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Report No. 72

Shri H.N. Mukherje.- Shri H.N. Mukherjee said1:

"I wish also to point out that it is better that Judges do not become advocates at all. In the provision in the Bill before us. Judges who have retired or have resigned like my friend Shri Chatterjee did, are precluded only from practising in the courts where they have functioned as Judges. But I feel those who have been Judges should not in the latter phase of their career work as advocates at all. As I told you earlier, Shri Chatterjee in my own habeas corpus application behaved in a manner which would make me beholden to him, which I am in various ways personally speaking, but on the other hand-and I think many of my friends in this House will agree-Shri Chatterjee, for example (I speak with very great respect) rejoices and delights in advocacy.

It is very necessary that we have people who delight in advocacy, and because they delight in the art of advocacy, they can advocate their case with effect, but at the same time perhaps for judicial determination it is necessary that we have a set of people who do not take sides in the way in which many people do. Shri Chatterjee quoted a book by Sir Ivor Jennings on the Constitution of this country. I also happened to look at it because it was lying on the table so very near me, and I find that Sir Ivor Jennings makes a remark in one place. He says in India perhaps the lawyer-politician has played a larger role in public affairs than the lawyer-politician in any part of the world. He says : 'As a lawyer I ought to be happy about it, but my experience is that as a rule lawyer-politicians arc neither good lawyers nor good politicians'.

I do not want lawyer-Judges to be there all the time. I want a Judge who at an early stage'of his career when he made good as a lawyer is appointed as a Judge because he made good as a lawyer. After that he should begin to cultivate a judicial temper. That is why for posts like the Election Commissioner or the Comptroller and Auditor-General I want people with a judicial temper. And Judges, once they are Judges, should decide that they are not going to be advocating cases before one tribunal or the other.

And that is why I support the amendment of my friend Shri K.K. Basu which says that Judges after retirement should not be allowed to practise and also that they should not accept any other job but judicial or quasi-judicial jobs to which appointments are made only by the Chief Justice of India or by the Chief Justice of the relevant High Courts. Apart from that, the other kinds of jobs should not be the kinds of jobs which would be looked forward to by our judiciary."

Shri B.N. Datar, Minister of State in the Ministry of Home Affairs, speaking in reply to the Debate2 on the Bill as reported by the Joint Committee made a reference to the fact that the rigid provision in Article 220 (as it then stood) had "created a certain amount of disinclination or reluctance on the part, of leading or senior advocates to accept the office of High Court Judges". He referred to the high professional income of lawyers, and added that "in order to satisfy a human desire, namely, the desire to practise, if any, after retirement, from service, that is after the age of 60.

We have to make some exceptions" and "we had to make some concession to what I might call this understandable human weakness. That is the reason why we have made a change only so far as the High Court Judges are concerned, and not so far as the Supreme Court Judges are concerned". He referred to the two "extremes of opinion" that had been expressed on the subject-that there ought to be an absolute ban and, at the other extreme, that retired Judges ought to be allowed to practise before other tribunals as well.

1. Parliament Proceedings on the Constitution (Seventh Amendment) Act, 1956, p. 349, (5th September, 1956).

2. Parliamentary Proceedings on the Constitution (Ninth Amendment) Bill, 1956, Vol. 1, pp. 351, 352.



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