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Can Lawmakers Practice? An Analysis Of The Ashwini Kumar Upadhyay v/s Union Of India Judgement

The question of disqualification from advocacy, when one engages in another profession or employment, is inherent. The present case deals with a petition that prayed to debar elected representatives from practising advocacy during their tenure, as their duties would make their engagement to the job a full-time one. The respondents submitted that the Bar Council of India, after employing a committee, decided that advocates need not be debarred from practising as an advocate, and the same must be followed. A full bench of the Supreme Court held that the duty of a legislator did not amount to a "full-time" employment, and hence could continue to practise during their tenure

Advocacy has been associated with the term "noble profession" since time immemorial, and various laws and rules are in place to preserve the sanctity of the profession. One of the most important duties of an advocate is to not engage in any other employment, as laid down in the BCI Rules. There have been many discussions concerning debarring advocates that are engaged in other professions. The case at hand, Ashwini Kumar Upadhyay versus Union of India[1] examines whether being a legislator can be considered employment, and consequently lead to disqualifying legislators from practising as advocates during their tenure.

A three-judge bench of the Supreme Court comprising of the then CJI Deepak Mishra J., A.M. Khanwilkar J., and Dr. D.Y. Chandrachud J., took the case up, and KhanwilkarJ. delivered the judgement on behalf of the bench on the 25th of September, 2018. The bench unanimously held that the job of a legislator could not be construed as employment as stated in the BCI Rules, and lawmakers could not be debarred from practising as advocates.

Facts Of The Case:
A PIL was filed under Art. 32 of the Constitution, praying for the disqualification of legislators from advocacy, as legislators would fall into the purview of public servants. It was submitted that under Rule 49 of the Bar Council of India Rules, public servants are barred from practice. As legislators were public servants, according to the petition, they too fall under the purview of Rule 49 and must be barred from practising as an advocate. In the alternative, the petitioner prayed that if legislators do be allowed to practise, then Rule 49 be struck down as unconstitutional, as it differentiates between legislators and other public servants, and hence violates Articles 14 and 21 of the Constitution.

Issues Framed By The Court:
The court considered the core issue of whether lawmakers can be debarred from practice under the BCI Rules, during their tenure at the parliament. The court stated that it would not step into other questions, like whether lawmakers would incur a disqualification from holding a seat in the legislature by virtue of their practice.

Arguments By Parties:
The petition contended that legislators drew their salary from the Consolidated Fund of India, which points to the fact that lawmakers were indeed employees of the government. When such a person practises, they would charge a fee from their clients, while drawing a salary from the exchequer, making it professional misconduct. It was argued that there might be various conflicts of interest when legislators would argue in court, which in itself would amount to professional misconduct. Moreover, it was argued that both advocacy and law-making were areas that required one's undivided attention, and a legislator practising as an advocate would have to neglect one over the other.

The then Attorney General of India, K.K. Venugopal countered the above, stating that there was no strict employer-employee relationship existed between the government and policy-makers, and hence there is no question of disqualification. The position of a lawmaker is neither a profession, nor is it a business, trade, or occupation in the strict sense. So, it was contended that legislators could not be debarred from practice.

The Bar Council of India is vested with the power of framing rules concerning the disqualification of people from practice. In a general body meeting of the BCI on 31st March 2018, a sub-committee, after requisite consideration, had given the opinion that legislators could not be prohibited from practising law. There is also no express prohibition posed on lawmakers under Part IV, Chapter II of the BCI Rules which deals with various grounds of disqualification. It was contended that a writ calling for the disqualification of a certain class of people from advocacy, without any law or rule to the effect, was invalid

Judicial Interpretations Deduced By The Court
To decide the case, the court first looked into the various rules framed by the Bar Council in this regard. Part IV, Chapter II of the BCI Rules deals with the various disqualifications which will debar a person from practice. Section 49 provides that a person shall not be a "full-time salaried employee of the government" and does not deal with public servants as a whole.

To understand and implement the provision better, the court looked into the judgement of the same court, in the case Dr Haniraj L. Chulani Vs. Bar Council of Maharashtra & Goa[2]. There, the court had observed that advocacy requires one's full-time attention and that a person engaged in another profession would not be fit for the role. The court upheld the impugned rule framed by the Bar Council of Maharashtra & Goa, stating that doctors could not enrol as advocates.

In Satish Kumar Sharma Vs. Bar Council of H.P.[3], another 3-judge bench of the Apex Court categorically held that the test with respect to Rule 49 was whether a person engaged in another employment was engaged in an act of pleading before the court, and not whether there was a salary attached to the profession. There, it was held that a person appointed as a law officer in the State Electricity Board could not practise as an advocate, as it was a breach of Section 49 of the BCI Rules.

