Constitution of India – Art.32 – Writ petition for issuing writ/direction to debar the legislators (MPs/MLAs/MLCs) from practising as an Advocate, during the period when they are Members of Parliament or of State Assembly/Council – Plea of petitioner that u/r. 49, Bar Council of India Rules there is an express restriction on advocates to take up other employment – Held: Rule 49 applies where an advocate is a full-time salaried employee of any person, government, firm, corporation or concern – Legislators cannot be styled as full-time salaried employees as such, much less of the specified entities – Status of legislators is of a member of the House (Parliament/State Assembly) – Mere fact that they draw salary or different allowances does not result in creation of a relationship of employer and employee between the Government and the legislators, despite the description of payment received by them in the name of salary – Indeed, the legislators are deemed to be public servants, but their status is sui generis and certainly not one of a full-time salaried employee of any person, government, firm, corporation or concern as such– Therefore, Rule 49 can not be applied to the legislators– There is no other express provision in the 1961 Act or the Rules framed thereunder to even remotely suggest that any restriction has been imposed on MPs/MLAs/MLCs to continue to practise as advocates – In absence of an express restriction in that behalf, it is not open for Supreme Court to debar them from practising during the period when they are MPs/MLAs/MLCs – Further, it is for the Bar Council of India to frame Rules to impose restrictions as may be found appropriate – As of today, no rule has been framed to restrict the elected people’s representatives from practising as advocates – On the other hand, an unambiguous stand is taken by the Bar Council that being legislators per se is not a disqualification to practice law – Reliefs claimed in the writ petition devoid of merit – Salary, Allowances and Pension of Members of Parliament Act, 1954 – Advocates Act, 1961 –ss.16 and 49 – Bar Council of India Rules – Part VI – Chapter II – Section VII – r. 49.
Dismissing the writ petition, the Court
HELD: 1.1 Rule 49, Bar Council of India Rules applies where an advocate is a full-time salaried employee of any person, government, firm, corporation or concern. Indubitably, legislators cannot be styled or characterized as full-time salaried employees as such, much less of the specified entities. For, there is no relationship of employer and employee. The status of legislators (MPs/MLAs/MLCs) is of a member of the House (Parliament/State Assembly). The mere fact that they draw salary under the Salary, Allowances and Pension of Members of Parliament Act, 1954 or different allowances under the relevant Rules framed under the said Act does not result in creation of a relationship of employer and employee between the Government and the legislators, despite the description of payment received by them in the name of salary. Indeed, the legislators are deemed to be public servants, but their status is sui generis and certainly not one of a full-time salaried employee of any person, government, firm, corporation or concern as such. Even the expansive definition of term “person” in the General Clauses Act will be of no avail. The term “Employment” may be an expansive expression but considering the Constitutional scheme, the legislators being elected people’s representatives occupy a seat in the Parliament/Legislative Assembly or Council as its members but are not in the employment of or for that matter full-time salaried employees as such. They occupy a special position so long as the House is not dissolved. The fact that disciplinary or privilege action can be initiated against them by the Speaker of the House does not mean that they can be treated as full-time salaried employees. Similarly, the participation of the legislators in the House for the conduct of its business, by no standards can be considered as service rendered to an employer. One ceases to be a legislator, only when the House is dissolved or if he/she resigns or vacates the seat upon incurring disqualification to continue to be a legislator. By no standards, therefore, Rule 49 as a whole can be invoked and applied to the legislators. [Para 14] [109-E-H; 110-A-C]
1.2 There is no other express provision in the Advocates Act, 1961 or the Rules framed thereunder to even remotely suggest that any restriction has been imposed on the elected people’s representatives, namely, MPs/MLAs/MLCs to continue to practise as advocates. In absence of an express restriction in that behalf, it is not open for Supreme Court to debar the elected people’s representatives from practising during the period when they are MPs/MLAs/MLCs. It is also not possible to strike down Rule 49 on the ground that the stated class of persons is excluded from its sweep, not being a case of discrimination between equals or unequals being treated equally. It is for the Bar Council of India to frame Rules to impose restrictions as may be found appropriate. As of today, no rule has been framed to restrict the elected people’s representatives from practising as advocates. On the other hand, an unambiguous stand is taken by the Bar Council that being legislators per se is not a disqualification to practice law. [Para 15] [110-D-F]
