Bar Council mulls ban on legal practice by legislators

The Bar Council of India (BCI) has appointed an expert committee to consider a petition to ban lawmakers — Members of Parliament and Members of the Assemblies — from practising as advocates in courts, on the grounds that they are salaried public servants and cannot ride two horses at the same time.

“The three-member panel is examining the provisions of the Advocates Act and the Bar Council of India Rules in this respect. They will file their report in the next few days,” Bar Council of India (BCI) Chairman and senior advocate Manan Kumar Mishra informed mediapersons.

The panel is composed of top BCI office bearers and advocates B.C. Thakur, R.G. Shah and D.P. Dhal. The petition filed by Supreme Court advocate Ashwini Upadhyay contended that MPs and MLAs draw their salaries from the Consolidated Fund of India, hence, are “employees of the state”.and the BCI Rule 49 restricts a salaried employee from practicing as Advocate,” he said. . Many senior advocates practising in the Supreme Court are also party politicians and sitting MPs.

“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 before the BCI.

He 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. “They appear against the State to defend their lawbreaker clients in the Court of Law, which is a matter of conflict of interest,” Mr. Upadhyay submitted.

While an advocate should be fully dedicated to his profession, legislators are also expected “to dedicate their full time to public and their constituents ahead of their personal and financial interests,” the petition said.

“Legal profession requires fulltime attention and would not countenance an advocate riding two horses at a time. It is impossible for a person to perform two fulltime duties at a time. Therefore, MLAs and MPs must be barred from practicing as an advocate,” Mr. Upadhyay pleaded.

The petitioner also argues that the legal profession is an honorable profession but does not remain noble merely by calling it as such, unless an Advocate is fully dedicated for this profession. Similarly, legislators are also expected to dedicate their full time to public and their constituents ahead of their personal and financial interests.

The petition also cites that the Supreme Court in its Judgment dated 8.4.1996 [Dr. Haniraj L. Chulani versus Bar Council of India] has held that a Doctor cannot practice as an Advocate before the Court of Law until he leaves his medical practice.

The petition also cites several other SC verdicts to the efffect that a salaried employee cannot practise as an Advocate in the Court of Law.