In a landmark ruling, the Supreme Court of India has determined that legislators cannot be barred from practicing law. This ruling is in response to a request made by Mr. Ashwini Upadhyay in December 2017.
The Petition and Its Background
Mr. Upadhyay’s letter to the Chairman of the Bar Council of India (BCI), sought to prohibit Members of Parliament (MPs) and Members of Legislative Assembly (MLAs) from engaging in legal practice. However, the BCI sub-committee, which was established to address this issue, decided that it is legal for legislators to also practice as lawyers. Following this decision, Mr. Upadhyay presented his case to the Supreme Court, citing potential conflicts of interest and violation of BCI rules.
Arguments Against Legislators Practicing Law
Rule 49 of the Bar Council of India stipulates that any full-time salaried employee, whether employed by a corporation, private firm or the government, cannot practice law before a court of law. This rule categorically bars public servants from engaging in other vocations – specifically, they cannot serve as lawyers while in service.
Notably, lawmakers’ income and pensions are obtained from public funds, suggesting that they could be classified as “employees.” It’s generally recognized that the role of a lawyer requires full-time dedication, as does the work of MPs and MLAs. These lawmakers, who take part in House proceedings, meet with their constituents, and address local issues, are already amply compensated with privileges such as housing, transportation, office space, and a salary. Hence, the argument suggests that they should focus entirely on serving their constituents.
Furthermore, there’s an inherent paradox when MPs and MLAs who also practice as lawyers charge a fee from petitioners while drawing their salary from the respondent, which is often the Central or State government. This could also be seen as professional misconduct.
Arguments In Favor of Legislators Practicing Law
Those arguing in favor of legislators practicing law point out that a background in law helps lawmakers understand legislation better, contributing to the country’s adherence to the rule of law. It’s also noted that other professionals, such as engineers and doctors, don’t face similar prohibitions under any legislation akin to the Advocates Act. Lawyers, however, are governed by the Advocates Act and Bar Council Rules, which seek to impose certain restrictions on legal practitioners.
One key concern often raised is the conflict of interest that may arise when a lawyer-lawmaker represents a corporate house while being a member of either House of Parliament. It is illegal, immoral, and unethical to lobby for a client in Parliament, especially if the lawmaker has accepted money, incurred a benefit of any sort, or has been briefed on a particular matter. However, this principle applies to all lawmakers, not just those who are also lawyers.
The Supreme Court’s Judgement
In their judgement, the Supreme Court stated that legislators cannot be considered full-time salaried employees, since there’s no employer-employee relationship between them and the government. The court explained that simply because lawmakers receive salaries and various allowances under the 1954 Act and its relevant rules, it doesn’t establish an employer-employee bond.
Legislators, though considered public servants, enjoy a “sui generis” status – they are unique and not categorized as full-time salaried employees of any individual, government, firm, corporation, or concern. They maintain a special status until the House is dissolved. The fact that disciplinary actions can be taken against them does not imply that they can be classified as employees.
The Role of the Bar Council of India
The Bar Council of India, established by Parliament under the Advocates Act of 1961, is responsible for regulating and representing the Indian bar. It sets professional standards, imposes disciplinary measures when necessary, and also accredits law universities. By protecting the rights, privileges, and interests of advocates, creating funds for financial assistance, and organizing welfare schemes for them, the Bar Council performs vital representative functions within the legal profession.