TEAM CODE - O

JAMIA HAMDARD MOOT COURT

IN THE HON’BLE SUPREME COURT OF INDIA

Filed under Article 137 of the Indian Constitution, 1950

In the matter of

A……………………………………………………………………...…PETITIONER

V.

UNION OF INDIA………………………………...………………RESPONDENT

Memorandum on Behalf of Petitioner,

Counsels for the Petitioner

 TABLE OF CONTENTS
Referred to in

LIST OF ABBREVIATIONS........................................................................................................ 3, 4

INDEX OF AUTHORITIES............................................................................................................. 5

 TABLE OF CASES.............................................................................................................. 5

 STATUTES REFERRED....................................................................................................... 6

 WEB RESOURCES........................................................................................................ 6

STATEMENT OF JURISDICTION................................................................................................... 7

STATEMENT OF FACTS............................................................................................................... 8

STATEMENT OF ISSUES............................................................................................................... 9

SUMMARY OF ARGUMENTS...................................................................................................... 10

ARGUMENTS ADVANCED........................................................................................................... 11

1. Whether the petition is maintainable or not?............................................................... 11, 12

2. Whether or not law makers are employees of government and holding an office of

profit?................................................................................................................................ 13, 14

3. Whether or not law makers practicing in court is violation of Rule 49 of Bar Council

Rules?................................................................................................................................ 14, 15

PRAYER..................................................................................................................................... 16

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 LIST OF ABBREVIATIONS
A.I.R. All India Reporter

Ant. Another

Cal Calcutta High Court

Cri LJ Criminal Law Journal

CrPC Code of Criminal Procedure

E.R. England Reporter

Ed. Edition

F.I.R. First Information Report

Hon’ble Honorable

I.P.C Indian Penal Code

I.P.C. Indian Penal Code

K.B. Kings Bench

M.P. Madhya Pradesh

Mad Madras High Court

NCT National Capital Territory

OR’s. Others

P&H Punjab & Haryana Court

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Pat Patna

Raj Rajasthan High Court

S.C. Supreme Court

S.C.C. Supreme Court Cases

S.C.R. Supreme Court Reporter

Sec. Section

Supp. Supplementary

UOI Union of India

v. Versus

W.B. West Bengal

W.P. Writ Petition

WLR Weekly Law Reports

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 INDEX OF AUTHORITIES

S.NO. TABLE OF CASES

1. Rupa Ashok Hurra v. Ashok Hurra, JT (2002) 3 SC 609: (2002) 4 SCC 388

2. Harbans Singh v. State of Uttar Pradesh, (1982) 2 SCC 101; Supreme Court bar

Association v. UOI, (1998) 4 SCC 409; M.S. Ahlawat v. State of Haryana & Anr., 2000

1 SCC 270

3. Dayaram v. Sudhir Batham, (2012) 1 SCC 333 (357): (2011) 11 SCALE 448; Re, Vinay

Chandra Mishra, (1995) 2 SCC 621.

4. Naz Foundation Trust v. Suresh Kumar Koushal, (2016) 7 SCC 485; Navneet Kaur v.

State, (2014) 7 SCC 264.

5. Dr. Haniraj L. Chulani vs Bar Council of Maharashtra & Goa, 1996 AIR 1708, 1996

SCC (3) 342

6. R.S. Nayak vs A.R. Antulay on 16 February, 1984 AIR 684, 1984 SCR (2) 495

7. Ashok Kumar Bhattacharyya vs Ajoy Biswas and Or’s 1985 AIR 211, 1985 SCR (2) 50

8. Jaya Bachchan vs Union of India and Or’s on 8 May, 2006

9. Consumer Education & Research ... vs Union of India & Or’s on 24 August, 2009

10. Ravanna Subbanna v. G. S. Kaggeerappa, AIR 1954 SC 653 

11. Satrucharla Chandrasekhar Raju vs Vyricherla Pradeep Kumar Dev AIR 1992 SC

1959

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 12. Ashwini Kumar Upadhyay vs Union of India on 25 September, 2018

13. (Dr.) Haniraj L. Chulani vs Bar Council of Maharashtra & Goa on 8 April, 1996 AIR

1708, 1996 SCC (3) 342

S.NO STATUTES REFERRED

.

