ASHWINI KUMAR UPADHYAY versus UNION OF INDIA & ANR.

ASHWINI KUMAR UPADHYAY versus UNION OF INDIA & ANR.

There is no express statutory restriction, either under Rule 49 of the Bar Council of India Rules or the Advocates Act, 1961, prohibiting legislators from practising as advocates; Rule 49 applies only to full-time salaried employees, a category legislators do not belong to. Hence, the Court cannot debar legislators from practice, nor strike down Rule 49, absent such express restriction.

Parties
Petitioner: Ashwini Kumar Upadhyay; Respondents: Union of India & Anr.
Jurisdiction
India
Judgment Date
25 September 2018
Procedural Posture
Writ Petition (civil) / Final Judgment
Outcome
writ petition dismissed
Legal Topics
Practice of Legislators as Advocates, Rule 49, Bar Council of India Rules, Professional Misconduct, Conflict of Interest
Constitutional Law Advocacy Regulation Practice of Legislators as Advocates Rule 49, Bar Council of India Rules Professional Misconduct Conflict of Interest

Case Brief

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Parties

Ashwini Kumar Upadhyay

Petitioner

Union of India & Anr.

Respondents

Procedural Posture

Writ Petition (civil) / Final Judgment

Legal Issues

  1. 1 Whether legislators (MPs/MLAs/MLCs) can be prohibited from practising as advocates during their tenure.
  2. 2 Whether Rule 49 of the Bar Council of India Rules applies to legislators.
  3. 3 Whether there is professional misconduct or conflict of interest in allowing legislators to practice as advocates.

Ratio Decidendi

There is no express statutory restriction, either under Rule 49 of the Bar Council of India Rules or the Advocates Act, 1961, prohibiting legislators from practising as advocates; Rule 49 applies only to full-time salaried employees, a category legislators do not belong to. Hence, the Court cannot debar legislators from practice, nor strike down Rule 49, absent such express restriction.

Court Disposition

writ petition dismissed

Orders

  • Writ Petition (Civil) No.95 of 2018 dismissed.
  • No order as to costs.