ETHICS

Case 1: Ashwini kumar upadhyay v. Union of India

Facts: This petition was filed under article 32 of Indian Constitution as Public Interest
Litigation in Supreme Court of India. In this petition it was prayed by the petitioner that the
legislators/Members of Parliament/lawmakers/Members of Legislative Assemblies and
Members of Legislative Councils who had degree of law and registered as lawyers be
prohibited to practice as advocates in courts.

Issue involved

• Whether the legislators/Members of Parliament or the State Assembly/State Council

can barred from practicing as advocates in courts during the period of their
membership?

Arguments of petitioner

That it was contended by the petitioner that the MPs/MLAs and MLCs are elected by the
public in large and called public representatives. That the argument was made by the
petitioner that such persons are duty bound to work for public cause which is a full time
engagement. That practice of law is also a full time work and a noble profession. If these
people work as public servant as well as they practice law being an advocate, they cannot
justify both the works simultaneously.

That the petitioner contended against such people who are seen regularly in courts as
advocate and they are Members of Parliament as well. It was also argued that such people
frequently come in media, give interview and appear on TV channels. They can influence the
litigants and courts too.

That it was also contended by the petitioner that such people practice law and they charge
high amount of fees from their clients and they get allowances/ funds and pension from the
government as well and it was also argued by the petitioner that there can be professional
misconduct on their part if they don’t justify their role as an advocate. That there are
chances that at the time of the bill of any law (when law was being made in legislative
assembly or parliament) they may be present in parliament and play a deliberate role and
give contradictory opinion in court at the time of practicing such law by challenging the
wisdom of parliament. This may cause a conflict of interest. That the rule 49 of Bar Council
of India Rules was referred by petitioner which prohibits the practicing advocate from taking
any other employment.
Contentions of the respondent

That the petition was opposed on the ground that there is no such relation of employer and
employee between legislators and government merely by receiving salary, allowances and
pension. That it was also the contention of respondent that there is no such clear provision
restricting legislators from practicing in law field. That on the point of Employment, there
was a meeting conducted by Bar Council of India and it was opined that no such ban from
practicing can be imposed on legislators. That it was the duty of Bar Council of India to
frame rules related to the practice of advocates and no such clear rule was made out by the
Bar Council of India expressively prohibiting legislators from practicing.

Judgment and Decision

The Supreme Court of India held that in the absence of any rule which clearly and
expressively prohibit the legislators from practicing as advocates Rule 49 of the rules framed
by Bar Council of India does not apply. It was held that rule 49 of the Bar Council of India
Rules provides that an advocate should not be the full time employee of anybody. It
includes any person, firm, organization or government. If any advocate takes any such
employment he has to inform the Bar Council about the employment and he ceases to be an
advocate and from practicing law till the course of employment. It was held by the Supreme
Court that State Bar Councils can frame the rules regarding restrictions and conditions for
the practicing advocates.

Court held that advocacy is a noble work which requires full time engagement. Rules can be
made for putting restriction on legal practitioners so that they can pay full attention
towards their clients and the cases. Apex court also held that if States Bar Council frames
any such rules providing condition for advocates who are in practice that would not amount
to breach of their fundamental right of freedom of trade, then it would be justified.

Supreme Court held that the case of professional misconduct will have to be proved beyond
reasonable doubt and it may vary from case to case. Court held that rule 49 does not
impose any unreasonable restriction on the advocates. The mere fact that law makers or
legislators or member of parliament/legislative assemblies/councils withdraw salaries and
pension or allowances does not bring them into the ambit of rule 49.

Supreme Court also held that there is no express provision prohibiting MPs/MLAs/MLCs
having a law degree from practicing as advocate in court of law during the relevant period.
The only rule framed by Bar Council of India which is closer is rule 49 but it talks about other
employment. The Supreme Court of India dismissed this particular petition on the above
mentioned grounds by making it clear that no such ban/restriction can be imposed on the
legislators/elected people’s representatives under the light of rule 49 of Bar Council of India
Rules
Referred cases:

The Supreme court in Dr. Haniraj L. Chulani vs. Bar Council of Maharashtra & Goa, while
dealing with the validity of Rule 1 of the Maharashtra and Goa Bar Council Rules relating to
enrolment of Advocates eligibility conditions, in para 20 has observed that “legal profession
requires full time attention and would not countenance an Advocate riding two horses or
more at a time’. The Bar Council has framed specific rules in this regarding putting
restriction on other employments by the Advocates.

