Can legislators practise in court?

Law teachers who are full-time salaried employees of universities and colleges are not eligible to enrol as advocates and practice in the courts. Rule 49 of the Bar Council of India (BCI) prohibits any salaried person from practising law. But sitting MPs and MLAs of various political parties, who draw salary on a full-time basis from the state exchequer, are enrolled as advocates and practise in courts across the country.

Most of them are designated senior advocates of the Supreme Court and the high courts. In terms of salaried status, both MPs/MLAs and law teachers are on an equal footing. However, the former has been visibly flouting the BCI norms and the latter has never been issued licence to practise.

Are the two categories of people different by virtue of the social status that lawyers-turned-legislators have gained while law teachers remain only the 'general electorate'? Could there be a differential treatment under law in such a case?

These are intriguing questions that have been brought to light by Ashwini Kumar Upadhyay vs Union of India & Others' in the Supreme Court. The writ petition seeks judicial intervention on this issue and contests the right of MPs and MLAs to remain enrolled and practise law while they are full-time salaried persons. Such a petition has come quite late but has touched upon a significant issue which will have wide socio-political and legal implications.

Legal position

Part VI, Chapter II of BCI Rules, which provides for the rules on Standards of Professional Conduct and Etiquette governing the advocates, is the foundation of this writ petition.

This rule clearly lays down that "An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practise as an advocate so long as he continues in such employment."

In view of this rule, the court has served notice to the sitting members of legislature who are enrolled as advocates and are practising in courts, inviting their comments.

This raises three concerns. First, are MPs and MLAs above the law? Shouldn't the law apply to them as it does to any other citizen of the country? Second, is it ethical for MPs and MLAs to draw a salary, several privileges and benefits from the State as sitting members of legislature and at the same time continue to charge high legal fees as practising lawyers?

In this context, we must not forget that most MPs and MLAs who are appearing as lawyers in courts are senior lawyers of the Supreme Court and high courts. And the legal fee charged by senior lawyers is quite exorbitant. None of them is appearing in court for legal-aid or for charity. Thirdly, can BCI justify its differential treatment of MPs/MLAs and law teachers?  

Any legally trained person would answer the first concern in the negative. All members of legislature are certainly first the citizens of this country and hence equally bound by the law of the land like any other citizen.

With respect to the second concern, it clearly is a question of law and ethics. Legally, this practice would not hold good, if BCI's Rule 49 is interpreted strictly and literally. And even ethically, MPs and MLAs cannot justify carrying on in the legal profession. This is because as lawyers they represent and defend in court various offenders of the law, companies involved in frauds, and even politicians accused of criminal activities. And they charge lakhs of rupees as legal fees per appearance in court.

There is a direct conflict of interest in their role as law-makers and at the same time defending law-breakers and, on top of that, drawing financial gains in the form of legal fees. Lastly, the differential treatment by BCI of legislators and law teachers is in clear violation of Articles 14 and 15 of the Constitution of India.

The petition is sub-judice before the Supreme Court but a general public scrutiny is essential given its far-reaching repercussions. Its resolution would largely affect lawyers-turned-politicians immensely, for they could possibly lose their right to continue legal practice during their term as legislators.

It will also reinforce the principle that no differential treatment should be claimed by MPs and MLAs in carrying on certain professions or business while prohibiting other classes of salaried persons, like law teachers, from similar benefits.

Equality before the law is the core of our Constitution. Hence, it should also remain ingrained in the conduct of law-makers.

(The writer is Assistant Registrar (Research), Supreme Court of India, and Assistant Professor, NLU Odisha)