SC refuses to bar lawmakers from practising as advocates
NEW DELHI : The Supreme Court refused on Tuesday to stop lawmakers from practising as advocates.
Dismissing a petition filed by advocate Ashwini Upadhyay, a three-judge bench headed by Chief Justice of India Dipak Misra said lawmakers are not salaried employees of the government and, therefore, cannot be disqualified from practising the legal profession.
Upadhyay had contended that lawmakers appearing in court violated the Advocates Act that disallows any person in full-time employment from practising in courts.
The court said the prohibition applies only where an advocate is a full-time salaried employee of any person, government, firm, corporation or concern. Several senior advocates, including Kapil Sibal, P Chidambaram, Vivek Tankha, and Meenakshi Lekhi are lawmakers.
“Undoubtedly, legislators cannot be styled or characterized as full-time salaried employees as such, much less of the specified entities… The status of legislators is of a member of the Parliament or the State Assembly. The mere fact that they draw salary under The Salary, Allowances and Pension of Members of Parliament Act, 1954… does not result in creation of a relationship of employer and employee between the government and the legislators,” the bench held.
Upadhyay had also argued that lawmakers are expected to discharge their entire time to address the problems of the people and draw salaries from the consolidated fund of India.
“Indeed, the legislators are deemed to be public servants, but their status is sui generis (enjoys certain legal protection) and certainly not one of a fulltime salaried employee of any person, government, firm, corporation or concern as such,” said the bench, comprising justices AM Khanwilkar and DY Chandrachud.
Lawmakers occupy a special position so long as the House is not dissolved. And the fact that a privilege or disciplinary action can be initiated against them by the Speaker does not mean they can be treated as full-time salaried employees. Even their services as a lawmaker cannot be construed as one being rendered to an employer, the court held.
The SC added that there is no provision under the law to even suggest that any restriction has been imposed on the legislators.