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REPORTABLE   

IN THE SUPREME COURT OF INDIA  

CIVIL ORIGINAL JURISDICTION  

WRIT PETITION (CIVIL) NO.95 OF 2018  

Ashwini Kumar Upadhyay     …Petitioner  

Versus  

Union of India & Anr.          ...Respondents   

J U D G M E N T  

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 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

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ultra-vires the 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.   

 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 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 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.

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Further, they invariably make regular appearances on  

television and give 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 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, 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

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either take the same position before the court or even a  

completely opposite stand in their role as an 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 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; 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

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represented by them, the elected 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.   

5. To buttress the aforementioned arguments, reliance is  

placed 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 LRs.5  

                                                           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

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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/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 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 salaried  

employee of the Government. So understood, the provision

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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 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 on 31st March, 2018 bearing item  

No.1420 of 2018. The Bar Council 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.  

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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 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 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.  

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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 sub-section (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. Section VII in Part VI of  

the said Rules deals with the said subject, which reads thus:   

―Section VII- Section on other Employments    

47. An advocate shall not personally engage in any  business; but he may be a sleeping partner in a firm

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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.  

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.   

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 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  

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 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, journalism,  

                                                           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  

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.‖   

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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 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  

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 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

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employee of any person, government, firm, corporation or  

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 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 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 continued,  corresponding and expected performance of a noble

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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 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 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 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  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 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

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institution/withdrawal of any prosecution or other  legal/quasi-legal 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  

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 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 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  

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 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

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only to those who fall into other  

categories of employment that the  

bar under Rule 49 would apply. An  advocate employed by the  

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  

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 by the  Government does — whether he acts  

or pleads in court 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 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 a person is engaged to act or plead in a  

court of law as an advocate and not whether such

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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 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.‖  

            (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 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 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

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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, 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 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  

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

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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……..……….  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 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 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 original side advocate he may be required  to spend his evenings 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 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 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

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and loyalty to his patients on the other. In a way  he will instead of 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 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 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 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 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 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 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

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enrolment to the profession is concerned it is  the task entrusted solely to the State Bar  

Councils by the legislature as seen earlier while  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 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.‖  

      (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 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  

requirements of Section 24, then even chartered  accountants, 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 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

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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 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 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  

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

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the Government 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 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  

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 standards can be considered as service  

rendered to an employer. One ceases to be a legislator, only

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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 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 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

24    

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.   

 16. 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

25    

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

26    

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 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 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

27    

form set out for the purpose in the Third Schedule. The 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 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 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 employee(s) of the  

Government or otherwise is created. The legislators receive

28    

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 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, 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 Ors8  

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  

                                                           7 (2014) 9 SCC 1  8 Judgment delivered on 4th July, 2018 in Civil Appeal No.2357 of 2017; (2018) 8       SCALE 72  9  (2015)  3 SCC 467

29    

misconduct including conflict 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 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:-  

―CHAPTER II  

STANDARDS OF PROFESSIONAL CONDUCT AND  

ETIQUETTE   

[Rules under Section 49(1)(c) of the Act read with  

the Proviso thereto]   

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

30    

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 - DUTY TO THE COURT   

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 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 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 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 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.  

31    

15.      It shall be the duty of an Advocate fearlessly  

to uphold the interests of his client by all fair and  

honourable means without 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.   

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.   

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.   

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 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.   

22.      An Advocate shall not, directly or indirectly,  

bid for or 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

32    

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.  

33    

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‖  

34    

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

35    

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 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

36    

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.   

 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.   

 …………………………..CJI.  

                                      (Dipak Misra)   

……………………………..J.  

    (A.M. Khanwilkar)  

……………………………..J.  

(Dr. D.Y. Chandrachud)   

New Delhi;  September 25, 2018.