Above: Bar Council of India office in New Delhi/Photo: Anil Shakya

The issue of MPs and MLAs who are lawyers, also appearing before courts of law to argue cases, has already received a green signal from the Supreme Court – as per a judgment of the apex court in March 2012 – but the issue has not gone away.

The top court’s green pass was till an MLA or an MP becomes a minister. The freedom to practice ends there.

Recently (December 18), Delhi BJP spokesperson Ashwani Upadhyay had written to the Bar Council of India (BCI) to bar such MPs and MLAs from appearing in courts, saying that since they are people’s representatives with salaries and perks.

By practicing, they will be having an office of profit. He said this was “against the spirit of Articles 14 and 15 of the Constitution of India.”

The BCI is looking into this and recently even set up a three-member committee to look into Upadhyay’s application.

BCI Chairman Manan Kumar Mishra has been quoted as saying: “We have appointed a three-member committee, which is looking into the application and the report will be tabled before me within a week. Since the committee is currently working on this, there can be no conclusion as yet.”

Upadhyay says that salaried MPs and MLAs were “employees of the state” and complain that “many MPs, MLAs appear as an advocate even during Parliament/Legislative Assembly session and participate in matters that affect the financial interests of the country and with a person with whom they have a prospective employment”.

While this letter is under consideration by the BCI, adding weight to it was another petition to the BCI, filed by the National Lawyers Campaign for Judicial Transparency and Reforms (NLC). The president of this organisation is Mathews J Nedumpara who has earned a bit of fame of late, having represented Kolkata High Court judge, Justice CS Karnan, who has just finished a six-month jail period for contempt of court.

Nedumpara’s petition takes a somewhat different route. He insists that since the Constitution has separated the executive and the Judiciary with the good reason for creating autonomy and independence in their respective actions, this inter-mixing of actions by advocates-cum-law makers is going against the spirit of the Constitution.

He argues that since the lawmakers are in a position to appoint (the last step of the process that starts with the Collegium) judges as well as impeach them, it was necessary that the two branches of the government do not mix.

While the BCI’s decision what to do with Upadhyay’s petition will be known this week, it is not clear if the BCI will also consider this application by this independent body.

—India Legal Bureau