Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Constitution of India |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Act(s) Referred | Constitution of India |
Case(s) Referred | Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 |
Case Type | Writ Petition |
Court | Supreme Court of India |
Disposal Nature | Petition Dismissed |
Headnote | Constitution of India – Art.32 – Writ petition for issuing writ/direction to debar the legislators (MPs/MLAs/MLCs) from practisingas an Advocate, during the period when they are Members ofParliament or of State Assembly/Council – Plea of petitioner thatu/r. 49, Bar Council of India Rules there is an express restriction onadvocates to take up other employment – Held: Rule 49 applieswhere an advocate is a full-time salaried employee of any person,government, firm, corporation or concern – Legislators cannot bestyled as full-time salaried employees as such, much less of thespecified entities – Status of legislators is of a member of the House(Parliament/State Assembly) – Mere fact that they draw salary ordifferent allowances does not result in creation of a relationship ofemployer and employee between the Government and the legislators,despite the description of payment received by them in the name ofsalary – Indeed, the legislators are deemed to be public servants,but their status is sui generis and certainly not one of a full-timesalaried employee of any person, government, firm, corporation orconcern as such– Therefore, Rule 49 can not be applied to thelegislators– There is no other express provision in the 1961 Act orthe Rules framed thereunder to even remotely suggest that anyrestriction has been imposed on MPs/MLAs/MLCs to continue topractise as advocates – In absence of an express restriction in thatbehalf, it is not open for Supreme Court to debar them frompractising during the period when they are MPs/MLAs/MLCs –Further, it is for the Bar Council of India to frame Rules to imposerestrictions as may be found appropriate – As of today, no rule hasbeen framed to restrict the elected people’s representatives frompractising as advocates – On the other hand, an unambiguous standis taken by the Bar Council that being legislators per se is not a disqualification to practice law – Reliefs claimed in the writ petitiondevoid of merit – Salary, Allowances and Pension of Members ofParliament Act, 1954 – Advocates Act, 1961 –ss.16 and 49 – BarCouncil of India Rules – Part VI – Chapter II – Section VII – r. 49. |
Judge | Hon'ble Mr. Justice A.M. Khanwilkar |
Neutral Citation | 2018 INSC 866 |
Petitioner | Ashwini Kumar Upadhyay |
Respondent | Union Of India & Anr. |
SCR | [2018] 12 S.C.R. 92 |
Judgement Date | 2018-09-25 |
Case Number | 95 |
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