1. Indian Constitution, 1950

2. The Advocates Act, 1961

3. Bar Council of India rules

4. The Income tax act 1961

S.NO. WEB RESOURCES

1. www.jstor.org (JSTOR)

2. www.judis.nic.in (SUPREMECOURT OF INDIA OFFICIAL)

3. www.legal.un.org (UNITED NATIONS)

4. www.manupatrafast.com (MANUPATRA)

5. www.scconline.com (SCC ONLINE)

6. www.westlaw.india.com (WEST LAW INDIA)

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 STATEMENT OF JURISDICTION

The present review petition, under Article 137 of the Constitution of India, 1950, r/w

with Order XLVII of the Supreme Court Rules, 2013, is being filed seeking a review of

the judgement dated _________ passed by this Hon’ble court.

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 STATEMENT OF FACTS

1. A Public Interest Litigation was filed in Supreme Court by 'A' seeking to bar lawyer who

were serving in the capacity of lawmakers as (MPS, MLAs, MLCs) from practicing in

courts during their tenure in the legislature. The petition mentions that a lawmaker draws

a salary from the public exchequer and that salaried employee has been debarred by the

Bar Council of India from practicing in any courts of law.

2. The petition said the issue is a matter of concern from both the judiciary and the

legislature perspective as most of the lawmaker advocates are the ones who are involved

in active practice of law, despite receiving salaries and other perquisites drawn on the

public exchequer. While a public servant cannot practice as an advocate, legislators are

practicing in various courts which was a violation of Article 14 of the Constitution.

3. The petition also pointed out that the MPs have the power of voting on the impeachment

of the judges of the Supreme Court and also the high courts. On the other side, Centre

submits that a MP or MLA is an elected representative and not a full-time employee of

the government and the employment postulates a master-servant relationship and the

government of India is not the master of a Member of Parliament.

4. Thus, the petition was not maintainable. The Hon’ble Supreme Court had dismissed the

petition seeking ban on the lawmakers from practicing as advocates during their tenure as

MPs or MLAs

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 ISSUES RAISED

ISSUE 1

WHETHER THE PETITION IS MAINTAINABLE OR NOT?

ISSUE 2

WHETHER OR NOT LAW MAKERS ARE EMPLOYEES OF

GOVERNMENT AND HOLDING AN OFFICE OF PROFIT?

ISSUE 3

WHETHER OR NOT LAW MAKERS PRACTICING IN COURT IS

VIOLATION OF RULE 49 OF BAR COUNCIL RULES?

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 SUMMARY OF ARGUMENTS
ISSUE 1 - WHETHER THE PETITION IS MAINTAINABLE OR NOT?

1. It is submitted before this Hon’ble court that the appealed review petition is
maintainable to cure gross miscarriage of justice and protect the principles of natural
justice. The Apex Court is fully empowered to adjudicate & review the case under its
inherent power. The review petition has been filed as the final order of the court has
overlooked the results of such order on the society at large. It fulfils all the
requirements for admission as a review petition on the ground that it has error
apparent on face of record as the decision clearly declines the express provisions of
law and decision would affect the general public.

ISSUE 2 - WHETHER OR NOT LAW MAKERS ARE EMPLOYEES OF

GOVERNMENT AND HOLDING AN OFFICE OF PROFIT?

