9911796707
TMI Blog2018 (10) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... ow that he/she has indulged in professional misconduct. Similarly, the conferment of power on the legislators (MPs) to move an impeachment motion against the judge(s) of the Constitutional Courts does not per se result in conflict of interest or a case of impacting constitutional morality or for that matter institutional integrity. The provisions of the Act of 1961 and the Rules framed thereunder, do not place any restrictions on the legislators to practise as advocates during the relevant period. The closest rule framed by the Bar Council of India is Rule 49 which, however, has no application to the elected people‘s representatives as they do not fall in the category of full-time salaried employee of any person, firm, government, corporation or concern. As there is no express provision to prohibit or restrict the legislators from practising as advocates during the relevant period, the question of granting relief, as prayed, to debar them from practising as advocates cannot be countenanced. Even the alternative relief to declare Rule 49 as unconstitutional, does not commend to us. As of now, the Bar Council of India has made its stand explicitly clear that no such prohibition ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess the point of conflict of interest. 3. It is thus urged that allowing legislators to practice law will have the potential of permitting them to indulge in conflict of interest amounting to professional misconduct since they may appear in matters, in their capacity as advocates, challenging the wisdom of Parliament/State Legislature. It is possible that they may have participated in the deliberation when the Bill to pass the stated law was introduced in the Parliament/State Legislature. They may either take the same position before the court or even a completely opposite stand in their role as an Advocate. In either case, it would be a serious issue of conflict of interest. 4. Reliance has been placed on Rule 49 of the Rules in particular to contend that there is an express restriction on advocates to take up other employment. It is also urged that being an elected people s representative, by the very nature of his/her duty as a law maker and legislator, it is a full-time engagement, coupled with the fact that the emoluments paid to them is under The Salary, Allowances and Pension of Members of Parliament Act, 1954 (for short, ‗the 1954 Act ). Similarly, allowances ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... much less being a full-time salaried employee of the Government. So understood, the provision regarding restriction on other employment, as articulated in the present form, has no application. 7. In other words, as of now, there is no express prohibition either under the provisions of the Advocates Act, 1961 or the Rules framed thereunder, including by the Bar Council of India such as in Part VI, Chapter II of the said Rules governing restrictions on advocates, in particular Section VII thereof titled as Section on other Employments . The Bar Council of India has filed its response to this writ petition and has placed on record minutes of the meeting of its General Council held on 31st March, 2018 bearing item No.1420 of 2018. The Bar Council had appointed a Sub-Committee to examine the question raised in the present writ petition. The Sub-Committee was of the considered opinion that legislators could not be prohibited from practising law. The said recommendation was eventually accepted by the General Council of the Bar Council of India in its meeting convened on 31st March, 2018. 8. We have heard Mr. Shekhar Naphade, learned senior counsel for the petitioner, Mr. K.K. Venug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f an executive character. An advocate shall not be a Managing Director or a Secretary of any Company. 49. An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practice as an advocate so long as he continues in such employment. [***] 6 50. An advocate who has inherited, or succeeded by survivorship to a family business may continue it, but may not personally participate in the management thereof. He may continue to hold a share with others in any business which has descended to him by survivorship or inheritance or by will, provided he does not personally participate in the management thereof. 51. An advocate may review Parliamentary Bills for a remuneration, edit legal text books at a salary, do press-vetting for newspapers, coach pupils for legal examination, set and examine question papers; and subject to the rules against advertising and full-time employment, engage in broadcasting, journalism, lecturing and teaching subjects, bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot survive on its name or on its past glory alone. The glory and greatness of an institution depends on its continued and meaningful performance with grace and dignity. The profession of law being noble and an honourable one, it has to continue its meaningful, useful and purposeful performance inspired by and keeping in view the high and rich traditions consistent with its grace, dignity, utility and prestige. Hence the provisions of the Act and the Rules made thereunder inter alia aimed to achieve the same ought to be given effect to in their true letter and spirit to maintain clean and efficient Bar in the country to serve the cause of justice which again is a noble