Opinion: Why legislators should not practise law in India

Supreme Court: “Legal profession requires full-time attention and would not countenance an advocate riding two horses or more at a time.” Photograph:( Zee News Network )

Delhi, India Mar 07, 2018, 01.41 PM (IST) Yogesh Pratap Singh


Lawyers have played a crucial role in the evolution of Indian democracy. Majority of the freedom struggle leaders and members of the constituent assembly were lawyers. This tradition still continues as lawyers dominate in the governance of country as legislators, ministers, leaders of the opposition, party spokesperson etc. Besides being members of the legislature, they also practice law before courts and earn hefty money. A petition is filed in the Supreme Court to bar 'public servants' and 'elected representatives' from concurrently practising other professions, declaring it as criminal misconduct as Bar Council of India (Rule 49) prohibits a full-time salaried employee whether government, corporation or private to practice law before a court. 

The Salary, Allowances and Pension of Members of Parliament Act, 1954, specified that a member of Parliament is entitled to receive a ‘salary’ per mensem during the whole of his term of office and ‘an allowance’ per day during any period of residence on duty. They are entitled to pension charged on the consolidated fund of India, at a time when it has been abolished for other government employees. Besides these, they get several other perks, such as unlimited free train travel, medical facility, chauffer driven car and house etc. Over this, freedom to practice law seems to be prima facie unreasonable and immoral.    

A legislator holds public office, perform public duty and, hence, a public servant 

'Public office' according to Black’s Law Dictionary is "the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government for the benefit of the public. The Constitution, the Representation of People Act, 1951 as well as the Salary, Allowances and Pension of Members of Parliament Act, 1954 establishes beyond doubt that membership of Parliament in an ‘office’ is as much as it is a position carrying certain responsibilities which are of a public character and it has an existence independent of the holder of the office.   

In a democratic form of government, it is the member legislature who represents 'we the people' in the process of lawmaking and decides how the funds of the Centre and the States shall be spent while exercising control over the executive. It is difficult to conceive of a duty more public than this or of a duty in which the state, the public and the community at large would have greater interest. They have privileges conferred by the constitution to perform their duty effectively and fearlessly. Lately, the Supreme Court through a five-judge Bench in P. V. Narsimha Rao vs. State (1998) categorically stated that MPs and MLAs are public servants. 

Withering the duties of legislator 

Although there is no provision either in the Constitution or the Rules of Procedure and Conduct of Business of House, defining duties and responsibilities of members of Parliament, nonetheless the work of a legislator is full-time work devoted to the welfare of the people of his constituency. They take part in the proceedings of the house and meet people of their constituencies to address people’s issues when the house is not in session. Members of the legislature are also part of several standing committees nominated by the Chairpersons of their respective houses. These committees scrutinise the policies, programmes, bills related to their ministries, and propose recommendations and amendments to the same. Legislators also allocated money for local area development in their constituency. Legislators are, hence, expected to put full service to the public and their constituents ahead of their personal interests. 

A member of legislature performs the sovereign function of lawmaking and, therefore, his or her simultaneous involvement in any other profession would be exceedingly unreasonable. Likewise, we do not want part-time advocates as Supreme Court rightly observed in Dr. Haniraj Chulani vs. Bar Council of Maharashtra: “Legal profession requires full-time attention and would not countenance an advocate riding two horses or more at a time.” Providing lawyers freedom to become a legislator or letting legislators practice law simultaneously is not only violative of Article 14 of the constitution but also cause a state of discontent amongst others. 

 

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)