996) 3 SCC
342 : [1996] 1 Suppl. SCR 51 ; Sushma Suri v. Govt.
of National Capital Territory of Delhi & Anr. (1999) 1
SCC 330 : [1998] 2 Suppl. SCR 187 ; Satish Kumar
Sharma v. Bar Council of H.P. (2001) 2 SCC 365 :
D [2001] 1 SCR 34 ; Madhav M. Bhokarikar v. Ganesh
M. Bhokarikar (Dead) through LRs. (2004) 3 SCC
607 : [2004] 2 SCR 1122 ; Manoj Narula v. Union of
India (2014) 9 SCC 1 : [2014] 11 SCR 712 ;
Government of NCT of Delhi v. Union of India and Ors
E 2018 (8) SCALE 72 ; Krishnamoorthy v. Shivakumar
& Ors. (2015) 3 SCC 467 : [2015] 4 SCR 987 –
referred to.
Case Law Reference
[1979] 3 SCR 254 referred to Para 5
F
[1996] 1 Suppl. SCR 51 referred to Para 5
[1998] 2 Suppl. SCR 187 referred to Para 5
[2001] 1 SCR 34 referred to Para 5
[2004] 2 SCR 1122 referred to Para 5
G
[2014] 11 SCR 712 referred to Para 18
2018 (8) SCALE 72 referred to Para 18
[2015] 4 SCR 987 referred to Para 18
(2018) 7 SCC 1 relied on Para 19
H
ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ANR. 97

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) A
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, Jatin B
Rajput, 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 the
appearing parties.
C
Sanjeev Bhatnagar (Applicant-in-person).
The Judgment of the Court was delivered by
A.M. KHANWILKAR, J. 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 D
legislators from practising as an Advocate (during the period when they
are Members of Parliament or of State Assembly/Council) in the spirit
of 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 and
ultra-vires the Constitution and to permit all public servants to practise
E
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.
2. According to the petitioner, the elected people’s representatives
take a constitutional oath to serve the people and are supposed to work
full-time for public causes. They also draw their salary from the F
consolidated fund. Being public servants, they cannot be permitted to
practise as an advocate. For, if they are allowed to practice law they
would charge fees from their private clients and, at the same time,
continue to draw salary from the public exchequer, which will be nothing
short of professional misconduct. It is urged that many legislators are G
actively 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
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98 SUPREME COURT REPORTS [2018] 12 S.C.R.

A interviews to media, which also entails in advertisement. It is urged that
legal profession is a noble full-time profession. Resultantly, the
legislators cannot be allowed to ride two full-time engagements – as an
elected representative and as an Advocate. If they do so, they would
end up becoming casual towards one of the two engagements and in a
given situation be guilty of conflict of interest amounting to professional
B
misconduct. The petitioner has given multiple instances to buttress the
point of conflict of interest.
3. It is thus urged that allowing legislators to practice law will
have the potential of permitting them to indulge in conflict of interest
amounting to professional misconduct since they may appear in matters,
C in their capacity as advocates, challenging the wisdom of Parliament/
State Legislature. It is possible that they may have participated in the
deliberation when the Bill to pass the stated law was introduced in the
Parliament/State Legislature. They may either take the same position
before the court or even a completely opposite stand in their role as an
D Advocate. In either case, it would be a serious issue of conflict of
interest.
4. Reliance has been placed on Rule 49 of the Rules in particular
to contend that there is an express restriction on advocates to take up
other employment. It is also urged that being an elected people’s
E representative, by the very nature of his/her duty as a law maker and
legislator, it is a full-time engagement, coupled with the fact that the
emoluments paid to them is under The Salary, Allowances and Pension
of Members of Parliament Act, 1954 (for short, ‘the 1954 Act’).
Similarly, allowances are paid as per the rules framed for different heads
under the 1954 Act (e.g. Travelling and Daily Allowances Rules, 1957;
F Housing and Telephone Facilities Rules, 1956; Medical Facilities Rules,
1959; Allowances for Journeys Abroad Rules, 1960; Constituency
Allowance Rules, 1986; Advance for the Purchase of Conveyances
Rules, 1986; and Office Expenses Allowance Rules, 1986). Considering
the obligation towards the constituency represented by them, the elected
G people’s representatives are obliged to work full-time for the public cause
and for which reason it would be neither feasible nor practicable for
them to perform to the best of their ability as advocates, who are
required to give wholehearted and full-time attention to their profession.
Resultantly, legislators cannot be allowed to practise as advocates
during the relevant period.
H
ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ANR. 99
[A. M. KHANWILKAR, J.]

