A Bharatiya Janata Party (BJP) leader and Advocate Ashwini Kumar Upadhyay has written a letter to the Bar Council of India (BCI) to debar parliamentarians and legislators from practicing as advocates. Text of the letter is as follows:-
To: Sh. Manan Kumar Mishra,
18.12.2018
The Chairman, Bar Council of India,
21, Rouse Avenue Institutional Area, New Delhi- 110002
SUB: DEBAR MLAs AND MPs FROM PRACTICING AS AN ADVOCATE
Dear Sir,
1. Chapter-II of Part-VI of the BCI Rules deals with ‘Standards of Professional Conduct and Etiquette’. Its Section-VII inter-alia ‘Restriction on other Employments’ is reproduced below:
“47. An advocate shall not personally engage in any business; but he may be a sleeping partner in a firm doing business provided that in the opinion of the appropriate State Bar Council, the nature of the business is not inconsistent with the dignity of the profession.
48. An advocate may be Director or Chairman of the Board of Directors of a Company with or without any ordinarily sitting fee, provided none of his duties are of an executive character. An advocate shall not be a Managing Director or a Secretary of any Company.
49. 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 practice as advocate so long as he continues in such employment.
50. An advocate who has inherited, or succeeded by survivor ship to a family business may continue it, but may not personally participate in the management thereof. He may continue to hold a share with others in any business which has decended to him by survivor-ship or inheritance or by will, provided he doesn’t personally participate in management thereof.
51. An advocate may review Parliamentary Bills for a remuneration, edit legal text books at a salary, do press-vetting for newspapers, coach pupils for legal examination, set and examine question papers; and subject to the rules against advertising and full-time employment, engage in broadcasting, journalism, lecturing and teaching subjects, both legal and non-legal.
52. Nothing in these rules shall prevent an advocate from accepting after obtaining the consent of the State Bar Council, part-time employment provided that in the opinion of the State Bar Council, the nature of the employment does not conflict with his professional work and is not inconsistent with the dignity of the profession. This rule shall be subject to such directives if any as may be issued by Bar Council from time to time.”
2. The Preamble of Chapter-II of Part-VI of the BCI Rules is thus: “An Advocate shall, at all times, comfort himself in a manner befitting his status as an officer of the Court, a privileged member of the community; and a gentleman, bearing in mind that what may be lawful and moral for a person, who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an Advocate.”
3. On 8.4.1996, in Dr. Haniraj L. Chulani versus Bar Council of Maharashtra & Goa [1996 AIR 1708, (1996) SCC (3) 342] the three Judges Bench of Hon’ble Supreme Court has held that a person who is qualified to be admitted as an Advocate but is in either fulltime or part-time service or employment or is engaged in any trade, business or profession shall not be admitted as an The Apex Court observed that: “Legal profession requires full time attention and would not countenance an Advocate riding two horses or more at a time”.
4. The Members of Executive and Judiciary are not permitted to practice as an Advocate before the Court of Law but the People Representatives, who are also a Public Servant are allowed, which is against the spirit of Article 14-15 of the Constitution.
5. Legislator enjoys better salary, allowance and post-retirement benefits than members of Executive and Judiciary. It is a honorable and full time profession but does not remain noble merely by calling it as such, unless he is dedicated for welfare of people. Legislators are expected to put full time service to public and their constituents ahead of their personal interests.
6. Nobility of the profession of Law also has to be preserved and Therefore, provisions of the Advocates Act and BCI Rules must be given effect in letter and spirit to maintain clean and efficient Bar to serve the cause of justice.
7. Many Legislators (Lawmakers) hold corporate retainer-ship and defend their lawbreaker clients in the Court of Law, which is the matter of conflict of interest. It is not only immoral and unethical but also the violation of Rule 49 of the BCI Rules.
8. A Legislator holds a very important position in our democracy. With 543 Loksabha MPs representing more than 1.3 billion people, MP on an average represents more than 2.25 million people. Similarly, Rajyasabha MP is the voice of his State in Parliament, and as such, has a very important role in our federal political system.
