A bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud sought the response from the BCI -- apex body for regulating the legal practitioners -- as Attorney General K.K. Venugopal said that the same petitioner with similar prayer had moved the top court and same was dismissed last year.
He referred to March 31, 2017, order by which the bench of Chief Justice Jagdish Singh Khehar (since retired) and Justice D.Y. Chandrachud had dismissed the plea by Ashwini Kumar Upadhyay, holding: "The prayer made in this petition do not fall within the realms of our jurisdiction under Article 32 of the Constitution."
The Attorney General also told the court that Parliament meets only for a limited period during a year and what would the lawmakers do when parliament is not in session.
He told the court that the Rajya Sabha members do not have a constituency to go and nurture and that entire country is their constituency.
Senior counsel V. Shekhar appearing for the advocate-petitioner tried to defend the present PIL, saying that the one filed in 2017 was different. As he tried to argue the matter, the court asked him to reserve it for a later date.
The top court had on February 16 sought the assistance of Attorney General K.K. Venugopal in the hearing of the plea by Upadhyay who has cited the Bar Council of India's Rules that bar lawyers from practising during the period they are members of Parliament or a state assembly.
The petitioner had contended that the legislators who are also practising in the court were in a conflict of interest situation because as lawmakers, they are doing many things that have bearings on the functioning of the judiciary.
He had pointed to "serious conflict" of interest, contending that as parliamentarians, they (practising layers) have the power of voting on the impeachment of judges of the Supreme Court and the high courts, and such a situation "may allow the judges to feel beholden to them and to oblige them".
Rule 49 in Chapter VI of the Bar Council Rules say: "An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practise as an advocate so long as he continues in such employment."
In a two-fold plea, Upadhyay seeking to oust the lawyers-cum-lawmakers from the practising, had alternately sought a declaration that Rule 49 is ultra vires the Constitution and its basic structure so as to permit all public servants to practise as advocates.
He had argued that the prevailing practice of legislators also appearing before the courts as lawyers is discriminatory to other public servants who are barred from simultaneously pursuing the legal profession and is violative of Article 14 of the Constitution guaranteeing equality before law.
"A salaried person and particularly a public servant cannot practice as an advocate, but legislators are practising which is violation of Article 14 of the Constitution. Legislators take fee from litigant and salary from the public exchequer, which is professional misconduct," Upadhyay has said in his public interest plea.
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