The Supreme Court of India held that the legislators are not debarred from practicing as advocates during the period when they continue to be the Members of Parliament or the State Assembly/Council.
“The provisions of the Act of 1961 and the Rules framed thereunder, do not place any restrictions on the legislators to practice as advocates during the relevant period”, a Large Bench of the Court said.
The Court said that Rule 49 [Bar Council of India Rules] applies where an advocate is a full-time salaried employee of any person, government, firm, corporation or concern. “Legislators cannot be styled or characterized as full-time salaried employees as such, much less of the specified entities. For, there is no relationship of employer and employee. The status of legislators (MPs/MLAs/MLCs) is of a member of the House (Parliament/State Assembly). The mere fact that they draw salary under the 1954 Act or different allowances under the relevant Rules framed under the said Act does not result in 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. “
The Court further said, “Indeed, the legislators are deemed to be public servants, but their status is sui generis and certainly not one of a full-time salaried employee of any person, government, firm, corporation or concern as such.”
The Court also observed that merely because the advocate concerned is an elected people‘s representative, it does not follow that he/she has indulged in professional misconduct or the conferment of power on the legislators (MPs) to move an impeachment motion against the judge(s) of the Constitutional Courts does not per se result in conflict of interest.