In a case a person was enrolled as an advocate despite being a full time salaried employee
as Law officer. The State Bar Council (Bar Council of Himachal Pradesh) had not made any
Rule entitling full time salaried Law officers for practising as an advocate. The work of the
person so enrolled was not mainly or exclusively to act or plead in Court as ‘Law officer’. He
was not entitled to be enrolled as an advocate. His name may be removed from the roll of
State bar council. Such removal was not taken as punishment but rectification of mistake.
Thus the cancellation or withdrawal of enrolment was not taken as a punishment and
therefore, in such condition the procedure to be followed in case of punishment for
professional misconduct was not required to be observed. Satish Kumar v. Bar Council of
Himachal Pradesh, AIR 2001 S.C 509

2. V. Sudheer v. Bar Council of India

Facts: The writ petitioners had completed their legal education and had obtained the law
degrees from their Universities. They contended that their right to practise law is being
arbitrarily denied by the impugned rules framed by the Bar Council of India and their
fundamental right under Article 19(1) (g) of the Constitution of India is being violated.

The Bar Council of India Training Rules of 1995 provided, inter alia, that no person shall be
entitled to be enrolled as an advocate unless he is eligible to be enrolled as such under
section 24 of the Advocates Act, 1961 and has undergone training as prescribed under these
rules. The successful completion of the training period required the candidate to regularly
attend the chamber or office of the guide, study case papers, correspondence, draft
pleadings, attend courts, and particularly study cases with a view to get acquainted with the
practice in courts and minimum attendance for 225 days in all in courts and chambers in a
year.

The civil appeal arising out of the Special Leave Petition of the Bar Council of Maharashtra
and Goa challenged the order of the High Court of Bombay wherein the court had upheld
the legality and validity of the aforementioned rules and had dismissed the writ petitions.
The civil appeal arising out of the Special Leave Petition of the Bar Council of India
challenged the decision of the Punjab and Haryana High Court wherein it was stated that
the rules of 1995 were purely prospective in nature and thus, the court had denied the claim
of the petitioner who had obtained his law degree in 1981.
Issues:

• Whether or not the impugned rules of the Bar Council of India are ultra vires the
rule-making power of the Bar Council of India as available to it under the provisions
of the act?
• Whether or not the impugned rules are arbitrary and unreasonable in nature so as to
violate the article 14 (Right to Equality) of the Constitution of India?
• Whether or not the respondent in Bar Council of India’s appeal, who has got his Law
degree prior to the coming into force of these Rules, can be required to comply with
these Rules if he applies for being enrolled as an advocate under the Act after the
Rules came into force?

Legal aspects involved in the case.

• Article 14 of the Indian Constitution: This article is one of the Fundamental Rights
accorded to the Indian Citizens in Part III of the Constitution. This article basically states that
“The State shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India”. Equality before Law basically means that all persons
should be treated equally no matter whether they are poor or rich, male or female, upper
caste or lower caste. Equality before Law prohibits providing any special privilege to any
community or people.

• Article 19 (1) (g) of the Indian Constitution: The right to do business is a fundamental right
given to the citizens of India under Article 19 (1) (g) of part III of the Constitution of India. It
refers to a general right to carry on any type of business, occupation or profession to satisfy
their livelihood needs. It doesn’t include a right to carry on any activity which is illegal of
nature or hinders public interest.

• Section 24 of the Advocates Act, 1961: This section specifies the qualifications of a person
entitled to be enrolled into the Bar. The qualifications are regarding the age (21 years),
citizenship (Indian), and the attainment of a law degree after 12th March, 1967. The
Advocates Act, 1961 empowers State Bar Councils to frame their own rules regarding
enrolment of advocates.

• Bar Council of India Training Rules, 1995: These rules deal with the conditions and training
process to be undergone by a person before he can be enrolled as an advocate in a State
Bar Council.

Arguments by the petitioners.

The learned counsel for the petitioners submitted that there is no power with the Bar
Council of India to frame the impugned rules. It was also submitted that Section 7 of the Act
lays down the statutory functions of the Bar Council of India. The provisions thereof do not
entitle the Bar Council of India to frame such impugned rules prescribing a pre-condition
before enrolment of an applicant as an `advocate' under the Act by requiring him to
undergo pre-enrolment training and apprenticeship as laid down under the impugned rules.
It was also submitted that Section 24 sub-section (3) (d) of the Act also was not available to
the Bar Council of India to frame such Rules. It was submitted that rule making power of the
Bar Council of India as laid down by Section 49 could not be pressed in service by it in
support of the impugned rules. In addition, the impugned rules were contended to be
obnoxious, arbitrary, unreasonable and unworkable, so much so that they violate the
fundamental right to equality under article 14 of the Constitution of India. It was also added
that the retrospective nature of the impugned rules was untenable. Therefore, the
petitioners contended that the impugned rules are ultra vires the powers of the Bar Council
of India and that they are unconstitutional and should be struck down.

Arguments of the Respondents.

The respondents argued that the impugned rules are very much within the powers (intra
vires) of the Bar Council of India to regulate and enforce. In addition, it was argued that the
impugned rules were reasonable, justified and well within the purview of the constitutional
rights guaranteed to the citizens of India.

An overview and an analysis of the judgment.

The court stated that the Bar Council of India had mandated that the legal profession can be
entered into by someone only after pursuing a Law degree for 3 years after graduation. This
meant that age of entry in the legal profession was higher than that of other professions
and hence, a further examination or practical training wasn’t required for the people joining
the legal profession after pursuing the 3-year Law degree after their graduation.

The court stated that the aforementioned facts implied that the Bar Council of India had
itself agreed upon the fact that a 3-year law degree would be enough for providing the
proof for qualification for enrolments as an advocate and that in the syllabus given by the
Bar Council of India to all the recognized colleges and universities around the country
included practical training as a part of the curriculum.

The court additionally observed that there is no legislature which disqualifies the entrants to
from entering into the legal profession in cases where that particular entrant has not
undergone the pre-enrollment training period. The court however agreed to the fact that
the legal profession requires well-trained professionals. Therefore, the court suggested that
the entry exams for the 3-year law course in the colleges should be tough and strict so as to
gauge the potential merit of the candidates, the Bar Council should introduce some
procedural professional courses for the graduates pursuing the law degree, there should be
a minimum limit fixed for attendance in the law colleges, and finally a strict and practical
apprentice tests for the law graduates. The court implored the Bar Council of India to
examine, deliberate, and implement the aforementioned suggestions.
In this case, the court struck down the impugned 1995 rules and allowed the writ petitions.
In order to avoid confusion, the court clarified that this judgment shall be applicable in a
prospective manner.

Bar Council Of India Has Powers To Prescribe All India Bar Examination : Supreme Court;
Overrules 'V Sudeer' Judgment: A Constitution Bench of the Supreme Court on Friday
upheld the power of the Bar Council of India to require law graduates to qualify for the All-
India Bar Examination as an eligibility criterion to practise law in India. Whether the
qualifying examination should be held before or after enrolment was a matter best left to
the discretion of the bar council, the bench said. Notably, the decision in V. Sudeer v. Bar
Council of India, (1999) 3 SCC 176, in which the top court had held that no condition, other
than those enumerated in Section 24 of the Advocates Act, could be imposed on a person
wishing to practise law, was overruled. Such norms or rules, it was held, could be prescribed
by the bar council since the Advocates Act, 1961 conferred on it 'adequate powers.

The objective of the legislature while giving wide powers to the Bar Council of India under
Section 49 of the Advocates Act which gives it the power to prescribe rules, read with Clause
(d) of Sub-section (3) of Section 24, which gives it the power to prescribe norms for
entitlement to be enrolled as an advocate under the rules of the Bar Council of India, leads
us to the conclusion that these are adequate powers with the Bar Council of India under the
said act to provide for such norms and rules V. Sudeer on the powers of the Bar Council of
India cannot be sustained and we cannot hold that this decision laid down the correct
position of law. The effect of the view expressed by us would be that it is left to the Bar
Council of India as to at what stage, the All-India Bar Examination will be held, that is, pre-
enrolment, or post-enrolment (Bar council of india v. bonnie foi law college)

In Re: Lily Isabel Thomas MANU/SC/0028/1964 : AIR 1964 SC 855 : (1964)6 SCR 229

The case questioned if the;right to practice; included ;right to act ;, it also questioned if
there was a conflict between the legislative power of the Parliament and the rule making
power of the Court- It was held that the words & right to practice ; would in its normal
connotation take in not merely right to plead but the right to act as well- It was further held
that there was no question of conflict between the legislative power of the Parliament and
the rule making power of the Court, because by reason of the opening words of Article 145
of the Constitution of India, any rule made by this Court would have operation only subject
to laws made by Parliament on the subject of the entitlement to practice.

Indianouncil of legal aid case

INDIAN COUNCIL OF LEGAL AID AND ADVICE AND OTHER V. BAR COUNCIL OF INDIA AND
ANOTHER

Facts: The Bar Council of India(BCI) is a statutory body under section 4 of the Advocates Act,
the body has the power to regulate legal practice and legal education in India, and such
rules and powers are defined under Bar Council of India Rules,1975. On 22nd August,1993,
by Resolution No.64/93 added Rule 9 in Chapter III of Part VI of the rules which attracted
widespread criticism from lawyers, legal organizations and various other jurists and people
pursuing law. The Part VI empowers the Bar Council of India to make rules governing
advocates, this part has four chapters of which the Chapter III, which is in question, lays
down rules which deals with conditions for right to practice advocacy [under
section49(a)(ah) of the Advocates Act].

The newly added rule puts a restriction on people above the age of 45 years who want to
seek entry as advocates or to be specific, if the person has completed the age of 45 years on
the date on which he submits his application to enroll as an advocate his application will be
rejected. The rule was said to be violative of Article14{Right to equality}, Article19(1)(g)
{Right to practice any occupation}, Article21 {Right to life and personal liberty} of the
Constitution of India and Sections 7(Functions of Bar Council ), 15(Power of Bar Council to
make rules), 24(Persons who may be admitted as advocates under state roll), 24-
A(Disqualification of enrolment), 28(Power of State bar council to make rules),49(1)(ag)
{class or category entitled to be enrolled}&(ah) {conditions and circumstances under which
person is deemed to practice as an advocate}, of the Advocates Act,1961,hereinafter called
“the act”. A writ petition was filed under article 32 challenging this new rule

PETITIONER’S ARGUMENT

(a). The petitioner also claims that under section 49(1)(ag) of “the act”, Bar Council of India
has the power to prescribe class or category of persons to be enrolled as advocates ,here, it
cannot be inferred from the language that it gives the power to disentitle someone from
entering the profession.

Further it is claimed by the petitioner that even if the Bar Council is conferred with the
power to prescribe conditions which would govern the right to practice of an advocate
under section 49(1)(ah) of “the act”, the word “conditions” here refers to advocates i.e. if
conditions are laid down, then it must apply at post enrolment stage and the rule inserted
talks of pre-enrolment stage, so the newly added rule does not adheres to this section. Also,
according to section24 of “the act” which deals with the conditions required to be enrolled
as an Advocate, neither it is mentioned nor there is any provision which defines the
maximum age for enrolling into the profession. Petitioner also defies that the rule falls
within the purview of section 24-A, which states conditions for disqualification of a person
seeks enrolment into the profession, even here it is nowhere mentioned about creating a
category of persons of certain age group who can be debarred from enrolment. Further the
sections 7,15,28 which talks of functions and powers of Bar Council and State Bar Councils
to make rules, does not empower them to make any such rule which can restrain entrants
by just inserting an age clause.

The rule is violative of principle of equality under Article14 and discriminatory, as the rule
debars people from enrolling if they have attained the age of 45years, while it overlooks
those who have initially entered the field but later took up some other jobs or occupation,
and wished to practice advocacy at a future date maybe after the age of 45years.

(b).The rule is inconsistent with the provision under Article19(1)(g), because it refrains
people of an age category from practicing the profession of their choice.

RESPONDENT’S ARGUMENT

(a). People who spend major portion of their earning age working in some other profession
or occupation, in the later years enter the field of law just to have additional gains.

(b). It is the duty of the council to protect one of the oldest and pious professions from such
people as they tarnish the image of the profession.

(c).The rule is not discriminatory, as it is well within the powers of the council to regulate
the entry of only those who are profession and service oriented, and not those who are not
so oriented.

(d). People who retire from various Government and Quasi government jobs enter the
profession and use their earlier contacts to canvass for cases, and leaves a murky image on
the minds of young entrants.

(e). The BCI has not violated article19(1)(g) as advocacy is not a fundamental right, it is a
privilege. Even if it comes under fundamental right the council is empowered to impose
reasonable restrictions.

(f). The rule is not inconsistent and incompatible with any article or section, and it is well
within the ambit of the rule making authority of the BCI to ‘categorize’ under section49 of
“the act”.

Judgement: The Apex Court made it quite clear that no one is allowed to formulate rules on
matters which are not under their control. The impugned rule was apparently arbitrary, as
there is no provision in any of the act concerned that could be used as a reference.

The Section 49(1)(ag) of the act is quite equivocal, as there is no clarification regarding what
could be the basis for creating a class or category of persons for enrolment in any of the
provisions. Though the apex court made it clear that the language is construed in positive
terms and it should not be interpreted otherwise, but, there was no mention on what
should be the criteria before framing such ‘class or category’. This would disconcert one and
in the future there is a possibility that such cases may reappear before the court. Also, there
is still too much confusion regarding the rule making power of the State bar councils and
BCI. The BCI and the Parliament are empowered to make rules on the formation of class or
category, but one needs to abide by the requirements of the State council as the person is
admitted on the state roll, that means there is a possibility that such rules on enrolment
may pummel.

Referred cases: The rule was even challenged on the basis of whether the impugned rule is
inconsistent with the principle of right to have personal liberty or not in several other
petitions, as enshrined in article21, but this segment remained untouched by the apex
court. V. Sudeer v. BCI held that the power to amend pre-enrollment rules is not with BCI.
The said rule is violating article 19(1)(g) & 21of the constitution and various other sections
of “the act”. Furthermore, the court added that except the conditions those articulated in
section24 of “the act” no other can be put on a person enrolling as an advocate.

J. Sampath Kumar v. Bar Council Of India , where the Madras HC held that prescribing an
age limit does not constitute a class or category, also the rule is made without reliable data
and declared the rule as unconstitutional and inconsistent with the provisions of the act.

