Issues Around MPs and MLAs Practicing Law
The issue came to the fore when an advocate Ashwini Upadhyay filed a petition last year in apex court to ban MPs and MLAs from practicing as lawyers as it against the spirit of Bar Council of India rules as well as gives rise to issue of conflict of interest. However at that time his petition was rejected on the grounds that it is beyond court’s jurisdiction.
Once again the issue grabbed limelight when Mr. Upadhay wrote a letter to BCI on the same issue following which BCI constituted a three member expert committee to look into the issue and examine the provisions of Advocates Act and the BCI Rules in this respect.
Why the MP and MLAs should be debarred from practicing as an advocate?
Following are the arguments put forth by the experts:
Against the BCI rules
Rule 49 of the Bar Council of India categorically states that any salaried employee working full time with either private firm or government cannot practice law as a profession. This applies to public servants as well while in service. According to prevention of corruption act 1988, MP and MLAs come under the category of public servants. Also SC in its judgment in M. Karunanidhi v. Union of India (1979) categorically stated that MPs and MLAs are public servants, though the employer-employee relationship will not apply to them. Besides this they draw their salary from the consolidated fund of India and are engaged in full time work as a parliamentarian. Thus, practicing as a lawyer despite being an MP or MLA is clear violation of BCI rules.
Affects the mandate of parliamentarians
An MP or an MLA is involved in a full time activities ranging from taking part in the proceedings of the House, meet people in their constituencies, and grapple with and address people’s issues etc. Besides this they are the representatives of the people who give voice to their issue in the parliament which involves immense moral and ethical responsibility on their part. So it is important that they should engage themselves in fulltime service to the public and put the welfare of public as a prime aim ahead of their personal interests of practicing as a lawyer.
Professional misconduct
No lawyer can benefit from the petitioner (Who files a case) and the respondent (against whom the case is filed). MPs and MLAs who are practicing lawyers take a fee from the petitioner and get their salary from the respondent, which is the Central or State government. This is professional misconduct, as they end up enjoying the benefits of both.
Conflict of interest
MPs and MLAs have the power to initiate impeachment proceedings against a judge, which means that they can pressurize the judge to give a favorable verdict when they plead before him or her in a case.
Violates constitutional rights
It has been alleged that when public servants like bureaucrats have been debarred from practicing as lawyer while in service then why MP, MLAs have been allowed to do so as they also come under the category of public servants. It is violation of Articles 14 and 15 of the constitution which grants right to equality and prohibits discrimination on arbitrary grounds.
Against SC judgement
Supreme Court in 1996 in Dr. Haniraj L. Chulani v. Bar Council of Maharashtra & Goa judgement 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.”
What are the contentions of the MP and MLAs against the issue?
There is no denying the fact that the primary aim of parliamentarians should be to ensure the welfare of the public. However, the issues rose by the MP and MLAs also need to be taken into account before any final conclusion. The remuneration received by the MP and MLAs is meager and is often cited by them as the reason for engaging in law as a profession. Second the rajya sabha MP do not have a constituency and are not engaged in full time activities to the extent as a lok sabha MP. Third it has been seen that mostly the opposition party MP and MLAs engage in law as a profession. Ruling party MP and MLAs cut off from the profession as soon as he come in the power, thus, keeping in mind the sanctity of the job they are involved in. Besides this the apex courts in 2012 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.”
Way forward
Now the ball is in the court of the committee to strike a balance between the mandate of the parliamentarians and their concerns. Besides this the committee will also face have to reconcile with the conflicting judgements of the Supreme Court. Nevertheless, whatever is the outcome it must be ensured that the sanctity and morality of the respective professions should be maintained.