5. To buttress the aforementioned arguments, reliance is placed A
on the decisions of this Court in M. Karunanidhi Vs. Union of India
and Anr.1, Dr. Haniraj L. Chulani Vs. Bar Council of Maharashtra
& Goa2, Sushma Suri Vs. Govt. of National Capital Territory of
Delhi & Anr.3, Satish Kumar Sharma Vs. Bar Council of H.P.4 and
Madhav M. Bhokarikar Vs. Ganesh M. Bhokarikar (Dead) through
B
LRs. 5
6. The petition is opposed on the argument that the substantive
relief claimed by the petitioner, in effect, is to call upon this Court to
impose restrictions on a distinct class of persons sans a law made in that
behalf to practise before the court as advocates whilst they represent
their constituency as elected people’s representatives in the Parliament/ C
Legislative Assembly. It is urged that there can be no relationship of an
employee and employer between the MP/MLA/MLC and the
Government as such, merely because they receive salary, allowances
and pension in terms of the provisions of the 1954 Act as applicable to
the Members of Parliament or similar enactment applicable to the D
Members of Legislative Assembly/Council. The nomenclature of salary
for the amount received by the legislators from the consolidated fund
per se does not create a relationship of employer and employee
between the Government and the elected people’s representative.
Further, being an elected people’s representative, the person is not
engaged in trade, business or profession much less being a full-time E
salaried employee of the Government. So understood, the provision
regarding restriction on other employment, as articulated in the present
form, has no application.
7. In other words, as of now, there is no express prohibition either
under the provisions of the Advocates Act, 1961 or the Rules framed F
thereunder, including by the Bar Council of India such as in Part VI,
Chapter II of the said Rules governing restrictions on advocates, in
particular Section VII thereof titled as ‘Section on other Employments’.
The Bar Council of India has filed its response to this writ petition and
has placed on record minutes of the meeting of its General Council held G
on 31st March, 2018 bearing item No.1420 of 2018. The Bar Council
1
(1979) 3 SCC 431
2
(1996) 3 SCC 342
3
(1999) 1 SCC 330
4
(2001) 2 SCC 365
5
(2004) 3 SCC 607 H
100 SUPREME COURT REPORTS [2018] 12 S.C.R.

A had appointed a Sub-Committee to examine the question raised in the
present writ petition. The Sub-Committee was of the considered opinion
that legislators could not be prohibited from practising law. The said
recommendation was eventually accepted by the General Council of the
Bar Council of India in its meeting convened on 31st March, 2018.
B 8. We have heard Mr. Shekhar Naphade, learned senior counsel
for the petitioner, Mr. K.K. Venugopal, learned Attorney General for
India, Mr. Arvind Verma, Mr. S.R. Singh, Mr. V. Shekhar and
Mr. Sukumar Pattajoshi, learned senior counsel, Mr. S.N. Bhatt,
Mr. Sanjai Kumar Pathak, Dr. Dinesh Rattan Bhardwaj, Mr. Om Prakash
Ajit Singh Parihar and Mr. M.A. Chinnasamy learned counsel for the
C parties.
9. The core issue is: whether legislators can be debarred from
practising as advocates during the period when they continue to be the
Members of Parliament or the State Assembly/Council? We are not
concerned with any other issue including the issue as to whether, by
D virtue of such practice, the concerned elected people’s representative
may incur disqualification to continue to be a member of the concerned
House on the ground of office of profit or any other ground resulting in
his/her disqualification provided by the Constitution or any law made by
the Parliament/State Legislature in that regard.
E 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
F 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 sub-section (1) (a) to 1(j) therein. The Bar Council
G 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. Section VII in Part VI of the said Rules deals with the said subject,
which reads thus:

H
ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ANR. 101
[A. M. KHANWILKAR, J.]

