YES, NO, IT’S COMPLICATED |

Should MPs and MLAs be barred from practising law?

A view of the Supreme Court building, in New Delhi. File picture

A view of the Supreme Court building, in New Delhi. File picture   | Photo Credit: PTI

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YES

 

 

Ashwini Upadhyay

We don’t need part-time legislators, we need dedicated parliamentarians

My petition in court questions the dual role played by MPs or MLAs when they double up as lawyers. I have written to the Supreme Court and contested this on several grounds. This is illegal and unconstitutional. It is also unethical and immoral.

Clear rules

Rule 49 of the Bar Council of India states that any full-time salaried employee, whether he or she belongs to a corporation, private firm, or the government, cannot practise as a lawyer before a court of law. No public servant can engage in the pursuit of any other vocation and certainly cannot offer his or her services as a lawyer while in service. A five-judge Bench in M. Karunanidhi v. Union of India (1979) categorically stated that MPs and MLAs are public servants, though the employer-employee relationship will not apply to them. Mr. Karunanidhi had argued that he was not a public servant in a corruption case.

The work of a lawyer is a full-time activity. So is the work of MPs and MLAs; they are full-time members of Parliament and Assemblies. They have to take part in the proceedings of the House, meet people in their constituencies, and grapple with and address people’s issues. They have their work cut out. To facilitate their work, they are given a bungalow and a car, an office and a salary. They should go and serve the people. We don’t need part-time legislators. We need dedicated parliamentarians.

Also, no lawyer can benefit from the petitioner and the respondent. MPs and MLAs who are practising lawyers take a fee from the petitioner and get their salary from the respondent, which is the Central or State government. This is professional misconduct, as they end up enjoying the benefits of both. There is also a conflict of interest. MPs and MLAs have the power to initiate impeachment proceedings against a judge, which means that they can pressurise the judge to give a favourable verdict when they plead before him or her in a case. When you take public money and argue against the government, it is professional misconduct.

A corporate lobbyist

When MPs and MLAs find a draft Bill wanting, they should argue in Parliament, not challenge it in a court of law. Also, they take retainership from a company, which raises questions of professional misconduct as well as conflict of interest. The MP/MLA becomes a corporate lobbyist. How is it that when you bar public servants from engaging in other professional services, you allow legislators who are also public servants to open petrol pumps and argue cases in courts? This is a violation of Articles 14, 15, and 21, which deal with the right to equality, prohibition of discrimination, and protection of life and personal liberty, respectively. How can you discriminate against one public servant and not the other? A public servant is defined in Section 21 of the Indian Penal Code and Section 2 of the Prevention of Corruption Act. I am aware that my petition cuts across party lines and there are many members. My question is simple: are not MLAs and MPs public servants?

Ashwini Upadhyay is a BJP member and an advocate in the Supreme Court. He has petitioned the Bar Council of India to stop MPs/MLAs from practising as lawyers

As told to Anuradha Raman

NO

 

 

Abhishek Manu Singhvi

Parliament must remain a melting pot of diversity, even in terms of expertise

Taken to its logical conclusion, this proposition would mean that all professionals, including chartered accountants, architects and medical doctors, should also be banned. Otherwise, ex facie, it would be a discriminatory ban. Once that happens, I will be reminded of the Central Hall joke amongst many of us MPs, in my first year in Parliament, 12 years ago. Someone, who is now a Minister, reacted then to a similar proposal by saying in a lighter vein that he hoped that Parliament would not become a centre “not only of the unemployed but also of the unemployable”. It would appear that this proposal’s proponents want a Parliament like that.

Enriching Parliament

Long gone are the days when core competence, technocracy, expertise and sectoral experience were frowned upon, indeed treated as a disqualification, as this proposal seeks to do. It is supremely ironic that while globally even established sectors like the civil service (where generalists predominate) are seeking a partial conversion to specialised personnel and technocrats, we have a reversion and regression inbuilt in this outlandish idea. Parliament deserves to be enriched by diverse talents, varied experiences, and different vocational acumen. It is this diversity which is truly enriching and shows up all the time in a stray debate, in a casual conversation, in a heated intervention and, of course, in a prepared speech. Parliament must remain, as indeed our country is, a true salad bowl or a melting pot (or both) of diversity, even in terms of expertise.

