Advocates Act And Politicians Returning To The Bar

On May 14, 2026, Mamata Banerjee walked into the Calcutta High Court wearing an advocate's gown and white bands, and argued a PIL concerning post-poll violence in West Bengal. By the end of the day, the Bar Council of India had written to the West Bengal Bar Council demanding records on her enrolment status, her practice history during her fifteen-year tenure as Chief Minister, and whether she had ever formally suspended and then revived her licence to practise. The BCI was careful to add that it was not, at that stage, expressing any view on whether her appearance was permissible.

The qualification matters. The BCI's inquiry is a factual one. But the legal question behind it is structural, and it will not go away once her records are produced. The Advocates Act, 1961 (Advocates Act, 1961 (No. 25 of 1961) has no provision that addresses what happens to the practice rights of an enrolled advocate who enters full-time elected or constitutional office and then, years later, returns to the bar. The silence is the real problem, and it runs deeper than the BCI's letter acknowledges.

What the Act and Rules Actually Say

Section 30 of the Advocates Act (Section 30, Advocates Act, 1961) is unambiguous on its face. Every advocate whose name is on the State Roll is entitled, as of right, to practise throughout India before any court, tribunal, or authority. The right attaches to enrolment, not to continuous active practice. Nothing in the Act requires an advocate to practise without interruption, to notify the State Bar Council of any break, or to seek permission before resuming.

The BCI Rules complicate this in two distinct ways. Rule 49 prohibits an advocate from being a full-time salaried employee of any person, government, firm, corporation, or concern so long as he continues to practise (Rule 49, Bar Council of India Rules). The Supreme Court, in Ashwini Kumar Upadhyay v. Union of India,¹ gave a clear ruling that MPs, MLAs, and MLCs are not full-time salaried employees within the meaning of Rule 49. The Court held that drawing salary from the consolidated fund does not create an employer-employee relationship between the government and an elected legislator. Their practice as advocates during legislative tenure is therefore legally unimpeded, and the BCI itself accepted this position before the Court. But the judgment's scope was expressly confined to legislators. The Court stated in paragraph 9 that it was "not concerned with any other issue." The position of a Chief Minister was simply not before the Court and has never been directly ruled upon. A Chief Minister is appointed by the Governor under Article 164, draws a salary under a state statute from government funds, and discharges defined constitutional duties under Article 167. Whether that executive appointment creates a different relationship with the state government than that of a sitting legislator for Rule 49 purposes is a question no court has addressed.

The BCI Rules also shed light on how suspension of practice is treated as a matter of procedure. Rule 2(g) of Part III, Chapter I of the BCI Rules deals with electoral roll eligibility for Bar Council elections (Rule 2(g), Part III, Chapter I, Bar Council of India Rules). It disqualifies an advocate from remaining on the electoral roll if she has intimated voluntary suspension of practice and has not given intimation of resumption. The rule is not about the right to practise. It governs who may vote in Bar Council elections. But what it reveals about the BCI's underlying scheme is significant: suspension, in this framework, is a procedural act triggered by affirmative intimation, not a state that arises automatically when an advocate stops appearing in court. If an advocate never intimated suspension, the rule does not engage at all. The consequence flows from the notice, not from the fact of absence.

The 2015 Verification Rules: An Existing Mechanism the BCI Has Not Enforced

There is a further layer that the current inquiry brings into focus. The BCI introduced the Certificate and Place of Practice (Verification) Rules, 2015 (BCI Certificate and Place of Practice (Verification) Rules, 2015) precisely because advocates were leaving the profession without informing State Bar Councils, yet remaining on the rolls. Under these Rules, every advocate is required to obtain a verified Certificate of Practice. An advocate cannot legally practise without one. Rule 5 makes this explicit. Advocates who fail to apply for verification are placed on a "list of defaulting advocates," and those who cannot demonstrate active practice are placed on a "list of non-practicing advocates" under Rule 20. Under Rule 21, advocates on that second list are not entitled to practise. Rule 28 provides a formal resumption mechanism: an advocate on the non-practicing list who wishes to return must apply to the State Bar Council, pay a resumption fee, and obtain a certificate from the local bar association confirming they are actively rejoining (Rules 5, 20, 21 and 28, BCI Certificate and Place of Practice (Verification) Rules, 2015).

