Legislators can Practise as Advocates in a Court of Law; They are not Employees of the Government

Asmita Kuvalekar | Government Law College, Mumbai | 22^nd March 2020. 

ASHWINI KUMAR UPADHYAY V UNION OF INDIA AND ANR (WRIT PETITION (CIVIL) NO 95 OF 2018) 

FACTS OF THE CASE: 

This writ petition assumes importance as it brings into question the legality of elected legislative representatives working simultaneously as advocates in a court of law. The principal contention raised in support by the appellants is that Rule 49 of the Bar Council of India Rules (hereinafter referred to as ‘the Rules’) prohibits advocates from working as a full-time salaried employee of any person, government, firm, corporation or concern. 

The Apex Court is called upon to either declare that legislators can no longer work simultaneously as advocates or declare Rule 49 to be unconstitutional and void as an alternative relief. The judgement deals with the constitutionality of such an overlap while underlining the independent power of the Bar Council to make rules. 

ISSUE: 

1. Whether the practice of legislators working as advocates can be upheld as against Rule 49?
2. Whether such overlap can be construed as professional misconduct as envisaged by the Rules?
3. Whether the Court is empowered to issue directions against such employment without a specific law denouncing the same? 

JUDGEMENT: 

With respect to the appellant’s principle argument of violation of Rule 49, the Court explained its stance in great detail. Rule 49 bars advocates from being full-time salaried employees of any person, government, firm, corporation or concern. The Court examined whether legislators can be said to be full-time salaried employees of the Government. It held that there is no appointment of legislators but rather a general election whereby people vote to choose their representatives. Legislators are mere members who cease to carry out their functions when the House is dissolved or when they vacate their seat or when they are disqualified. Only the fact that legislative members draw a salary, pension and other allowances from the Consolidated Fund is not enough to categorize them as employees of the Government. Their status is purely sui generis and not one of a full-time salaried employee as envisaged by Rule 49. 

Moreover, simply taking an oath administered by the President of India/ Governor does not mean that they are appointed by the President/ Governor. An appointment as in the case of the Prime Minister or Chief Minister brings them under the wording ‘employees’ predicated by the fact of payment by the Government. Article 49 excludes those who plead or act in Court on behalf of their employer. Therefore, an advocate employed by the Government on a salary can continue such work if he can prove that he acts or pleads in the interest of the Government employing him. Making a reference to its judgement in Satish Kumar Sharma v Bar Council of H.P¹, the Supreme Court reiterated the test laid down for eligibility under the exception of Rule 49. In its own words, “The test…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.” The focus is not on the possibility that the advocate is remunerated for his services but rather that his legal services are rendered as representation of the employer’s interests. However, any legislative function carried out by the representatives cannot be construed as a service rendered to the Government. On this basis, elected legislators cannot be considered to be Government employees. It follows therefore that Rule 49 does not apply to legislators. 

Furthermore, the question of such an overlap being professional misconduct was held by the Court to be a vague, sweeping criticism. A person working in both capacities cannot prima facie be unjustly declared to be conducting himself unlawfully as such categorization subjects the individual to a band of presumptions which have no legal basis. Any misconduct, professional or otherwise as well as any conflict of interest is based on facts and circumstances of each case and should not be clumped into a haphazard presumption. Thus, although misconduct of advocates is extensively covered by the Rules, they cannot be said to include simultaneous legislative work.

In this way, the Court recognized the irrefutable authority of the Bar Council to make rules and regulations governing the legal profession and advocates’ conduct thereby. After a detailed perusal of the Bar Council’s written response on the issue as well as all applicable laws namely the Advocates Act, rules therein and the Bar Council Rules, the Court concluded that there was no express bar on legislators working simultaneously as advocates. Per the judgement in Dr. Haniraj L. Chulani v Bar Council of Maharashtra and Goa², it is the Bar Council’s prerogative to create and impose any restrictions on the advocacy profession as it deems fit. Till date, its stand is to allow legislators to practice as advocates and it is not open to another authority to make rules in that respect. Therefore, the Court held that it could not usurp legislative power and make provisions restricting the practice in question without a prior law governing the same. 

Lastly, it dismissed the plea of declaration of Rule 49 as unconstitutional given the Bar Council’s continued stand that legislators can practice as advocates. 

1. (2001) 2 SCC 365
2. (1996) 3 SCC 342