In a big relief for many sitting MPs and MLAs across political parties who are practicing as lawyers in courts, the Supreme Court on Tuesday held that there is no bar on them as the law does not place any restrictions on them to practice in courts.
Besides, MPs and MLAs do not come under the definition of full-time paid employees of the state, it said.
A three-judge bench comprising Chief Justice of India Dipak Misra and Justices AM Khanwilkar and DY Chandrachud dismissed the petition filed by advocate and BJP spokesman Ashwini Kumar Upadhyay, who alleged that legislators donning lawyers’ robes is a ‘matter of serious concern’ to both the judiciary and the legislature, as most of the lawmaker-advocates are involved in active practice of law, despite receiving salaries and other perquisites drawn on the public exchequer.
It upheld the Bar Council of India’s decision that had earlier refused to issue any directions to ban legislators practising as lawyers.
Holding that the court cannot usurp the functions assigned to the legislature, the bench said that the provisions of the Advocates Act of 1961 and the rules framed thereunder do not place any restrictions on legislators to practice as advocates during the relevant period. Even Rule 49 framed by the BCI has no application to the elected people’s representatives as they do not fall in the category of full-time salaried employee of any person, firm, government, corporation or concern, the apex court stated.
“As there is no express provision to prohibit or restrict the legislators from practising as advocates during the relevant period, the question to debar them from practising as advocates cannot be countenanced. Even the alternative relief to declare Rule 49 as unconstitutional, does not commend to us. As of now, the BCI has made its stand explicitly clear that no such prohibition can be placed on the legislators,” Justice Khanwilkar, while writing for the bench, stated.
However, he said that the case of professional misconduct will have to be pleaded and proved on a case-to-case basis.
According to the top court, merely because the advocate concerned is an elected people’s representative does not follow that he/she has indulged in professional misconduct. “Similarly, the conferment of power on the legislators (MPs) to move an impeachment motion against the judge(s) of the Constitutional Courts does not per se result in conflict of interest or a case of impacting constitutional morality or for that matter institutional integrity,” the judgment stated.
The top court took note of the Centre’s submission that an MP or an MLA is an elected representative and not a full-time employee of the government, hence the plea was not maintainable.
Also alleging conflict of interest, the petitioner had argued that these legislators utilise their position as MPs/MLAs to be visible in the public domain, including on television where they give interviews or participate in shows. “This essentially amounts to advertising as their ‘brand’ is promoted among the public, many of whom are potential litigants. This virtually seamless transition between the two spheres by these legislators is causing irreversible harm to both the profession and public interest,” the BJP spokesperson had alleged.
According to Upadhyay, it amounted to professional misconduct that MLAs and MPs, who get salaries and other benefits from the public fund, appear against the government and some of them even hold corporate retainerships. He also pointed out that MPs have the power of voting on the impeachment of judges of the SC and high courts.