2. The word “profit” connotes the idea of some pecuniary gain attached to the office.
“The true principle behind this provision…is that there should not be any conflict
between the duties and the interest of an elected member”. The form of payment is not
relevant as monetary gain may be merely disguised as an honorarium and it is not
relevant whether any remuneration was actually received, it is only enough if such
remuneration was receivable. In the case of Consumer Education and Research
Society v. Union of India the court held that held that it was for the Parliament to
decide what would constitute an office of profit and that the Parliament was
empowered to pass a legislation having retrospective effect. It was further ruled that
the practice of reference to Joint Committee was a mere Parliamentary procedure and
not a Constitutional convention. The payment from out of the Government revenues
are important factors in determining whether the person is holding an office of profit
or not of the government Though payment from a source other than the Government is
not always a decisive factor in determining office of profit.

ISSUE 3 - WHETHER OR NOT LAW MAKERS PRACTICING IN COURT IS

VIOLATION OF RULE 49 OF BAR COUNCIL RULES?

3. Counsel for the petitioner submits that any MP/MLA/MLCs should not be allowed to
have two full-time profession and occupation specifically advocacy because the MPs
can bring in impeachment motion against sitting judges. Many MP/MLA/MLCs give
interview in media which violates Rule 36 of the Bar Council of India Rules states
that Indian Law firms and lawyers are not allowed to advertise their practice in the
market, both offline or online. And if they are having two full-time profession or
occupation, then they would end up giving less efforts or less time to one of their
professions.
4. Under Rule 49 of the Bar Council of India Rules, an advocate shall not be a full-time
employee of any person, Government, firm, corporation or concern and on taking up

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 such employment, shall intimate such fact to the Bar Council concerned and shall
cease to practice as long as he is in such employment.

ARGUMENTS ADVANCED
ISSUE 1 - WHETHER THE PETITION IS MAINTAINABLE OR NOT?

Issue 1: It is humbly submitted before the Hon’ble Court that the review petition filed under
Article 137 is maintainable in the court of justice to cure miscarriage of justice and protect the
principles of natural justice.

1. The Supreme Court has jurisdiction to adjudicate Review Petition

It is humbly submitted that a review petition seeking review of the decision which has
become final after dismissal of a review petition can be filed under Article 137 of the Indian
Constitution1. Order XLVIII of the Supreme Court Rules states that after the dismissal of a
case in exercise of review jurisdiction under Art. 137 of the Constitution, by way of
circulation, a curative petition can be filed under the inherent jurisdiction of the Court to
prevent abuse of its process and cure gross miscarriage of justice 2, in any cause or matter. It
can be either a civil petition or a criminal petition.
Also, under Art. 142 of the Constitution of India, the Supreme Court is vested with
extraordinary jurisdiction to pass any decree or order as is necessary to do complete justice.
Art. 142 (1) contains no limitation regarding the causes or the circumstances in which the
power can be exercised nor does it lay down any condition to be satisfied before such power
is exercised3.
 In Naz Foundation Trust v. Suresh Kumar Kaushal 4, where the Supreme Court found the
issues sought to be raised of ‘considerable importance’ and ‘public interest’ and some of them
carrying ‘constitutional dimensions’, the matter was referred to a five-judge bench in a
curative petition.

2. To prevent gross miscarriage of Justice

It is humbly submitted before this Hon’ble Court that the Review Petition is filed to prevent
gross miscarriage of justice by the decree of the Court in the case as it is a matter touching
nerves upon the society at large.
 Firstly, advocacy is a full-time profession, as laid in the case of Dr.) Haniraj L. Chulani vs
Bar Council of Maharashtra & Goa5, “The said rule which is impugned in the present
proceedings clearly bars an otherwise qualified person from being enrolled as an advocate if
he is engaged in any other profession. It is based on the premise that an advocate must devote
1
Rupa Ashok Hurra v. Ashok Hurra, JT (2002) 3 SC 609: (2002) 4 SCC 388
2
Harbans Singh v. State of Uttar Pradesh, (1982) 2 SCC 101; Supreme Court bar Association v. UOI, (1998) 4 SCC
409; M.S. Ahlawat v. State of Haryana & Anr., 2000 1 SCC 270
3
Dayaram v. Sudhir Batham, (2012) 1 SCC 333 (357): (2011) 11 SCALE 448; Re, Vinay Chandra Mishra, (1995) 2
SCC 621.
4
Naz Foundation Trust v. Suresh Kumar Kaushal, (2016) 7 SCC 485; Navneet Kaur v. State, (2014) 7 SCC 264.
5
Dr. Haniraj L. Chulani vs Bar Council of Maharashtra & Goa, 1996 AIR 1708, 1996 SCC (3) 342

