If you enact law, then don’t practise it
The legal profession does not become noble by mere lip service and if law-makers are allowed to become law-breakers by practicing law while enacting law at the same time, then nobility vanishes from this profession of learning and erudition, feels advocate Ashwini Upadhyay who practices in the Supreme Court and is a BJP leader.
MPs and MLAs must argue in Parliament when a draft Bill has defects, not challenge it in a court of law after it has been signed by the President. Some legislators take retainerships from companies, which raises questions of conflict of interest and professional misconduct. The MP or MLA becomes a corporate lobbyist. Public servants are barred from engaging in other professional services, while a few legislators who are also public servants, open petrol pumps and argue cases in courts.
Allowing sitting MPs, MLAs and MLCs to practice law violates the right to equality, prohibition of discrimination, and protection of life and personal liberty because there is a clear-cut discrimination between MPs, MLAs and MLCs on one side and public servants like a police inspector or an IAS officer. If the state permits legislators to practice law, so too should other public servants be allowed to appear in courts just like doctors, chartered accountants, company secretaries and architects who are experts in their chosen fields.
Rule 49 of the Bar Council of India states that any full-time salaried employee, whether he or she belongs to a corporation, private firm, or the government, cannot practise as a lawyer before a court of law. No public servant can engage in the pursuit of any other vocation and certainly cannot offer his or her services as a lawyer while in government service. The same applies to salaried employees.
A five-judge Bench in M Karunanidhi v. Union of India (1979) categorically stated that MPs and MLAs are public servants, though the employer-employee relationship will not apply to them. Karunanidhi had argued that he was not a public servant in a corruption case. Again, the Supreme Court had declared in 1996 that even a doctor who has passed his MBBS degree cannot appear in court as an advocate unless he quits medical practice.
If doctors, engineers and architects are debarred from practicing two professions simultaneously, there is no reason why those who enact the law in Parliament or the state legislatures should not also be debarred. There are doctors who have passed their Master of Surgery (MS) examination like Dr Sudhakar Sane from Dadar in Mumbai who also did his LLB, LLM and then his PhD in law from the University of Mumbai and wanted to practice medicine and law simultaneously.
Several decades ago, Dr Sane was the president of the Maharashtra Medical Council (MMC) where all fresh MBBS graduates must enroll before they practice medicine. Dr Sane enrolled for his PhD in law under the late Dr Narmada Khodie who was the head of the department of law in the University of Mumbai in the 1990s.
However, he got into trouble with the Bar Council of Maharashtra and Goa (BCMG) which issued him a notice after he cross-examined a doctor against whom there was a case of medical negligence. This doctor complained against Dr Sane to the BCMG for practicing both medicine and law simultaneously and furnished a prescription of Dr Sane as evidence. Dr Sane then had to relinquish his sanad after a battle with the BCMG.
Dr Sane was the PhD examiner in law of a physician Dr Prakash Date, who also got his PhD in law in DNA fingerprinting. His thesis was elaborate and thorough with diagrams and cross-references which justifies the nearly 20 years it took this physician to acquire the PhD degree. Another doctor, Pritam Phatnani did not study beyond his LLB and was an expert in forensic medicine. He taught the subject at the MBBS degree. All these three doctors cannot appear in courts.
But to return to the point at hand, BC Thakur, RG Shah and DP Dhal, who formed a four-man subcommittee set up by the Bar Council of India (BCI) which acted on Upadhyay’s plea, concluded in their report that legislators like MPs, MLAs and MLCs should not be barred from legal practice, thereby allowing ministers like PC Chdambaram, Arun Jaitley and Kapil Sibal to charge mind-boggling sums from their clients while appearing in the high courts and Supreme Court. S Prabhakaran said they should be debarred as there was a conflict of interest.
Against this decision, Upadhyay has gone to the Supreme Court. The decision of the three-member BCI committee violates Article 14 which guarantees the right to equality of all Indian citizens so that legislators like MPs, MLAs, or MLCs are not on a higher pedestal than other citizens like doctors, government employees, or salaried employees who also hold LLB degrees but are debarred from practice like the ordinary police sub-inspector who is a state government employee.
In fact legislators like late Ramrao Adik, who was a Congress minister, used to sit in the Maharashtra legislative assembly when he won an election and returned to the high court bar room when he was out of power. Like him, there are thousands of legislators who practice law and are sitting MPs, MLAs or MLCs. The very fact that they enact law and at the same time help the courts to interpret what they have enacted gives them a headstart so that they charge astronomical fees to appear in courts. Other lawyers, who are equally competent, are unable to charge such high fees.
If doctors, engineers and architects are debarred from practicing two professions simultaneously, there is no reason why those who enact the law in Parliament or the state legislatures should not also be debarred...Rule 49 of the Bar Council of India states that any full-time salaried employee, whether he or she belongs to a corporation, private firm, or the government, cannot practise as a lawyer before a court of law.