“Section VII- Section on other Employments A
47. An advocate shall not personally engage in any business; but
he may be a sleeping partner in a firm doing business provided
that in the opinion of the appropriate State Bar Council, the nature
of the business is not inconsistent with the dignity of the
profession. B
48. An advocate may be Director or Chairman of the Board of
Directors of a Company with or without any ordinarily sitting free,
provided none of his duties are of an executive character. An
advocate shall not be a Managing Director or a Secretary of any
Company. C
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 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 D
advocate so long as he continues in such employment.
[***] 6
50. An advocate who has inherited, or succeeded by survivorship
to a family business may continue it, but may not personally
participate in the management thereof. He may continue to hold a E
share with others in any business which has descended to him by
survivorship or inheritance or by will, provided he does not
personally participate in the management thereof.
51. An advocate may review Parliamentary Bills for a
remuneration, edit legal text books at a salary, do press-vetting F
for newspapers, coach pupils for legal examination, set and
examine 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, dated
22nd June, 2001, which read as:
“Nothing in this rule shall apply to a Law Officer of the Central Government of a
G
State or of any Public Corporation or body constituted by statute who is entitled to be
enrolled under the rules of his State Bar Council made under Section 28 (2) (d) read with
Section 24 (1) (e) of the Act despite his being a full time salaried employee.
Law Officer for the purpose of these Rules means a person who is so designated
by the terms of his appointment and who, by the said terms, if required to act and/or
plead in Courts on behalf of his employer.” H
102 SUPREME COURT REPORTS [2018] 12 S.C.R.

A journalism, lecturing and teaching subjects, both legal and
non-legal.
52. Nothing in these rules shall prevent an advocate from
accepting after obtaining the consent of the State Bar Council,
part-time employment provided that in the opinion of the State
B Bar Council, the nature of the employment does not conflict with
his professional work and is not inconsistent with the dignity of
the profession. This rule shall be subject to such directives if any
as may be issued by the Bar Council of India from time to time.”
11. For considering the issue articulated in paragraph 9
C hereinabove, the efficacy of Rule 49 may be of some import and that
rule alone has been pressed into service by the petitioner and
interventionists. For, Rule 47 deals with a situation where the advocate
is engaged in business, Rule 48 is attracted when the advocate is a
Director or Chairman of the company, Rule 50 becomes applicable when
the advocate inherits family business, Rule 51 becomes applicable when
D the advocate is engaged in other specified activities, Rule 52 is
applicable when an advocate accepts part time employment. None of
this is applicable to an elected people’s representative. The closest
provision is Rule 49, namely, when an advocate becomes a full-time
salaried employee of any person, government, firm, corporation or
E concern.
12. Rule 49 came up for consideration before a three-Judge Bench
of this Court in Satish Kumar Sharma (supra). In that case, the
appellant after obtaining L.L.B. degree came to be appointed as
Assistant (Legal) in H.P. State Electricity Board, which post was later
F redesignated as “Law Officer Grade II”. Further, the Board permitted
the appellant to act as an advocate on its behalf. The appellant was also
enrolled by the Bar Council as an advocate and was issued a certificate
in that behalf, in furtherance of which he represented the Board when
necessary. The appellant after some time was posted as
“Under-Secretary (Legal)-cum-Law Officer” on promotion whereupon
G the Bar Council moved into action for cancellation of his enrollment. In
Paragraph 10 of the said decision, while considering the challenge,
observed thus:
“10. The profession of law is called a noble profession. It does
not remain noble merely by calling it as such, unless there is a
H
ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ANR. 103
[A. M. KHANWILKAR, J.]

