Now, A Primary School Teacher Petitions SC To Debar Legislators From Practicing [Read Petition]

With BJP leader and Advocate Ashwini Kumar Upadhyay's Petition to debar legislators from practicing in Courts pending before the Supreme Court, another Petition has now been filed before the Apex Court seeking similar reliefs.

The Petition, filed by a primary school teacher, Mr. Ajay Pal, relies on the Salary, Allowances and Pension of Members of Parliament Act, 1954 and the Rules made thereunder, to contend, "Legislators receive salaries and other benefits, hence, it is necessary to apply the test laid down by the Supreme Court to examine whether in fact the MP/MLA has been so engaged by the Government to represent it as an Advocate in the Courts. This patently not being the case with MPs/MLAs. Therefore, it is clear that BCI Rule 49 has to apply with full force and they must be barred from practicing until they demit their office."

Mr Pal then asserts that a legislator "cannot faithfully discharge his duty as a Legislator if he spends time in other professions". He further points out that there arise several instances of conflicts of interest that may arise when legislators practice, submitting,

"...when a Bill is introduced in either House of the Parliament, MPs are supposed to debate on various provisions of the Bill and propose amendments. The very same MP, as an Advocate can always think about the interest of his clients while passing the Bill. It is also a “Conflict of Interest”...

...many MPs are the Director of private firms, hold corporate retainer-ship and appear against the Governments to defend their Lawbreaker clients in the Court of Law, which is not only unethical and immoral but also a “Professional Misconduct” and “Financial Corruption”."

He further alleges the violation of Article 14 of the Constitution of India, contending that while public servants and members of the judiciary are not allowed to practice any other profession, legislators are, despite the fact that they are public servants as well.

The Petition then demands that legislators be barred from practicing as Advocates until they demit office, contending, "Because India needs dedicated and full-time MPs and MLAs and not the part-time legislators. We cannot have Legislators who are sailing in two boats at a time. It is impossible for a person to look after the nation on one hand religiously and practice other professions simultaneously."

In the alternative, the Petition demands that Rule 49 of the Bar Council of India Rules be declared ultra vires the Constitution of India, thereby, permitting public servants and members of the judiciary to practice.

BCI sub-committee ruling

The BCI sub-committee, formed in response to the letter addressed to the Chairman of Bar Council of India,  Mr Manan Kumar Mishra by Upadhyay, had recently ruled that legislators can be allowed to practice.

In its order, the sub-committee comprising B.C. Thakur, R.G. Shah, D.P. Dhal and S. Prabhakaran had observed, "For that matter, all kinds of legally regulated professions like medicine and law, howsoever demanding they may be, are compatible with public services/duties. Ideally all these professions, with some aberrations here and there, exist to serve the people. 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, C.S. Dass have played important and crucial role in our freedom struggle while they were practicing advocates.

There is no valid reason as to why services of an advocate, who happens to become an MP/MLA, should not be available to general litigant public who are aggrieved by any act/deed of the government." You may read a brief of the reasoning here.

Mr. Upadhyay's Petition

Mr. Upadhyay then petitioned the Apex Court, challenging 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.

"The injury caused to the public because a salaried person and particularly a public servant cannot practice as an Advocate but Legislators are practicing which is a violation of Article 14 of the Constitution. Legislators take fee from litigant and salary from the public exchequer, which is professional misconduct," he contends. You may read his Petition here.