YASHWANTRAO CHAVAN LAW COLLEGE, PUNE

MOOT COURT – 3

BEFORE THE
HON’BLE COURT OF MAURYA

IN THE MATTER OF

ADVOCATE ROHIT WAGLE……………….PETITIONER

V/S

UNION OF MOURYA
& BAR COUNCIL…………………………RESPONDENT

MEMORIAL ON BEHALF OF PETITIONER

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 TABLE OF CONTENT

Sr. No. Table Of Content

1. LIST OF ABBREVIATIONS.

2. INDEX OF AUTHORITIES.

3. REFERENCE.
4.
STATEMENT OF JURISDICTION.

5. STATEMENT OF FACTS.

6. STATEMENT OF ISSUES.

7. SUMMARY OF PLEADINGS.

8. ARGUMENT IN ADVANCE .

9. PRAYER.

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 LIST OF ABBREVIATIONS

Hon’ble Honourable
S.C.C Supreme Court Case
S.C Supreme Court
CJI CHIEF JUSTICE OF INDIA
BCM BAR COUNCILOF MAURYA
H.C High Court
IPC INDIAN PENAL CODE
MP MEMBER OF PARLIAMENT
MLA MEMBER OF LEGISLATIVE ASSEMBLY
Art. Article
Sec. Section
U/s. Under section
W.P Writ Petition
U.O.M Union Of MAURYA
Govt. Government
V/s. Versus
i.e. That is
S/d Signature

INDEX OF AUTHORITIES

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Cases referred:-

1. State of Jharkhand v. Govind Singh.

2. S.P. Gupta v. Union of India AIR 1982 SC 149.
3. V.B. Joshi vs Union of India (2008)
4. M. Karunanidhi v. union of India (1979) 3 SCC 431
5. Dr.hanirajL.Chulani vs bar council of Maharashtra & Goa (1996) SCC
342
6. Dharam Vir Singh v. Vinod Mahajan [AIR 1985 P&H 169],

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Books Referred:-

1. Advocate Act 1961& profession ethics- Bhalla

2. Professional ethics for lawyers-S.,Balakrishnan
3. Advocate Act 1961 -M.R. Mallick
4. Indian constitutional law- M.P. jain
5. Constitutional law of India-J.N.Pandey

Website Referred:-

https://www.legalserviceindia.com/
https://blog.ipleaders.in/
https://www.juscorpus.com
http://www.barandbench.com/index.php
https://www.lawctopus.com
https://www.phoenixlegal.in/
http://www.legallyindia.com-
http://www.legal500.com/
http://www.livelaw.in/
http://www.letmeknow.in/
http://www.twenty19.com

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 Statement of jurisdiction

This Hon'ble Supreme Court of Maurya has constitutional jurisdiction to try,

entertain and dispose of the present petition by virtue of Article 32 of Constitution
of India.

"32. Remedies for enforcement of rights conferred by this Part-

(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of
any of the rights conferred by second Part."

STATEMENT OF FACTS

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1. The Union of Maurya is located in the South Asian Region of Asia. It is one of
the ancient nations in the world. It is a democratic country with a written
Constitution.

2. In 1961, the Parliament of Union of Maurya enacted the Advocates Act to amend
and to consolidate the law relating to the legal practitioner, and to provide for the
establishment of the State Bar Councils and the Bar Council of Maurya. The
Advocate Act, lays down the legal framework for legal practitioners.

3. Section 49(1)(c) of the Advocates Act, 1961 empowered the Bar Council of
Maurya to make rules on the professional standards that an advocate needs to
maintain. Accordingly, the set of rules have been framed under section 49(1)(c)
of the Advocates Act, 1961.

4. Advocate Rohit Wagle, has filed a writ petition under Article 32 of the
Constitution of Maurya as a Public Interest Litigation and the petitioner prays
for issuance of a writ and order debarring the legislators from practicing as
Advocates (during the period when they are Members of Parliament or State
Assembly/Council) in the spirit of Part- VI of the Bar Council of Maurya Rules
or in the alternative, declare, that Rule 49 of the Rules is arbitrary and ultra-vires
the Constitution and to permit all public servants to practice as an advocate.

5. Adv. Rohit has also challenged the validity of Rule 49 which is arbitrary and ultra-
vires the Constitution of Barcouncil of Maurya.

6. The petitioner also challenged the issue of pre-enrolment qualifications and the
All Maurya Bar Exam was also included in the scope of the petition.

STATEMENT OF ISSUES

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1. Whether this writ petition is maintainable?

