• 9964432222
  • Mail Us
  • Appointment
  • Locate Us
  • Chat Now
  • Courses
  • Login
  • Register
Manifest IAS
JournalsOfIndia
Manifest Learning Academy
  • Home
  • SNIPPETSfor Prelims
  • ARTICLESfor Mains
  • BROWSEBY SOURCE
  • DOWNLOADS
No Result
View All Result
  • Home
  • SNIPPETSfor Prelims
  • ARTICLESfor Mains
  • BROWSEBY SOURCE
  • DOWNLOADS
No Result
View All Result
JournalsOfIndia
No Result
View All Result
Home Law & Policy

The right of legislators to practice law

March 14, 2019
in Law & Policy
Reading Time: 4 mins read
0
578
VIEWS
Share on WhatsAppShare on TelegramShare on Facebook
image_pdfMake PDF

Manifest Pedagogy

Office of Profit has been a recurring issue this year through Parliamentary Secretaries being nominated by many states. Tue concept involves both analytical and factual details around hence making it highly relevant for both Prelims and Mains. It should be studied comprehensively as below

  1. Indian Polity and Office of Profit
  2. Governance and Office of Profit
  3. Ethics and Office of Profit

In news

Sc allows practicing law for MPs

Placing it in the syllabus

Separation of powers between various organs dispute redressal mechanisms and institutions.

Static dimension

  1. Office of Profit
  2. Constitutional Provisions on it
  3. Statutory provisions on it
  4. Supreme Court judgments

Current dimension

  1. Issue of Parliamentary Secretary
  2. Issue of legislators as lawyers

Content

What was the issue?

Supreme Court of India recently allowed the legislators to practice law and dismissed a plea to ban legislators from legal practice.

  • The petition filed by a BJP leader and advocate Ashwini Upadhyay had challenged the permission given to legislators to double up as advocates, calling it a violation of Bar Council of India and office of profit rules, and a conflict of interest.The petition also pointed out that the MPs have the power of voting on the impeachment of judges of the Supreme Court and the high courts.
  • The writ petition was filed under Article 32 seeking ban on Legislators from practicing as an Advocate (for the period they are Member of Parliament or State Assembly) in spirit the BCI Rule 49 and Article 14 of the Constitution.
  • According to BCI Rule 49: “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 any such employment, intimate the fact to the BCI and shall cease to practise as an advocate, so long he is in such employment.

SC judgment and reasoning given by it

Supreme Court bench mentioned that the provisions of the Advocates Act, 1961 and the Rules framed thereunder, 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.

What is the concept of ‘office of profit’?

MPs and MLAs, as members of the legislature, hold the government accountable for its work. The essence of disqualification under the office of profit law is if legislators hold an ‘office of profit’ under the government, they might be susceptible to government influence, and may not discharge their constitutional mandate fairly. The intent is that there should be no conflict between the duties and interests of an elected member. Hence, the office of profit law simply seeks to enforce a basic feature of the Constitution- the principle of separation of power between the legislature and the executive.

According to the definition, what constitutes an ‘office of profit’?

The law does not clearly define what constitutes an office of profit but the definition has evolved over the years with interpretations made in various court judgments. An office of profit has been interpreted to be a position that brings to the office-holder some financial gain, or advantage, or benefit. The amount of such profit is immaterial.

In 1964, the Supreme Court ruled that the test for determining whether a person holds an office of profit is the test of appointment. Several factors are considered in this determination including factors such as:

  1. Whether the government is the appointing authority.
  2. Whether the government has the power to terminate the appointment.
  3. Whether the government determines the remuneration.
  4. What is the source of remuneration, and
  5. The power that comes with the position.

What does the Constitution say about holding an ‘office of profit’? Can exemptions be granted under the law?

Under the provisions of Article 102 (1) and Article 191 (1) of the Constitution, an MP or an MLA (or an MLC) is barred from holding any office of profit under the central or state government. The articles clarify that “a person shall not be deemed to hold an office of profit under the government of India or the government of any state by reason only that he is a minister”. The Constitution specifies that the number of ministers including the Chief Minister has to be within 15% of the total number of members of the assembly (10% in the case of Delhi, which is a union territory with legislature).

