Legislators are free to practise law, says SC

Lawmakers do not fall in the category of full- time salaried employee of any person, firm, government, corporation or concern: SC

Holding that “elected people’s representatives” aren’t full- time salaried employees, the Supreme Court rejected a petition on Tuesday seeking a direction barring legislators from practising as advocates while being members of Parliament or state legislatures. The fact of drawing salaries doesn’t make them employees, the top court said. The bench also refused to entertain a plea to declare Rule 49 of the Bar Council Rules, prescribing restrictions on full- time employees from pactising as lawyers, as arbitrary.

Holding that lawyers are not full- time salaried employees, the Supreme Court on Tuesday rejected a petition seeking a direction to debar legislators from practising as advocates ( during the period when they are Members of Parliament or of state Assembly or Council).

Giving this ruling, a three- judge bench of Chief Justice Dipak Misra and Justices A. M. Khanwilkar and D. Y. Chandrachud also refused to entertain the plea of BJP leader and advocate Ashwini Kumar Upadhyay to declare Rule 49 of the Bar Council of India Rules, prescribing restriction on full- time employees from practising as lawyers as arbitrary and ultra vires the Constitution and to permit all public servants to practise as an advocate.

Writing the judgment, Justice Khanwilkar pointed out that Rule 49 applies where an advocate is a fulltime salaried employee of any person, government, firm, corporation or concern. Indisputably, legislators cannot be styled or characterised as full- time salaried employees as such, much less of the specified entities. For, there is no relationship of employer and employee.

The court said that the status of legislators ( MPs, MLAs and MLCs) is of a member of the House ( Parliament or Assembly). The mere fact that they draw a salary or different allowances does not result in the 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.

The bench said that legislators are deemed to be public servants, but their status is sui generis and certainly not one of a fulltime salaried employee of any person, government, firm, corporation or concern as such. Considering the Constitutional scheme, legislators being elected people’s representatives occupy a seat in Parliament, Assembly or Council as its members and are not in the employment of, or for that matter, full- time salaried employees, the bench observed.