Above: Supreme Court

This appeal is despite the Supreme Court’s earlier ruling that advocates who become MPs or MLAs could continue practising

Delhi BJP spokesperson and lawyer Ashwini Upadhyay, a generally vociferous advocate of debate, has written to the Bar Council of India (BCI) asking it to debar MLAs and MPs from practising as advocates in courts of law.

However, it has to be noted that in March 2012 the Supreme Court had ruled that under the Advocates act and Bar Council rules, lawyers who have become MPs and MLAs can continue their practice. The court had also said at that time that there is no bar against an elected representative to continue his or her practice despite the fact these MPs and MLAs are drawing salaries and are also enjoy other perks.

At that time the apex court had rejected a claim that an MP or MLA should also be debarred from doing practice like other full time employees during their term as MP or MLA. The bar comes in when the MP or MLA becomes a minister. Senior lawyers such as Ram Jethmalani had continued his practice even after becoming an MP. Current finance minister Arun Jaitley is also remains a member of the bar and does practice, as was evident when he argued his own case (defamation case against Delhi Chief Minister Arvind Kejriwal) in court.

Despite this precedent, Upadhyay has again cited the BCI rules and an earlier Supreme Court judgment in support of his demand. He has also addressed a copy of the letter to the Chief Justice of India.

In his letter (see here) to the Chairman, Bar Council of India, he has quoted from Chapter-II of Part-VI of the BCI Rules that deals with ‘Standards of Professional Conduct and Etiquette’, especially on ‘Restriction on other Employments’ in which the several sections say that an advocate may not personally engage in any business (though he may be a sleeping partner in any such business), “cannot be a full time salaried employee of any person, government, firm, corporation or concern so long as he continues to practise…”

Upadhyay also quotes from a past judgement of the top court. He says: “On 8.4.1996, in Dr. Haniraj L. Chulani versus Bar Council of Maharashtra & Goa [1996 AIR 1708, (1996) SCC (3) 342] the three Judges Bench of Hon’ble Supreme Court has held that a person who is qualified to be admitted as an Advocate but is in either full time or part-time service or employment or is engaged in any trade, business or profession shall not be admitted as an Advocate. The apex court observed that: ‘Legal profession requires full time attention and would not countenance an Advocate riding two horses or more at a time’.”

He also states:  “The Members of Executive and Judiciary are not permitted to practice as an Advocate before the Court of Law but the People Representatives, who are also a Public Servant are allowed, which is against the spirit of Article 14-15 of the Constitution… (The) Legislator enjoys better salary, allowance and post-retirement benefits than members of Executive and Judiciary. It is a honourable and fulltime profession but does not remain noble merely by calling it as such, unless he is dedicated for welfare of people. Legislators are expected to put fulltime service to public and their constituents ahead of their personal interests.”

—India Legal Bureau