But except few fundamental rights are not absolute, they come with some restrictions. With
respect to the article19(1)(g) reasonable restrictions can be imposed with respect to
article19(6). As was held in the case of Dr. Haniraj L. Chulani v. Bar Council of Maharashtra
& Goa , here the appellant was a medical practitioner and while continuing his existing
profession he took the degree of L.L.B. He then applied to State Bar Council for being
enrolled as an advocate but his application was rejected by stating that he cannot practice
advocacy while simultaneously practicing another profession, later he moved to SC
challenging the decision. SC upheld the decision of Bar Council and imparted that this is not
violative of any right,law needs full time attention and one cannot indulge in any other
profession while practicing advocacy.

of R D Shetty v. International Airport Authority of India , where the Apex court held that
the actions of the state must not be arbitrary and every such action must based on some
reliable data. Without any dependable data and just using superfluous considerations would
not serve the purpose of equality.

In the leading case of Air India v. Nargesh Meerza , where a regulation was issued by Indian
Airlines which states that an Air Hostess had to retire after crossing the age of 35years or if
they married within 4years of joining the service or on their 1st pregnancy, whichever took
place earlier. The rule was said to be violative of article14 by the Supreme Court, as it was
unreasonable and apparently discriminatory.

The Supreme Court in the case of D.S. Nakara v. UOI , held the rule 34 of Central Services
(pension) Rules, as unconstitutional and inconsistent with article14 because the rule was
making a distinction between the pensioners who retire before 1st April,1979 and after this
date. This distinction was held irrational and arbitrary. }.

In the case of Chintaman Rao v. State of MP , Deputy commissioner of Sagar issued an

order which restricted people of a certain village from manufacturing ‘bidis’. Supreme Court
held that the decision is arbitrary and it is in contravention with the fundamental rights.

But except few fundamental rights are not absolute, they come with some restrictions. With
respect to the article19(1)(g) reasonable restrictions can be imposed with respect to
article19(6)

of Rajan Sharma v. Bar Council of India showcases an example on the same, when a
resolution was passed by the BCI on a certain date to supplement a rule to “Rules of Legal
Education” which would create an age limit for admission in 3 and 5year law courses.
According to the rule a person after attaining the of 20yrs(GEN) and 22yrs(Other backward
communities) is not eligible to take choose 5yr course, and for 3yr course the age limit was
30yrs(GEN) and 35(Other backward communities).The Supreme Court ruled in favor of the
petitioner, while calling the rule as arbitrary and violative of sections of “the act

(DR.) HANIRAJ L. CHULANI V. BAR COUNCIL OF MAHARASHTRA & GOA

BRIEF FACTS OF THE CASE

The appellant is a permanent resident of Bombay. He has been a medical practitioner

(colorectal surgeon) since 1970. During the continuance of his said profession as a medical
practitioner, the appellant joined LL.B. Degree Course and obtained Degree of Bachelor of
Laws on March 4, 1991. Thereafter the appellant applied to the respondent State Bar
Council of Maharashtra & Goa for being enrolled as an Advocate under the Advocates Act,
1961 (hereinafter referred to as 'the Act'). This application was moved by the appellant on
July 26, 1991. The appellant insisted that even though he is a medical practitioner he is
entitled to simultaneously carry on the profession as an advocate.

The Enrolment Committee of the respondent-State Bar Council rejected his request for
being enrolled as an advocate simultaneously with his carrying on his medical practice as a
surgeon. The appellant was ultimately informed on November 16, 1992 that his application
for enrolment as an advocate was rejected. He was also supplied a copy of the reasons for
'refusal for grant of a Sanad'. The appellant feeling aggrieved by the said refusal filed Writ
Petition No. 2584 of 1992 in the High Court of Bombay.

After hearing the petitioner, a Division Bench of the High Court summarily dismissed his writ
petition on December 14, 1992. It is thereafter that the appellant moved the present
proceedings by way of special leave petition. By an order dated November 30, 1993 delay in
filing the special leave petition was condoned and notice was ordered to be issued to the
Bar Council of Maharashtra & Goa with a direction that the notice will state that the matter
will be disposed of at the notice stage itself.

3. ISSUES INVOLVED IN THE CASE

I. Whether the impugned Rule (l) framed by the State Bar Council of Maharashtra & Goa
suffers from the vice of excessive delegation of legislative power and hence is void and
inoperative at law?

II. Whether the said rule is violation of Article 19(1)(9) and is not saved by sub-article (6)
thereof?

III. Whether the aforesaid rules are violating Articles 14 and 21 of The Constitution?

IV. Whether the respondent-State Bar Council of Maharashtra & Goa was justified in
refusing enrolment of the appellant as an advocate under the Advocates Act, 1961 as he is a
medical practitioner who does not want to give up his medical practice but wants
simultaneously to practice law?

ARGUMENTS OF THE PARTIES

Appellant

• Learned senior counsel for the appellant submitted that Rule (1) framed by the
respondent Bar Council of Maharashtra under Sections 28(2) and 24(1)(e) of the Act was
ultra vires and illegal.

