The bench of Chief Justice Dipak Misra, Justice A.M.Khanwilkar and Justice D.Y.Chandrachud reserved the order as the counsel for the Bar Council of India told the bench that under the existing rules, the lawmakers were not barred from practicing before the courts.
Attorney General K.K. Venugopal said that it would be travesty if the lawmakers belonging to opposition are categorized as government employees and barred from practicing in the courts merely because they get some remuneration for discharging their responsibilities as public representatives.
He also told the court that parliament meets only for a limited period of time and what would the lawmakers do when parliament is not in session.
He said that law-makers were public representatives and not the full-time employees.
PIL petitioner Ashwini Kumar Upadhyay had pointed to "serious conflict" of interest, contending 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 practice, 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 has sought to oust the lawyers-cum-lawmakers from the practicing, alternately seeking 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 had contended 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 had said in his public interest plea.
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