Article 102 and Article 191 of the Constitution of India provides for disqualification for being chosen as and for being, a member of both houses of Parliament and State Legislature respectively if, he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder.
However, save and except the same, there is no provision in any statute including Representation of Peoples Act, 1951 which bars a Member of Parliament or State Legislature from practicing any other profession after being elected as such.
The case of Vidadala Harinadhababu Vs. N.T.Rama Rao, Chief Minister, State of Andhra Pradesh1 is interesting and intriguing. During the tenure of his Chief Ministership of the erstwhile State of Andhra Pradesh, late Mr. N.T.Rama Rao announced that he would be acting and directing a film titled “Brahmarshi Vishwamitra” in the lead role. The Petitioner filed a writ Petition before the High Court of Andhra Pradesh seeking issuance of a writ of mandamus “restraining the respondent from acting in any films including ‘Brahmarishi Viswamithra’ while in office as the Chief Minister of Andhra Pradesh as he was a ‘public servant’ of State of Andhra Pradesh. The Petitioner had argued that the office of Chief Minister is a full-time post, and a Chief Minister should be accessible to the public as a full-time public servant all the 24 hours
For instance, no Minister may carry on any profession, or business, actively, for gain, while in office. Such activity would be inconsistent with the high office, he holds. It may provide occasion for open abuse. The Code of Conduct evolved by the Union Government and the State Government — does contain salutary restrictions; but, since the Code cannot be treated as law, the restrictions contained therein cannot be enforced by Court.
The oath of office, however, does not say that he shall devote all his time to his official duties. It is a matter left to his good sense and his conscience. Holders of high constitutional offices like Ministers must act with a sense of self-discipline and with due regard to and understanding of democratic norms and constitutional values — even in the matter of their personal conduct. The fact that Court may not regulate their personal conduct is beside the point.
In the said case, the Court had had left it to the conscience of the Ministers whether to simultaneously pursue any other profession or not.
Similarly, in the case of H.C.Arora Vs. State of Punjab2, the Punjab and Haryana High Court declined to pass any order to restrain Mr. Navjot Singh Sidhu, a famous cricketer, from participating in a television comedy show while being a Minister expressing their inability to moral police politicians. However, the matter was subsequently closed as infructuous as the said TV show had come to an end. In his case, to participate in the show, he used to travel across the states.
In the case of Dr.Haniraj L.Chulani Vs.Bar Council of Maharashtra & Goa3, the Supreme Court stated clearly as under:
“In our view looking to the nature of the legal profession to which we have made detailed reference earlier the State Bar Council would be justified in framing such a Rule prohibiting the entry of a professional who insists on carrying on other profession simultaneously with the legal profession. As we have seen earlier legal profession requires full-time attention and would not countenance an advocate riding two horses or more at a time. He has to be a full-time advocate or not at all….
Legal profession requires full time attention and would not countenance an Advocate riding two horses or more at a time. It is axiomatic that an advocate has to burn the midnight oil for preparing his cases for being argued in the court next day. Advocates face examination every day when they appear in courts. It is not as if that after court hours an advocate has not to put in hard work on his study table in his chamber with or without presence of his clients who may be available in consultation.
To put forward his best performance as an advocate he is required to give wholehearted and full time attention to his profession. Any flinching from such unstinted attention to his legal profession would certainly have an impact on his professional ability and expertise. If he is permitted to simultaneously practice as a Doctor then the requirement of his full-time attention to the legal profession is bound to be adversely affected. Consequently, however equally dignified may be the profession of a Doctor, he cannot simultaneously be permitted to practice law which is a fulltime occupation. It is for ensuring the full-time attention of legal practitioners towards their profession and with a view to bringing out their best so that they can fulfill their role as an officer of the court and can give their best in the administration of justice, that the impugned rule has been enacted by the State Legislature.
In our view the impugned Rule does not impose any unreasonable restriction on the right of the professional carrying on any other avocation and insisting on continuing to carry on such profession, while it prohibits entry of such a person to the legal profession. If the contention of the learned Senior Counsel for the Appellant is countenanced and any person professing any other profession is permitted to join the legal profession having obtained the Degree of Law and having fulfilled the other requirements of Section 24, then even chartered accountants, engineers and architects would also legitimately say that during court hours they will practice law and they will simultaneously carry on their other profession beyond court hours.
If such simultaneous practices of professionals who want to carry on more than one profession at a time are permitted, the unflinching devotion expected by the legal profession from its members is bound to be adversely affected. If the peers being chosen representatives of the legal profession constituting the State Bar Council, in their wisdom, had thought it fit not to permit such entries of dual practitioners to the legal profession it cannot be said that they have done anything unreasonable or have framed an arbitrary or unreasonable rule.”