continued, corresponding and expected performance of a noble A
profession. Its nobility has to be preserved, protected and
promoted. An institution cannot survive on its name or on its past
glory alone. The glory and greatness of an institution depends on
its continued and meaningful performance with grace and dignity.
The profession of law being noble and an honourable one, it has
B
to continue its meaningful, useful and purposeful performance
inspired by and keeping in view the high and rich traditions
consistent with its grace, dignity, utility and prestige. Hence the
provisions of the Act and the Rules made thereunder inter alia
aimed to achieve the same ought to be given effect to in their true
letter and spirit to maintain clean and efficient Bar in the country C
to serve the cause of justice which again is a noble one.”
In paragraphs 19 to 21, the Court went on to examine the facts of
the case under consideration and concluded thus:
“19. It is an admitted position that no rules were framed by the
respondent entitling a Law Officer appointed as a full-time salaried D
employee coming within the meaning of para 3 of Rule 49 to enrol
as an advocate. Such an enrolment has to come from the rules
made under Section 28(2)(d) read with Section 24(1)(e) of the
Act. Hence it necessarily follows that if there is no rule in this
regard, there is no entitlement. In the absence of express or positive E
rule, the appellant could not fit in the exception and the bar
contained in the first paragraph of Rule 49, was clearly attracted
as rightly held by the High Court. ......
In short and substance we find that the appellant was/is a
full-time salaried employee and his work was not mainly or F
exclusively to act or plead in court. Further, there may be various
challenges in courts of law assailing or relating to the decisions/
actions taken by the appellant himself such as challenge to issue
of statutory regulation, notification or order; construction of
statutory regulation, statutory orders and notifications, the
institution/withdrawal of any prosecution or other legal/quasi-legal G
proceedings etc. In a given situation the appellant may be amenable
to disciplinary jurisdiction of his employer and/or to the disciplinary
jurisdiction of the Bar Council. There could be conflict of duties
and interests. In such an event, the appellant would be in an
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104 SUPREME COURT REPORTS [2018] 12 S.C.R.

A embarrassing position to plead and conduct a case in a court of
law. Moreover, mere occasional appearances in some courts on
behalf of the Board even if they be, in our opinion, could not bring
the appellant within the meaning of “Law Officer” in terms of
para 3 of Rule 49. The decision in Sushma Suri v. Govt. of
National Capital Territory of Delhi in our view, does not advance
B
the case of the appellant. That was a case where meaning of
expression “from the Bar” in relation to appointment as District
Judge requiring not less than seven years’ standing as an advocate
or a pleader came up for consideration. The word “advocate” in
Article 233(2) was held to include a Law Officer of the Central
C or State Government, public corporation or a body corporate who
is enrolled as an advocate under exception to Rule 49 of Bar
Council of India Rules and is practising before courts for his
employee. Para 10 of the said judgment reads: (SCC pp. 336-37)
“10. Under Rule 49 of the Bar Council of India Rules, an
D advocate shall not be a full-time employee of any person,
Government, firm, corporation or concern and on taking
up such employment, shall intimate such fact to the Bar
Council concerned and shall cease to practise as long as
he is in such employment. However, an exception is
made in such cases of Law Officers of the Government
E and corporate bodies despite his being a full-time salaried
employee if such Law Officer is required to act or plead
in court on behalf of others. It is only to those who fall
into other categories of employment that the bar under
Rule 49 would apply. An advocate employed by the
F Government or a body corporate as its Law Officer even on
terms of payment of salary would not cease to be an advocate
in terms of Rule 49 if the condition is that such advocate is
required to act or plead in courts on behalf of the employer.
The test, therefore, is not whether such person is
engaged on terms of salary or by payment of
G remuneration, but whether he is engaged to act or plead
on its behalf in a court of law as an advocate. In that
event the terms of engagement will not matter at all.
What is of essence is as to what such Law Officer engaged

H
ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ANR. 105
[A. M. KHANWILKAR, J.]

by the Government does — whether he acts or pleads in court A
on behalf of his employer or otherwise? If he is not acting or
pleading on behalf of his employer, then he ceases to be
an advocate. If the terms of engagement are such that he
does not have to act or plead, but does other kinds of
work, then he becomes a mere employee of the Government
B
or the body corporate. Therefore, the Bar Council of India
has understood the expression ‘advocate’ as one who is
actually practising before courts which expression would
include even those who are Law Officers appointed as such
by the Government or body corporate.”
20. As stated in the above para the test indicated is whether C
a person is engaged to act or plead in a court of law as an
advocate and not whether such person is engaged on terms
of salary or payment by remuneration. The essence is as to
what such Law Officer engaged by the Government does.
21. In the present case, on facts narrated above, relating to his D
employment as well as in the absence of rule made by the
respondent entitling a Law Officer to enrol as an advocate despite
being a full-time salaried employee, the appellant was not entitled
to enrolment as an advocate. Hence, the appellant cannot take
benefit of the aforementioned judgment.” E
(emphasis supplied)
13. This Court had also referred to a previous three-Judge Bench
judgment in Dr. Haniraj L. Chulani (supra), wherein Rule 1(1) framed
by the State Bar Council of Maharashtra and Goa restricting a person
qualified to be enrolled as an advocate from so being enrolled when he F
was already pursuing another full-time profession i.e. medical
profession came up for consideration. The validity of the said provision
was challenged on the ground that it suffered from the vice of excessive
delegation of legislative power and was also violative of Article 19 (1)
(g) of the Constitution of India and not falling under the exemption granted G
by sub Article (6) thereof. The validity of the said Rule was assailed also
on 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 that
the State Bar Councils are competent to lay down, by virtue of the Rules,

