VidhiSangh

Supreme Court of India · 25/09/2018

ASHWINI KUMAR UPADHYAY versus UNION OF INDIA & ANR.

[2018] 12 S.C.R. 92 · 2018 INSC 866

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Summary

The Supreme Court dismissed a public-interest petition seeking to bar MPs, MLAs and MLCs from practising as advocates while holding legislative office. Under the then applicable Advocates Act and Bar Council rules, no express prohibition covered legislators. Rule 49 addressed full-time salaried employees; receiving legislative salary and allowances did not create an employer–employee relationship with government. The alternative constitutional challenge to Rule 49 also failed. Any conflict of interest or professional misconduct required proof in the individual case.

Issues

  1. Whether legislators fell within Rule 49’s prohibition on advocates holding full-time salaried employment.
  2. Whether legislative office itself established professional misconduct or justified a judicial prohibition on practice.
  3. Whether Rule 49 was unconstitutional for not extending to legislators.

Provisions considered

Held

Result

Writ petition dismissed without costs; interlocutory applications disposed of. No prohibition on legislators’ advocacy imposed under the provisions then applicable; Rule 49 challenge rejected.

Judgment PDF: Supreme Court of India, [2018] 12 S.C.R. 92.