Supreme Court held as above in the context of a case where a medical practitioner sought to enroll himself as an Advocate whereas the Rules framed by the Maharashtra Bar Council denied simultaneous practice of another profession along with practice of law. The ratio of the said decision is very well applicable to a legislator too and the spirit of Rule 49 is that an advocate cannot take up any calling or profession not only an employment.
Therefore, if a Legislator is allowed to practice or indulge in any other profession while being a legislator, he would not be able to do justice to the nation. Further, since practice of any other profession like acting in TV shows, movies, law, medicine etc. being very lucrative, he would tend to devote more time to practice of such other profession more seriously rather than attending the Legislature/Parliament at the cost of public service while enjoying the privileges and benefits attached to a Legislator. The practice of other profession during the time being a legislator can be justified to some extent if such a legislator is nominated to the Parliament due to his special knowledge in matters like literature, science, art and social service as per Article 80(3) of the Constitution of India but not otherwise
Supreme Court of India had ruled, recently, in the case of Ashwini Kumar Upadhyay Vs.Union of India and Ors.4 that there was no bar for Legislators to practice law. The Court has mainly decided the issue interpreting Rule 49 of Bar Council of India Rules framed under the Advocates Act, 1961. Rules 49 provides as under:
“49. An advocate shall not be a fulltime salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon to practice as an advocate so long as he continues in such employment.”
The said Rule 49 deals with a situation where an advocate becomes a full- time salaried employee of any person, government, firm, corporation etc., and Supreme Court stated that the status of a legislator was “Sui generis” and certainly not one of a full time salaried employee and hence they were not covered by Rule 49. The court mainly dismissed the Writ Petition on the ground that there is no such restriction under the said Rule 49. It was observed as under:
“To sum up, we hold that the provisions of the Act of 1961 and the Rules framed there under do not place any restrictions on the legislators to practice as advocates during the relevant period. The closest Rule framed by the Bar Council of India is Rule 49 which, however, has no application to the elected people’s representatives as they do not fall in the category of full-time salaried employee of any person, firm, government, corporation, or concern. As there is no express provision to prohibit or restrict the legislators from practising as advocates during the relevant period, the question of granting relief, as prayed, to debar them from practising as advocates cannot be countenanced. Even the alternative relief to declare Rule 49 as unconstitutional, does not commend to us. As of now, the Bar Council of India has made its stand explicitly clear that no such prohibition can be placed on the legislators. As a result, the reliefs claimed in this writ petition are devoid of merit.”
The legislators are elected representatives and represent a Constituency. However, once being elected, they have to work not only for the development of their constituency but also of the entire nation. They are expected to contribute in the making of laws for the welfare of the country. They are required to study the proposed legislations and highlight the pitfalls therein in the interest of the nation or to improve it for which devotion of their hearts, minds and souls are sine qua non.
He has to voice the concern of the people in the Legislature during when Assembly or Parliament is in session and need to be present in the House for playing an effective role as a Legislator. When the Legislature is not in session, a Legislator is expected to be accessible to the people of his constituency and look after the welfare activities and development work of the constituency and address the problems faced by the people. Therefore, the job of being a Legislator is a serious business and is a full time job. However, the attendance of these legislators in Parliament and Assemblies are very poor and their participation in debates is less said than better. Some of the legislators even participate in such shows on TV channels which denigrates the position to which they are elected.
As discussed above, legal professionals are barred by law from practicing other professions while being advocates and service rules of State and Central Government employment also bar an Officer thereof from practicing any profession or being employed elsewhere during the period of his employment whereas there is no law to restrict the elected representatives from practicing or involving themselves in any other profession or commercial venture during their membership though they may be disqualified if they take up any office of profit. The disqualification is attracted only when one takes up any State or Central Government employment and not when a member is engaged in any profession which is commercial in nature, i.e., the member is paid for the said engagement.
Therefore, it is high time that the Constitution of India and Representation of Peoples Act, 1951 is suitably amended to bar the elected representatives of people of both the Houses of Parliament and State Legislatures from not only taking up any office of profit but also practicing any other profession while being a member/Minister to ensure that their time is entirely devoted for the cause of the nation and bring dignity to the legislators.
www.grandmasters.in | 8 Years & Counting
www.rcls.in | 8 Years & Counting
www.itlegalsummit.com | 8 Years & Counting
www.bfls.in | 8 Years & Counting
www.maels.in | 8 Years & Counting
www.plcs.co.in | 8 Years & Counting
Copyright © 2020 Lex Witness - India's 1st Magazine on Legal & Corporate Affairs Rights of Admission Reserved
