By Arushi Sharma
The Bar Council of India (BCI) has issued notices to various politicians in response to a plea filed by Supreme Court advocate Ashwini Upadhyay that lawmakers should not practice as lawyers. The council has also sought replies from lawmakers: Members of Parliament and state legislative assemblies, on the matter. A week’s time has been allotted to them for submitting responses, following which a three-member expert committee will make a decision.
The decision will affect around 500 lawmakers who are also practising law professionally. The case, which is centred on the issue of conflict of interest faced by such lawyer-politicians, will receive a final hearing on January 22.
Legislators as public servants
According to Ashwini Upadhyay, legislators should be disqualified from practising as it does not bode well for their developmental duties. MPs are responsible for initiating works in their constituency by utilising the annual allocation of Rs 5 crore under the Local Area Development Scheme. He argues that MPs and MLAs are public servants, as defined in Section 21 of the Indian Penal Code and Section 2 of the Prevention of Corruption Act. Therefore, the current situation also goes against the constitutional mandate.
He had also previously written on the same subject to the Chief Justice of India (CJI), JS Khehar, who had dismissed his petition. The bench headed by CJI Khehar had noted, “There are doctors who became IAS officials, and engineers who are diplomats,” hence there was no merit in the proposed ban on lawyers.
Concerns around ethics and morality
The legislator-lawyer overlap means that such politicians participate in matters of financial interest of the country as well as of their prospective employers. MPs and MLAs receive salary and benefits from the consolidated fund of India for the performance of public duty alone. Thus, it follows that defending a private individual could be unethical and immoral, besides being potential professional misconduct. As such, lawmakers enjoy both a petitioner’s fee and salary from the respondent; there are concerns about the possibility of a conflict of interest. P Chidambaram, Abhishek Manu Singhvi, Vivek Tankha, and Kapil Sibal are some prominent MPs who are also engaged in legal practice.
An alternative viewpoint
Parliamentary discussions are enriched from the presence of diversity. This includes a variety of expertise. It could be argued that the coherent argumentation and articulation applied by lawyers is capable of benefitting the process of framing laws. Moreover, one should not assume that unethical behaviour would be a universal issue for lawyer-lawmakers. Furthermore, incidents of transgression can be reported to Ethics and Privileges Committees. The need to single out lawyers is questionable also because wrongdoings can arise in the case of business persons, doctors, and engineers as well.
Addressing the technicalities
According to Rule 49 of the Bar Council of India, any full-time ‘salaried employee’ cannot practice as a lawyer before a court of law; and this lies at the core of the debate on engagement in dual professions. Meanwhile, there is no clarity on whether the remuneration received by the MPs and MLAs should even be considered earnings from a ‘profession.’ While such compensation may accrue to them in the form of a salary or pay slip; it is currently termed as “allowance.”
Clearly, there is a need to approach the issue with much more clarity and logic instead of impulsively imposing a ban.
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