• In this connection she submitted that in so far as the said rule prohibits a person who is
otherwise qualified to be admitted as an advocate from being enrolled as an advocate if he
is carrying on any other profession like medical profession in the present case, it suffers
from the vice of excessive delegation of legislative power and even otherwise the said rule is
unconstitutional being violative of Article 19(1)(9) of the Constitution and is not saved by
sub-article (6) thereof as it imposes unreasonable restriction on the right of a citizen to
pursue any profession of his choice and that the rule is equally violative of Articles 14 and 21
of the Constitution of India as it seeks to deprive right of livelihood to the appellant in a
most unreasonable manner.

• It was contended that there was nothing obnoxious or illegal in a practising doctor
insisting on being enrolled as an advocate and in carrying on practice both as a medical
practitioner as well as an advocate.

• As the medical profession cannot be said to be in any way less dignified profession and
once the appellant is found to be qualified to be enrolled as an advocate as per the Act, the
State Bar Council by framing such a rule could not have restricted his entry to the profession
of advocates especially when the appellant was ready to give an undertaking that during
court hours he would not carry on his medical profession.
Defendant

• Learned counsel appearing for the State Bar Council on the other hand supported the
decision of the High Court and contended that the rule framed by the State Bar Council does
not suffer from any vice nor was it violative of any of the fundamental rights invoked by the'
appellant for getting it voided on that score.

• It may be stated that the Medical Council of India to whom notice was issued had referred
this matter to its Executive Committee which was of the view that Medical Council of India
has no objection to any medical practitioner holding a registerable recognized medical
certificate who is also qualified in law, practising medicine and law simultaneously.

LEGAL ASPECTS INVOLVED IN THE CASE

Article 19(6) in The Constitution of India

Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so
far as it imposes, or prevent the State from making any law imposing, in the interests of the
general public, reasonable restrictions on the exercise of the right conferred by the said sub
clause, and, in particular, nothing in the said sub clause shall affect the operation of any
existing law in so far as it relates to, or prevent the State from making any law relating to,

i. the professional or technical qualifications necessary for practising any profession or

carrying on any occupation, trade or business, or

ii. the carrying on by the State, or by a corporation owned or controlled by the State, of any
trade, business, industry or service, whether to the exclusion, complete or partial, of citizens
or otherwise

Article 21 of the Constitution of India

Protection of life and personal liberty: No person shall be deprived of his life or personal
liberty except according to procedure established by law

Section 24A of The Advocates Act, 1961

Disqualification for enrolment.

(1) No person shall be admitted as an advocate on a State roll

(a) if he is convicted of an offence involving moral turpitude;

(b) if he is convicted of an offence under the provisions of the Untouchability (Offences) Act,
1955;
(c) if he is dismissed or removed from employment or office under the State on any charge
involving moral turpitude.

Explanation - In this clause, the expression “State” shall have the meaning assigned to it
under Article 12 of the Constitution:] Provided that the disqualification for enrolment as
aforesaid shall cease to have effect after a period of two years has elapsed since his [release
or dismissal or, as the case may be, removal.

(2) Nothing contained in sub-section (1) shall apply to a person who having been found
guilty is dealt with under the provisions of the Probation of Offenders Act, 1958.

JUDGMENT IN BRIEF

In the light of the aforesaid statutory settings it, therefore, becomes clear that it is for the
concerned State Bar Councils by promulgating appropriate rules to regulate the entry of
persons seeking to join the legal profession. The respondent-State Bar Council of
Maharashtra & Goa in exercise of its powers under Section 28(2)(d) read with Section
24(1)(e) of the Act has framed rules in this connection. Rule (1) with which we are
concerned reads as under: “A person who is otherwise qualified to be admitted as an
Advocate but is either in full or part time service or employment or is engaged in any trade,
business or profession shall not be admitted as an Advocate”.

The rules framed by the Bar Council of India, especially relating to standards of professional
conduct and etiquette clearly aim at securing high standards of competence in legal services
and seek to strengthen professional relationships among its members and promote the
welfare of the society as a whole. Specific norms have been laid down in respect of conduct
of the persons practising the profession vis-a-vis the public, the court, the client, the
opposite lawyer and professional brethren.

As the enrollment by the State Bar Council entitles an advocate after entry to the
profession, to practise the noble profession of law and who becomes, by such enrollment,
an officer of the court, the said entrant can be validly subjected by the concerned Bar
Council to the strict requirements of the profession for enabling such an aspirant to
effectively cater to the needs of the legal profession. The power and the duty entrusted to
the State Bar Councils to monitor such entry, in the light of the nature of the profession to
which such entry is given would themselves supply the necessary yardstick and guidelines
for the exercise of such power by the elected body of advocates constituting the concerned
Bar Councils. It is no doubt true that under Article 19, sub-Article (1)(g) all citizens have a
right to practice any profession, or to carry on any occupation, trade or business and any
profession may include even plurality of professions. However, this is not an absolute right.