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106 SUPREME COURT REPORTS [2018] 12 S.C.R.

A conditions or restrictions which would be germane to the high and
exacting standards of advocacy expected of new entrants into the fold
of the profession. Implicit in the conferment of such rule-making power
are the guidelines laid down by the legislature itself that the conditions
must be commensurate with the fructification of the very purpose of the
act of putting the profession of advocates on a sound footing so that a
B
new entrant can well justify his/her role in being admitted to the fold of
the noble profession to which he/she seeks admission. In paragraph 20,
the Court considered the question of whether a person carrying on
another profession can validly be denied enrollment as an advocate by
the State Bar Council. While considering that question, the Court
C observed thus:
“20. ….. In our view looking to the nature of the legal profession
to which we have made detailed reference earlier the State Bar
Council would be justified in framing such a rule prohibiting the
entry of a professional who insists on carrying on other
D profession simultaneously with the legal profession. As we have
seen earlier legal profession requires full-time attention
and would not countenance an advocate riding two horses
or more at a time. He has to be a full-time advocate or not
at all……..……….
E It is obvious that even though medical profession also may be a
dignified profession a person cannot insist that he will be a
practising doctor as well as a practising advocate simultaneously.
Such an insistence on his part itself would create an awkward
situation not only for him but for his own clients as well as
patients. It is easy to visualise that a practising surgeon like the
F appellant may be required to attend emergency operation even
beyond court hours either in the morning or in the evening. On
the other hand the dictates of his legal profession may
require him to study the cases for being argued the next
day in the court. Under these circumstances his attention
G would be divided. He would naturally be in a dilemma as to
whether to attend to his patient on the operation table in the evening
or to attend to his legal profession and work for preparing cases
for the next day and to take instructions from his clients for
efficient conduct of the cases next day in the court. If he is an

H
ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ANR. 107
[A. M. KHANWILKAR, J.]

original side advocate he may be required to spend his evenings A
and even late nights for making witnesses ready for examination
in the court next day. Under these circumstances as a practising
advocate if he gives attention to his clients in his chamber after
court hours and if he is also required to attend an emergency
operation at that very time, it would be very difficult for him to
B
choose whether to leave his clients and go to attend his patient in
the operation theatre or to refuse to attend to his patients. If he
selects the first alternative his clients would clamour, his
preparation as advocate would suffer and naturally it would
reflect upon his performance in the court next day. If on the other
hand he chooses to cater to the needs of his clients and his legal C
work, his patients may suffer and may in given contingency even
stand to lose their lives without the aid of his expert hand as a
surgeon. Thus he would be torn between two conflicting
loyalties, loyalty to his clients on the one hand and loyalty
to his patients on the other. In a way he will instead of
D
having the best of both the worlds, have the worst of both
the worlds. Such a person aspiring to have simultaneous
enrolment both as a lawyer and as a medical practitioner will thus
be like ‘trishanku’ of yore who will neither be in heaven nor on
earth. It is axiomatic that an advocate has to burn the
midnight oil for preparing his cases for being argued in the E
court next day. Advocates face examination every day when
they appear in courts. It is not as if that after court hours an
advocate has not to put in hard work on his study table in
his chamber with or without the presence of his clients who
may be available for consultation. To put forward his best
F
performance as an advocate he is required to give
whole-hearted and full-time attention to his profession. Any
flinching from such unstinted attention to his legal
profession would certainly have an impact on his
professional ability and expertise. If he is permitted to
simultaneously practise as a doctor then the requirement of his G
full-time attention to the legal profession is bound to be adversely
affected. Consequently however equally dignified may be the
profession of a doctor he cannot simultaneously be permitted to
practise law which is a full-time occupation. It is for ensuring
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108 SUPREME COURT REPORTS [2018] 12 S.C.R.

