Ashwini Kumar Upadhyay v Union of India
(2019) 11 SCC 683; AIR 2018 SC 463320181 min read
The case in brief30-second read
- Facts
- A writ petition sought to stop sitting MPs and MLAs from practising as advocates, relying on Rule 49 of the BCI Rules.
- Issue
- Whether legislators are barred from practising law under Rule 49.
- Held
- Legislators are not full-time salaried employees of any person, government, firm, corporation or concern, so Rule 49 does not apply.
- Principle
- Legislators (MPs and MLAs) are not barred from practising as advocates; Rule 49 of the BCI Rules does not apply to them because they are not full-time salaried employees.
Facts
- A writ petition sought to stop sitting MPs and MLAs from practising as advocates, relying on Rule 49 of the BCI Rules.
Issue
- Whether legislators are barred from practising law under Rule 49.
Held
- Legislators are not full-time salaried employees of any person, government, firm, corporation or concern, so Rule 49 does not apply.
- There is no express provision barring them from practice; the BCI had taken the same stand. The petition was dismissed.
Ratio decidendi
Rule 49 bars an advocate from being a full-time salaried employee; a legislator holds an office, not employment.
Exam use
How to use it in an answer
- Part A (6 marks): Cite for: Rule 49 explained; MPs and MLAs may practise.
- Part B (16 marks): Use in a problem asking whether an advocate who takes up another position may continue to practise: apply Rule 49 (employment), Rules 47 and 48 (business, directorship) and Rule 52 (part-time work).
- Key line for exam: "As there is no express provision to prohibit or restrict the legislators from practising as advocates, the relief cannot be granted."
Cite this
Citation
Ashwini Kumar Upadhyay v Union of India (2019) 11 SCC 683; AIR 2018 SC 4633Reported: https://indiankanoon.org/doc/56283938/. This is an educational summary, not the judgment itself. Cite the reported version in professional or academic work.