Lawyers elected as lawmakers can practice in courts, says Supreme Court

The Supreme Court of India. File   | Photo Credit: Rajeev Bhatt

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

The judgment by a Bench of Chief Justice of India Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud comes as a great relief to many sitting MPs of both the BJP and the Congress, who are practising lawyers in the Supreme Court and in the High Courts.

More importantly, the Supreme Court said there is no conflict of interest if the MPs are allowed to practise law in the Supreme Court and in the 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 Opposition MPs, for the first time in history, unsuccessfully moved an impeachment motion against Chief Justice Misra.

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

The judgement said lawmakers could not be described as “full-time salaried employees” of the State. They were elected representatives and occupied 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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Printable version | Jan 18, 2021 7:20:21 AM |

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