Case Brief: Ashwini Kumar Udadhyay v. Union of India

Case Name	Ashwini Kumar Upadhyay v UOI
Citation	(2019) 11 SCC 683
Court	The Supreme Court of India
Bench	Chief Justice Dipak MisraJustice AM KhanwilkarJustice DY Chandrachud
Decided on	25th September 2018
Case No.	Writ Petition (C) No. 95 of 2018

Introduction

The word “noble profession” has always been connected to advocacy, and a number of laws and regulations protect the practice. According to the BCI Rules, refraining from taking on any other occupation is an advocate’s most significant responsibility. The topic of debarring advocates who work in other fields has been discussed extensively. In this case, the question of whether serving as a lawmaker constitutes employment and, as a result, renders legislators unable to practice law during their terms in office is at issue. 

The matter was taken up by a three-judge Supreme Court panel that included Dr. D.Y. Chandrachud J., A.M. Khanwilkar J., and the then-CJI Deepak Mishra J. On September 25, 2018, Khanwilkar J. gave the court’s decision. The bench decided unanimously that parliamentarians could not be prevented from acting as advocates and that their position could not be interpreted as employment in the sense that the BCI Rules specified.

Facts of the Case

In this case, which was brought under Article 32 of the Constitution, the petitioner argues that Rule 49 of the Bar Council of India Rules should classify legislators as public officials, therefore prohibiting them from practicing law. According to the petitioner, legislators ought to be prohibited from practicing law since they are public officials, and Rule 49 forbids them from doing so. If legislators are allowed to practice law, on the other hand, the petitioner contests the validity of Rule 49 on the grounds that it unfairly discriminates against other public employees and violates their basic rights as guaranteed by Articles 14 and 21 of the Constitution. Substantial legal issues concerning the standing of legislators, how to interpret Rule 49, and the constitution’s equality and individual rights provisions are brought up by this case. The petitioner, who supports uniform standards for all public personnel, is asking for either the exclusion of legislators from practicing law or the determination that Rule 49 is unconstitutional.

Issues

1. Whether members of parliament may be prevented from practicing under the BCI Rules while they are serving in office.

Arguments from both sides

The petition contended that the Consolidated Fund of India provided funding for parliamentarians’ salaries, indicating that they were, in reality, government workers. When someone practices, they would collect fees from their customers and receive payment from the exchequer, which is considered professional misconduct. Legislators might have a variety of conflicts of interest when they argue in court, which would be considered professional misconduct in and of itself. It was further suggested that a lawmaker who practiced advocacy would have to prioritize neglecting one of the two pursuits as they both needed one’s complete focus.

The then-Indian Attorney General, K.K. Venugopal, countered the above and stated that there was no formal employer-employee connection between the government and decision-makers and that, as a result, there was no reason for disqualification. Being a legislator is neither a profession in the traditional sense nor is it a business, trade, or occupation. Therefore, the argument went that legislators could not be prevented from practicing.

The authority to establish regulations pertaining to a person’s exclusion from practice rests with the Bar Council of India. After considering the matter, a subcommittee concluded that legislators could not be barred from practicing law during a BCI general body meeting on March 31, 2018. Under Part IV, Chapter II of the BCI Rules, which addresses several reasons for disqualification, legislators are also not expressly prohibited from doing so. The argument was that a writ requesting the exclusion of a certain group of individuals from advocating was void in the absence of a relevant legislation or regulation.

Judgement 

The court ruled that as the position and suits required of a legislator differ from those of other public officers, parliamentarians are sui generis among them, and the decision of M Karunanidhi v. Union of India could not be applied to the current case. The court pointed out that the Constitution makes no reference to the precise responsibilities of a lawmaker and that a Chief Minister is elected, but a legislator is appointed. The court further said that legislators cannot only be subject to rule 49 because they receive a salary or start disciplinary actions.

The court also ruled that because legislators are a distinct class of public officials and because unequal cannot be treated equally with equals, laws cannot be overturned only because one class is excluded from them. The court cannot usurp the legislature’s role or establish a new regulation prohibiting legislators from practicing.

