MPs, MLAs Not Full-Time Employees, Can Continue Practising Law, Says SC
The PIL was filed by BJP leader Ashwini Kumar Upadhyay seeking to ban public servants, elected representatives and members of judiciary from simultaneously practising other professions, and to declare it as criminal misconduct.
New Delhi: A three-judge Supreme Court bench headed by CJI Dipak Misra on Tuesday ruled that there exists no bar on MPs and MLAs from practising law and that Rule 49 of the Bar Council of India (BCI) was not applicable to lawmakers “who are not full time salaried employees”.
It was in March 2017 that a public interest litigation (PIL) was filed in the Supreme Court by BJP leader Ashwini Kumar Upadhyay. The PIL sought to ban public servants, elected representatives and members of judiciary from simultaneously practicing other professions, and to declare it as criminal misconduct.
“Frame a uniform policy relating to conflict of interest for public servants, people representatives and members of judiciary in spirit of Article 14 of the Constitution and declare the conflict of interest as the criminal misconduct,” the PIL said.
SC bench of CJI Misra and Justices AM Khanwilkar and D Y Chandrachud said that there is no bar under the BCI rules to debar legislators from practising in court.
Upadhyay said many lawmakers hold corporate retainer-ship and defend their lawbreaker clients in the court of law, which is a matter of conflict of interest. “It is not only immoral, unethical but also a violation of the Rule 49 of the BCI rules,” his PIL stated.
Soon Bar Council of India was asked to look into the issue. The BCI formed a sub-committee to prepare a report on this issue and it decided that legislators can indeed be allowed to practice as lawyers. Some of the names that were under the radar included Kapil Sibal, Abhishek Manu Singhvi, KTS Tulsi, P Chidambaram, Vivek Tankha, K Parasaran, Bhupendra Yadav, Meenakshi Lekhi, Pinaki Mishra, Satish Mishra and Ashwini Kumar.
Attorney General K K Venugopal said such a ban is not correct or justifiable as being an MP/MLA is not a full-time job. The attorney general added that there cannot be any “prohibition” as membership of Parliament not a job under the Government of India.
According to BCI Rule 49, “An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise and shall, on taking any such employment, intimate the fact to the BCI and shall cease to practise as an advocate, so long he is in such employment.”
After the BCI ruling, a fresh plea was made before the Supreme Court, following which a constitution bench headed by CJI Misra reserved the verdict.
Argument was made that MLAs and MPs get their salaries from the consolidated fund of India, hence, they are employee of the State and the BCI rule 49 restricts a salaried employee from practising as an advocate.
"The MPs who have the power of impeachment and can impeach a judge of the Supreme Court where they appear day in and day out; it could be possible that the judges concerned may not be able to discharge their duty without fear. Judges are mostly men of great wisdom and are fearless. However, the public may sometime perceive that judges give favourable orders to few lawyers... As it is said that Caesar's wife should be above suspicion!" read the additional statement filed by Upadhyay.
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