2. Whether rule 49 of arbitrary & ultra virus of the Maurya Constitution?

3. Whether the rule 49 of Chap VI of bar Council of Maurya violates

Fundamental rights of Constitution & can MP’s and MLA’s be debarred from
practicing as an advocate during their tenure?

4. Whether pre-enrollment exam is necessary?

Summary of Pleadings:-

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1. Whether this writ petition is maintainable?
The instant petition is maintainable under Article 32 of the constitution. The
present petition is filed under view of interest of large community with the
interest of numerous people.

2. Whether the rule 49 is arbitrary and ultra vires to the constitution?

The petitioner most humbly submit before the Honorable supreme court that
the rule 49 of rule the rules of Bar council of Maurya as an advocates shall not
be any full time-salaried employee of Government and if he does so he shall
intimate the fact to Bar council and cease to practice as an advocate so long
as he continues in such employment.

3. Whether the rule 49 of chapter II part VI of Bar Council of Maurya violates

the fundamental right of constitution and can MPs MLAs be debarred from
practicing as an advocate during their tenure?
The rule 49 of chapter II of part VI of Bar Council of Maurya violates
fundamental rights of other advocates. The right of being equally treated is
getting infringed due to the treatment given to legislator, given by
Government.

4. Whether pre-enrollment exam is necessary?

Pre- enrollment qualification is not necessary. According to the advocates Act
1961, Sec 24 says that, any law student who has acquired his degree of law
from recognized university as per the act can register as an advocate with the
local bar council and start his practice.

ARGUMENT IN ADVANCE

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ISSUE 1: Whether this writ petition is maintainable?
Yes, the writ petition is maintainable.

By this writ petition filed under Article 32 of the Constitution of Maurya as a

Public Interest Litigation the petitioner prays for issue of a writ of mandamus
or direction to debar the legislators from practicing as an Advocate (during
the period when they are Members of Parliament or of State
Assembly/Council) in the spirit of Part VI of the Bar Council of India Rules
(for short, 'the Rules') or, in the alternative, declare that Rule 49 of the Rules
is arbitrary and ultra-vires the Constitution and to permit all public servants to
practice as an advocate The legislators are elected representatives of people
taking a constitutionaloath to serve the people. They are supposed to work
full-time for public causes.

The present petition involves the crucial question of violation of fundamental

rights ofall the advocates under Article 14, 15 and 21 of the Constitution. It
also involves aquestion of violation of fundamental Rights by making
discrimination between advocates and advocates acting as legislators. Being
the public servant an advocate, practicing as advocate as well as being
legislator is violating the Rights of other practicing advocates. Hence present
petition being Public Interest Litigation Is filled by the petitioner in larger
interest of practicingadvocate and community at large. Generally, as member
of legal fraternity and as registered member of Bar council association,
Petitioner has all right to file presentPublic Interest Litigation as it is far from
personal interest.A Public Interest Litigation is filled in the Supreme Court by
an individual or a group of people if one more of their Fundamental Rights
are violated.

S.P. Gupta v. Union of India AIR 1982 SC 149.

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 This case opened up a new era for PIL in India. PIL became one of the
most effective tools to enforce public duty, which was earlier executed
illegally, thereby causing injury to society.

ISSUE 2: Whether the Rule 49 is arbitrary and ultra-vires the

constitution?
1. RULE 49 IS ARBITRARY
The petitioner submits before the Honorable Supreme court that Rule 49
of the Rules of Bar Council of Maurya is arbitrary and ultra-vires the
constitution as per Rule 49 an advocates shall not be any full-time salaried
employee of Government and if he does so he shall intimate the fact to Bar
Council and cease to practice as an advocate so long as he continues in such
employment.

2. RULE 49 STATES THE FOLLOWING RULE MADE BY BAR

COUNCIL OF INDIA-

As per Rule 49(ah),there are certain conditions prescribed as per which

an advocate shall have the right to practice and the circumstances under
which a person shall be deemed to practice as an advocate.

3. VIOLATION OF RULE 49 OF BAR COUNCIL OF MAURYA AND

ARTICLE 14 OF CONSTITUTION

I. As rule 49 clearly states that a lawyer must not be full-time salaried

employee of anyGovernment but an MLA or MP is considered to be
so it clearly violates the Rule.An MP or MLA is considered to be
lawmaker who draws a salary from the public exchequer andso a
salaried employee is debarred by the Bar Council of India from
practicing in the courts of law.
II. Article 14 says that there must an equality before law but if a
lawmaker himself appears before the court of law he might misuse
his power for same and hence public servant cannot practice as an
advocate and also legislators practising in various courts is a violation
of Article 14 of the Constitution.

