THE Bar Council of India (BCI) has constituted a three-member committee to look into the representation of advocate-activist and BJP leader Upadhyay calling on Members of Parliament (MP) and Members of Legislative Assemblies (MLA) from practicing as advocates.
BCI chairman Manan Mishra told LiveLaw that the BCI met and took a decision to constitute a committee to look into Mr Upadhyay’s representation in three days.
The committee comprises DP Dhal, BC Thakur,RG Shah.
Upadhyay had sent a representation to the BCI recently calling for the ban.
On Saturday, he also submitted written submissions before the BCI giving reasons why the ban was a much-awaited check.
“MLAs and MPs get salary from consolidated fund of India, hence, they are employee of the State and the BCI Rule 49 restricts a salaried employee from practicing as Advocate,” he said.
“Under Section 21 of the Indian Penal Code and Section 2(c) of the Prevention of Corruption Act, MLAs and MPs are public servant. Hence, allowing them to practice, as an Advocate and restricting other public servants is arbitrary, irrational and violation of Articles 14-15 of the Constitution,” said one of the reasons stated in the written submissions.
Mr. Upadhyaya has raised the following grounds for supporting his plea.
1. MLAs and MPs get salary from consolidated fund of India, hence, they are employee of the State and the BCI Rule 49 restricts a salaried employee from practicing as Advocate.
2. Under Section 21 of the Indian Penal Code and Section 2(c) of the Prevention of Corruption Act, MLAs and MPs are public servant. Hence, allowing them to practice, as an Advocate and restricting other public servants is arbitrary, irrational and violation of Articles 14-15 of the Constitution.
3. MLAs and MPs get salary and other benefits from public fund. Therefore, appearing against the Central and State Governments itself is not only unethical and immoral but also a professional misconduct.
4. Many MLAs and MPs hold corporate retainer-ship and appear against the State to defend their lawbreaker clients in the Court of Law, which is the matter of conflict of interest.
5. It is an honorable profession but does not remain noble merely by calling it as such, unless an Advocate is fully dedicated for this profession. Similarly, legislators are also expected to dedicate their full time to public and their constituents ahead of their personal and financial interests.
6. Nobility of the profession of Law has to be preserved and protected. Therefore, provisions of the Advocates Act and the BCI Rules must be given effect in the letter and spirit to maintain clean and efficient Bar to serve the cause of justice.
7. Supreme Court in its Judgment dated 8.4.1996 [Dr. Haniraj L. Chulani versus Bar Council of India] has held that a Doctor cannot practice as an Advocate before the Court of Law until he leaves his medical practice.
8. Supreme Court in its Judgment dated 17.04.1998 [P.V. Naraasimha Rao vs. State (CBI/SPE)] has held that MLAs and MPs are public servant. It is not out of context to state that MLAs and MPs get salary every month.
9. Supreme Court in its Judgment dated 03.01.2001 [Satish Kumar Sharma versus Bar Council of Himachal Pradesh] has held that a salaried employee cannot practice as an Advocate before the Court of Law.
10. Supreme Court in its Judgment dated 11.3.2004 [Madhav M. Bhokarikar vs. Ganesh M. Bhokarikar] has held that an Active Director of a Business cannot practice as an Advocate before the Court of Law.
11. The Gujarat High Court in its judgment dated 16.06.2017 [Jalpa Pradeep Bhai Desai versus Bar Council of India & Others] has held that a salaried legal consultant cannot practice as an Advocate before the Court of Law.
12. Legal profession requires full-time attention and would not countenance an Advocate riding two horses at a time.
13. It is impossible for a person to perform two full-time duties at a time. Therefore, MLAs and MPs must be barred from practicing as an Advocate.
Courtesy : LIVELAW NEWSNETWORK