NEW DELHI: Advocates, who become law-makers, cannot be debarred from practising in courts, the Supreme Court ruled Tuesday.
The apex court said there was no express provision either under the Rules and the law regulating the profession of the lawyers to restrict them from practising on becoming members of Parliament, state assemblies or state councils.
SC says there is no bar under the Bar Council of India Rules to debar legislators from practising in court @NewIndianXpress— kanusarda (@sardakanu_TNIE) September 25, 2018
"We hold that the provisions of the Advocates Act, 1961 and the Rules framed thereunder, do not place any restrictions on the legislators to practise as advocates during the relevant period."
"The closest rule framed by the Bar Council of India is Rule 49 which, however, has no application to the elected people's representatives as they do not fall in the category of full-time salaried employee of any person, firm, government, corporation or concern," a bench comprising Chief Justice Dipak Misra, Justices A M Khanwilkar and D Y Chandrachud, said.
The court dismissed the PIL filed by BJP leader and advocate Ashwini Upadhyay seeking to bar lawyer-lawmakers (MPs, MLAs, MLCs) from practising in courts during their tenure in the legislature.
The top court said that legislators cannot be characterised as full-time salaried employees as there is no relationship of employer and employee.
"The status of legislators (MPs,MLAs, MLCs) is of a member of the House (Parliament/State Assembly). The mere fact that they draw salary under the 1954 Act or different allowances under the relevant Rules framed under the said Act does not result in 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 court said.
The apex court said that although the legislators are deemed to be public servants, their status is unique and certainly not one of a full-time salaried employee of any person, government, firm, corporation or concern as such.
"The legislators being elected people's representatives occupy a seat in Parliament/ Legislative Assembly or Council as its members but are not in the employment of or for that matter full-time salaried employees as such. They occupy a special position so long as the House is not dissolved."
"The fact that disciplinary or privilege action can be initiated against them by the Speaker of the House does not mean that they can be treated as full-time salaried employees. Similarly, the participation of the legislators in the House for the conduct of its business, by no standards can be considered as service rendered to an employer," the bench said.
Observing that the legislators occupy a unique position, the court said they are not appointed but are elected by the electors from respective territorial constituencies.
"The fact that they have to take oath administered by the President/Governor before they take their seat in the House, does not mean that they are appointed by the President/Governor as such, unlike in the case of the Prime Minister/Chief Minister and Ministers in the Council of Ministers.
"The legislators receive payment in the form of salary and allowances or pension from the Consolidated Fund, is not enough to debar them from practising as advocates, sans being a full-time salaried employee of the specified entities.
They continue to remain only as member(s) of the House representing the territorial constituencies from where they have been elected until the House is dissolved or if he/she resigns or vacates the seat for having incurred disqualification as may be prescribed by law," it said.
The three-judge bench said that merely because the advocate concerned is an elected people's representative, it does not follow that he or she has indulged in professional misconduct.
"Similarly, the conferment of power on the legislators (MPs) to move an impeachment motion against the judge(s) of the Constitutional Courts does not per se result in conflict of interest or a case of impacting constitutional morality or for that matter institutional integrity," it said.
The top court also refused to go into the question that India needed dedicated and full-time legislators, who will sincerely attend Parliament on all working days when called upon to do so.
Upadhyay, in his petition, had claimed that while a public servant cannot practice as an advocate, legislators are practising in various courts which was a violation of Article 14 of the Constitution.
The plea had said the issue was a matter of concern to both the judiciary and the legislature as most of the lawmaker-advocates were involved in active practice of law, despite receiving salaries and other perquisites drawn on the public exchequer.
It had also said that the MPs had the power of voting on the impeachment of judges of the Supreme Court and the high courts.