A bench comprising of Hon’ble Chief Justice Deepak Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar of the Apex Court while disposing off a Public Interest Litigation held that a MP or an MLA collectively referred to as legislators cannot be prohibited from practicing law owing to the fact of their position as that is not a full-time salaried employee.

In the matter of Ashwini Kumar Upadhyay v. Union of India and Anr. it was contended by the petitioner that according to Rule no. 49 of the Rules framed by the Bar Council of India an advocate is prohibited to indulge in any other full-time salaried employment under any person, government, firm, corporation or concern so long as they continue practice, hence the legislators who are drawing salary and other allowances from the Consolidated Funds of India under the terms of Article 106 of the Indian Constitution 1950 shall be considered to be a full-time salaried employee.

Setting aside this contention the Apex Court held that “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 nature of salary.”

Several cases like Satish Kumar Sharma v. Bar Council of H.P, Dr. Haniraj L. Chulani v. Bar Council of Maharashtra and Goa and M. Karunanidhi v. Union of India was referred by the petitioner but the Hon’ble court rejected them with a conclusion that they do not apply in this case as the position of a legislator is sui generis.

Whereas the Court left it upon the Bar Council of India to decide upon the fact that whether this would amount to conflict of interest of lawyers-legislators.

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Judgement: Ashish Kumar Upadhyay v. Union of India and Anr.