It is subject to sub-Article (6) of Article 19 which lays down that nothing in sub-clause (g) of
the said clause shall affect the operation of any existing law in so far as it imposes, or
prevent the State from making any law imposing, in the interests of the general public,
reasonable restrictions on the exercise of the right conferred by the said sub-clause.

It is no doubt true that the right to live includes the right to livelihood. However, the
appellant is not denied his right to livelihood. He is already a professional carrying on the
profession of a medical practitioner. He wants to have a second string to his bow. He wants
simultaneously to be permitted to practise law with a view to earn additional or more
livelihood. The appeal also fails and will stand dismissed. In the facts and circumstances of
the case there will be no order as to costs.

Cases referred

A• Satish kumar v. state of himachal pradesh

• Ashiwini kumar upadhay

• Indian Council of Legal Aid & Advice & Ors. v. Bar Council of India & Anr., JT 1995 (1) SC

423 1995 (1) SCC 732. (Para 12): profession of law is one of the oldest professions and was
practised in one form or the other in the hoary past. After the advent of the British in India,
certain rules in regard to the practise of law were introduced. Before independence there
were Mukhtars and Vakils who were permitted to practise law in moffusil courts even
though not all of them were Law graduates. However, slowly and gradually they were
allowed to wither away and their place was taken by pleaders who were, after securing a
degree in Law, permitted to practise at the district level. Those who were enrolled as
advocates could practise in any court subordinate to the High Court including the High
Court. The difference between a Pleader and an Advocate was merely on account of the fee
charged for enrolment. After independence, came the Act which was enacted "to
amend and consolidate the law relating to legal practitioners and to provide for the
constitution of Bar Councils and an all-India Bar". The Act creates an all-India Bar with
only one class of legal practitioners, namely, advocates, who of course are classified as
senior advocates and other advocates (Section 16)

Bar Council of India is concerned, its functions are of a more general nature, e.g., to lay
down standards of professional conduct and etiquette for advocates, to safeguard their
rights, privileges and interests, to supervise and control the working of the State Bar
Council, to promote legal education, to recognise universities, to organise legal aid to the
poor and to perform all other functions conferred by or under the Act and do everything
that may be necessary to discharge the functions enumerated in Section 7. Besides the
above it too is required to exercise discipline and control over the members of the
profession. Thus the functions are divided between the State Bar Councils and the Bar
Council of India, although for obvious reasons overlaps are unavoidable. The rule-making
power has been conferred on the State Bar Councils under Sections 15 and 28 and on the
Bar Council of India under Section 49 of the Act.

. A. N. Parasuraman & Ors. v. State of Tamil Nadu, (1989) 4 SCC 683 legislature cannot
delegate essential legislative functions to its delegate. There cannot be any dispute about
the settled legal position on this aspect. However, as discussed in the set-up of the entire
scheme of the Act and the rules framed by the Central Bar Council and in the light of the
nature of the power entrusted to the elected body of advocates themselves it cannot be
said that while regulating the entry to the legal profession the Bar Councils would find
themselves without any yardstick or guideline and would be trading an unchartered sea and
consequently the rules of enrollment framed by them would fall foul on the altar of
permissible delegation of legislative power.

Bar Council of India vs. Bonnie Foi Law College and Ors. (10.02.2023 - SC) :

MANU/SC/0115/2023

The original dispute between the Bar Council of India and Bonnie Foi Law College, the
Respondent college herein, arose on account of the application of the said college for
affiliation to carry on a legal study course. This Court appointed an inspection team on
29.06.2009, which visited the Respondent college and gave a comprehensive report pointing
out shortcomings in the infrastructure and functioning of the college. the Court laid down
certain conditions to be followed by the Respondent college which the college claimed to
have fulfilled later. During the course of this matter, a larger question of diminishing
standards of legal education provided at various law colleges in India came to be noticed
vide an order.

Bhupinder kumar sharma v. bar association Pathankot

Brief Facts

In this case, the appellant was enrolled with the State Bar Council as an advocate. The
respondent association made a written complaint to the State Bar Council making
allegations that the appellant was carrying on and continued his business and business
activities even after his enrollment as an advocate. The State Bar Council took recognition of
the complaint and referred the complaint to its disciplinary committee.