The time factor

The excuse regarding lack of devotion of time is spurious and specious. As someone remarked centuries ago, the busiest person is she who finds time for everything. It is actually an oxymoron to suggest, as the proponents of this debate appear to do, that a truly successful or top professional will jeopardise her public image or political or professional career, having taken a plunge into public life, by being irresponsible in discharging the duties of either or both. No one worth her salt, either in public life or in the legal profession, will undermine her reputation by taking on that which she cannot efficiently discharge. The art of managing such pulls and pressures is known to every successful human being. It is very strange that under this proposed ban, the issue of whether one is devoting sufficient time to her professional duties is to be decided by a professional body of peers, whereas, in fact, the marketplace is the best, most clinical, and the most cruel judge of that.

Fallacious approach

In the ultimate analysis, it depends very much on the individual concerned. If she is found to be a zero contributor to the diverse debates going on today, or a negative contributor to a parliamentary discourse, or an ineffective lawyer, Adam Smith’s invisible hand will deal her a lasting and irrecoverable blow. Banning her from joining public life is certainly not the solution. The “time factor” argument is thus clearly a red herring.

The proponents have clearly not thought out this issue fully or deeply. Across the board, any number of people juggle their own profession along with a sense of civic duty, public service, social work, or politics. None of the last four vocations/activities has any legally prescribed qualification. If such qualifications were prescribed, it would be legitimate to insist on their fulfilment.

But beyond that, to add or exclude a person from law, when their alternate participation is in something which is not a profession (namely, politics), and has no prescribed legal qualification, is a fallacious and conceptually confused approach.

Abhishek Manu Singhvi is a Rajya Sabha MP and a lawyer

As told to Anuradha Raman

 

IT’S COMPLICATED

 

Meenakshi Lekhi

There are many technical questions which need to be addressed

Lawyers are articulate and known for logical thinking. Training in law helps them understand law and legislation better. Ultimately, the country has to be run in accordance with the rule of law.

The question raised in this petition is based on a 1996 judgment which actually specifies who can practise as an advocate. Briefly, the judgment says that while being an advocate, you cannot engage in any other activity either partly or fully (in trade, business, etc.). But the question is, can politics be equated with being in trade or is it an employment? What MPs and MLAs get in the form of remuneration is termed as allowance, not as earnings. But the description of what emoluments accrue to MPs is a salary slip, which is not different from a payslip.

If doctors can join politics, if chartered accountants, engineers and business tycoons can become MPs and MLAs, what is the argument against lawyers?

Politics: trade or employment?

The question that is often raised, specifically in the context of the legal profession, is a conflict of interest which arises when a lawyer accepts a brief from a corporate house and is a member of either House. Here, it is very clear that you cannot be appearing for a particular person and lobby for the person in the House. This applies to everyone. Parliament is not the place for lobbying. If you have accepted money, or have benefited in any manner, or have been briefed in a particular matter, and you lobby for that person in Parliament, that is unethical. It applies equally to business entrepreneurs who are members of State Assemblies or Parliament. One can inform the Privileges Committee or Ethics Committee in the event of a transgression. Interestingly, earlier, Ethics, Privileges and Protocol was one committee. During the United Progressive Alliance regime, this was wrongly trifurcated. Where there is a conflict of interest or office of profit, this applies equally to all.

No clear answers

The counterargument is based on a judgment of the Supreme Court in Dr. Haniraj L. Chulani v. Bar Council of Maharashtra and Goa (1996). The court held that a person qualified to be an advocate would not be admitted as one if he or she is in full-time or part-time service or employment. In continuation of the same argument, the next question is whether emoluments received by MPs or MLAs are an allowance or, as the payslip calls itself, a salary slip. There is no clear answer to these technical questions as yet.

Advocates are governed by the Advocates Act and Bar Council Rules, which seek to impose certain restrictions on practitioners of law. The discrimination also lies in the fact that practitioners of other professions — engineers, doctors, etc. — don’t face such restrictions under any legislation similar to the Advocates Act. Thus, lawyers can legitimately seek equality with other professionals. These questions point to certain lacunae which can be addressed either by the Bar Council, the courts, or Parliament. Clarity is required, as this has to be tested on grounds of equality and right to practice a profession.

The remuneration which MPs/MLAs get is meagre and is often cited as one of the reasons for engaging in other professional activities. My response to that is, you signed up for it. Being a Lok Sabha MP leaves you little time to practise as you are answerable to lakhs of people. But the argument is mostly directed at Rajya Sabha members who do not have a constituency to cater to. Their answerability is to their party. So, if there is misconduct — their presence or absence in the House or appearance for certain clients, amongst other reasons — the parties have to take note.

Meenakshi Lekhi is a Lok Sabha MP and Chairperson of the Committee of Privileges

As told to Anuradha Raman

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Printable version | Dec 6, 2019 11:37:55 PM | https://www.thehindu.com/opinion/op-ed/should-mps-and-mlas-be-barred-from-practising-law/article22369299.ece

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