Courtsey: Bar & Bench :

The Supreme Court today ruled that Members of Parliament and Members of Legislative Assemblies (MPs and MLAs) cannot be barred from practicing law.

The Court made it clear that Rule 49 of the the Bar Council of India Rules is applicable only to full-time salaried employees, and does not cover legislators within its ambit.

The judgment was delivered by a Bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud in a petition filed by advocate and BJP Spokesperson Ashwini Kumar Upadhyay.

Upadhyay had filed the petition praying that legislators be debarred from practicing as Advocates (for the period during which they are Members of Parliament or State Assembly), in the spirit of Part-VI of the Bar Council of India Rules.

Senior Advocates Kapil Sibal and Dr. AM Singhvi are Parliamentarians representing the Congress Party.

In the alternative, he had sought for a direction to quash Rule 49 of the Bar Council of India Rules as ultra vires the Constitution and its basic structure, and to permit all Public Servants to practice as Advocates.

The Bar Council of India (BCI) too had issued notice to MPs, MLAs and MLCs who continue to practice law, following Upadhyay’s submission that since the legislators are being paid salary by the government, they cannot be allowed to practice, as per the Advocates Act and BCI Rules.

Interestingly, the Central government through Attorney General KK Venugopalhad opposed the petition,  contending that a Member of Parliament (MP) is an elected representative, and is not a full-time employee of the Government of India, and hence cannot be stopped from practicing law.

“They are doing a public service in their capacity as an MP. You can’t stop a person from practising a profession. It is a fundamental right to carry on a profession”, Venugopal had argued.

Senior Counsel Shekhar Naphade had represented the petitioner.

Questionable verdict. They are treated as public servants in corruption cases against them. There can be conflict of interest when a law which is to be enacted is against the interest of their clients and they vote against it even if it is in public interest.

Advocate/ legal profession is fulltime profession. Public representative viz. M.P./ MLA are bound to duty serve public full time. They can not say that they will serve/ perform their duties for part time either way.
In both position full time duty is badly required. So they should be banned from practising. According  to me, SC must review its Judgment.

When they are urgently required, either at Court or for Public duties, they are not available.
Even there are all possibilities of conflict of timing while dicharging their duties.
MLA-MP are getting undue advantages in profession. They are softly treated in court and they are getting government briefs.