After completion of Legal Education often the person considers getting
registered with a respective State Bar Council as an 'Advocate' by following the
due procedure. Therefore, if an individual entity registers as an advocate he/
she shall accede to the rules made by the Bar Council of India, the respective
State Bar Council and, the Advocates Act, 1961. There are particular rules which
prohibit Advocates from taking up any alternative employment in government and
private sector, which tends to limit a career growth option of registered
During the n-Covid 19 pandemic several State Bar Councils i.e. Gujarat State Bar
Council and Karnataka State Bar Council have requested Bar Council of India to
relax this embargo on Advocates and permitted them to take alternative
employment. This is a positive sign of change; however, the permanence of this
rule is debatable. Therefore, this draconian rule should be reconsidered, since
during this pandemic a pilot project has already unveiled.
In this paper, a practical aspect shall be analyzed as to why this age-old
embargo on Advocates should be repealed with immediate effect. Further,the
researched would be concluding by comparing how the developed counties like the
United Kingdom and the United States of America have repealed this rule of
restriction on alterative employment for the lawyers.
An Advocate can be termed as a patron of a cause assisting his client by giving
advice and pleading for him. The expression “advocate or pleader” refers to
legal practitioner and means a person who has the right to act and/or plead in
court on behalf of his client. This profession is often glorified as a noble
profession that envisages a cause of justice.
Once the name has been entered in
the State roll prepared and maintained by a State Bar Council under Section 17
of the Advocates Act, 1961 a person may commence his practice as an Advocate
before any Court/ Tribunal in India. Advocate is an indispensable part for the
administration of justice. The legal profession itself inherits certain high
traditions that its members are expected to respect and uphold.
Advocates have a two-fold primary duty by far firstly, to protect the interest
of his client and pursue the case briefed to him with the best of his ability
and secondly, to act as an officer of the court. Therefore, the profession as
stated by Justice S. B. Majumdar of the Supreme Court of India in the case of Dr Haniraj L. Chulani v. Bar Council of Maharashtra & Goa
requires full-time attention and would not countenance an advocate riding two
horses or more at a time'.
Therefore in consonance with the above principle the
Bar Council Rules (hereinafter referred as the rules
) enacted under section
49(1)(c) of the Advocates Act prohibit alternative full time employments for
practicing advocates. Members of the profession are acclaimed as leaders of
society. The central function that the legal profession must perform is nothing
less and nothing more than the administration of justice.
The Rules has explicitly specified under section VII that certain restrictions
will be imposed on advocates subsequent to their enrolment. These restrictions
have passed the constitutionality test at several occasions.
Right To Practise Any Profession, Or To Carry On Any Occupation, Trade Or Business With Reasonable Restrictions
A prima-facie reading of the Rules which restricts the Advocates to be employed
elsewhere depicts to be a violation of the fundament right to practice any
profession, or to carry on any occupation, trade or business with reasonable
restrictions. However the Supreme Court has time and again upheld the Rules
to be constitutional and falling within the ambit of reasonable restrictions
specified under article 19 (2) of the Constitution.
In the case of Dr Haniraj L. Chulani v. Bar Council of Maharashtra &
 wherein Justice S. B. Mazumdar held that the restriction mentioned in the
rules were not arbitrary or unreasonable from any viewpoint. The rule specifies
a well-defined class of professionals carrying on other professions and denies
to members of this well-defined class entry to the legal profession so long as
they insist on carrying on any other profession simultaneously with the legal
The classification has a reasonable nexus to the object sought to be
achieved, therefore clearing the test of diffrentia, namely, the efficiency of
advocates belonging to the legal profession and the better administration of
justice for which the legal profession is a partner with the judiciary.
In the case of Indian Council of Legal Aid & Advice v. Bar Council of
India the question on arbitrary and unreasonable was raised with reference to
the rules which barred advocates to take up other full time employment. The
rationale for the restriction as stated earlier is to maintain the integrity and
dignity of the profession by keeping a check on the legal professionals. Thus
the object of the rule is clearly to shut the doors of the profession for those
who seek entry into the profession to achieve some other purpose than to seek
However to the other side of the argument, in the first place, there is
no reliable material in support of the rationale on which the rule is founded
and secondly, the rule is discriminatory as it debars one group of persons who
have taken up a profession upon enrolment to continue with other forms of
Further, in the above cases, the court upheld the rules and substantiated the
reason in order to protect the impugned rules, the rules are not infringing
Reasonable Restrictions Imposed On Advocates Vide The Bar Council Rules
Section VII states the restriction on other Employments which are prohibited by
the rules. These restrictions are to be interpreted in a literal manner.
following alternative employments are prohibited:
- An Advocate shall not personally engage in any kind or form of business
wherein he has an active key managerial role. However he/ she may be a
sleeping partner in a business if in the view of the State Bar Council it
will not harm the dignity of the profession.
