STATING THAT legislators are not “full time salaried employees”, the Supreme Court on Tuesday ruled that advocates who become lawmakers can continue their legal practice as there are no such restrictions under the Advocates Act, 1961.
“To sum up, we hold that the provisions of the Act of 1961 and the Rules framed thereunder do not place any restrictions on the legislators to practise as advocates during the relevant period. The closest rule framed by the Bar Council of India is Rule 49 which, however, has no application to the elected people’s representatives as they do not fall in the category of full time salaried employee of any person, firm, government, corporation or concern,” said a three-judge bench headed by Chief Justice of India Dipak Misra, dismissing a petition filed by Delhi BJP leader and advocate Ashwini Kumar Upadhyay.
Rule 49 deals with a situation where an advocate becomes a full time salaried employee of any person, government, firm, corporation or concern. The petitioner had cited this to buttress his stand that a legislator is a full time salaried employee of the government and, hence, cannot be allowed to practise as an advocate.
The court, however, did not agree with this contention. It said that legislators “cannot be characterised as full time salaried employees as such, much less of the specified entities. For there is no relationship of employer and employee. The status of legislators (MPs/ MLAs/ MLCs) is of a member of the House (Parliament/ State Assembly).”
It said the mere fact that legislators draw salary under the 1954 Act (The Salary, Allowances and Pension of Members of Parliament Act, 1954), or different allowances under the relevant Rules framed under the said Act, does not create an employer-employee relationship between the government and the legislators, despite the description of payment received by them in the name of salary.
The legislators are deemed to be public servants, but their status is “sui generis” and certainly not one of a full time salaried employee of any person, government, firm, corporation or concern as such, said the court. It ruled that legislators, being elected people’s representatives, occupy a seat in Parliament/ Legislative Assembly/ Legislative Council as members, but are not full time salaried employees as such.
“They occupy a special position so long as the House is not dissolved. The fact that disciplinary or privilege action can be initiated against them by the Speaker of the House does not mean that they can be treated as full time salaried employees. Similarly, the participation of the legislators in the House for the conduct of its business, by no standards can be considered as service rendered to an employer,” it said, adding that they cease to be a member only when the House is dissolved, if they resign, or vacate the seat upon incurring disqualification to continue to be a legislator.
Upadhyay had said that if lawmakers were allowed to practise as advocates, they would charge fees from their private clients and, at the same time, continue to draw salary from the public exchequer, which would amount to professional misconduct. They also appear on television channels and give interviews to the media, which entails advertisement, he said, adding that there were other conflicts of interest too.
The petitioner had taken up the matter with the Bar Council of India, which had appointed a sub-committee to examine the question. The sub-committee was of the opinion that legislators could not be prohibited from practising law. This was eventually accepted by the general council of the Bar Council of India at its meeting on March 31 this year.
Several legislators like Kapil Sibal, P Chidambaram, Abhishek Manu Singhvi, Pinaki Misra and Meenakshi Lekhi are also practising lawyers.