9. The primary role of an MP is as a legislator. According to the Article 111, a Bill becomes an Act only if passed by both Houses of the Parliament and assented by the President. Additionally, when a Bill is introduced in either House of Parliament, all the MPs are supposed to thoroughly read it and participate in the debate on various provisions of the Bill, and propose amendments if they wish so.
10. Apart from Legislator role, MP has deliberative role also. In the Indian Constitutional scheme, Executive is accountable to the Legislator. Principle of accountability is realized partly by People Representatives asking questions to Ministers, including the Prime Minister.
11. Rules of procedure in each House of the Parliament have provisions for ‘Question Hour’ and ‘Zero Hour’ during which written and oral questions can be asked by MPs. These include questions specific to State or Constituency, which he represents or of national interest. MPs must attend parliament everyday and dedicate themselves full time for people’s welfare.
12. The Parliament has several committees, whose members are nominated by the Chairperson of respective Houses. The Committees scrutinize policies, programmes and bills and propose amendments to the same. There are certain other Committees such as Public Accounts Committee and Committee on Public Undertakings, which scrutinize reports submitted by CAG. These Committees are regulated by the Rules of Procedure in each House.
13. The Constitution also has some provisions to make MP’s accountable. The Article 102 states that a MP can be disqualified if he holds an “Office of Profit” under the Government. He can also be disqualified if he quits his party or defects to another party after being elected as an MP under the 10th Schedule to the Constitution. Under Article 101, if an MP is absent from the meetings for more than 60 days without permission, his seat may be declared vacant. Under Article 104, if an MP sits or votes in Parliament without taking oath, he shall be liable to pay a fine of up to Rs 500 per day. However, there is no provision either in the Constitution or in the Rules of Procedure to measure the performance of MPs.
14. The Legislator plays important role in developmental of his State / Constituency. He can fulfill developmental role under the Member of Parliament Local Area Development Scheme (MPLADS), which was launched in 1993. Under the scheme, every MP is allocated Rs 5 crore per year for initiating developmental works in his constituency. The scheme is administered by the Ministry of Statistics and Programme Implementation (MoSPI), which lays down guidelines on the works and activities permitted under MPLADS. The funds under MPLADS are channeled through the respective implementing agencies in the district.
15. Local bodies such as Panchayats and municipalities also have an important role in bringing development at the Part IXA of the Constitution has a provision under which Legislator of State may provide for representation of MP at intermediate and District level Panchayats (Panchayat Samiti and Zila Parishad). Similarly, under Part IXA of the Constitution, State legislator may provide for the representation of MPs in municipal bodies within the constituency. MPs may also be nominated to District Planning Committees (DPCs) which are responsible for preparing development plans for district. For example, in Maharashtra, the State Government nominates MPs and MLAs to the DPCs.
16. The MPs have been assigned an important role in the monitoring of centrally sponsored schemes in their respective districts. The National Rural Drinking Water Programme (NRDWP) mandates the setting up of District Water and Sanitation Mission (DWSM) of which MPs and MLAs from the area would be members. The DWSM is among other things, responsible for formulation, management and monitoring of projects on drinking water security, scrutiny and approval of the schemes submitted by Block Panchayat/Gram Panchayat and coordination of matters relating to water and sanitation between different departments. Similarly, under the National Rural Health Mission (NRHM), MPs are expected to be member of District Level Vigilance and Monitoring Committees (DVMC) to review the progress in implementation of the scheme.
17. The MPs could also work towards catalyzing schemes of the State and Central government in their constituencies. This is possible by proactive engagement with public officials at the Central and State levels, greater interaction with constituents to understand their needs and concerns, and greater information– both qualitative and quantitative– about their As elected representatives, they have legitimate political authority to engage directly with the private/ corporate sector for industrial development of their constituencies.