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 his full time and attention to the legal profession. It is because of the aforesaid provision in
the rule that appellant's entry to the legal profession is denied by the respondent-State Bar
Council as the appellant is already an active medical practitioner carrying on his profession as
a surgeon and which professional activity he insists on continuing simultaneously with being
an advocate though as submitted by his learned senior counsel the appellant is willing to
stagger the time during which he would carry on either of the two professions in the course of
the day”. Secondly, MPs/ MLAs are public servants as per the Prevention of corruption Act,
1957.

“agree with the reasonings for such findings that a member of Parliament is a public servant
under Section 2 of the Prevention of Corruption Act, 1988 and since there is no authority
competent to grant sanction for the prosecution of a Member of Parliament under Section
19 of the Prevention of Corruption Act 1988, the Court can take cognizance of the offences
mentioned in Section 19 in the absence of sanction but before filing a chargesheet in respect
of an offence punishable under Sections 7,10,11,12 and 15 of 1988 Act against a Member of
Parliament in a criminal court6” .

3. A public servant is said to commit the offence of criminal misconduct in the discharge of his
duty-

If he habitually accepts or obtains or agrees to accepts to obtain from any person for himself
if or for any other person, gratification (other than legal remuneration) as a motive or reward
such as is mentioned in section 7 of the said act7.

4. Disqualifications for membership

(1) A person shall be disqualified for being chosen as, and for being, a member of the
Legislative Assembly or Legislative Council of a State

(a) If he holds any office of profit under the Government of India or the Government of any
State specified in the First Schedule, other than an office declared by the Legislature of the
State by law not to disqualify its holder;

(b) If he is of unsound mind and stands so declared by a competent court;

(c) If he is an undischarged insolvent;

(d) If he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State,
or is under any acknowledgement of allegiance or adherence to a foreign State;

(e) If he is so disqualified by or under any law made by Parliament Explanation For the
purposes of this clause, a person shall not be deemed to hold an office of profit under the
Government of India or the Government of any State specified in the First Schedule by reason
only that he is a Minister either for the Union or for such State

6
P.V. Narasimha Rao v. State (1998) 4 SCC 626
7
Section 13, The Prevention of Corruption Act, 1988

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 (2) A person shall be disqualified for being a member of the Legislative Assembly or
Legislative Council of a State if he is so disqualified under the Tenth Schedule8.

ISSUE 2 - WHETHER OR NOT LAW MAKERS ARE EMPLOYEES OF

GOVERNMENT AND HOLDING AN OFFICE OF PROFIT?

Issue 2: The constitutional validity of this Amendment Act was challenged by way of PIL on
the ground that the Act had been passed solely for allowing the elected members, who would
otherwise be disqualified, to continue as Members of Parliament; the petitioners, therefore,
argued that this was a piece of colourable legislation. They also contended that a
Constitutional convention of referring the question of exempting offices of profit to the Joint
Committee on Offices of Profit had evolved over time which was completely disregarded in
this case. The court however held that it was for the Parliament to decide what would
constitute an office of profit and that the Parliament was empowered to pass a legislation
having retrospective effect. It was further ruled that the practice of reference to Joint
Committee was a mere Parliamentary procedure and not a Constitutional convention.

