A three-judge bench of the Supreme Court held that there is no bar on legislators from practicing in courts.
The judgement was on a writ petition filed by BJP leader and advocate Ashwini Kumar Upadhyay. The petition argued that such legal practice by lawmakers was 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”.
The petition also said that legislators practicing in various courts was a violation of Article 14 of the Constitution as public servants cannot practice as an advocate.
The petition said “They also utilise their position as MPs/MLAs to be visible in the public domain, including on television, where they give interviews or participate in shows. This essentially amounts to advertising as their “brand” is promoted among the public while many of whom are potential litigants. This virtually seamless transition between the two spheres of legislators is causing irreversible harm to both the professional and public interest”.
MPs and MLAs are elected representatives and not full-time employees of the government, the Centre said.
Senior advocate Shekhar Naphade, appearing for Mr. Upadhyay, argued that MPs and MLAs are employees of the State as they draw their salaries from the Consolidated Fund of India. A salaried employee is debarred by Bar Council of India from practicing in courts.
The bench constituting Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud replied that employment postulates a master-servant relationship and the government of India is not the master of a Member of Parliament.
The judgment authored by Justice Khanwilkar said MPs and MLAs do not come under the definition of full-time paid employees of the state.