No bar on legislators practising as lawyers

New Delhi: Holding that lawyers are not full-time salaried employees, the Supreme Court on Tuesday rejected a petition seeking a direction to debar legislators from practising as advocates (during the period when they are Members of Parliament or of state Assembly or Council).

Giving this ruling, a three-judge bench of Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud also refused to entertain the plea of BJP leader and advocate Ashwini Kumar Upadhyay to declare Rule 49 of the Bar Council of India Rules, prescribing restriction on full-time employees from practising as lawyers as arbitrary and ultra vires the Constitution and to permit all public servants to practise as an advocate.

Writing the judgment, Justice Khanwilkar pointed out that Rule 49 applies where an advocate is a full-time salaried employee of any person, government, firm, corporation or concern. Indisputably, legislators cannot be styled or characterised as full-time salaried employees as such, much less of the specified entities. For, there is no relationship of employer and employee.

The court said that the status of legislators (MPs, MLAs and MLCs) is of a member of the House

(Parliament or Assembly). The mere fact that they draw a salary or different allowances does not result in the creation of a relationship of employer and employee between the government and the legislators, despite the description of payment received by them in the name of salary.

The bench said that legislators are deemed to be public servants, but their status is sui generis and certainly not one of a full-time salaried employee of any person, government, firm, corporation or concern as such. Considering the Constitutional sch-eme, legislators being elected people’s representatives occupy a seat in Parliament, Assembly or Council as its members and are not in the employment of, or for that matter, full-time salaried employees, the bench observed.

The bench pointed out that there is no other express provision in the Bar Council of Act of 1961 or the Rules framed thereunder to even remotely suggest that any restriction has been imposed on the elected people‘s representatives to continue to practise as advocates.

In the absence of an express restriction in that behalf, it is not open for this court to debar the elected people‘s representatives from practising during the period when they are MPs, MLAs or MLCs. It is also not possible to strike down Rule 49 on the ground that the stated class of persons is excluded from its sweep. Thus, merely because the advocate concerned is an elected people‘s representative, it does not follow that he or she has indulged in professional misconduct, the bench observed.

“Similarly, the conferment of power on the legislators (MPs) to move an impeachment motion against the judge(s) of Constitutional courts does not per se result in a conflict of interest or a case of impacting constitutional morality or for that matter institutional integrity. In the context of the relief claimed in the main petition, we do not wish to dilate on the other arguments that India needs dedicated and full-time legislators, who will sincerely attend Parliament on all working days when called upon to do so. For, the limited question considered by us is whether legislators are and can be prohibited from practising as advocates during the relevant period,” the court observed.

As there is no express provision to prohibit or restrict legislators from practising as advocates during the relevant period, the question of granting relief, as prayed, to debar them from practising as advocates cannot be countenanced. As of now, the Bar Council of India has made its stand explicitly clear that no such prohibition can be placed on the legislators. As a result, the reliefs claimed in this writ petition are devoid of merit, the bench said.