Provisions of Articles 102 and 191 also protect a legislator occupying a government position if the office in question has been made immune to disqualification by law. In the recent past, several state legislatures have enacted laws exempting certain offices from the purview of office of profit.  Parliament has also enacted the Parliament (Prevention of Disqualification) Act, 1959, which has been amended several times to expand the exempted list.

image_pdfMake PDF
Tags: GS-2Mains

Related Posts

India’s nuclear liability law

India’s nuclear liability law

April 29, 2023
Right to to Default Bail is a Fundamental Right

Right to to Default Bail is a Fundamental Right

April 29, 2023
Triple tests for Altruistic surrogacy

Triple tests for Altruistic surrogacy

April 29, 2023
National Medical Devices Policy- 2023

National Medical Devices Policy- 2023

April 28, 2023
SUPREME initiative

SUPREME initiative

April 28, 2023
The National Health Accounts Estimates report for India (2019-20)

The National Health Accounts Estimates report for India (2019-20)

April 27, 2023
50 years of Kesavananda Bharati case

50 years of Kesavananda Bharati case

April 24, 2023
Animal Birth Control(ABC) Rules, 2023

Animal Birth Control(ABC) Rules, 2023

April 22, 2023
Sangathan Se Samridhhi campaign of DAY-NRLM

Sangathan Se Samridhhi campaign of DAY-NRLM

April 20, 2023
UGC’s National Credit Framework

UGC’s National Credit Framework

April 14, 2023
Please login to join discussion

Our Offline Classroom Student

CONGRATULATIONS TO 2021 TOPPERS !!!

Rank 171 Kumar Shivashish
Rank 250 Sahithya
Rank 263 Sumit Kumar Thakur
Rank 311 Deepak Ramachandra Shet
Rank 455 Ravinandan B M

June 2025
MTWTFSS
 1
2345678
9101112131415
16171819202122
23242526272829
30 
« May    

Browse by Category

  • Agriculture
  • Disaster Management
  • Economy
  • Environment
  • Ethics
  • Foreign Affairs
  • Geography
  • Governance
  • History
  • Law & Policy
  • Opinion
  • People in News
  • Places in News
  • Science & Tech
  • Security
  • Society
  • Sports
  • Uncategorized

Browse by Tags

AIR All India Radio BBC Business Line Business Standard dow Down to Earth DownToEarth DTE Economic Times ET FAO Financial Express GS-1 GS-2 GS-3 GS-4 Hindustan Times IE India & the world Indian express Indiatoday India today Kurukshetra Livelihoods portal LiveMint Mains News Newspaper News Paper PIB Prelims PRS India RSTV Science Reporter Survey The Hindu The India Express The Indian Express The Print the wire Times of India TOI TOPPERS Yojana
JournalsOfIndia

Our vision is to orient the readers to grasp the facts objectively and analyse critically. In the rush of reaching first to the readers, the websites miss the balanced opinion, which is the need of the hour. We aim to reach the readers with more crispness, preciseness and relevance. We bring the articles in UPSC way for the civil services aspirants and the Wisest Way for general readers.

Categories

  • Agriculture
  • Disaster Management
  • Economy
  • Environment
  • Ethics
  • Foreign Affairs
  • Geography
  • Governance
  • History
  • Law & Policy
  • Opinion
  • People in News
  • Places in News
  • Science & Tech
  • Security
  • Society
  • Sports
  • Uncategorized

Browse by Tag

AIR All India Radio BBC Business Line Business Standard dow Down to Earth DownToEarth DTE Economic Times ET FAO Financial Express GS-1 GS-2 GS-3 GS-4 Hindustan Times IE India & the world Indian express Indiatoday India today Kurukshetra Livelihoods portal LiveMint Mains News Newspaper News Paper PIB Prelims PRS India RSTV Science Reporter Survey The Hindu The India Express The Indian Express The Print the wire Times of India TOI TOPPERS Yojana

Newsletter

The most important UPSC news and events of the day.

Get Journals daily newsletter on your inbox.

© 2020 JournalsOfIndia - A free initiative by Manifest Team.

  • Login
  • Sign Up
  • Home
  • SNIPPETS
  • ARTICLES
  • BROWSE
  • DOWNLOADS
No Result
View All Result

© 2020 JournalsOfIndia - A free initiative by Manifest Team.

Welcome Back!

Login to your account below

Forgotten Password? Sign Up

Create New Account!

Fill the forms bellow to register

All fields are required. Log In

Retrieve your password

Please enter your username or email address to reset your password.

Log In