1. “The apprehension that it may not be a healthy practice and this power might be abused in a
particular case are again no grounds for limiting the powers of the State Legislature (or the
Parliament).”
The Second Judicial Reforms Commission has however opined that by exempting numerous
offices from disqualification without any clear rationale, Articles 102 and 191 have been
violated in spirit. “There does not appear to be a clear rationale to such a list (of offices in the
exemption from disqualification), except perhaps the expediency to protect holders of certain
offices from time to time.

Similar laws have been enacted by State Legislatures under Article 191, exempting hundreds
of offices from disqualification for the State Legislature. Each time a legislator is appointed
by the executive to an office which might be classified an office of profit, a law is enacted
including that office in the list of exempted categories.” The Joint Committee too, although
not explicitly declaring this as an unconstitutional or even an unethical practice, has
nevertheless stated that the Parliament should ensure that the exempted offices should not
come under the control of the Executive.
 In the case of Ashok Kumar Bhattacharya v. Ajoy Biswas and Others9, “The true principle
behind this provision…is that there should not be any conflict between the duties and the
interest of an elected member”. The elected legislator should feel free to fearlessly fulfill his
duties without coming under any governmental pressure. “If such a person is holding an
office which brings him remuneration and the Government has a voice in his continuance in
that office, there is every likelihood of such person succumbing to the wishes of Government”
 In the case of Jaya Bachchan v. Union of India10, since the post was capable of yielding
profit to the petitioner, she held an office of profit. Two factors which emerged, in this case,

8
ARTICLE 191 of THE CONSTITUTION OF INDIA 1950
9
Ashok Kumar Bhattacharyya vs Ajoy Biswas and Or’s 1985 AIR 211, 1985 SCR (2) 50
10
Jaya Bachchan vs Union of India and Or’s on 8 May, 2006

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 were: a) the form of payment is not relevant as monetary gain may be merely disguised as an
honorarium; b) it is not relevant whether any remuneration was actually received, it is only
enough if such remuneration was receivable.
 In the case of Consumer Education and Research Society v. Union of India11, it is a very
important case which addresses this issue. In 2006, the Parliament passed the Parliament
(Disqualification of Prevention) Amendment Act where by offices whose holders would
otherwise have been disqualified for holding offices of profit were exempted from
disqualification.
 In the case of Ravanna subanna v. G.S.Kaggerappa12, The word  profit connotes the idea of
some pecuniary gain attached to the office. Supreme court, in this case, said that if there is
really a gain, its quantum or amount would not be material, but the amount of money
receivable by a person in connection with the office he holds may be material indicating
whether the office really carries any profit.
 In the case of Chandrasekhar Raju v. vyricherla Pradeep Kumar13, the supreme court after
examining the catena of authorities, it was opined: The power of the government to appoint a
person in an office or to revoke his appointment at its discretion. The mere control of the
government over the authority having the power to appoint, dismiss or control the working of
the office employed by such authority does not disqualify that officer from being a candidate
for election as a member of legislation. The payment from out of the Government revenues
are important factors in determining whether the person is holding an office of profit or not of
the government Though payment from a source other than the Government is not always a
decisive factor in determining office of profit.

ISSUE 3 - WHETHER OR NOT LAW MAKERS PRACTICING IN COURT IS

VIOLATION OF RULE 49 OF BAR COUNCIL RULES?

Issue 3: Under Rule 49 of the Bar Council of India Rules, an advocate shall not be a full-time
employee of any person, Government, firm, corporation or concern and on taking up such
employment, shall intimate such fact to the Bar Council concerned and shall cease to practice
as long as he is in such employment.14

1. The counsel for the petitioner submits that the elected people’s representatives take a
constitutional oath to serve the people and are supposed to work full-time for public causes.
They also draw their salary from the consolidated fund. Being the public servants, they
cannot be permitted to practice as an advocate. For, if they are allowed to practice law, they
would charge fees from their private clients and, at the same time, continue to draw salary
from the public exchequer, which will be nothing short of professional misconduct. It is urged
that many legislators are actively practicing as advocates before different courts. In the
process, they end up in misusing their position as Members of Parliament/Members of the
Legislative Assembly/Members of Legislative Council (for short ―MP/MLA/MLC‖), as is
perceived by the public. Further, they invariably make the regular appearances on television

