Lawyers elected as lawmakers can practice in courts: SC

The Supreme Court on Tuesday held there is no bar on legislators doubling up as lawyers.

The judgment by a three-judge Bench of Chief Justice of India Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud comes as a great relief for many sitting MPs in both BJP and Congress who are practising lawyers in the Supreme Court and various high courts.

More importantly, the Supreme Court said there is no conflict of interest if MPs are allowed to practice law in Supreme Court and high courts before the very judges they have power to impeach.

“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 conflict of interest or a case of impacting constitutional morality or for that matter institutional integrity,” Justice Khanwilkar, observed.

The writ petition, filed by advocate Ashwini Kumar Upadhyay, had argued that legislators donning the lawyers’ robes is a “matter of serious concern to the judiciary”.

It was only recently that the Opposition MPs, for the first time in history, unsuccessfully moved an impeachment motion against Chief Justice Misra.

Should MPs and MLAs be barred from practising law?

The Bench dismissed the arguments made in the petition that such legal practice by lawmakers is in violation of Rule 49 of the Bar Council of India Act, which forbids an advocate to be “full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice”. Mr. Upadhyay had argued that lawmakers drew their salaries and pensions from the public exchequer and hence could be classified as “employees”.

The judgment said lawmakers cannot be described as “full-time salaried employees” of the State. They are elected representatives and occupy a “unique position” in our democracy.

“The status of legislators [MPs/MLAs/MLCs] is of a member of the House [Parliament/State Assembly]. The mere fact that they draw salary or different allowances 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 Supreme Court held.

Though legislators are deemed to be public servants, their status is certainly not one of a full-time salaried employee of any person, government, firm, corporation or concern, Justice Khanwilkar wrote.

Again, 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”.

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