Friday, December 29, 2017
Coming straight to the nub of the crucial matter, let me begin at the very beginning by first and foremost pointing out that it has been very rightly demanded by some eminent lawyers, activists and leaders in a letter written to the Bar Council of India (BCI) that those lawyers who become MPs and MLAs should be stopped from practising. The main ground on which they are demanding that the MPs and MLAs should be stopped from practicing is that they are drawing salary just like in any other profession. Then why should they be allowed to practice?
More specifically, let me reveal here that a prominent BJP leader has requested the Bar Council of India to debar MPs and MLAs from practicing as advocates, saying that it was against the spirit of BCI rules which require advocates not to be engaged in any full-time trade, business, occupation or profession. There can be no denying or disputing it! The earlier this is done, the better it shall be in the long term interests of the legal profession which must have full time lawyers and not part time lawyers!
Elaborating further, let me also reveal here that in a letter written to the BCI Chairman – Manan Kumar Mishra, the Delhi BJP leader Ashwani Kumar Upadhyaya who is also an advocate stated clearly and categorically that the practice of lawmakers doubling up as advocates also went directly against the Supreme Court’s landmark verdict in Dr Haniraj L Chulani v Bar Council of Maharashtra & Goa (1996). In this landmark verdict it was held that, “Legal profession requires full time attention and would not countenance an Advocate riding two or more horses at a time”. This merits prompt and positive response.
It is heartening to note that the BCI has also taken serious note of it. This alone explains that why a high powered Committee constituted by it would deliberate and decide this all-important issue in next three days! Before deciding, it will certainly go into all aspects and consider each issue in detail!
Truth be told, the letter – a copy of which has also been sent to CJI Dipak Misra cited BCI rules to list out restrictions on MPs and MLAs on taking up any employment and sought to highlight that those working with the executive and the judiciary were not allowed to practice as advocates. Upadhyaya who had pointed out this glaring anomaly has termed it a violation of right to equality and right to non-discrimination guaranteed under Article 14 and 15 of the Constitution. Absolutely right!
It would be pertinent to mention here that it has been noticed that several MPs and MLAs appeared as advocates during Parliament and Legislative Assembly sessions, which was not only immoral and unethical but also in violation of Rule 49 of BCI Rules. Upadhyaya wrote in his nine-page long letter dated December 18 that, “A legislator enjoys better salary, allowance and post-retirement benefits than members of executive and judiciary. It is an honourable and fulltime profession but does not remain noble merely by calling it as such, unless he is dedicated for welfare of people. Legislators are expected to put fulltime service to public and their constituents ahead of their personal interests. Nobility of the profession of law also has to be preserved and protected. Therefore, provisions of the Advocates Act and BCI rules must be given effect in letter and spirit to maintain clean and efficient Bar to serve the cause of justice.”
To put things in perspective, according to BCI Rule 49 those who are drawing salary in any field are not entitled to practice as a lawyer. BCI Rule 49 reads as follows: “An Advocate shall not be a full-time salaried employee of any person, Government, firm, corporation or concern, so long as he continues to practice, and shall, on taking up any employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practice as an Advocate so long as he continues in such employment”. The BCI will decide on this key issue in next three days. A high powered Committee has been constituted to look into this entire matter after a meeting held on this key issue decided on the same.
Be it noted, BCI Chairman and senior advocate Manan Kumar Mishra said that, “The three-member panel is examining the provisions of the Advocates Act and the Bar Council of India Rules in this respect. They will file their report in the next few days.” Ashwini Upadhyay who filed the petition contended that MPs and MLAs draw their salaries from the Consolidated Fund of India, hence, are “employees of the state”. Upadhyay also submitted before the BCI that, “Under Section 21 of the Indian Penal Code and Section 2(c) of the Prevention of Corruption Act, MLAs and MPs are public servants. Hence, allowing them to practice as an advocate and restricting other public servants is arbitrary, irrational and violation of Articles 14-15 of the Constitution.”
It is also noteworthy that Ashwini contended that it amounted to “professional misconduct” that MLAs and MPs who get salary and other benefits from the public fund, appear against the government. Some of these lawmakers even hold corporate retainer-ships. He also rightly submitted that, “They appear against the State to defend their lawbreaker clients in the Court of Law, which is the matter of conflict of interest.” The petition which Ashwini submitted also pointed out that while an advocate should be fully dedicated to his profession, legislators are also expected “to dedicate their fulltime to public and their constituents ahead of their personal and financial interests.”
While craving for the exclusive indulgence of my esteemed readers, let me inform them that among the members of the Committee are DP Dhall, RG Shah and BC Thakur. According to the Prevention of Corruption Act, 1988, MPs and MLAs come under the category of public servants. In such circumstances, it is considered highly inappropriate that MPs and MLAs are allowed to still practice while other public servants are explicitly barred from doing so! The plea submitted by Ashwini very rightly submitted that the lawmakers – Members of Parliament and Members of the State Assemblies should be banned from doubling up as practising advocates, saying they are salaried public servants and cannot ride two horses at the same time.
Isn’t this the worst case of hypocrisy, double standards and discrimination of the highest order? If this is not, then what else is? This has been allowed to happen since last more than 70 years but anyway it is better to be late than never. It must now be set right!
Why MPs and MLAs are given relaxation everywhere? Why are they treated as above others? Why are the same rules not applied to them like others?
They are many such grey areas and what is most unfortunate is that everywhere it is MPs and MLAs who have been given the long rope! No person can get any government job even if someone maliciously files a false case in any police station but to become an MP or an MLA even if you have many cases pending against you like late Phoolan Devi you can still freely contest elections! All such highly discriminatory practices must be thrown in the dustbin of history!
Why MPs and MLAs alone have the unfettered right to increase manifold their salary without being checked by anyone when even Judges have no such similar rights? Why MPs and MLAs can fight elections even from jail? Why MPs and MLAs alone enjoy so many colonial privileges like providing many of them whomever the government of the day likes with the highest security at taxpayers cost? Why should they not be abolished?
It still remains to be seen what the high powered Committee recommends on this. But I am quite certain that it will henceforth explicitly bar MPs and MLAs from practising and put a full stop to this entire controversy! It needs no rocket scientist to conclude that when BCI Rule 49 explicitly bars salaried class from practicing then why should MPs and MLAs be treated on a different parameter and exempted from the same when they not just get huge salary but also lots of other benefits like housing, vehicles, pension and a lot more!
All said and done, this should have been done a lot earlier probably right after independence. But seventy years down the lane we see still nothing being done till now in this direction. But again like a true optimist I would say that it is better to be late than never!
It cannot be denied that a good beginning has been made by the Bar Council of India in this direction after getting complaints from leaders, lawyers and others. Let us hope that in the next three days we would see some decisive action on this. It is highly inappropriate that MPs and MLAs who don’t get time for even talking are allowed to continue as lawyers for namesake only!
This must be discarded and I am cent percent sure that now this will be done soon! A uniform policy must be framed to restrict the public servants, people’s representatives and members of the judiciary to practice other professions in violation of Articles 14 and 15 of the Constitution and such conflict of interest must be treated as criminal misconduct to check what has been going on unabashedly since last more than 70 years in our country!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.