This framework matters directly to the Banerjee inquiry. If the West Bengal Bar Council has been applying the 2015 Rules consistently, and if Banerjee did not apply for verification during her tenure as Chief Minister, her name may already be on the defaulting or non-practicing list. In that case, the BCI's question is not merely about whether her enrolment survived, but whether her Certificate of Practice is presently valid. That is not a gap in the law. It is a gap in enforcement. The 2015 Rules, on paper, already provide the mechanism the BCI needs. The problem is that these Rules have been notoriously uneven in implementation across State Bar Councils, and there is no public record of whether West Bengal applied them at all consistently.

The Equality Problem: A Sharper Version

The practice is not confined to the past. Several sitting Members of Parliament continue to appear before courts. P. Wilson, DMK MP and Senior Advocate, regularly appears before the Supreme Court. Kapil Sibal, currently a Rajya Sabha MP, practises actively before the Supreme Court. Manan Kumar Mishra, Rajya Sabha MP and Senior Advocate, continues to appear before courts. Abhishek Manu Singhvi maintained an active practice throughout multiple terms as a Rajya Sabha MP. None of these appearances have attracted a BCI inquiry. Ashwini Kumar Upadhyay v. Union of India, settled why: legislators are not full-time salaried employees under Rule 49, and their continued practice raises no legal question.

The comparison to advocate-legislators like Jethmalani, Sibal, and Jaitley, who practised throughout their political careers without BCI interference, is instructive but must be stated precisely. Ashwini Kumar Upadhyay settled that legislators, as members of a House rather than employees of the government, fall outside Rule 49 entirely. Their continued practice was never legally questionable, and the BCI's own General Council confirmed this before the Supreme Court. Banerjee's situation is categorically different. She is not a sitting legislator returning to the Bar after parliamentary sessions. She is a former Chief Minister who held an executive appointment, drew a salary under a West Bengal statute from state funds, and performed defined constitutional duties under Article 167. That role has no equivalent in the Ashwini Kumar Upadhyay analysis. The legal treatment of the CM's position under Rule 49 has simply never been settled, which is precisely why the BCI's inquiry raises a question the Jethmalani cases never did.

The BCI has never stated whether an advocate who served as a Chief Minister and drew a government salary under a state statute occupied a position analogous to salaried employment for Rule 49 purposes. That question was not resolved in Ashwini Kumar Upadhyay, which explicitly confined its holding to legislators. If the BCI now takes the position that the CM role did trigger Rule 49, the implication would be that Banerjee's right to practise was automatically suspended during her tenure, and a formal resumption under the 2015 Rules was a prerequisite to her appearing in court. If the BCI takes the opposite view, the field is clear under Section 30, subject only to the verification certificate question. Either position is defensible in law. Neither has been stated.

What a Complete Regulatory Framework Would Provide

The 2015 Verification Rules represent the BCI's attempt at a structural solution to the non-practicing advocate problem. The attempt was well-directed but the implementation has been weak. The Banerjee episode is an opportunity to do something more purposeful. Two clarifications are needed and the BCI has the power to make both. First, the BCI should issue a formal ruling, through its rule-making power under Section 49(1)(a) of the Act (Section 49(1)(a), Advocates Act, 1961), on whether the office of Chief Minister or other full-time constitutional executive offices constitutes salaried employment within Rule 49. Ashwini Kumar Upadhyay addressed legislators and only legislators. The executive position of a Chief Minister, who is appointed by the Governor, paid from government funds under a state statute, and bound by defined constitutional duties, has never been tested against Rule 49. The BCI should resolve this by rule rather than leave it for case-by-case inquiry.

Second, the 2015 Verification Rules' resumption mechanism under Rule 28 should be enforced uniformly. At present, the scheme requires returning advocates to apply to the State Bar Council and demonstrate renewed affiliation with a bar association. The BCI should make it unambiguous that any advocate who has been absent from practice for more than five consecutive years, whether because of public office, private employment, or any other reason, must go through the Rule 28 resumption process before appearing in court. That requirement does not extinguish the right of enrolment. It conditions the immediate exercise of that right on a procedural verification that is reasonable, swift, and entirely within the BCI's existing authority to enforce.

The Mamata Banerjee episode will be resolved on its specific facts. But the structural questions it has surfaced will arise again, because India produces a steady supply of lawyers who enter politics and a smaller but real number who eventually return to practise. The BCI's letter of May 14 is an acknowledgment that the current framework offers no clean answer. What it should also be is the beginning of one.

Author is an Advocate

Views Are Personal. 

Reference: