DEBARRING MPs/STATE ASSEMBLY MEMMERS FROM PRACTICING AS ADVOCATES
Ashwini Kumar Upadhyay vs. Union of India
(2017) 14 SCC 450: AlR 2018 SC 4633:
2018 (11) SCALE 459: 2018 (191) AlC 91
Decided on: 25-09-2018
Hon’ble Judges: Dipak Misra, A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.
Facts: Writ of mandamus was sought by petitioner to debar legislators from practicing as an Advocate (during period they are MPs or State Assembly/Council Members) in spirit of Part VI of Bar Council of India Rules or, alternatively declare rule 49 of Rules ultra-vires the Constitution and permit all public servants to practice as an Advocate.
Issue: Whether practicing as an Advocate during period when legislators continue to be members of Parliament or State Assembly/Council can be debarred?
Held: No such prohibitions can be placed on legislators, clear by Bar Council of India. Provisions of Advocates Act, 1961 and Rules framed thereunder do not place any restrictions on legislators to practice as advocates during relevant period. Rule 49 framed by Bar Council of India has no application to elected people’s representatives as they do not fall in category of full-time salaried employees of any person, firm, Government, corporation or concern. Question of granting relief to debar them from practicing as advocate cannot be countenanced, as there is no express provision to prohibit or restrict legislators from practicing as advocates during relevant period.