A the full-time attention of legal practitioners towards their
profession and with a view to bringing out their best so
that they can fulfil their role as an officer of the court and
can give their best in the administration of justice, that the
impugned rule has been enacted by the State Legislature.
It, therefore, cannot be said that it is in any way arbitrary or that
B
it imposes an unreasonable restriction on the new entrant to the
profession who is told not to practise simultaneously any other
profession and if he does so to deny to him entry to the legal
profession. It is true as submitted by the learned Senior Counsel
for the appellant that the rule of Central Bar Council does not
C countenance an advocate simultaneously carrying on any
business and it does not expressly frown upon any simultaneous
profession. But these are general rules of professional conduct.
So far as regulating enrolment to the profession is
concerned it is the task entrusted solely to the State Bar
Councils by the legislature as seen earlier while
D
considering the scheme of the Act. While carrying on that
task if the entry to the profession is restricted by the State
Bar Council by enacting the impugned rule for not allowing
any other professional to enter the Bar when he does not
want to give up the other profession but wants to carry on
E the same simultaneously with legal practice, it cannot be
said that the Bar Council has by enacting such a rule
imposed any unreasonable restriction on the fundamental
right of the prospective practitioner who wants to enter
the legal profession.”
F (emphasis supplied)
Having said thus, in paragraph 21 the Court observed as follows:
“21………In our view the impugned rule does not impose any
unreasonable restriction on the right of the professional carrying
on any other avocation and insisting on continuing to carry on
G such profession, while it prohibits entry of such a person to the
legal profession. If the contention of the learned Senior Counsel
for the appellant is countenanced and any person professing any
other profession is permitted to join the legal profession having
obtained the Degree of Law and having fulfilled the other
H
ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ANR. 109
[A. M. KHANWILKAR, J.]

requirements of Section 24, then even chartered accountants, A
engineers and architects would also legitimately say that during
court hours they will practise law and they will simultaneously
carry on their other profession beyond court hours. If such
simultaneous practices of professionals who want to carry on more
than one profession at a time are permitted, the unflinching devotion
B
expected by the legal profession from its members is bound to be
adversely affected. If the peers being chosen representatives of
the legal profession constituting the State Bar Council, in their
wisdom, had thought it fit not to permit such entries of dual
practitioners to the legal profession it cannot be said that they
have done anything unreasonable or have framed an arbitrary or C
unreasonable rule.”
14. The elucidation by the three-Judge Bench of this Court
referred to above is irrefutable. The question, however, is whether the
restriction imposed by the Bar Council of India under the Rules as framed,
encompasses the elected people’s representatives or legislators. As D
aforesaid, the closest rule framed by the Bar Council of India is Rule 49.
However, Rule 49 applies where an advocate is a full-time salaried
employee of any person, government, firm, corporation or concern.
Indubitably, legislators cannot be styled or characterized as full-time
salaried employees as such, much less of the specified entities. For,
there is no relationship of employer and employee. The status of E
legislators (MPs/MLAs/MLCs) is of a member of the House
(Parliament/State Assembly). The mere fact that they draw salary
under the 1954 Act or different allowances under the relevant Rules
framed under the said Act does not result in creation of a relationship of
employer and employee between the Government and the legislators, F
despite the description of payment received by them in the name of
salary. Indeed, the legislators are deemed to be public servants, but their
status is sui generis and certainly not one of a full-time salaried
employee of any person, government, firm, corporation or concern as
such. Even the expansive definition of term “person” in the General
Clauses Act will be of no avail. The term “Employment” may be an G
expansive expression but considering the Constitutional scheme, the
legislators being elected people’s representatives occupy a seat in the
Parliament/Legislative Assembly or Council as its members but are not

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110 SUPREME COURT REPORTS [2018] 12 S.C.R.

