A Bench of the Supreme Court comprising Chief Justice Dipak Misra, Justice AM Khanwilkar and Justice Chandrachud dismissed today a petition seeking to bar legislators from being advocates. The petition had sought to bar the legislators in the light of the rule 49 of the Bar Council of India Rules. Under this rule, an advocate cannot be “a full-time salaried employee of any person, government, firm, corporation or concern.” The petitioner also prayed as an alternative that the Court strike down this rule.
In the Judgement authored by Justice Khanwilkar, the Court rejected the petitioner’s argument that since legislators are paid salary out of the consolidated fund, they fall within the ambit of being employees. The Court viewed the matter as a suis generis (special) case wherein though the elected representatives draw salary from the consolidated fund, they occupy their positions as members of a house and not as employees.
Regarding the other prayer that Rule 49 be struck down, the Court did not agree that there is any discrimination involved in the provision. Instead, the Bench referred to the findings of the four-member committee constituted by the Bar Council of India. The committee had previously concluded that “being legislators per se is not a disqualification to practice law”.
The petitioner had also argued that being a legislator and an advocate would amount to professional misconduct. This contention too was rejected by the Court which stated: “This is a sweeping comment. For, whether it is a case of conflict of interest or professional misconduct would depend on the facts of each case.”
The petitioner had also urged the Court to consider barring legislators from practising as advocates for the duration when they are members of a house. The Court did not consider this option either, and stated, “[T]he Court cannot usurp the functions assigned to the legislature. In other words, 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.”