The Bar Council of India has send out notices to practicing advocates who happen to be members of Parliament (MPs) or members of legislative councils or assemblies (MLAs and MLCs) asking why they should not be barred from the profession. Rules require that advocates not be engaged in any other full-time trade, occupation or profession.
An expert committee of the BCI is considering a plea filed by Supreme Court advocate Ashwini Upadhyay to ban the lawmakers who practice as advocates, saying they are salaried public servants and cannot ride two horses at the same time.
The three-member panel of top BCI office-bearers and advocates B.C. Thakur, R.G. Shah and D.P. Dhal is examining the provisions of the Advocates Act and the Bar Council of India Rules on the question.
An advocate, in India, is a lawyer eligible to practise in a court of law. The Bar Council of India is the apex body of lawyers in the country. It is a statutory body that regulates the legal profession.
“The Council has thought it proper to invite the comments of the learned MPs/MLAs/MLCs (who are in the legal profession) before taking any final decision in the matter with regard to ban on their practice. The Council requests the MPs/MLAs and MLCs to furnish their comments within a week. The Council will meet on January 22, 2018 to take final decision,” reads the bar council notice, which is posted on its website.
The council’s notice was prompted by a representation made to it by an advocate, Ashwini Kumar Upadhayay, who raised the issue saying politicians who are advocates (and vice versa) are engaging in two professions, legislators and advocates,- which is not permissible under BCI rules. He has cited judgements of the Supreme Court and BCI rules in his representation.
He has contended that as MPs and MLAs draw their salaries from the Consolidated Fund of India, they are “employees of the State”.
The BCI Rule 49 restricted a salaried employee from practising as advocate, the petition pointed out. Many senior advocates practising in the Supreme Court were also politicians and sitting MPs.
“Members of Executive and Judiciary are not permitted to practice as an advocate, but people’s representatives, who are also public servants, are allowed (to do so), which is against the spirit of Article 14-15 of the Constitution. “
Apart from being in violation of BCI rules, advocates who double as lawmakers also run the risk of conflict of interest.
Bar Council of India Chairman, Manan Mishra said: “We have hosted the notice on the BCI website and will start sending out individual notices from tomorrow. MPs like Kapil Sibal, Salman Khurshid, Abhishek Manu Singhivi, Meenakshi Lekhi, Bhupendra Yadav, KTS Tulsi, Satish Mishra and P Chidambaram will be served notices by emails or indiviually. “