11
Consumer Education & Research ... vs Union of India & Or’s on 24 August, 2009
12
Ravanna Subbanna v. G. S. Kaggeerappa,  AIR  1954  SC  653 
13
Satrucharla Chandrasekhar Raju vs Vyricherla Pradeep Kumar Dev AIR 1992 SC 1959
14
Section 49(1)(c) in THE ADVOCATES ACT, 1961

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 and give their interviews to media, which also entails in advertisement. It is urged that the
legal profession is a noble full-time profession. Resultantly, the legislators cannot be allowed
to ride two full-time engagements as an elected representative and as an Advocate. If they do
so, they would end up becoming casual towards one of the two engagements and in a given
situation be guilty of conflict of interest amounting to the professional misconduct. The
petitioner has given multiple instances to buttress the point of conflict of interest.

2. 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 up with the fact that the emoluments paid
to them is under The Salary, Allowances and Pensions of Members of parliament act,
1954 (for short, the 1954 Act ‘). Similarly, allowances are paid as per the rules that are
framed for different heads under the 1954 Act considering the obligation towards the
constituency represented by them, the elected people ‘s representatives are obliged to
work full-time for the public cause and for which reason it would be neither feasible nor
practicable for them to perform to the best of their ability as the advocates, who are
required to give wholehearted and full-time attention to their profession. Resultantly,
legislators cannot be allowed to practice as advocates during the relevant period. 15

3. Many MPs, MLAs appear as an advocate even during Parliament/Legislative Assembly

session and participate in matters that affect the financial interests of the country and with a
person with whom they have a prospective employment. Legislator enjoys better salary,
allowance and post-retirement benefits than members of Executive and Judiciary, hence such
a practice cannot be allowed where MPs and MLAs practice as lawyers.

4. In the case of (Dr.) Haniraj L. Chulani vs Bar Council of Maharashtra & Goa on 8 April,
199616, where the court held that “a person qualified to be an advocate would not be admitted
as one if he is in full-time or part-time service or employment, or is engaged in any trade,
business or profession.

5. And many lawmakers hold corporate retainership and defend their clients in the court of law,
which is the matter of conflict of interest. “It is not only immoral, unethical but also
a violation of Rule 49 of the Bar Council of India (BCI) Rules, “and legislators were paid a
salary by the government so they shouldn’t be allowed to practice, as per the Advocates Act
and BCI Rules, the BCI had also reportedly issued a notice to MPs, MLAs and MLCs who
continue to practice law. The top court declined to go into a contention by the petitioner that
the country needed dedicated and full-time legislators who will sincerely attend Parliament on
all working days. Lawyers like Arun Jaitley and Ram Jethmalani stopped practicing while
they were ministers.

15
Ashwini Kumar Upadhyay vs Union of India on 25 September, 2018
16
(Dr.) Haniraj L. Chulani vs Bar Council of Maharashtra & Goa on 8 April, 1996 AIR 1708, 1996 SCC (3) 342

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 PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED

AND AUTHORITIES CITED, IT IS HUMBLY REQUESTED THAT THIS HON’BLE
COURT MAY BE PLEASED TO ADJUDGE AND DECLARE:

· To allow the above review petition filed by the Appellant.

· To disfunction the practice of legislators as advocates

· To set aside the decree of this court in the case of A v Union of India.

AND MAY PASS ANY SUCH ORDER, OTHER ORDER THAT IT DEEMS FIT IN THE
INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE. AND FOR THIS,
APPELLANT AS IN DUTY BOUND SHALL HUMBLY PRAY

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