Lawyers elected as lawmakers can practise, says Supreme Court

New Delhi: Holding that lawyers are not full-time salaried employees, the Supreme Court on Tuesday rejected a petition seeking a direction to debar legislators from practising as advocates (during the period when they are Members of Parliament or of state Assembly or Council). Giving this ruling, a three-judge bench of Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud also refused to entertain the plea of BJP leader and advocate Ashwini Kumar Upadhyay to declare Rule 49 of the Bar Council of India Rules, prescribing restriction on full-time employees from practising as lawyers as arbitrary and ultra vires the Constitution and to permit all public servants to practise as an advocate.

Writing the judgment, Justice Khanwilkar pointed out that Rule 49 applies where an advocate is a full-time salaried employee of any person, government, firm, corporation or concern. Indisputably, legislators cannot be styled or characterised as full-time salaried employees as such, much less of the specified entities. For, there is no relationship of employer and employee.

The court said that the status of legislators (MPs, MLAs and MLCs) is of a member of the House (Parliament or state Assembly). The mere fact that they draw a salary or different allowances does not result in the creation of a relationship of employer and employee between the government and the legislators despite the description of payment received by them in the name of salary.