Lawmakers can practice in courts, but with a rider: Bar Council of India

The Bar Council of India (BCI) today decided to allow members of Parliament and legislative assemblies to practise as advocates, but said that those who move an impeachment motion against any judge of the higher judiciary will not be allowed to appear before that court.

BCI Chairman Manan Kumar Mishra, a senior advocate, said that the decision was taken by the apex bar body to prevent the "misuse of powers" and "privileges" of a lawyer and not of a member of Parliament.

The issue of the alleged role of some lawyer-turned-politicians behind reported moves to impeach judges by Parliament came up before the general council meeting of the BCI today in which the council considered a report of its sub-committee on whether members of Parliament and legislative assemblies should be allowed to practise as advocates.

"The BCI has come to a final conclusion that we cannot stop or ban MPs from practising in the courts but there is an exception to it. The lawyer-MPs or MLAs, if they start any motion of impeachment or a removal proceeding against any high court or Supreme Court judge, they will not be allowed to practise in that particular court. This is the majority view of the council," Mishra told a press conference here.

The apex court had on March 12 sought the response of the BCI on a plea filed by Delhi BJP spokesperson Ashwini Kumar Upadhyay, seeking a ban on lawmakers from practising as advocates.

Mishra said the council took the decision after considering the reply given by three of its members -- senior advocates Kapil Sibal, Vivek Tankha and A M Singhvi, who are Rajya Sabha members.

"After considering their replies and the report of the committee, including the report of our co-chairman S Prabhakaran, who has dissented from the majority view, the BCI has come to a final conclusion that we cannot stop or ban MPs from practising in the courts but there is an exception to it. If the lawyer-MPs start any motion of impeachment or a removal proceeding against any high court or Supreme Court judge, they will not be allowed to practise in that court. This is the majority view of the council," he said.

Asked about the privilege of members of Parliament to move impeachment motion, the BCI chairman said that the lawyer-MPs have their privilege as parliamentarians, but "as lawyers, the BCI can put the condition under which they can be allowed to practise or not".

"Our Parliament is supreme. The members have their privilege. We cannot make any comment on their privileges. But as lawyers, we can put the condition under which they can be allowed to practise or not.

"In order to prevent the misuse of the powers and privileges of a lawyer, not of an MP, we have put this condition that if any lawyer-MP starts any impeachment motion or participates in the impeachment motion, he cannot practise in that court," he said.

In February, the committee had recommended that MPs, MLAs and MLCs could be allowed to pursue legal practice, despite getting elected as legislators, subject to certain conditions.

Several advocates of the Congress and other opposition parties have been reportedly making efforts to bring an impeachment motion in Parliament against Chief Justice of India Dipak Misra in the alleged medical scam case.

With regard to the controversy over Justice Jasti Chelameswar's recent letter to the CJI over alleged government interference in the judiciary, Mishra said that it was a communication between the apex court judge and the chief justice of India and the BCI has no role to play in it.

"We came to know about the letter through media reports. The letter was sent to the chief justice. The Bar Council of India has no role in it," he said.

The top court has fixed the PIL of Upadhyay for further hearing on April 23.

The petition has said that while a public servant cannot practise as an advocate, legislators are practising in various courts which is a violation of Article 14 of the Constitution (equality before law).

It has also said that MPs have the power of voting on impeachment of judges of the Supreme Court and the high courts.

"Therefore, allowing them to practise as an advocate in the Supreme Court and the high courts is a very serious 'conflict of interest' because it may allow the judges to feel beholden to them and to oblige them," according to the petition.