Relevance of Policy Commission

Context 

Recently the Supreme Court has ruled that law-makers (MPs, legislators and members of the legislative council) can not be prevented from working as lawyers.

Background

• In December 2017, Mr. Ashwini Upadhyay wrote a letter to the President of the Bar Council of India (BCI) regarding the prevention of MPs and legislators from legal practice.
• However, the BCI sub-committee formed in response to the letter had given the verdict that the legislators can be allowed to practice.

Bar Council of India The Bar Council of India was constituted by the Parliament under the Advocates Act, 1961 to regulate and represent the Indian Bar. This is a statutory body. It regulates the conduct of business conduct and courtesy and uses the disciplinary jurisdiction over time. It also recognizes the standards for legal education as well as recognizes the universities whose duties will work to determine eligibility for enrollment in the form of an advocate. Apart from this, it protects the rights, privileges and interests of the lawyers and also handles delegation functions such as collecting funds to provide welfare schemes for them.

• Subsequently, Shri Upadhyay filed a petition in the Supreme Court, challenging the permission to play a dual role of a lawyer and law-maker by a person on the basis of conflict of interest and the violation of BCI rules.

Argument in the context of 'Law-maker in the role of lawyer'

• 49th rule of BCI states that any full time salaried employee, whether it is related to a corporation, private company or government, can not practice as a lawyer before the court. No government servant can be involved in the search of any other business and certainly can not offer his services as a lawyer during any other government service.
• In the case of Dr. Honeyraj L Chulani versus Bar Council of Maharashtra and Goa (1996), the Supreme Court had said that no person capable of becoming a lawyer will be admitted if he is in full time or part time in any service or employment.
• Law-makers take their salaries and pensions from public treasury, so they can be classified as 'employees'.
• Lawyers work is full time activity. It is also in the context of MPs and MLAs, that is, they are full time members of parliament and legislative assemblies. They have to take part in the proceedings of the House, have to meet people of their constituency and solve their problems. To facilitate their work, they are given all the facilities like bungalow, car, office, salary. Therefore, they should go to the public and serve them because India needs dedicated MPs.
• Those who practice as MPs and MLA lawyers, charge fees from the petitioner and also get their salary from the defendant. There is a defendant center or state government. It is contradictory in itself because they receive salaries from the public treasury and offer arguments against the government. It can also be seen as a business abusive.
• MPs and MLAs also have the power to initiate impeachment proceedings against a judge, which means they can put pressure on the judge while demanding favorable decisions in any of his lawsuits.

Argument in favor of 'law-maker' in the role of lawyer

• Lawyers are known for clear and logical thinking. The training of law helps them understand law and law-building better. After all, the country has to be run according to the rule of law.
• Lawyers are subject to the Law and Bar Council Rules, which imposes certain restrictions on practicing law. Discrimination is also rooted in the fact that employees engaged in other occupations do not face such restrictions under any law, such as the Engineer, Doctor, etc. The Advocate Act.
• In relation to the legal profession, when a lawyer accepts a brief description of any dispute from a corporate house and is also a member of the House, then the question of conflict of interest always arises. It is clear that no one is present in the House for a particular person nor can he foist in his favor.

♦ However, it applies to everyone. Parliament is not a battleground place. If someone has accepted money or has benefited someone in any manner or given information in a particular case and has played a role in that parliament in parliament, then it is wrong with the view of the illegal and ethical. 
♦ It also applies equally to entrepreneurs who are members of the Legislative Assembly or MP. In case of violation, any privilege committee or ethics committee may notify.

Supreme Court's decision

• The Supreme Court has said that law-makers can not be described as full-time salaried employees because there is no relation between employers and employees in this situation.
• Under the relevant rules made under the law-makers act, 1954 (Parliament, Salary, Allowance and Pension Act, 1954), receives various allowances under the relevant rules. On the basis of this fact, it can not be said that the employer-employee relationship between the government and the law-maker is formed.
• Legislators are considered to be government servants, but their condition is similar to "needle generers" (unique or different from normal) and of course they are not one of the full-time salaried employees of any person, government, company or corporation.
• Law makers are considered to be government servants, but their condition is similar to "needle generers" (unique or general) and certainly do not fall under the category of full-time salaried employees of any person, government, company or corporation. .
• Until the House is dissolved, they are on any post. Action can be initiated against them by the Speaker of the House under disciplinary or privilege. This does not mean that they can be treated as employees.
• Likewise, the participation of law-makers for the work of the house can not be considered as a service provided by the employee to the employer under any standard.

Sources: The Hindu