- An Advocate is prohibited to act as a managing director in a company.
His/ her role should be limited to an ordinary director with or without any
- An advocate shall not be a full-time employee of any person, government,
firm, etc. In case the advocate opts for a full-time employment he/ she
shall intimate the State Bar Council whose roll he has been enrolled in.
Therefore right to practice ceases.
Legal profession is essentially a service-oriented profession. The lawyer of the
Government or a public body is not its employee but is a professional
practitioner engaged to do the specified work, though the lawyers on the
full-time rolls of the Government and the public bodies are described as their
law officers. It is precisely for this reason that in the case of such law
officers, the saving clause of Rule 49 of the Bar Council of India Rules, waives
the prohibition imposed by the said rule against the acceptance by a lawyer of a
full-time employment, State of U.P. v. U.P. State Law Officers' Assn.
“Employment” barred under Section 49 does not cover employment of an advocates
who has been solely or, in any case, predominantly employed to act and/or plead
on behalf of his client in courts of law. Factum of employment is not material
but the key aspect is whether such employment is consistent with his practicing
as an advocate, Deepak Aggarwal v. Keshav Kaushik.
- An advocate, who has inherited a business, is prohibited to participate
in it. However he/ she may hold a share in the establishment.
- An advocate, is prohibited to self advertize even when he/
she is teaching, reviewing parliament bills, broadcasting, journalism and other
related act as solicitation is explicitly prohibited by section IV rule 36 of
In rule 52 the Bar Council has created an approval mechanism wherein the
advocate can apply to the specific SBC to give consent for alternative
employment in which the individual is involved. However this rule shall be
applied on case to case basis. The rule ends with a proviso which empowers the
Bar Council of India to issue such directives to regulate the abovementioned
clauses time to time. Therefore, the Bar Council of India has ample discretion
to issue guidelines from time to time, henceforth during the COVID 19 pandemic
the Council has made few relaxation in the above mentioned stringent clauses.
In 2018 a legal conundrum arose with respect to tight to legal practice of
Member of Parliament, Member of Legislative Assembly and other elected members
since they are employed full time and barred to practice law with reference to
Rule 49 of the rules.
However the Apex Court in Ashwini Kumar Upadhyay v. Union of India
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 discrimination between equals or unequals being treated equally. As expounded in Haniraj L. Chulani , 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 practicing 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 practise law.
Therefore due to lack of specific averments the Apex Court permitted the elected
representative to continue their legal practice.
Bar On Employment Relaxed During Covid 19 Period
The Bar Council of Gujarat vide BCG/07/20-21 Resolution dated 21.06.2020 had
seeked approval from the Bar Council of India with respect to granting
relaxation to the restriction on employment imposed. Covid-19 is an
extraordinary circumstance which humanity has seen. The Nationwide lockdown has
brought to the front the incredible difference in the legitimate calling and
lockdown has monetarily harms attorneys.
Therefore, this COVID-19 situation
could be an opportunity for India to relax the draconian restriction on
State Bar Councils like Gujarat, Odisha and Karnataka has issued similar request
to the Bar Council of India to relax the aforesaid provisions, as the restraint
is more stringent than the opportunities it harnesses. The rationale behind this
draconian provision was to protect the sanctity of the legal officers however
during this period of economic slowdown it is a curse.
Restraint To Alternative Employment In Other Jurisdictions:
Conclusion And Suggestion
United StatesUnited States has delegated the power of regulating Legal Practice to the States
under the Federal Structure. However a Unified Court System is to be followed by
all States. Further, in Rules of Professional Conduct of the New York Bar
Association no limitation or restriction to employment is given. Therefore, an
attorney may have alternative source of employment or income subject to the
conflict clause mentioned in the Rules of Professional Conduct.
Therefore after reading and understanding the perspective of the United States
of America one concept which is clear is that, the nation has at several
occasions' motivated attorneys to choose diversified professions in addition to
their license to practice.