one. In paragraphs 19 to 21, the Court went on to examine the facts of the case under consideration and concluded thus: 19. It is an admitted position that no rules were framed by the respondent entitling a Law Officer appointed as a full-time salaried employee coming within the meaning of para 3 of Rule 49 to enrol as an advocate. Such an enrolment has to come from the rules made under Section 28(2)(d) read with Section 24(1)(e) of the Act. Hence it necessarily follows that if there is no rule in this re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s being a full-time salaried employee if such Law Officer is required to act or plead in court on behalf of others. It is only to those who fall into other categories of employment that the bar under Rule 49 would apply. An advocate employed by the Government or a body corporate as its Law Officer even on terms of payment of salary would not cease to be an advocate in terms of Rule 49 if the condition is that such advocate is required to act or plead in courts on behalf of the employer. The test, therefore, is not whether such person is engaged on terms of salary or by payment of remuneration, but whether he is engaged to act or plead on its behalf in a court of law as an advocate. In that event the terms of engagement will not matter at all . What is of essence is as to what such Law Officer engaged by the Government does - whether he acts or pleads in court on behalf of his employer or otherwise? If he is not acting or pleading on behalf of his employer, then he ceases to be an advocate. If the terms of engagement are such that he does not have to act or plead, but does other kinds of work, then he becomes a mere employee of the Government or the body corporate. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion. In paragraph 20, the Court considered the question of whether a person carrying on another profession can validly be denied enrollment as an advocate by the State Bar Council. While considering that question, the Court observed thus: 20. .. In our view looking to the nature of the legal profession to which we have made detailed reference earlier the State Bar Council would be justified in framing such a rule prohibiting the entry of a professional who insists on carrying on other profession simultaneously with the legal profession. As we have seen earlier legal profession requires full-time attention and would not countenance an advocate riding two horses or more at a time. He has to be a full-time advocate or not at all .. . It is obvious that even though medical profession also may be a dignified profession a person cannot insist that he will be a practising doctor as well as a practising advocate simultaneously. Such an insistence on his part itself would create an awkward situation not only for him but for his own clients as well as patients. It is easy to visualise that a practising surgeon like the appellant may be required to attend emergency operation eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to his profession. Any flinching from such unstinted attention to his legal profession would certainly have an impact on his professional ability and expertise. If he is permitted to simultaneously practise as a doctor then the requirement of his full-time attention to the legal profession is bound to be adversely affected. Consequently however equally dignified may be the profession of a doctor he cannot simultaneously be permitted to practise law which is a full-time occupation. It is for ensuring the full-time attention of legal practitioners towards their profession and with a view to bringing out their best so that they can fulfil their role as an officer of the court and can give their best in the administration of justice, that the impugned rule has been enacted by the State Legislature . It, therefore, cannot be said that it is in any way arbitrary or that it imposes an unreasonable restriction on the new entrant to the profession who is told not to practise simultaneously any other profession and if he does so to deny to him entry to the legal profession. It is true as submitted by the learned Senior Counsel for the appellant that the rule of Central Bar Council doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, is whether the restriction imposed by the Bar Council of India under the Rules as framed, encompasses the elected people s representatives or legislators. As aforesaid, the closest rule framed by the Bar Council of India is Rule 49. However, Rule 49 applies where an advocate is a full-time salaried employee of any person, government, firm, corporation or concern. Indubitably, legislators cannot be styled or characterized as full-time salaried employees as such, much less of the specified entities. For, there is no relationship of employer and employee. The status of legislators (MPs/MLAs/MLCs) is of a member of the House (Parliament/State Assembly). The mere fact that they draw salary under the 1954 Act or different allowances under the relevant Rules framed under the said Act does not result in creation of a relationship of employer and employee between the Government and the legislators, despite the description of payment received by them in the name of salary. Indeed, the legislators are deemed to be public servants, but their status is sui generis and certainly not one of a full-time salaried employee of any person, government, firm, corporation or concern as such. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Council that being legislators per se is not a disqualification to practice law. 16. Our attention was invited to the judgment of the Constitution Bench in M. Karunanidhi (supra). In that case, the Court was called upon to examine the purport of Section 21(12) of the Indian Penal Code wherein the expression public servant has been defined to denote a person falling under any of the descriptions specified therein. Clause (12) of Section 21 postulates that every person in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government. The question before the Constitution Bench was whether the Chief Minister or a Minister is deemed to be a public servant in any sense of the term. The Court noted that even though the Chief Minister may not stricto sensu be in the service of the Government which undoubtedly signifies the relationship of master and servant where the employer employs employee on the basis of salary or remuneration; but then the Court went on to observe that so far as the second limb of Section 21(12) of IPC is concerned it predicates in the pay of the Government . That was of much wider amplitude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed when the advocate is a full-time salaried employee of any person, firm, government, corporation or concern. The fact that the legislators draw salary and allowances from the consolidated fund in terms of Article 106 of the Constitution and the law made by the Parliament in that regard, it does not follow that a relationship of a full-time salaried employee(s) of the Government or otherwise is created. The legislators receive payment in the form of salary, and allowances or pension from the consolidated fund is not enough to debar them from practising as advocates, sans being a full-time salaried employee of the specified entities. They continue to remain only as member(s) of the House representing the territorial constituencies from where they have been elected until the House is dissolved or if he/she resigns including vacates the seat for having incurred disqualification as may be prescribed by law. 18. The argument then proceeds on the principle of constitutional morality, affirmative equality and institutional integrity. During arguments, emphasis was placed on the dictum of this Court in Manoj Narula Vs. Union of India [(2014) 9 SCC 1], Government of NCT of Delhi Vs. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his withdrawal from a case, he shall refund such part of the fee as has not been earned. 13. An Advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an Advocate if he can retire without jeopardising his client s interests. 14. An Advocate shall at the commencement of his engagement and during the continuance thereof make all such full and frank disclosures to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client s judgment in either engaging him or continuing the engagement. 15. It shall be the duty of an Advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es or takes advantage of the confidence reposed in him by his client. 25. An Advocate should keep accounts of the client s money entrusted to him, and the accounts should show the amounts received from the client or on his behalf, the expenses incurred for him and the debits made on account of fees with respective dates and all other necessary particulars. 26. Where moneys are received from or on account of a client, the entries in the accounts should contain a reference as to whether the amounts have been received for fees or expenses, and during the course of the proceedings, no Advocate shall, except with the consent in writing of the client concerned, be at liberty to divert any portion of the expenses towards fees. 27. Where any amount is received or given to him on behalf of his client the fact of such receipt must be intimated to the client as early as possible. 28. After the termination of the proceeding the Advocate shall be at liberty to appropriate towards the settled fee due to him any sum remaining unexpended out of the amount paid or sent to him for expenses, or any amount that has come into his hands in that proceeding. 29. Where the fee has been left ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 1], the Court cannot usurp the functions assigned to the legislature. In other words, sans any express restriction imposed by the Bar Council of India regarding the legislators to appear as an advocate, the relief as claimed by the petitioner cannot be countenanced. 20. To sum up, we hold that the provisions of the Act of 1961 and the Rules framed thereunder, do not place any restrictions on the legislators to practise as advocates during the relevant period. The closest rule framed by the Bar Council of India is Rule 49 which, however, has no application to the elected people s representatives as they do not fall in the category of full-time salaried employee of any person, firm, government, corporation or concern. As there is no express provision to prohibit or restrict the legislators from practising as advocates during the relevant period, the question of granting relief, as prayed, to debar them from practising as advocates cannot be countenanced. Even the alternative relief to declare Rule 49 as unconstitutional, does not commend to us. As of now, the Bar Council of India has made its stand explicitly clear that no such prohibition can be placed on the legislators. As ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
