16 February,New Delhi
The Supreme Court on Friday sought the assistance of Attorney General K.K. Venugopal in the hearing of a plea seeking to debar the lawyers from practicing during the time they are members of parliament or state assemblies.
The bench of Chief Justice Dipak Misra and Justice A.M. Khanwilkar sought Venugopal’s assistanceon a plea by lawyer and BJP leader Ashwini Kumar Upadhyay who has cited the Bar Council of India’s Rules that barred lawyers from practicing during the period they are members of Parliament ora State assembly.
The petitioner has contended that the legislators who are also practicing in the court were in a conflict of interest situation because as lawmakers, they are doing many things that have a bearing on the functioning of the judiciary.
Pointing to “serious conflict” of interest, Upadhyay has contended that as parliamentarians, they (practicing layers) have the power of voting on the impeachment of judges of the Supreme Court and High Courts and such a situation “may allow the Judges to feel beholden to them and to oblige them”.
Rule 49 in Chapter VI of the Bar Council of India Rules says: “An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practise as an advocate so long as he continues in such employment.”
In a two-fold plea, Upadhyay while seeking to oust the lawyers’ cum lawmakers from the practicing, has alternately sought a declaration that Rule 49 is ultra vires the Constitution and its basic structure so as to permit all public servants to practice as advocates.
He argued that the prevailing practice of legislators also appearing before the courts as lawyers was discriminatory to other public servants who are barred from simultaneously pursuing the legal profession and is violative of Article 14 of the Constitution guaranteeing equality before law.
“A salaried person and particularly a public servant cannot practice as an advocate but legislators are practicing which is violation of Article 14 of the Constitution. Legislators take fee from litigant and salary from the public exchequer, which is professional misconduct,” Upadhyay said in his public interest plea.
The court directed the listing of the matter on March 12.