1.3 The legislators (MP/MLA/MLC) occupy a unique position. They are not appointed but are elected by the electors from respective territorial constituencies. The fact that they have to take oath administered by the President/Governor before they take their seat in the House, does not mean that they are appointed by the President/Governor as such unlike in the case of the Prime Minister/Chief Minister and Ministers in the Council of Ministers. Article 99 of the Constitution postulates that every member of either House of Parliament, before taking the seat shall make and subscribe before the President, or some person appointed in that behalf by him, an oath and affirmation according to the form set out for the purpose in the Third Schedule. The form of oath does not suggest that the member is appointed by the President as such. Further, the legislators vacate his/her seat only in situations specified in Article 101 of the Constitution. Article 102 of the Constitution provides for disqualification for being chosen and for being a member of either House of Parliament. As regards the legislators, Article
105 provides for their powers and privileges. In the case of Prime Minister and the Ministers, the Constitution of India expressly provides for their duties as predicated in Article 78. The fact that the legislators draw salary and allowances from the consolidated fund in terms of Article 106 of the Constitution and the law made by the Parliament in that regard, it does not follow that a relationship of a full-time salaried employee(s) of the Government or otherwise is created. The fact that the legislators receive payment in the form of salary, and allowances or pension from the consolidated fund is not enough to debar them from practising as advocates, sans being a full-time salaried employee of the specified entities. They continue to remain only as member(s) of the House representing the territorial constituencies from where they have been elected until the House is dissolved or if he/she resigns including vacates the seat for having incurred disqualification as may be prescribed by law. [Para 17] [111-E-H; 112-A-D]
1.4 Merely because the advocate concerned is an elected people’s representative, it does not follow that he/she has indulged in professional misconduct. That fact will have to be pleaded and proved before the Competent Authority. Similarly, the conferment of power on the legislators (MPs) to move an impeachment motion against the judge(s) of the Constitutional Courts does not per se result in conflict of interest or a case of impacting constitutional morality or for that matter institutional integrity. Sans any express restriction imposed by the Bar Council of India regarding the legislators to appear as an advocate, the relief as claimed by the petitioner cannot be countenanced. The provisions of the 1961 Act and the Rules framed thereunder, do not place any restrictions on the legislators to practise as advocates during the relevant period. The closest rule framed by the Bar Council of India is Rule 49 which, however, has no application to the elected people’s representatives as they do not fall in the category of full-time salaried employee of any person, firm, government, corporation or concern. As there is no express provision to prohibit or restrict the legislators from practising as advocates during the relevant period, the question of granting relief, as prayed, to debar them from practising as advocates cannot be countenanced. Even the alternative relief to declare Rule 49 as unconstitutional, does not commend to this Court. The Bar Council of India has made its stand explicitly clear that no such prohibition can be placed on the legislators. The reliefs claimed in this writ petition are devoid of merit. [Paras 19-20] [116-G; 117-A, C, D-F] Kalpana Mehta v. Union of India (2018) 7 SCC 1 – relied on.
M. Karunanidhi v. Union of India and Anr. (1979) 3 SCC 431 : [1979] 3 SCR 254 ; Dr. Haniraj L. Chulani v. Bar Council of Maharashtra & Goa (1996) 3 SCC
342 : [1996] 1 Suppl. SCR 51 ; Sushma Suri v. Govt. of National Capital Territory of Delhi & Anr. (1999) 1 SCC 330 : [1998] 2 Suppl. SCR 187 ; Satish Kumar Sharma v. Bar Council of H.P. (2001) 2 SCC 365 : [2001] 1 SCR 34 ; Madhav M. Bhokarikar v. Ganesh M. Bhokarikar (Dead) through LRs. (2004) 3 SCC
607 : [2004] 2 SCR 1122 ; Manoj Narula v. Union of India (2014) 9 SCC 1 : [2014] 11 SCR 712 ;
Government of NCT of Delhi v. Union of India and Ors 2018 (8) SCALE 72 ; Krishnamoorthy v. Shivakumar & Ors. (2015) 3 SCC 467 : [2015] 4 SCR 987 –
referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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