The Legal Services Act, 2007 regulates Legal Practice as a profession in the
United Kingdom, Northern Ireland, and Wales. The Act is silent on alternative
employment issues however it has created a class distinction that prohibits
alternative business structures which shall be notified time to
time. However, till date, no notification has been
Hence, it is construed that in India the degree restraint is maximum as the BCI
Rules enumerates an exhaustive list of exclusion.
Currently, the issue of alternative employment is subjudice before the Supreme
Court of India wherein the court is seeking the Bar Council of India's
response in this matter. The power of the Bar Council of India to lift the
restriction is not in the contest; hence the Council would well within its
statutory power to lift the restriction. The draconian restriction is peculiar
to India which is under consideration now.
The rationale of the restriction of alternative employment is defeated on
This pandemic situation could be a pilot project in which the State Bar
Council(s) and, the Bar Council of India can observe and, analyze the livelihood
standards for the Advocates in the following manner:
- The Unemployment rate in India is soaring amidst the economic slowdown,
therefore resulting in job losses in multiple sectors. This brunt is also
susceptible to the advocates as the economy suffers their livelihood is also
endangered. Due to their enrolment restrictions, alternative employment for
advocates is prohibited.
- The restriction seeks to ensure the administration of justice is
unhindered however, there is no conclusive proof that the ration has worked,
since the pendency inter alia remains high when compared to the global scenario.
- The above restriction has not benefited the judicial fabric of the
country as India is ranked 69th out of 129 countries in the Rule of Law
index which independently assesses the judicial well-being of a nation.
- The prohibition of alternative employment is not found apparent in other
developed nations where Legal Practice is regulated by the State.
- The employment undertaken by the Advocate;
- The increase/ decrease in monthly income before and after Covid-19; and,
- Cumulative Average income per Advocate before and after this
Therefore, the third point is very essential as the measure of success can only
be calculated if the average income per advocate increases as it would reflect
better growth of the fraternity. The restrictions which were imposed prior to
this relaxation were from an era wherein the scope of profession was primitive
and limited. But, in the twenty-first century, the scope of professional
development in different forms of jobs had increased.
Today, an advocate can
start his own FinTech Legal Startup which would require him to form a Company,
Partnership, or Limited Liability Partnership hence he will have to withdraw his
enrolment as an advocate because of the restrictions. This fear of withdrawal of
registration is killing the entrepreneurship attitude, hence affecting the
economy and the service sector adversely.
The State has an innate responsibility towards its citizen to provide equal
opportunity without creating any class distinction. The Apex Court in the
above-mentioned decisions has held the restrictions to be constitutional,
however, the contemporary times are challenging, and creating restrictions like
these could be contentious for Advocates who have limited employment scope by
virtue of the Bar Council Rules. Therefore, this COVID 19 situation can be
utilized as a pilot project by lifting the restrictions.
Award Winning Article Is Written By: Aadarsh Kothari
- Whart 3rd Edn. 1997 at pg. 23.
- (1996) 3 SCC 342 .
- A. 19 (1)(g) of the Constitution of India, 1949.
- Supra at note 3.
- (1995) 1 SCC 732 at page 743.
- D. Saibaba v. Bar Council of India, (2003) 6 SCC 186 at page 192.
- (1994) 2 SCC 204: 1994 SCC (L&S) 650.
- (2013) 5 SCC 277.
- An advocate shall not solicit work or advertise, either directly or
indirectly, whether by circulars, advertisements, touts, personal
communications, interviews not warranted by personal relations, furnishing
or inspiring newspaper comments or producing his photographs to be published
in connection with cases in which he has been engaged or concerned.
- (2019) 11 SCC 683 : 2018.
- Supra note 3 at page 2.
- Website of Bar Council of Gujarat, www.barcouncilofgujarat.org last
accessed on 27th Aug., 2020.
- Rules of Professional Conduct of the New York Bar Association, last
accessed on 10th Sept.,2020.
- Part 5, Legal Services Act, 2007, https://www.legislation.gov.uk/ukpga/2007/29/contents last accessed on
12th Sept., 2020.
- Employment Vision 2020, https://niti.gov.in/planningcommission.gov.in/docs/reports/genrep/bkpap2020/32_bg2020.pdf last
accessed on 15th Aug.,2020.
- Rule of Law Index, https://worldjusticeproject.org/rule-of-law-index/country/2020/India/
last accessed on 16th Aug., 2020
- Student, Amity Law School, Noida
Authentication No: NV030785112746-2-1120