Lawyers have played a vital role in the evolution and development of Indian democracy and this tradition continues as they dominate in governance of the country as legislators, ministers, leaders of opposition, party spokespersons etc. Besides being legislators, lawyers, unceasingly appear before the courts for their clients and earn hefty amounts despite receiving salaries and other perquisites drawn on the public exchequer.
The petition filed in the Supreme Court contended that while a public servant cannot practice as an advocate, letting legislators practice law violates Article 14 of the Constitution. The petition also pointed out that because MPs participate and vote in the impeachment of judges of the Supreme Court and the high courts, it would not be appropriate for them to appear before these courts. However, a three-judge bench in Ashwini Kumar Upadhyay vs. Union of India while making an interpretation that the government of India is not the master of a Member of Parliament and therefore there is no employer-employee relationship, declared that Bar Council of India (BCI) Rules do not prohibit legislators from practicing as lawyers.
BCI (Rule 49) prohibits a full-time salaried employee – whether government, corporation or private – to practice law before a court. This prohibition worked on everyone except lawyer- legislators (MP, MLA and MLC). The Salary, Allowances and Pension of Members of Parliament Act, 1954, specified that a member of Parliament is entitled to receive a ‘salary’ per mensem during the whole of his term of office and ‘an allowance’ per day during any period of residence on duty.
They are entitled to pension charged on the consolidated fund of India, at time when it has been abolished for other government employees. Besides these, they get several other perks such as unlimited free train travel, medical facility, chauffer driven car and house etc. By the side of this, freedom to practice law seems to be prima facie irrational, immoral and dilutes the sanctity of office of a legislator.
The major premise of this petition filed in the Supreme Court revolved around the question that an elected representative holds a public office, discharges public duty and therefore he is a public servant. Public office according to Black’s Law Dictionary is “the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government for the benefit of the public.”
An agency for the state, the duties of which involve in their performance the exercise of some portion of sovereign power, either great or small. The Constitution, the Representation of People Act, 1951 as well as the Salary, Allowances and Pension of Members of Parliament Act, 1954 establishes beyond any shadow of doubt that membership of Parliament or State Assembly is an ‘office’ in as much as it is a position carrying certain responsibilities which are of a public character and it has an existence independent of the holder of the office.
The member of Parliament or a State legislature represents “we the people” in the process of law making and decide how the funds of the Centre and the States shall be spent while exercising control over the executive. It is difficult to conceive of a duty more public than this or of a duty in which the State, the public and the community at large would have greater interest. They have privileges conferred by the Constitution to perform their duty effectively and fearlessly representing their constituencies.
Even in Antulay’s case (1984) where the Supreme Court mistakenly held that elected representative is not a public servant, it was observed that a member of a legislative assembly performs public duties cast on him by the Constitution and law. However, Orissa High Court in Habibulla Khan case (1995) correctly observed that an M.L.A. holds an office and performs public duty by virtue of holding that office.
Lately, but aptly the Supreme Court through a five-judge Bench in P. V. Narasimha Rao v. State (1998) categorically stated that MPs and MLAs are public servants. A legislator performs the sovereign function of law-making and, in this regard, he has a fundamental duty to serve and therefore his or her concurrent involvement in any other profession would be extremely unreasonable.
Although there is no provision either in the Constitution or the Rules of Procedure and Conduct of Business of House defining duties and responsibilities of members of Parliament nonetheless the work of a legislator is full-time work devoted for welfare of the people of his constituency. They take part in the proceedings of the house and meet people of their constituencies to address people’s issues when house is not in session.
Members of Legislature are also part of several Standing Committees nominated by the Chairpersons of their respective Houses. These Committees scrutinize the policies, programmes, Bills related to their ministries, and propose recommendations and amendments to the same.
Under the Member of Parliament Local Area Development Scheme, every MP is allocated Rs 5 crore per year (similar funds are given to MLAs for development of their constituency) for initiating developmental works in his constituency.
The scheme is administered by the Ministry of Statistics and Programme Implementation (MoSPI), which lays down guidelines on the works and activities permitted under MPLADS. The funds under MPLADS are guided through the respective implementing agencies in the district. Legislators are hence expected to put full service to public and their constituents ahead of their personal interests.
Engaging oneself in work other than the work mandated by law for monetary benefits would certainly undermine the constitutional and legal duties of a legislator. Supreme Court’s selective wisdom not to intervene in this matter and stop legislators for doing simultaneous practice would not only demean Article 14 of the Constitution and legitimacy of parliament but also will be a cause of discontent in the society. Likewise, allowing part-time advocates is not a healthy practice as Supreme Court rightly observed in Dr. Haniraj Chulani vs. Bar Council of Maharashtra: “Legal profession needs full time attention and would not countenance an Advocate riding two horses or more at a time.”
The writer is Associate Professor of Law, National Law University, Odisha.