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The PIL was filed by BJP leader and advocate Ashwini Upadhaya in the SC. The petition has been filed regarding the legislators, also practicing as an advocate which is in conflict with Bar rules. In rule 49 of Bar Rules and Article 14 of the Indian Constitution, a person who is a salaried employee cannot practice as an advocate. Also a person registered under Advocates Act cannot profess any other profession or job, if an advocate is pursuing another profession then he has to get suspended his license from the Bar Council.
Section 49 of Bar rules explicitly bars an advocate who is a full time salaried employee of any person, government, firm, or corporation from practicing advocacy. It further states that the advocate cannot practice till such employment ceases. In the case of legislators, they draw salary from consolidated fund that means that they are employed by the State. Under Prevention of Corruption Act, MPs and MLAs are referred as public servants only. Therefore the bar rules under section 49 should be equally made applicable on advocates who are legislators.
To practice any profession it is very important for a person to be fully dedicated, in case of legislator appearing against the government will result in “professional misconduct”. Similarly legislators are expected to perform full time dedication towards their constituencies and people who showed faith in them, therefore their personal interest must not come in between.
Center refused to agree on such contentions of petition, to that Attorney General KK Venugopal argued that MLAs or MPs are not full time employees. Under Government of India, membership of Parliament is not a job, therefore no prohibition must be imposed. The Bar Council meanwhile stated that it does not have any problem regarding advocates being legislators, till the ruling has not been made by the Court.
The bench of Chief Justice Dipak Mishra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud after hearing the detailed arguments has reserved the decision.
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