The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is the next Article in the series on constitutional provisions in order to aid our readers in understanding them.
220. Restriction on practice after being a permanent Judge.—No person who, after the commencement of this Constitution, has held office as a permanent Judge of a High Court shall plead or act in any court or before any authority in India except the Supreme Court and the other High Courts.
Explanation.—In this article, the expression “High Court” does not include a High Court for a State specified in Part B of the First Schedule as it existed before the commencement** of the Constitution (Seventh Amendment) Act, 1956.
Article 220 is part of the devices to ensure the independence of the office of a High Court judge. It is laid down that after being a permanent judge of the High Court, a person shall not plead in any court in India except the Supreme Court or other High Courts. The Seventh Amendment, however, has seriously diluted the original intent of the founding fathers and the efficacy of the provision.
The Constitution (Seventh Amendment) Act, 1956 radically amended article 220. The restrictions on private practice by retired judges of High Courts now would not apply to temporary and additional judges; nor would retired High Court judges be debarred from practicing before the Supreme Court or High Courts in which they had not served.
The statement of Objects and Reasons appended to the Bill had explained the desirability of change thus:
When a Judge is transferred from one High Court to another, he cannot, in view of the provisions of article 220, resume practice in any of the High Courts in which he has held office as a Judge. The provisions of article 220 therefore put a check on the proposal for the transfer of any Judge of a High Court. It is, therefore, proposed to amend article 220 so that the restriction regarding resumption of practice should apply only to the High Court from which the Judge retires, provided that he had served in that High Court for a period of at least five years immediately before retirement. Such a provision would facilitate the transfer of Judges.
The Bar Council Act relates to the legal practitioners. In its pith and substance it is an enactment which concerns itself with the qualifications, enrolment, right to practice and discipline of the Advocates. As provided by the Act, once a person is enrolled by any one of the State Bar Councils, he becomes entitled to practice in all Courts including the Supreme Court. The act creates one common Bar, all its members being of one class, namely advocates. As the power of legislation relating to those entitled to practice in the Supreme Court and the High Courts is carved out from the general power to legislate in relation to legal and other professions in Entry 26 of List III, it will be an error to say that the Act is a composite legislation partly falling under sections 77 and 78 of List I and partly under Entry 26 of List III.
A judge on the verge of retirement may at least contemplate the chances of being appointed a commission after retirement. It is not to stress that these appointments do have an impact on all judges. But, at least some of them might be interested. To say that some may be interested and their independence might be affected is not intended to cast aspersion on the judiciary as a whole. It is a possibility with potential for the destruction of the independence of judiciary. There may be temptations lurking in these appointments with possibilities of adversely affecting the independence of judiciary.