A in the employment of or for that matter full-time salaried employees as
such. They occupy a special position so long as the House is not
dissolved. The fact that disciplinary or privilege action can be initiated
against them by the Speaker of the House does not mean that they can
be treated as full-time salaried employees. Similarly, the participation of
the legislators in the House for the conduct of its business, by no
B
standards can be considered as service rendered to an employer. One
ceases to be a legislator, only when the House is dissolved or if he/she
resigns or vacates the seat upon incurring disqualification to continue to
be a legislator. By no standards, therefore, Rule 49 as a whole can be
invoked and applied to the legislators. Resultantly, it is not necessary to
C dilate on the question as to whether the nature of duty of the legislators
is such that it entails into a full-time engagement and that the person
concerned will not be in a position to pay full attention towards the legal
profession. That is a matter for the Bar Council to consider.
15. There is no other express provision in the Act of 1961 or the
D 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
E 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
F 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.
16. Our attention was invited to the judgment of the Constitution
G 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
H
ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ANR. 111
[A. M. KHANWILKAR, J.]

performance of any public duty by the Government. The question A
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
B
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 C
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
D
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.
17. In the present case, however, we are dealing with the
expression “a full-time salaried employee” of specified entities as is
explicated in Rule 49 and more so with the issue of debarring an
advocate from practicing law whilst he/she is a legislator during the E
relevant period. As regards the legislators (MP/MLA/MLC) they
occupy a unique position. They are not appointed but are elected by the
electors from respective territorial constituencies. The fact that they
have to take oath administered by the President/Governor before they
take their seat in the House, does not mean that they are appointed by F
the President/Governor as such unlike in the case of the Prime Minister/
Chief Minister and Ministers in the Council of Ministers. Article 99
postulates that every member of either House of Parliament, before
taking the seat shall make and subscribe before the President, or some
person appointed in that behalf by him, an oath and affirmation
according to the form set out for the purpose in the Third Schedule. The G
form of oath does not suggest that the member is appointed by the
President as such. Further, the legislators vacate his/her seat only in
situations specified in Article 101 of the Constitution. Article 102 of the
Constitution provides for disqualification for being chosen and for being
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112 SUPREME COURT REPORTS [2018] 12 S.C.R.

A a member of either House of Parliament. As regards the legislators,
Article 105 provides for their powers and privileges. In the case of Prime
Minister and the Ministers, the Constitution of India expressly provides
for their duties as predicated in Article 78. Suffice it to observe that the
exposition in the case of M. Karunanidhi (supra), will be of no avail
while considering the purport of Rule 49, which is attracted when the
B
advocate is a full-time salaried employee of any person, firm,
government, corporation or concern. The fact that the legislators draw
salary and allowances from the consolidated fund in terms of Article
106 of the Constitution and the law made by the Parliament in that
regard, it does not follow that a relationship of a full-time salaried
C employee(s) of the Government or otherwise is created. The legislators
receive payment in the form of salary, and allowances or pension from
the consolidated fund is not enough to debar them from practising as
advocates, sans being a full-time salaried employee of the specified
entities. They continue to remain only as member(s) of the House
representing the territorial constituencies from where they have been
D
elected until the House is dissolved or if he/she resigns including vacates
the seat for having incurred disqualification as may be prescribed by
law.
18. The argument then proceeds on the principle of constitutional
morality, affirmative equality and institutional integrity. During arguments,
E emphasis was placed on the dictum of this Court in Manoj Narula Vs.
Union of India7, Government of NCT of Delhi Vs. Union of India
and Ors 8 and Krishnamoorthy Vs. Shivakumar & Ors. 9 This
argument, in effect, is to assert that the legislators who are practising as
advocates are per se guilty of professional misconduct including conflict
F of interest. This is a sweeping comment. For, whether it is a case of
conflict of interest or professional misconduct would depend on the facts
of each case. That fact will have to be pleaded and proved before the
Competent Authority. There can be no presumption in that regard, merely
on account of the status of being a legislator. The standards of
professional conduct and etiquette have been delineated in the Rules
G framed by the Bar Council Chapter II in Part VI dealing with the rules
governing Advocates, framed under Section 49(1)(c) of the Act read
with the proviso thereto. The relevant portion thereof reads thus:-
7
(2014) 9 SCC 1
8
Judgment delivered on 4th July, 2018 in Civil Appeal No.2357 of 2017; (2018) 8
SCALE 72
H 9
(2015) 3 SCC 467
ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ANR. 113
[A. M. KHANWILKAR, J.]

