The Supreme Court on September 25, 2018 dismissed a petition seeking a declaration that a person cannot be permitted to perform the dual role of a lawyer and a legislator (MP/MLA). The apex court ruled that it cannot restrict MPs and MLAs from practising law.
The three Judge Bench comprising Chief Justice Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud pronounced the Judgment on a petition filed by BJP leader and Advocate Ashwini Kumar Upadhyay.
Petitioner Upadhyay was seeking to bar lawyer-lawmakers such as MPs and MLAs from practising in courts during their tenure in legislature.
Ashwini Kumar Upadhyay’s letter to BCI
In December 2017, Upadhyay had addressed a letter to Manan Kumar Mishra, Chairman of Bar Council of India, seeking banning of MPs and MLAs from practicing law.
The letter reiterated the decision rendered by the Supreme Court in the case of Dr. Haniraj L. Chulani v. Bar Council of Maharashtra & Goa, 1996, wherein it was held that a person qualified to be an Advocate, would not be admitted if he is in full-time or part-time service or employment, or is engaged in any other trade, business or profession.
The ruling also cited Section VII, Chapter-II of Part-VI of the Bar Council of India Rules, which list down restrictions on other employments.
Response to Upadhyay’s letter
In response to the letter, the BCI sub-committee was formed comprising BC Thakur, RG Shah, DP Dhal and S Prabhakaran. The committee had ruled that legislators can be allowed to practice law.
In its order, the sub-committee had observed:
“All kinds of legally regulated professions like medicine and law, howsoever demanding they may be, are compatible with public services/duties… We should not forget the fact that lawyers like Mahatma Gandhi, Bal Gangadhar Tilak, Dr. Ambedkar, Jawahar Lal Nehru, Dr. Rajinder Prashad, Lala Lajpat Rai, Rajgopalachari, and CS Dass have played important and crucial role in our freedom struggle while they were practicing advocates.”
The committee also noted that there is no valid reason as to why services of an advocate, who happens to become a Member of Parliament (MP) or a Member of Legislative Assembly (MLA), should not be available to general litigant public who are pained by any act of the government.
Upadhyay’s take after recommendation of the BCI sub-committee
Following the recommendation of the sub-committee, Upadhyay had petitioned in the Supreme Court, challenging against the permission to an individual to perform the dual role of a lawyer and a legislator on grounds of conflict of interest and violation of BCI rules.
He contended that a salaried person, particularly a public servant, cannot practice as an advocate. Legislators take fee from litigant and salary from the public exchequer, which is a professional misconduct.
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