Ashwini Kumar Upadhyay v. Union of India & Anr.
Background
A practising advocate filed a PIL under Article 32 asking the Supreme Court to bar sitting legislators (MPs/MLAs/MLCs) from simultaneously practising as advocates, arguing this created a conflict of interest and amounted to professional misconduct since legislators already draw a public salary. In the alternative, the petitioner asked the Court to strike down Rule 49 of the Bar Council of India Rules (which restricts full-time salaried employees from practising law) as unconstitutional, or extend it to cover legislators. Several intervention applications were filed in support during the case's pendency.
Decision Breakdown
The Court held that neither the Advocates Act, 1961, nor the Bar Council of India Rules framed under it impose any blanket restriction preventing legislators from practising as advocates. Rule 49 was found inapplicable because elected representatives are not "full-time salaried employees" of any person, firm, government, corporation or concern in the sense the rule contemplates. The Bar Council of India itself had taken the position that no such prohibition exists. The Court also held that a legislator's mere status as an elected representative does not by itself establish professional misconduct, that must be pleaded and proved case by case, and declined to read in a restriction the legislature itself had not enacted, citing the principle that courts cannot usurp the legislature's functions. The writ petition was accordingly dismissed, with the pending interlocutory applications disposed of as well.
Lesson Learnt
Courts will not create a professional disqualification that Parliament and the Bar Council have not themselves enacted; a citizen seeking such a structural bar on elected representatives must pursue it through the legislative or regulatory process, not through a writ petition asking courts to read in a restriction that does not exist in the actual rules.