It refers to the Bar Council of India (BCI) seeking views of lawyers working as legislators (Parliamentarians and MLAs) on their continuing legal-practice while being public-servants. BCI-rules clearly mention that not only public-servants but even private salaried persons are not allowed to legal practice. Supreme Court of India in the year 1979 in the matter ‘Karunanidhi versus Union of India’ had made it clear that all legislators are public-servants with doctrine of master-servant or employer-employee not applicable on them. Since all other public-servants are not allowed to legal-practice, it is violation of Article (14) of the constitution to be partial in allowing legislators doing legal practice.
Also advocates cannot take benefit from both sides by taking salary from public-exchequer (government side) and fees from opposite side contesting against government-side. There are chances that some legislators serving as advocates for their corporate-clients, may misuse their being legislator for lobbying or through other acts as Parliamentarians or state-legislators. It is against morals and ethics that legislators may contest court-cases on behalf of their clients contrary to ideals of their political parties which at times are even highlighted in poll-manifestoes. There is a conflict of interest when advocates as Parliamentarians can only vote for impeachment of same very judges against whom they are appearing as advocates.
Argument that if traders can become Parliamentarians, then why such ban on earning through legal practice holds no good because Parliamentarians are bound by rules of both BCI (also a public-authority) and Parliament, while others have no such binding from their trade-associations which are otherwise also not public-authorities. Though ideally since being legislator is a full-time job, no Parliamentarian or state-legislator should be allowed to hold any post anywhere even in political parties or private bodies. Even sessions of legislatures are not there throughout the year only because legislators are supposed to take care of their vast constituencies and huge number of voters for rest of the year. Argument that good lawyers may not then become part of law-making does not hold good because desiring ones leave their flourishing practice to accept post of judges. Even restricted permission of legal-practice to needy without cost by Parliamentarians in US must not be permitted in India because of chances of misuse.
Subhash Chandra Agrawal
(The views expressed by the author in the article are his/her own.)