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 III. The plea also said the issue is a matter of concern to both the
judiciary and the legislature asmost of the lawmaker-advocates are
involved in active practice of law, despite receivingsalaries and other
perquisites drawn on the public exchequer.
IV. The petition also pointed out that the MPs have the power of voting
on the impeachment of judges of the Supreme Court and
the high courts.

4. CASE LAWS REGARDING VIOLATION OF RULE 49-

Haniraj L. Chulani v. Bar Council of Goa and Maharashtra

In Dr. Haniraj L. Chulani v. Bar Council of Maharashtra and Goa

(1996) the Supreme court held that a person qualified to be an
advocate would not be admitted as one if he or she is infull-time or
part-time service or employment.

ISSUE 3: Whether the rule 49 of the chapter II part VI of Bar

Council of Maurya violates the fundamental Right of
constitution and can MP's & MLAs be debarred from
practicing as an Advocate during their tenure?

It is humbly pleaded, Yes that the Rule 49 of the chapter II part VI of Bar
Council of Maurya violates the fundamental rights of advocates to practice
which is given under Art 14, 15 and 21 of Constitution of Maurya. As being
legislature MPs and MLAs getting income from Two sources it violates the
right of other advocates. The first and most important function of legislators
to do their duty as a public servant to serve common people with the dedicated
efforts to their work along with their respected duties and their dignified
position as MPs MLAs. As the quote says "We don't need part-time legislators
we need dedicated parliamentarians" in legislatures it was held that in,

M. Karunanidhi v. Union of India (1979) 3 SCC 431 that legislators are

"public servant'

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 As per the mentioned under Indian Penal Code section 21 defines public
servant. Also mentioned In Section 2 (C) of The Prevention of Corruption Act,
1988.
The MPs and MLAs elected as peoples representative take a
constitutional oath to serve the people and suppose to work full time for public
cause they also draw their salary from the consolidated fund being public
servants they cannot be permitted to practice as an advocates for, if they are
allowed to practice as lawyers, they would charge fees from their private
clients and, at same time they continue to draw salary from Public exchequer,
which will be nothing short of professional misconduct. It is to be noticed that
many legislators are actively practicing as advocate before different courts.
Legal profession is a noble full-time profession. If it allows to MPs and MLAs
to practice, Hence it will be a professional misconduct. there is an express
restriction on advocates to take up other employment as per the Rule 49 of
Bar Council of Maurya.
It is thus noticed that allowing legislators to practice law will have the
potential of permitting them to indulge in conflict of interest amounting to
professional misconduct since they may appear in matters in their capacity as
a advocate challenging the wisdom of parliament/ state legislature. It is
possible that they may have Participate in the deliberation when the bill to
pass the stated law was introduced in the parliament/ state legislature. They
may either take a same positionbefore the court or even a completely opposite
stand in their role as an either case, it would be serious issue "conflict of
interest" advocate to

It has also said that MI's have a power of voting on impeachment of

judges of the Supreme Court and High Courts therefor allowing them to
practice as an advocate in the Supreme Court and the High court is very
serious conflict of interest because it may allow the judges to feel beholden to
them to oblige them according to the petition. Its violation of Separation of
powers between the legislature, the executive and the judiciary are the basic
foundation and structure of the Constitution. Independence of the judiciary is
the most essential character of Democratic Country Recently, when
impeachment process was initiated against then Chief Justice of India
[hereinafter “CJI”] Deepak Mishra then many among those 71 opposition
members, who initiated the impeachment process, were practicing in Supreme
Court of Maurya. Further, they also used to get an opportunity to represent the

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interest of their client at two forums Le at court of law and legislature. The
best-suited example of this is Mr. Kapil Sibbal. He is presently a Rajya Sabha
MP and a senior advocate at Supreme Court. He was the counsel representing
AIMPLB (All India Muslim Personal Law Board) in triple talaq case (where
the court declared the practice of triple talaq unconstitutional) and was
defending the practice of triple talaq. Later, when the bill was introduced in
Rajya Sabha for effectuating court's decision, Kapil Sibbal was the one who
had also opposed the bill. This fact itself exemplifies how the practicing
legislators carry on their private interest while performing as a public servant
in Parliament. Furthermore, the legislators also remain in possession of some
confidential information which they get by virtue of their post as a legislator
and they unduly use it in their private interest as an advocate.
As MPs & MLAs are being public servant then how can be practicing
advocates at any court because rule of 49 of BCM. Totally debarred to any
practicing lawyer who engaged himself in a full-time employment at any
person, government, corporation, institution being public servant of country
and as they take oath under constitution before their tenure starts with having
the speaker of each house has a right to vacate their post from respected place
at Legislative Assembly, Parliament. It proves that there is employee and
employer relation has been constituted, so therefor they are considered to be
public servant.