That he was running a photocopies documentation centre in the court compound Pathankot
and the space for the same was allotted to the appellant in his personal capacity on account
of being handicapped. He was also running a PCO/STD Booth. That he was the proprietor/
General Manager of the Punjab Coal Briquettes Pathankot, a private concern and he was
pursuing the business / his interest in the said business even on the date when his
statement was recorded by the Disciplinary Committee on 12/05/1996.
The Disciplinary Committee of the State Bar Council witnessing Senior Telecommunication
Office Assistant who deposed that STD/PCO has been allotted to appellant in the
handicapped quota and the same is continuing in the name of the appellant even after his
enrollment as an advocate and a clerk in the office of SDO also stated in his evidence that
space for installment of photocopy machine was allotted on lease basis to the appellant in
the handicapped quota. Thus, the Disciplinary Committee passed an order to remove the
name of the Appellant from the State`s Roll of Advocates under Section 35(3)(d) of
Advocates Act 1961 and debarred him from practicing as an advocate.

The appellant filed an appeal to the Bar Council of India on re-appreciation of the material
on record. The Disciplinary Committee of Bar Council of India confirmed the decision of the
State Bar Council held the appellant guilty of professional misconduct and dismissed the
appeal.

The appellant filed an appeal under Section 38 of the Advocate Act, 1961 before the
Supreme Court against the judgment an order passed by the Disciplinary Committee of the
Bar Council of India, confirming the order passed by the Disciplinary Committee of State Bar
Council removing the name of the appellant from the State Roll`s of Advocates under
Section 35(3)(d) of the Act.

Issues

Whether or not applicant was engaged or has ever being engaged in any trade, business or
profession?

Whether there order of removal of applicant name from the State Roll`s of Advocates and
debarring him from practicing as an advocate is valid?

Appellant

The appellant contended that the allegations made were not established or proved and the
allegations were not judged by the standard of proof required in such case, the appellant
was not actually carrying on business and the evidence on the point was not properly
appreciated, the punishment imposed on the appellant is grossly disproportionate.
Appellate was running business prior to his enrollment, and he did not continue the same
after his enrollment as an advocate and he ceased to have any business interest.

Respondent

The respondent contended that the appellant was guilty of professional misconduct as he
was carrying his business even after his enrollment as an advocate. So his interest in
continuing the business before and even after filing of the appeals before the Bar Council of
India and this court cannot be accepted or sanctioned, further in spite of giving and
undertaking before this court, he is still continuing his business supported by the report of
the sub judges made to the court. According to respondent the punishment imposed on the
appellant is proper in the absence of any good ground to take any lenient view.

Decision of disciplinary committee :

After considering the oral and documentary evidence place on record, held appellant guilty
of professional misconduct in carrying on business even after he is enrollment as an
Advocate. The witnesses were examined including Senior Telecommunication Office
Assistant who deposed that STD/PCO has been allotted to appellant on 6/4 /1992 in the
handicap quota and the same is continuing in the name of apple in the name of appellant as
per record even after his enrollment as an advocate.

A Clerk in the office of SDO stated in his evidence that space for installment of photocopy
machine was allotted on lease basis on 6/5/ 1961 by Deputy Commissioner, Gurudaspur to
the appellant in the handicap quota. Appellant is also carrying business as a proprietor of
the Punjab Coal Briquettes, Pathankot. The Disciplinary Committee of the Bar Council on
evidence on record held appellant guilty of professional misconduct and passed an order to
remove the name from roll of Advocate.

Appeal to the Bar Council of India :

The disciplinary committee of Bar Council of India confirmed the decision of the State Bar
Council and dismissed the appeal.

Appeal to the Supreme Court :

The appellant filed this appeal under section 38 of the Advocate Act before Supreme Court.

Judgment

The Supreme Court held that having persuaded both orders and evidence place on record
the appellant was guilty of professional misconduct supported by and based on cogent and
convincing evidence and the charge is proved beyond reasonable doubt.

The Supreme Court further held that having regard to the nature of misconduct and taking
note of the handicap of the appellant debarring him from practicing for all time is too harsh.
So they debar the appellant from practicing up to the end of December 2006. His licensed
was cancelled for 5 years. It can be concluded that an advocate cannot carries any other
business activities or profession. If he practiced any such activities, he shall be held guilty.
The rules of the Bar Council of India clearly specified that no advocate can be a full time
salaried employed person or a person carrying on any other business. He should not be
personally engaged in any business but as per the rules of Bar Council of India he can be a
share holder, partner, investor etc. The nature of such business is inconsistent with the
dignity or nobility of profession. The nature of such business is a professional misconduct as
per Advocate Act 1961.
Present Status of the Judgment

The judgment given by the Supreme Court of India in Bhupinder Kumar Sharma v/s Bar
Association Pathankot is still applicable. An advocate shall be held liable for professional
misconduct if he carries any business other than his legal profession under the provisions of
Advocate Act 1961.

Referred cases:

• Babu Lal Jain v. Subhash Jain BCI- The complainant alleged that the respondent
advocate was a practising lawyer as well as was working as an editor, printer, and
publisher of a weekly paper. Rule 47 of BCI rules prohibits an advocate to be
engaged personally in any business. The respondent advocate was found to have
been actively engaged in carrying on the business and his conduct was taken by the
disciplinary committee as professional misconduct.
•