“CHAPTER II A
STANDARDS OF PROFESSIONAL CONDUCT AND
ETIQUETTE
[Rules under Section 49(1)(c) of the Act read with the Proviso
thereto]
B
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 C
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 D
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 - DUTY TO THE COURT
E
xxx xxx xxx
SECTION II - DUTY TO THE CLIENT
11. An Advocate is bound to accept any brief in the Courts or
Tribunals or before any other authority in or before which he
professes to practise at a fee consistent with his standing at the F
Bar and the nature of the case. Special circumstances may
justify his refusal to accept a particular brief.
12. An Advocate shall not ordinarily withdraw from engagements
once accepted, without sufficient cause and unless reasonable
and sufficient notice is given to the client. Upon his withdrawal G
from a case, he shall refund such part of the fee as has not been
earned.
13. An Advocate should not accept a brief or appear in a case in
which he has reason to believe that he will be a witness and if
being engaged in a case, it becomes apparent that he is a witness
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114 SUPREME COURT REPORTS [2018] 12 S.C.R.

A on a material question of fact, he should not continue to appear as
an Advocate if he can retire without jeopardising his client’s
interests.
14. An Advocate shall at the commencement of his engagement
and during the continuance thereof make all such full and frank
B disclosures to his client relating to his connection with the parties
and any interest in or about the controversy as are likely to affect
his client’s judgment in either engaging him or continuing the
engagement.
15. It shall be the duty of an Advocate fearlessly to uphold the
interests of his client by all fair and honourable means without
C regard to any unpleasant consequences to himself or any other.
He shall defend a person accused of a crime regardless of his
personal opinion as to the guilt of the accused, bearing in mind
that his loyalty is to the law which requires that no man should be
convicted without adequate evidence.
D 16. An Advocate appearing for the prosecution in a criminal trial
shall so conduct the prosecution that it does not lead to conviction
of the innocent. The suppression of material capable of
establishing the innocence of the accused shall be scrupulously
avoided.
E 17. An Advocate shall not directly or indirectly, commit a breach
of the obligations imposed by Sec. 126 of the Indian Evidence
Act.
18. An Advocate shall not at any time, be a party to fomenting of
litigation.
F 19. An Advocate shall not act on the instructions of any person
other than his client or his authorised agent.
20. An Advocate shall not stipulate for a fee contingent on the
results of litigation or agree to share the proceed thereof.
21. An Advocate shall not buy or traffic in or stipulate for or
G agree to receive any share or interest in any actionable claim.
Nothing in this Rule shall apply to stock, shares and debentures or
Government securities, or to any instruments, which are, for the
time being, by law or custom negotiable, or to any mercantile
document of title to goods.

H
ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ANR. 115
[A. M. KHANWILKAR, J.]

22. An Advocate shall not, directly or indirectly, bid for or A
purchase, either in his own name or in any other name, for his
own benefit or for the benefit of any other person, any property
sold in the execution of a decree or order in any suit, appeal or
other proceeding in which he was in any way professionally
engaged. This prohibition, however, does not prevent an
B
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 C
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 D
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.
E
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.
F
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. G
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.

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116 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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.
B 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.
C
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.
D 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
E 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
F 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
G 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)
H
ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ANR. 117
[A. M. KHANWILKAR, J.]

of the Constitutional Courts does not per se result in conflict of interest A
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
B
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 India10, the
Court cannot usurp the functions assigned to the legislature. In other
words, sans any express restriction imposed by the Bar Council of India C
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 D
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 E
prayed, to debar them from practising as advocates cannot be
countenanced. Even the alternative relief to declare Rule 49 as
unconstitutional, does 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 F
petition are devoid of merit.
21. Accordingly, this writ petition is dismissed with no order as to
costs and as a consequence thereof, the interlocutory applications are
also disposed of.
G
Divya Pandey Writ Petition dismissed.

10
(2018) 7 SCC 1
H