Along with above aspect as the MPs MLAs receives the allowances of
various types, salary from consolidated fund and pension also.so all the public
servant gets facilitiesprovided by the concern government to them. So being
a public servant how can they present and appear before any court of larid
with the "Vakalatnama” of their respected clients. As the Rule 49 states the
act of advocates those who are MP and MLA are acting against the rule,
therefor their act is a violation of the Advocates Act and rules of bar council
of Maurya.

The court has given a very strict interpretation to rule 49 of HCI rules,
which is defying the whole purpose behind the legislation. The Supreme Court
said in the case of-

State of Jharkhand vs Govind Singh -

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 that "the elementary principle of interpreting or construing a statute is
to gather the mens or sententia legis of the legislature." The court's task is to
give effect to the purpose of parliament, within the bounds of interpretation.
The purpose behind restricting advocates from practicing, if they are engaged
in some other employment, is to safeguard the interest of the client. An
advocate engaged in some other employment will not be in a position to give
adequate time in preparing the case for being argued the next day and this will
have an adverse effect on his/her performance in the court.

As they are accept employment of government they receives all the

allowances along with the salary, pension and appearing before the court with
their clients. This shows that they are riding over two horses as a result of this,
they earning money from clients and government salary, allowances also. In
a consequence of this, they are snatching the means of livelihood of other
freshers, new advocates. This Acts of MPs and MLAs is a violation of article
21 of constitution.

If The MPs and MLAS appear before the Court they will treat
differently from other advocates in spite MPs and MLAs are also Advocates.
The right of other advocate of being treated equally as per article 14 of
constitution, get violated by special treatment provided to MPs and MLAs by
this Bar Council Rules. Article 14 of the Constitution of India bars
discrimination and forms the cornerstone of our constitution, all persons in
similar circumstances shall be treated alike both in privileges and liabilities
imposed.

It Has held that in-

Haniraj L. Chulani (Dr) v. Bar Council of Maharashtra and Goa 1996
That the court has refused to permit a salaried employee from practising
as an advocate because both the profession required full-time attention. "Legal
profession requires full time attention and would not countenance an
advocateridding two horses or more at time"
The standards of professional conduct and etiquette have been framed
by bar council under section 49 (1) (c) of Advocates Act 1961 has not been
define the expression "misconduct" therefore, it is sufficiently of wide
expression in order to conduct constitute misconduct it is not necessary that it

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 should be include moral turpitude it may be any conduct which in any way
tenders a man ineffective for the exercise of his profession or likely to harm
or embarrass of administration of justice.
The advocate right to practice is not a fundamental right to practice in
a court. since right is conferred upon him under the provision of Advocates
Act which necessarily would mean that the conditions laid down therein
would be applicable onrelation thereto.
Bar Council is bestowed with the function and duty to regulate
enrolments of advocates and the terms and conditions of professional conduct
of advocates. The conditions to be fulfilled for continuing as advocates.

ISSUE 4: WHETHER PRE-ENROLLMENT EXAM IS

NECESSARY?
Pre- enrollment qualification is not necessary. As it ensures to be an advocate
according to the Sec 24 of The Advocates Act 1961, and is enrolled under any
bar council to be an practicing advocate.
According to Sec 24 of The Advocates Act 1961, person shall be qualified to
be admitted as an advocate on state role if he fulfil the following conditions:
(a) He is a citizen of India
(b) He has completed the age of 21 years.
(c) He has obtained a degree in law.

(i) before the '[12th day of March, 1967], from any recognized University in
the territory of India; or

(ii) before the 15th day of August, 1947, from any University in any area
which was comprised before that date within India as defined by the
Government of India Act, 1935: or

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(iii) after the 12th day of March, 1967, save as provided in sub-clause (ilia),
after undergoing athree-year course of study in law from any University
in India which is recognized for the purposes of this Act by the Bar
Council of India;

PRAYER

Wherefore, In the Light of Issues raised, arguments advanced and authorities

cited. It is prayed on behalf of the Petitioner that Honorable Supreme Court
may please to

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1. Kindly The PIL be allowed.

2. Kindly writ should be issued and debar legislators from practicing as

Advocates.

And/or

Any other order, direction that may deem fit in the best interest of Justice,
Equality and good conscience be granted.

All of which humbly and respectfully submitted.

Sd/-
(Petitioner)

Sd/-
(Counsel for Petitioner)

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