“Legal profession requires full-time attention and would not countenance an advocate riding two horses or more at a time”.
Justice Majumdar in Haniraj L. Chulani v. Bar Council
In September 2018, a three-judge bench of the Supreme Court (SC) refused to prevent legislators from practising law during the incumbency of their office. Relying on the lack of a statutory provision for disbarment, SC held that “in the absence of express restriction in this behalf, it is not open for this Court to debar the elected people’s representatives from practising during the period when they are MPs/MLAs/MLCs.” The Court also did not find permitting a few public servants to practice law while barring the rest to be an infringement of Article 14 of the Constitution. This piece is a comment on the SC’s judgment in Ashwini Kumar v. Union of India (September 25, 2018) and attempts to critically analyse the justifications provided by the Court in permitting sitting legislators to practice law.
The petitioner Ashwini Kumar Upadhyay approached the Supreme Court praying for a direction to bar legislators from practising as advocates. He contended that under Bar Council of India Rules (‘BCI Rules’), the legislators’ drawing of salary from the government exchequer ought to preclude them from practising law. He relied on Rule 49 of the BCI Rules, which prohibits an advocate from being a full-time salaried employee of any person, government, firm, corporation or concern. The petitioner also averred that permitting a certain class of public servants to practice law while barring others violates the right to equality under Article 14 of the Constitution. The petitioner cited the case of M. Karunanidhi v. Union of India in which the SC had classified legislators as public servants. The petitioner further alleged a potential conflict of interest when advocates perform their legislative duties. The Court while dismissing the petition, held that the post of a legislator is not full-time salaried employment as required by the BCI Rules. On the possible infringement on the right to equality, it held that it was not a case of discrimination “between equals, or unequal’s being treated equally” and hence, not in violation of Article 14. On conflict of interest, the Court expressed that each case of conflict should be judged on its merits and that no pre-emptive prohibition could be imposed on the legislators.
The absence of an express provision in law: A compelling argument?
The Court relied on the absence of an express provision under the ‘BCI Rules’ to reject the petitioner’s plea for disbarment. However, in the Indian context, the role of the Supreme Court is not limited to the mere interpretation of legislative or regulatory provisions. Article 142 of the Constitution empowers the Supreme Court to pass necessary orders and decree to do complete justice in any matter before it. Additionally, SC in the case of Union Carbide Corporation v. Union of India held that express provisions of the “law” cannot act as limitations to the power of the Supreme Court under Article 142. The Supreme Court is neither bound to simply interpret Rule 49 (BCI Rules) nor is it obligated to ground its decisions in expressprovisions of law. Judgments such as the constitutional recognition of transgender persons (NALSA judgment) and the disqualification of legislators convicted for more than two years (Lily Thomas judgment) has manifested to us the ability of the Supreme Court to creatively adapt to the changing requirements of the society, notwithstanding the absence of legislative provisions. Therefore, the need for an express provision is not a compelling justification for the Court in rejecting the request for prohibiting legislators from practising law.
Constitutional scrutiny under Article 14 of the Constitution: Expedient exclusion?
In its judgment, the Court has not elaborately scrutinized whether permitting certain public servantsto practice as advocates while barring others infringes Article 14 of the Constitution. To that end, the Court merely ruled that Rule 49 does not discriminate between “equals or treats unequal’s equally”. The Court expressed that the pertinent question before it was whether legislators come within the meaning of being a ‘full-time salaried employee’. The Court is right in asserting that the terms full-time salaried employee and public servants constitute two different expressions. However, the Court should have examined whether permitting certain class of public servants while barring others amounts to discrimination as the Court in M. Karunanidhi had included legislators within the expression of public servants. Article 14 prohibits class legislation, but the legislature may discriminate between two classes provided there is an intelligible distinction between the two and that the distinction has a reasonable nexus with the object sought to be achieved. First, the Court refrained from justifying its reasoning for considering legislators and the rest of public servants as two separate classes. Second, the Court did not address whether permitting advocates to become legislators hinders the performance of their duty as “officers of the court”. In the case of Haniraj L. Chulani v. Bar Council, the Supreme Court while interpreting the object of barring advocates from taking up another profession expressed that the prohibition ensures the full-time attention of legal practitioners towards their profession with a “view to bringing out their best so that they can fulfilltheir role as an officer of the court”. In essence, the object behind preventing advocates from taking up employment elsewhere is to ensure their absolute commitment to the legal profession. The Court failed to purposively read Rule 49. The two glaring omissions by the SC highlight the selective nature of addressing matters of interpretative importance.
Conflict of interest and Constitutional impropriety in allowing legislators to practice law
There is every chance of a potential conflict of interest when an advocate in the private space assumes a responsibility of public significance. An advocate is bound to protect clients’ interests, which may at times be at odds with the public good. Though an advocate is not bound to cater to the interests of the client in the legislature, it is unreasonable for us to assume that no legislator-advocate would be influenced by the apprehensions of the client when discussing important matters in the legislature. Conversely, a legislator has been elected to work in the interests of the public. A legislator is supposed to be above suspicion. Allowing legislators to practice law functions to deprive the legislature of its popular legitimacy as the image of legislative office being used to serve certain interest groups is perpetuated. A legislator practicing law raises questions on the propriety of the legislator’s decisions in public office. The Court should have considered possible ramifications of conflict and impropriety in the larger scheme of public interest and institutional image.
Even though the issue of legislators practicing law has attained finality, larger questions of interpretation, constitutional scrutiny and propriety remain unresolved. The Supreme Court has shown that it can selectively choose to rely on the absence of statutory provisions in a few instances while discarding the same absence in instances such as the National Anthem case and the National-Highways Liquor ban case. The Court hasalso conveniently excluded considering the issue of infringement of equality in permitting few public servants to practice law while prohibiting others. On conflict of interest, a blanket ban on legislators practicing law may have ensured that the confidence of the public in the legislative process does not erode any further.
In his work When Lawyers Become Legislators: An Essay and a Proposal, Thomas Kellenberg highlights the importance of putting in place a code of ethics for advocate-legislators. He expresses that a code of ethics “increases the likelihood of legislators deciding an issue on its merits and restores public confidence in the legislative process”. A comprehensive code of ethics in India for advocate-legislators could go a long way in restoring the sanctity of our legislative and judicial processes.
Jonathan Ivan Rajan is a II year student at NALSAR University of Law, Hyderabad. He is interested in Judicial Reforms and Constitutional Law.