# ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ANR

- **Citation:** [2018] 12 S.C.R. 92
- **Court:** Supreme Court of India
- **Decided:** 2018-09-25
- **Bench:** Dipak Misra, A. M. Khanwilkar, Dr. D.Y. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ashwini-kumar-upadhyay-v-union-of-india-anr-32337
- **Pages:** 26

## Headnote

Constitution of India - Art.32 - Writ petition for issuing writ/
direction to debar the legislators (MPs/MLAs/MLCs) from practising
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,
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,
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
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 -
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
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disqualification to practice law - Reliefs claimed in the writ petition
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
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 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
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
legis

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ASHWINI KUMAR UPADHYAY
v.
UNION OF INDIA & ANR.
(Writ Petition (Civil) No.95 of 2018)
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
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,
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,
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
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 -
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
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disqualification to practice law - Reliefs claimed in the writ petition
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
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 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
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 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,
ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ANR.
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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
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
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
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
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
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
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
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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. 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 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
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]
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
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
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
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
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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
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
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 :
[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
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
[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
[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
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CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)
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
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.
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
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
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. Further,
they invariably make regular appearances on television and give
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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 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 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.
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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
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
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
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
ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
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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.
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.
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:
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"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 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,
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."
ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
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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
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 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
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continued, corresponding and expected performance of a noble
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
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
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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 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
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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 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 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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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
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
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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 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
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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 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
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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.