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Lawmakers can practise law: Supreme Court

SC rules that since elected members not full-time employees, they cannot be barred as advocates

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The Supreme Court on Tuesday ruled that there is no more a bar on a Member of Parliament, State Assembly or Legislative Council, from practicing as an advocate, clearing the way for several eminent lawyers elected to Parliament and Assemblies to continue in the legal profession.

The bench of Chief Justice Dipak Misra, Justices AM Khanwilkar and DY Chandrachud said that elected MPs/MLAs/MLCs are not full-time employees, and hence they will not be disqualified under Rule 49 of the Bar Council of India Rules that prohibits lawyers from taking up any other profession.

Justice Khanwilkar, writing the judgment for the bench, said, "As regards the legislators (MP/MLA/MLC), they occupy a unique position. They are not appointed, but are elected by the electors from respective territorial constituencies." The issue came to court in a PIL filed by lawyer Ashwini Kumar Upadhyay who wanted legislators to be barred from practicing before courts.

A month after the petition was filed in February 2018, the Court invited the views from Attorney General and Bar Council of India (BCI). The BCI constituted a sub-committee to consider this issue. The sub-committee recommended that considering the history of the country where lawyers have played a seminal role in the freedom struggle movement and offered a yeoman service with their contributions towards framing of Constitution and enacting laws in Parliament, prohibiting their legal practice would not be just. The BCI adopted the sub-committee's recommendation in its meeting held on March 31 this year.

But, the legal question still remained on whether MPs, who receive emoluments under The Salary, Allowances and Pension of Members of Parliament Act, 1954 and similar provisions applicable to MLAs/MLCs can continue with their profession in courts as well.

The bench held, "We hold that the provisions of the Advocates Act, 1961 and the Rules framed thereunder, do not place any restrictions on the legislators to practice as advocates during the relevant period." It explained by saying, "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."

The apex court said that although the legislators are deemed to be public servants, their status is unique and certainly not one of a full-time salaried employee. A point was also argued whether MPs who have power to remove judges can appear in courts, leading to a possible clash of interest. This argument too was dismissed by the top court.

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