The court determined that there cannot be a presumption of professional wrongdoing when legislators act as advocates, citing grounds based on institutional integrity and constitutional morality. The Bar Council of India was entitled to look into any rule violations by lawyers and take appropriate action. The court further stated that it would not be for the court to determine that legislators could not be barred from practicing because of perceived duty negligence once the Bar Council consented to do so.

The court concluded that the current ban on Bar Council of India Rules did not ban legislators from practicing and so could not be deemed unconstitutional.

Analysis

This unanimous ruling of the Supreme Court’s whole bench will significantly impact how Rule 49 of the Bar Council of India Rules is interpreted and used. Disqualification of attorneys is a crucial area since it directly violates an individual’s right to practice their profession, trade, occupation, or business. Any limitations imposed must be fair and reasonable. There have been several challenges to disqualifications over the years. Nevertheless, this case is distinct from the rest as it aims to bar a group of individuals from practicing.

The idea that legislators work for the people is contentious and varies from case to case. In this instance, the court correctly observed that not all public employees were excluded under the BCI Rules; only “full-time salaried employees” of the government were. The court first read and interpreted the clause clearly before unequivocally establishing citing a number of relevant case laws that legislators were not full-time, paid employees of the government.

According to the Income, Allowances, and Pension of Members of Parliament Act, 1954, legislators receive their income from India’s consolidated fund. It is not, however, the sole requirement for disqualification under Rule 49. It also has to be a “full-time” government employee. There are several examples of MLAs and MPs doing multiple jobs concurrently. One such instance is Mr. Navjot Singh Siddhu, who was an elected Member of the Legislative and served as an analyst for the Indian Premier League in addition to his many television appearances. Another example is when Gautam Gambhir, the Member of Parliament, coached a team while he was in office.

Since a representative is free to work on any other project, as demonstrated by the aforementioned instances, their position as a lawmaker cannot be regarded as a “full-time” profession. A politician is disqualified and will have to resign from office if they have a profit-making position. In this instance, the question is not whether a representative who does advocacy will lose his or her eligibility to serve in parliament but rather whether the representative is permitted to do so. As the court accurately noted in its ruling, a lawmaker is free to concentrate on other projects, and advocacy is one of them. 

There is no denying that the legal profession is holy, and we must do all in our power to preserve it. Nevertheless, all enforced laws and norms have to be just, reasonable, and fair. In this instance, it would be utterly irrational and disproportionate to prohibit legislators from acting in their capacity when no such rule or legislation exists. As a result, the court observed and decided that legislators could not be prevented from practicing while serving as representatives.

Conclusion

To conclude, the unanimous decision rendered by the Supreme Court in this matter has significant ramifications for how Rule 49 of the Bar Council of India Rules should be interpreted and applied. The Court a three-judge panel explained that lawmakers are not, under Rule 49, “full-time salaried employees” of the government, even if they receive salaries from the consolidated budget. The ruling maintains that lawmakers are unique among other public authorities and that their tasks and obligations must be understood in a nuanced manner.

The court’s decision supports the idea that unequal entities shouldn’t be treated equally and emphasises how important it is to distinguish across classes of public officials. The Bar Council of India is competent to handle rule infractions by solicitors, including politicians, and the Court wisely refrained from overstepping its legislative jurisdiction in this regard. The verdict highlights the necessity for the Bar Council to evaluate any allegations of impropriety objectively and upholds the presumption of innocence for lawmakers who practice law.

This case establishes a precedent for justice and proportionality in the interpretation and application of laws that limit the professional activities of persons, in addition to defending lawmakers’ rights to practise law. It emphasises the need for limits to be reasonable, proportionate, and grounded in clear legal regulations. The Court has established a compromise between maintaining the integrity of the legal system and protecting the purity of the legal profession, making sure that lawmakers are not unnecessarily impeded in their professional endeavours.