18. The MPLAD Scheme provides funds to MP for implementing development works in their constituencies. Permissible items under the scheme are: (i) Purchase of tricycles, motorized/ battery operated wheelchair, artificial limbs, etc. for physically challenged individuals. The items purchased will be given to the beneficiaries at a public function. Applications for such assistance shall be examined and approved by Committee under District Chief Medical Officer to ensure proper eligibility. (ii) Health Purchase of ambulances/ hearse vans. District Magistrate/ Chief Medical Officer is responsible for ownership and management of ambulances. Purchase of ambulances to transport sick or injured animals in Wildlife sanctuaries and National Parks. The Wildlife Sanctuary/National Park concerned would be responsible for ownership and management of the ambulances. (iii) Purchase of computers, computer software along with training for government and government aided institutions. Mobile Library for educational institutions of Center, State, U.T or Local bodies and furniture up to Rs 50 lakh for primary/ secondary school. Purchase of book for schools/colleges/public library and vehicles including school buses/ vans with a limit of Rs 22 lakh/year. Nominated MPs can recommend works anywhere in country.
19. The primary function of a MLA is law making. The Constitution of India states that the Members of the Legislative Assembly can exercise their legislative powers on the State List and the Concurrent List. The State List contains subjects of importance to the individual State alone, such as trade, commerce, development, irrigation and agriculture, while the Concurrent List contains items of importance to both the Union and State Government such as succession, marriage, education, adoption, forests and so on.
20. The Legislative Assembly holds absolute financial powers. A Money Bill can only originate in the Legislative Assembly if MLAs give consent. It must be noted that in the States that have a bicameral legislator, both the Legislative Council and the Vidhan Parishad can pass the Bill or suggest changes to the Bill within 14 days of its receipt although the members are not bound to abide by the changes suggested. MLAs authorize all the grants and tax-raising proposals and exercise certain executive powers. MLAs control the activities and actions taken by the Council of Ministers. In other words, the government is answerable to the Legislative Assembly for all its decisions. A vote of no-confidence can be passed only by the MLAs. If passed by a majority, force the ruling government to resign. Question Hour, Cut Motions, Adjournment Motions can be exercised by the MLAs in order to restrict the executive organ of Government machinery. MLAs elects the President of India, Members of the Rajya Sabha, Speaker and Deputy Speaker of the Legislative Assembly and one-third of the Members of the Legislative Council.
21. Many MPs/MLAs appear as an Advocate even during the Parliament/Legislative Assembly session and participate in matters that affects financial interests of Country as well as financial interests of their spouse/children/blood relatives /partner/organization in which they serves as officer/director /trustee/partner or employee, and person with whom they have an arrangement concerning prospective employment.
Dear Sir,
Keeping in view the above stated facts and circumstance and non-compliance of BCI Rules, please take appropriate steps to:
a) debar MLAs and MPs from practicing as an Advocate before the Court of Law in spirit of the Bar Council of India Rules read with Hon’ble Supreme Court’s Judgment dated 8.4.1996 in Dr. Haniraj L. Chulani v. Bar Council of Maharashtra & Goa [1996 AIR 1708, (1996) SCC (3) 342];
b) take such other steps as the Bar Council of India deems fit and proper to ensure the compliance of the Advocate Act, Bar Council of India Rules, particularly, rules related to restriction on other employments of Advocates read with the Apex Court Judgment dated 8.4.1996 in Dr. Haniraj L. Chulani vs. Bar Council of Maharashtra [1996 AIR 1708, (1996) SCC (3) 342].
Thanks and Regards.
Ashwini Kumar Upadhyay
Advocate– Supreme Court
15, M. C. Setalvad Chambers,
Supreme Court of India, New Delhi-110001,
Res: G-284, Govindpuram, Ghaziabad- 201013,
8800278866, 9911966667, aku.adv@gmail.com
CC:
The Hon’ble Chief Justice of India
Through: The Secretary General
Supreme Court of India, New Delhi- 110001
