Restriction on practice after being a permanent Judge

Article 196, Draft Constitution 1948

No person who has held office-

(a) As a judge of a High Court, or

(b) As an additional judge or temporary judge of a High Court on having been recruited from the Bar,

shall plead or act in any Court or before any authority within the territory of India.

Article 220, Constitution of India 1950

No person who has held office as a Judge of a High Court after the commencement of this Constitution shall plead or act in any court or before any authority within the territory of India.

Draft Article 196 (Article 220) was debated on 7 June 1949. It prevented Judges of a High Court from pleading before any court or authority in India.

The Chairman of the Drafting Committee suggested to wholly replace the Draft Article with the following:

‘No person who has held office as a judge of a High Court after the commencement of this Constitution shall plead or act in any court or before any authority within the territory of India.’

The amendment simplified the Draft Article so that it applied only to permanent Judges of the High Court who held the office after the commencement of the Constitution. The debates in the Assembly were based on this amendment.

A member of the Constituent Assembly suggested that the words ‘within the territory of India’ be substituted for ‘within the jurisdiction of that High Court’. Another member echoed this sentiment, arguing that to prohibit those judges who had served even temporarily in a High Court from ever appearing again before any court in the country was unwarranted and undemocratic. He argued that it would be more fair to preclude a former judge from appearing in that High Court where he held office, but that this prohibition should not extend to the whole of India. This amendment was rejected.

Another member proposed that the words ‘after the commencement of the Constitution’ be removed from this article, to prevent those who have been judges at any time to not be allowed to practice at the Bar. He argued that this principle is firmly entrenched in other jurisdiction including in England. He made several arguments in support of the Article, including the dignity of the High Court, and issues of special relations that they might have cultivated as a result of their positions.

The amendment proposed by the Chairman of the Drafting Committee was accepted by the Assembly. All other amendments were rejected. The amended Draft Article was adopted on 7 June 1949.