Court's Observations:
The court, after considering the arguments, and the precedents in the matter observed that legislators were a sui generis among public servants. The court held that the case of M Karunanidhi v. UOI[4] could not be squarely applied to the case at hand, as the position and suits expected out of a CM and a legislator differ.

This was because the CM is appointed, whereas a legislator is elected, and no specific duties of a legislator are mentioned in the Constitution, unlike the Chief Minister. In that case, it was held that a CM was a public servant under Sec. 21(12) of the Indian Penal Code, however, the present discussion at hand is to examine whether legislators can be considered "full-time salaried employees" of the government as stated in Rule 49.

It was further observed that merely because the lawmakers drew a salary, or that disciplinary proceedings could be initiated against them, rule 49 could not be invoked against them, and legislators could not be held as employees of the government.

The court, while dealing with the alternative prayer sought by the petitioner held that a law could not be struck down merely because one class is exempted from it. Legislators are a different class of public servants, and unequals cannot be treated on par with equals. When there is no express prohibition in the Rules, or under any law, the court cannot usurp the function of the legislature and create a new rule debarring lawmakers from practise.

With respect to the arguments based on constitutional morality and institutional integrity, the court held that there can be no presumption as to professional misconduct in the case of legislators practising as advocates. It is well within the power of the Bar Council of India to investigate and take action against advocates for breach of rules framed by them. In such a case, to presume that any advocate who is also a legislator will have an inherent conflict of interest would be excessive, and it would be for the bar council to decide on the same, based on the facts and circumstances of each case.

The court also held that when the Bar Council, in its general meeting, agreed to not bar legislators from practising over concern of neglect of duty, then it would not be upon the court to declare the same. Based on the above-mentioned reasonings, the court held that legislators were not debarred from practice based on the present Bar Council Rules, nor can the rules be held unconstitutional for it fails to debar legislators from practice. As a result, the petition was dismissed without costs.

This judgement of the full bench of the Supreme Court will have a monumental effect with regard to the interpretation and application of Rule 49 of the Bar Council of India Rules. The arena of disqualification of lawyers is pivotal in the sense that it infringes directly upon the Right to Profession, Trade, Occupation or Business of a person. Any restriction imposed will have to be just and reasonable. Over the years, many disqualifications have been challenged. However, this case differs from the others, because it seeks to disqualify a set of people from practice.

The notion that legislators are public servants is in itself a disputed one, and it differs on a case-to-case basis. In the present case, the court noted rightly that under BCI Rules, only "full-time salaried employees" of the government were disqualified, and not all public servants. After clearly reading and interpreting the provision, the court went on to categorically establish how lawmakers were not full-time salaried employees of the government, referring to various case laws in its regard.

Legislators draw a salary from the consolidated fund of India, as stated in The Salary, Allowances and Pension of Members of Parliament Act, 1954. However, it is not the only criterion for disqualification under Rule 49. The person also has to be a "full-time" employee of the government. There have been many instances of MLAs and MPs engaging themselves in other jobs as well. Mr. Navjot Singh Siddhu being a commentator for the Indian Premier League while he was an elected MLA, and also appearing regularly on television is one such example. Another can be seen in the case of MP Mr. Gautam Gambhir coaching a team while serving his tenure in the parliament.

From the above examples, it is clear that a representative has the liberty to engage in any other work as well, and hence, the job of a legislator cannot be considered a "full-time" employment. If the lawmaker works in an office of profit, he incurs a disqualification and will have to vacate his seat. In the present case, the focus lies only on whether a representative can practise as an advocate, not if he would be disqualified as a parliamentarian if he practises advocacy. A legislator has the liberty to engage in other works, and one such can be advocacy, as rightly stated by the court via its judgement.

It is undisputed that the legal profession is a sacred one, and all efforts must be taken to protect its sanctity. However, all rules and regulations imposed must be fair, reasonable, and in the interest of justice. In the present case, to debar legislators from practice when no such rule or law is present would be completely unfounded and excessive. Hence, the court noted and held that lawmakers could not be debarred from practising during their tenure as a representative.

  1. Ashwini Kumar Upadhyay v. Union of India (2019) 11 SCC 683
  2. Dr Haniraj L. Chulani v. Bar Council of Maharashtra & Goa, (1996) 3 SCC 342
  3. Satish Kumar Sharma v. Bar Council of H.P., (2001) 2 SCC 365
  4. M. Karunanidhi v. Union of India, (1979) 3 SCC 431

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