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Should legislators practise law, asks Bar Council

The BCI’s move came on a plea filed before it by an advocate, Ashwini Kumar Upadhayay, who raised the issue saying politicians who are advocates (and vice versa) are engaging in two professions, legislators and advocates,- which is not permissible under BCI rules.

india Updated: Jan 10, 2018 23:26 IST
HT Correspondent
Lawyers outside Supreme Court.
Lawyers outside Supreme Court. (Mint)

The Bar Council of India may well have set the stage for a rare show of unity and bipartisan behaviour by political parties by deciding to send out notices to practicing advocates who happen to be members of Parliament (MPs) or members of legislative councils or assemblies (MLAs and MLCs) asking why they should not be barred from the profession. Rules require that advocates not be engaged in any other full-time trade, occupation or profession.

With several leading lights from across the political spectrum being advocates, it is likely the move will be unanimously opposed by political parties.

An advocate, in India, is a lawyer eligible to practise in a court of law.

The Bar Council of India is the apex body of lawyers in the country. It is a statutory body that regulates the legal profession.

“The Council has thought it proper to invite the comments of the learned MPs/MLAs/MLCs (who are in the legal profession) before taking any final decision in the matter with regard to ban on their practice. The Council requests the MPs/MLAs and MLCs to furnish their comments within a week. The Council will meet on January 22, 2018 to take final decision,” reads the bar council notice, which is posted on its website.

The council’s notice was prompted by a representation made to it by an advocate, Ashwini Kumar Upadhayay, who raised the issue saying politicians who are advocates (and vice versa) are engaging in two professions, legislators and advocates,- which is not permissible under BCI rules.

Upadhayay has cited judgements of the Supreme Court and BCI rules in his representation.

“Members of Executive and Judiciary are not permitted to practice as an advocate, but people’s representatives, who are also public servants, are allowed (to do so), which is against the spirit of Article 14-15 of the Constitution. “

Building his case, Upadhyay has cited a Supreme Court observation that the “legal profession requires full time attention and would not countenance an advocate riding two horses or more at a time”.

Apart from being in violation of BCI rules, advocates who double as lawmakers also run the risk of conflict of interest, Upadhayay added.

Bar Council of India Chairman, Manan Mishra said: “We have hosted the notice on the BCI?website and will start sending out individual notices from tomorrow. MPs like Kapil Sibal, Salman Khurshid, Abhishek Manu Singhivi, Meenakshi Lekhi, Bhupendra Yadav, KTS Tulsi, Satish Mishra and P Chidambaram will be served notices by emails or indiviually. “

Referring to one of his newspaper articles on the subject, senior advocate Abhishek Manu Singhivi said, “The proponents of this idea have clearly not thought out this issue fully or deeply. Across the board, any number of people juggle their own profession with a sense of civic duty, public service, social work or politics. To add or exclude a person from law, when their alternate participation is in something which is not a profession (namely politics) and has no prescribed legal qualification, is a fallacious and conceptually confused approach”.