Can a statesman be your attorney ?

Can legislators be debarred from practising as advocates during the period when they continue to be the Members of Parliament or the State Assembly/Council?

As per Section VII (Restriction on other Employments), Rule 49 of the Bar Council of India Rules:

“Rule 49. An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice, 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 practice as an advocate so long as he continues in such employment.”

This rule came up for consideration before a three-Judge Bench of the Hon’ble Supreme Court in Satish Kumar Sharma Vs. Bar Council of H.P. [(2001) 2 SCC 365]

In that case, the appellant after obtaining L.L.B. degree came to be appointed as Assistant (Legal) in H.P. State Electricity Board, which post was later redesignated as ―Law Officer Grade II. Further, the Board permitted the appellant to act as an advocate on its behalf. The appellant was also enrolled by the Bar Council as an advocate and was issued a certificate in that behalf, in furtherance of which he represented the Board when necessary. The appellant after some time was posted as ―Under-Secretary (Legal)-cum-Law Officer on promotion whereupon the Bar Council moved into action for cancellation of his enrollment. In Paragraph 10 of the said decision, while considering the challenge, it was observed:

“The profession of law is called a noble profession. It does not remain noble merely by calling it as such, unless there is a continued, corresponding and expected performance of a noble profession. Its nobility has to be preserved, protected and promoted. An institution cannot survive on its name or on its past glory alone. The glory and greatness of an institution depends on its continued and meaningful performance with grace and dignity. The profession of law being noble and an honourable one, it has to continue its meaningful, useful and purposeful performance inspired by and keeping in view the high and rich traditions consistent with its grace, dignity, utility and prestige. Hence the provisions of the Act and the Rules made thereunder inter alia aimed to achieve the same ought to be given effect to in their true letter and spirit to maintain clean and efficient Bar in the country to serve the cause of justice which again is a noble one.”

Recently, in the matter of Ashwini Kumar Upadhyay v. Union of India & Anr., on September 25th, 2018, a 3-Judge Bench of the Hon’ble Supreme Court comprising of the then Hon’ble Chief Justice of India Dipak MisraJustice A.M. Khanwilkar and Justice Dr. D.Y. Chandrachud enunciated that by no standards, Rule 49 as a whole can be invoked and applied to the legislators. Sans any express restriction imposed by the Bar Council of India regarding the legislators to appear as an advocate, there can be no restriction on the legislators to practise as advocates during the relevant period.

Can legislators be termed as “full-time employees” ?

As per Para 14 of the said judgement:

  • Rule 49 applies where an advocate is a full-time salaried employee of any person, government, firm, corporation or concern. Indubitably, legislators cannot be styled or characterized as full-time salaried employees as such, much less of the specified entities. For, 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.
  • Indeed, the 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.
  • Even the expansive definition of term ―person in the General Clauses Act will be of no avail. The term ―Employment may be an expansive expression but considering the Constitutional scheme, the legislators being elected people‘s representatives occupy a seat in the 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.

Can the court debar elected people’s representatives from practising during the period when they are MPs/MLAs/MLCs ?

As per Para 15 of the said judgement:

  • There is no other express provision in the Act of 1961 or the Rules framed thereunder to even remotely suggest that any restriction has been imposed on the elected people‘s representatives, namely, MPs/MLAs/MLCs to continue to practise as advocates. In 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/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, not being a case of discrimination between equals or unequals being treated equally.

Does the fact that legislators draw salary and allowances establish a relationship of a full-time salaried employee ?

As per Para 17 of the said judgement:

  • The fact that the legislators draw salary and allowances from the consolidated fund in terms of Article 106 of the Constitution and the law made by the Parliament in that regard, it does not follow that a relationship of a full-time salaried employee(s) of the Government or otherwise is created.
  • 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 including vacates the seat for having incurred disqualification as may be prescribed by law.

Isn’t it professional misconduct ?

As per Para 19 of the said judgement:

  • Merely because the advocate concerned is an elected people‘s representative, it does not follow that he/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.

Conclusion

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. (Para 20)

Copy of the judgement : Judgement 25-Sep-2018

-Tushar Kaushik

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