Report No. 72

Restriction on Practise after being a Permanent Judge

1. Genesis of the Rep Chapter ort and Commission's view.-

The Minister for Law, Tamil Nadu, in a communication to the Minister for Law, Justice and Company Affairs has referred to lectures delivered by Justice P.B. Mukherji, the then Chief Justice of Calcutta High Court, in the course of which the learned Chief Justice had stated1:

"A more serious threat to the judiciary in India is the confiscation of the Judge's right to practise in his own High Court, a professional right for which, he has qualified in his life. Today the price of a seat on the Bench is the confiscation of that professional right to practise in the High Court of his home, in the High Court where he was enrolled and where he practised before being elevated to the Bench."

It was further observed in the course of the lectures:

"This constitutional bar and restriction of Judges preventing them from coming down from the Bench to practise at the Bar strikes at the very root of the independence of the judiciary."

The Tamil Nadu Minister for Law has accordingly suggested that the following proviso be added to Article 220 of the Constitution:

"Provided that the restriction on a person who has held office as a permanent Judge of a High Court to plead or act in the same High Court or before any authority in India shall not operate in the following cases, namely:-

(i) if the person has, at his option or otherwise, been transferred as a Judge to any other High Court and held office in that High Court for a period of not less than three years immediately before the date of his retirement; or

(ii) if a total period of four years has expired from the date of his retirement; and accordingly every such person shall be entitled to plead or act in any High Court or before any authority in India and in the Supreme Court."

The Minister for law, Justice and Company Affairs in a note has directed that the Law Commission might be consulted2 regarding the proposed amendment in Article 220. The Law Commission is not in favour of making the amendment in Article 220 of the Constitution as suggested by the Minister for Law, State of Tamil Nadu.

1. P.B. Mukherji Critical Problems of the Indian Constitution, (1967), pp. 113-115.

2. Note of the Minister for Law Justice and Company Affairs, dated the 23rd March, 1978, Department of Legal Affairs, U.O. No. 1507/78, Advice A Section, dated 23rd March, 1978.