The Bar Council of India in furtherance of a petition filed by Advocate Ashwini Kumar Upadhyaya before the Supreme Court of India, has stated that why not a Legislator, an MP, and an MLA be designated as public servant that falls within the definition of the employee-employer relationship, has issued a circular for comments from the legislators, whether they must be banned from practicing in the Courts of law as and when they assume offices.
There is a wide range of debate centered around this issue, where there exists a strong case against the prevalent practice.
The rules of the Advocates Act, specifically bar the persons who are in services under some specific authority whereby drawing an emolument as employment, which is full time. This leads us to ponder, why the Supreme Court of India in the case of M.Karunanidhi vs Union of India declared that the relationship of a legislator with that of the State is not one of an employer-employee, while the legislators do fall in the meaning of the definition of the Public Servants in the legislation.
The issue has another flaw, that rests on the concept that these legislators while they are in power, they receive emoluments from their respective clients, and in certain cases, are parties against the State as well. The ultimate employer of the legislator is the state concerned. This brings in another fact that the Constitution bars the legislators from being involved in any employment other than that of the State itself. The employment means that they must not hold any office of profit apart from that they hold.
This also brings their unavailability to devote their expertise to the profession of law, and the most important job of the legislator. The job of a legislator just does not involve attending the proceeding in the house, but involves at making the lives of the voters better by serving them in the House. Legislators need to visit their constituencies, and conduct surveys, aid in the law making process and much more. The legislators sadly do not devote the necessary time, which is why find many ayarams and gayarams in politics.
The inevitability of lawyers for the political profession is known to all, the logical and the legal expertise that follows them, has from ancient times as they contribute to the the evolution of law. While today, they spend time elsewhere, they have not time to devote to the profession of law.
This is also handicapped by the fact that the lawyers who are legislators have the power to initiate impeachment proceedings against the judges they plead before, while they may use their clout to threaten the judges with any adversities, or their fellow lawyers, they may also abuse the powers.
The politics in judiciary also acts as a mode of publicity which is used in the District Courts and continues upto the higher Courts. The advocates assuming roles as legislators advertise themselves over the expense of the state, get to distinguish themselves over others, this is not under the ethics of the legal profession thus they must be beyond doubt be barred from practicing.
The professions of other callings, like CA, CS, Engineers and Doctors, among others who take up the profession of politician must be barred from practicing their professions and devote their time to the political profession only.
The law must build a a consensus, on this issue and bar the legislators from taking up practice along with the same, as it is unethical and is not healthy for the esteem of the legislative profession.