The Supreme Court on Tuesday held that there is no bar on MPs and MLAs doubling up as lawyers.
The judgment by a three-judge Bench of Chief Justice of India Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud comes as a great relief for many sitting MPs across the political parties who are practising lawyers in the Supreme Court and various high courts.
The judgment authored by Justice Khanwilkar said MPs and MLAs do not come under the definition of full-time paid employees of the state.
The apex court upheld the earlier decision of the Bar Council of India, which had also declined to issue such a ban on legislators practising as lawyers.
The writ petition filed by advocate Ashwini Kumar Upadhyay said legislators donning the lawyers’ robes is a “matter of serious concern to both the judiciary and the legislature.”
“They also 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 petition had said.
The Bench dismissed the arguments made in the petition that such legal practice by lawmakers is in violation of Rule 49 of the Bar Council of India Act, which forbids an advocate to be “full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice”.
The lawmakers drew their salaries and pensions from the public exchequer, Mr. Upadhyay had contended.
Mr. Upadhyay had argued that MPs and MLAs draw their salaries from the Consolidated Fund of India, hence, were “employees of the State.”
Under Section 21 of the Indian Penal Code and Section 2(c) of the Prevention of Corruption Act, MLAs and MPs are public servants. Hence, allowing them to practice, as an advocate and restricting other public servants is arbitrary, irrational and violation of Articles 14-15 of the Constitution, Mr. Upadhyay submitted.
He had contended that it amounted to “professional misconduct” that MLAs and MPs, who get salary and other benefits from the public fund, appear against the government . Some of these lawmakers even hold corporate retainer-ships.