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Can MPs and MLAs Continue to Practise as Lawyers? Bar Council of India to Decide

The December 18 application stated that “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”.

Debayan Roy | News18.com

Updated:December 27, 2017, 2:20 PM IST
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Can MPs and MLAs Continue to Practise as Lawyers? Bar Council of India to Decide
Senior Congress leader and lawyer Kapil Sibal (File photo/ PTI)
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New Delhi: The Bar Council of India has constituted an expert committee to look into an application which seeks to debar MPs and MLAs from practising as lawyers on the grounds that it is “against the spirit of Articles 14 and 15 of the Constitution of India.”

Bar Council of India Chairman Manan Kumar Mishra told News18 that the expert committee is considering an application by advocate Ashwini Upadhyay.

“We have appointed a three-member committee, which is looking into the application and the report will be tabled before me within a week. Since the committee is currently working on this, there can be no conclusion as yet,” Mishra said, clarifying that he was not part of the committee.

In his application, Ashwini Upadhyay had contended that MPs and MLAs were paid their salaries out of the Consolidated Fund of India and were hence the “employees of the state”.

The December 18 application stated that “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”.

Lawyers

Upadhyay said that a “legislator enjoys better salary, allowance and post-retirement benefits than members of Executive and Judiciary” and hence such a practice cannot be allowed where MPs and MLAs practise as lawyers.

“Being an MP or MLA is an honourable and fulltime profession, but does not remain noble merely by calling it as such, unless he is dedicated for the welfare of people. Legislators are expected to put fulltime service to the public and their constituents ahead of their personal interests. Nobility of the profession of Law also has to be preserved and protected. Therefore, provisions of the Advocates Act and BCI rules must be given effect in letter and spirit to maintain clean and efficient Bar to serve the cause of justice (sic),” the application said.

The panel, which is considering the application, is composed of top lawyers in the Bar Council of India roll and office bearers —Bhoj Chander Thakur, Rameshchandra G Shah and DP Dhal.

Advocate Bhoj Chander Thakur, co-chairman of the Bar Council of India, told News18 that “submissions are being examined from every point exhaustively and we will make the report to the best of our abilities. Within a week, the report should be tabled”.

Advocate Rameshchandra G Shah, who is a member of Gujarat Bar Council, told News18 that the “next meeting is scheduled to take place next week” and that the committee has studied the report by Upadhyay and “he would be called again if the committee needs him to make or clarify any point.”

Upadhyay’s primary contention relied on the 1996 Supreme Court case of Dr. Haniraj L. Chulani v. Bar Council of Maharashtra & Goa, 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.”

However, one of the hurdles which the committee might face would be the 2012 verdict of the apex court where the court held that, “under the Advocates act and Bar Council rules, lawyers who have become MPs and MLAs can continue their practice. The apex court has also said that there is no bar against an elected representative to continue his or her practice in spite of the fact that they are drawing salaries of MP or MLA and are also enjoying other perks.”

Lawyers like Arun Jaitley and Ram Jethmalani had stopped practising while they were ministers, but senior Congress ministers like Salman Khurshid, Kapil Sibal and P Chidambaram resumed their legal practice after the party’s 2014 Lok Sabha defeat.

Rajya Sabha MP Kapil Sibal had recently argued the Triple Talaq case on behalf of the All India Muslim Personal Law Board.

| Edited by: Puja Menon
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